Slip Op. 26-23
UNITED STATES COURT OF INTERNATIONAL TRADE
Consol. Ct. No. 20-03914
AMERICAN PACIFIC PLYWOOD, INC.; INTERGLOBAL FOREST, LLC; and U.S. GLOBAL FOREST, INC., Plaintiffs, and LB WOOD CAMBODIA CO., LTD., and CAMBODIAN HAPPY HOME WOOD PRODUCTS CO, LTD., Plaintiff-Intervenors, v. UNITED STATES, Defendant, and COALITION FOR FAIR TRADE IN HARDWOOD PLYWOOD, Defendant-Intervenor.
Before: M. Miller Baker, Judge
OPINION
[Granting a motion for reconsideration of the court’s decision sustaining Customs’s redetermination in an EAPA proceeding.] Consol. Ct. No. 20-03914 Page 2
Dated: February 27, 2026
Thomas H. Cadden and Ivan U. Cisneros, Cadden & Fuller LLP, Irvine, CA, on the briefs for Plaintiff In- terGlobal Forest, LLC.
Aimee Lee, Assistant Director, and Monica P. Triana, Senior Trial Counsel, International Trade Field Office, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, New York, NY, on the briefs for Defendant. Of counsel on the briefs was Tamari J. Lagvilava, Office of the Chief Counsel, U.S. Customs and Border Protection.
Baker, Judge: Plaintiff InterGlobal Forest LLC moves for reconsideration of the court’s decision sus- taining U.S. Customs and Border Protection’s redeter- mination that the company evaded antidumping and countervailing duties by falsely describing imported plywood from China as a product of Cambodia. See Slip Op. 25-87, 791 F. Supp. 3d 1348 (2025) (Am. Pac. Ply- wood II). For the reasons explained below, the court grants reconsideration, vacates the judgment in Case 20-3916 brought by InterGlobal, and remands for fur- ther proceedings consistent with this opinion. 1
1 In Cases 20-3914 and 20-3915, no party moved for recon-
sideration, and therefore the judgments in those cases re- main intact. In consolidated litigation such as this, “con- stituent cases remain[ ] independent when it [comes] to (footnote continues on next page) Consol. Ct. No. 20-03914 Page 3
I
Three importers, including InterGlobal, brought these consolidated suits challenging the finding by Customs under the Enforce and Protect Act (EAPA), 19 U.S.C. § 1517, that their ostensibly “Cambodian- origin” plywood came from China. 2 Their Cambodian suppliers, including LB Wood Cambodia Co., Ltd., in- tervened as plaintiffs. The Coalition intervened on the side of the government. The court then sustained the agency’s decision. See Slip Op. 23-93, 2023 WL 4288346 (2023) (Am. Pac. Plywood I).
The importers appealed. Thereafter, the govern- ment sought, and the Federal Circuit allowed, a volun- tary remand. In due course, Customs filed its redeter- mination sticking with its original finding. See ECF 98. The court set a schedule for comments. See ECF 102. After briefing was completed, the matter was submitted for decision. ECF 123.
judgments and appeals.” Hall v. Hall, 584 U.S. 59, 66 (2018); see also Assan Aluminyum Sanayi ve Ticaret A.S. v. United States, Slip Op. 26-13, at 19 n.11, 2026 WL 497882, at *7 n.11 (CIT 2026) (explaining the necessity under Fed- eral Rule of Civil Procedure 58—and by extension USCIT R. 58—for the entry of separate judgments as individual actions become final in consolidated litigation). 2 Customs undertook the investigation at the behest of the
Coalition for Fair Trade in Hardwood Plywood, a group of domestic producers. Consol. Ct. No. 20-03914 Page 4
Two weeks later, InterGlobal filed a “motion for oral argument and other relief” that included merits argument. ECF 124. The importer stated that “after it already submitted its” comments, id. at 5, it learned that in two related classification cases the government had acknowledged that entries of identical plywood ex- ported by LB Wood in the same relevant time frame were not of Chinese origin and thus not subject to an- tidumping and countervailing duties. See id. at 4 (cit- ing Richmond Int’l Forest Prods. LLC v. United States, Case 21-178 (Richmond I), ECF 22 (confession of judg- ment in July 2022)); id. at 2 (citing Richmond Int’l For- est Prods. LLC v. United States, Consol. Case 21-318 (Richmond II), ECF 64, ¶¶ 2, 4 (stipulated judgment in January 2025)). 3 According to the company, judicial estoppel precluded the government from now contra- dicting the factual position it took in those two cases. See id. at 5–7.
The court denied the motion for oral argument without prejudice and treated InterGlobal’s filing as a supplemental merits brief. ECF 127. It also directed the government to respond. Id. Shortly afterwards, the
3 Jurisdiction in those cases was based on 28 U.S.C. § 1581(a). Richmond challenged Customs’s denial of its pro- tests of the agency’s classification of its ostensibly Cambo- dian plywood imports as of Chinese origin. Unlike this EAPA action, where the court role’s is limited to arbitrari- ness review, see Am. Pac. Plywood II, Slip Op. 25-87, at 7-9, 791 F. Supp. 3d at 1354–55, in § 1581(a) cases the court is the factfinder. Consol. Ct. No. 20-03914 Page 5
importer moved that the court take judicial notice of the Richmond I and II judgments as well as the gov- ernment’s discovery responses in the latter case. 4 See ECF 129.
The government filed a combined response to these submissions. See ECF 132. InterGlobal filed a reply, see ECF 134, which the court promptly struck as “un- authorized under the rules.” ECF 135.
The court then issued American Pacific Plywood II sustaining Customs’s redetermination. In so doing, it declined to apply judicial estoppel. See Slip Op. 25-87, at 25–28, 791 F. Supp. 3d at 1361–63. The court also entered judgment. ECF 137.
InterGlobal timely moved for reconsideration un- der USCIT R. 59. See ECF 140. That motion is now fully briefed and ripe for decision.
4 In those responses, the government produced the public
administrative record from this case as facts supporting its contention that LB Wood did not have the capacity to man- ufacture the relevant plywood entries. Case 21-318, ECF 36-2, at 12–13. The responses were attached to the Richmond II plaintiff’s motion to compel production of cer- tain withheld material, including the confidential adminis- trative record from this case. See id., ECF 36. The court granted the motion, subject to a protective order. See id., ECF 51. Consol. Ct. No. 20-03914 Page 6
II
In a nonjury matter, the court may grant rehearing “for any reason for which a rehearing has heretofore been granted in a suit in equity in federal court.” USCIT R. 59(a)(1)(B). In general, such reasons are a “manifest error of law or mistake of fact.” 11 Wright & Miller, Federal Practice & Procedure § 2804 (3d ed. Sept. 2025 update); see also Biery v. United States, 818 F.3d 704, 711 (Fed. Cir. 2016) (a trial court, “in its dis- cretion, may grant a motion for reconsideration when there has been an intervening change in the control- ling law, newly discovered evidence, or a need to cor- rect clear factual or legal error or prevent manifest in- justice”).
A
InterGlobal first argues that striking its reply was “manifestly erroneous” because USCIT Rule 7(d) per- mits such a filing. ECF 140, at 3. It observes that the rule allows a moving party “21 days after service of the response to a dispositive motion to serve a reply.” Id. (emphasis added) (quoting USCIT R. 7(d)). It adds that the rule defines dispositive motions to include “mo- tions for judgment on an agency record” and “any other motion for a final determination of an action.” Id. (quoting USCIT R. 7(g)). The importer contends that because the court treated its motion for oral argument as a merits brief, the “court’s conclusion that the reply was ‘unauthorized under the rules’ directly contradicts Consol. Ct. No. 20-03914 Page 7
Rule 7(d)’s plain language.” Id. at 4 (boldface re- moved).
InterGlobal’s argument fails because Rule 7(d) has no bearing here. As the company brought this case un- der 28 U.S.C. § 1581(c), the applicable provision gov- erning merits briefing following remand is Rule 56.2(h). It authorizes comments opposing the remand redetermination, then responsive comments in sup- port, and finally a remand appendix. USCIT R. 56.2(h)(2)–(4). It then says, “No other comments or papers are allowed, except by leave of court.” USCIT R. 56.2(h)(5) (emphasis added). Consistent with the rule, the post-remand scheduling order here allowed InterGlobal and the other plaintiffs to file comments opposing the remand results, the government and the Coalition to respond with supporting comments, and the plaintiffs to file a remand appendix. See ECF 102. It did not allow for any further briefing.
By treating the motion for oral argument—which contained merits argument—as a “supplemental brief,” the court implicitly permitted that filing nunc pro tunc. But it authorized no further filings by Inter- Global, and the importer did not seek leave to file a reply. Rule 56.2(h)(5) thus barred its filing that the court struck. The importer’s assertion that it could make that submission as of right is unfounded. Consol. Ct. No. 20-03914 Page 8
B
InterGlobal also contends that by striking its reply, the court violated its “fundamental right to be heard under the Due Process Clause of the Constitution.” ECF 140, at 4 (citing Mathews v. Eldridge, 424 U.S. 319, 333 (1976)). It argues that its “substantial finan- cial interest” made it imperative that the court allow its reply. Id. at 5.
“A prerequisite for due process protection is some interest worthy of protecting[:] ‘We must look to see if the interest is within the [Constitution’s] protection of liberty and property.’” Am. Ass’n of Exps. & Imps.–Tex- tile & Apparel Grp. v. United States, 751 F.2d 1239, 1250 (Fed. Cir. 1985) (second alteration in original) (quoting Bd. of Regents v. Roth, 408 U.S. 564, 571 (1972)). “Those seeking constitutional protection un- der the due process clause must point to a ‘legitimate claim of entitlement’ prior to any consideration of the Government’s constitutional obligations.” Id. (quoting Arnett v. Kennedy, 416 U.S. 134, 167 (1974)). Cru- cially, “[a] protectable interest must be more than a ‘unilateral expectation.’” Id. (quoting Roth, 408 U.S. at 577).
The discussion above establishes that InterGlobal’s interest in filing a reply brief was based on a “unilat- eral expectation.” Rule 56.2(h)(5)’s limits on briefing after an agency redetermination are not new. Under those limits, the importer had no “legitimate claim of entitlement” to file a reply to a response to a supple- Consol. Ct. No. 20-03914 Page 9
mental brief. Thus, striking the company’s submission did not implicate due process concerns. 5
C
In sustaining Customs’s redetermination in Ameri- can Pacific Plywood II, the court observed that Inter- Global “appears to contend that its imports contained fewer than three plies and thus were out-of-scope.” Slip Op. 25-87, at 9, 791 F. Supp. 3d at 1355 (emphasis
5 The court also observes that InterGlobal admits that it
omitted the bulk of its theories from its oral argument mo- tion (which the court treated as a supplemental brief) be- cause it planned to develop the points in a reply or at argu- ment. See ECF 140, at 2. In other words, the importer pre- sumptuously assumed that the court would grant its mo- tion for oral argument or at least allow a reply. InterGlobal’s admission that its intent was to fully de- velop its arguments on reply or at oral argument reflects a misunderstanding of how litigation works. “An argument is waived if it is not developed in a party’s opening brief; inclusion in the complaint, reply briefs, or oral argument does not suffice.” Kaptan Demir Celik Endustrisi ve Ticaret A.S. v. United States, Slip Op. 25-131, at 26, 2025 WL 2828840, at *13 (CIT 2025); see also Braun v. Dep’t of Health & Hum. Servs., 983 F.3d 1295, 1305 (Fed. Cir. 2020) (“For reasons of fairness to appellees and of judicial effi- ciency, we generally refuse to consider an appellant’s chal- lenge to particular rulings in a decision under review un- less the challenge was raised and properly developed in the appellant’s opening brief—for which the reply brief and oral argument are not adequate substitutes.”). Consol. Ct. No. 20-03914 Page 10
added). 6 The court rejected this argument as doubly waived because the company failed both to point to rec- ord evidence and to preserve this issue before the agency. See Slip Op. 25-87, at 9–10, 791 F. Supp. 3d at 1355–56.
In moving for reconsideration, InterGlobal clarifies its argument—what it meant is that “LB Wood did not use three-ply (covered merchandise) in manufacturing its plywood for sale to InterGlobal.” ECF 140, at 6–7 (emphasis added). Instead, “substantial transfor- mation” of Chinese-made one-ply and two-ply veneers “into three-ply or larger plywood took place in LB Wood’s Cambodian factory.” Id. at 7. 7
But Customs, weighing the evidence as was its pre- rogative, concluded that “LB Wood failed to substanti- ate its production capacity for the plywood it sold to the United States.” Appx45393. As the court ex- plained, in reaching that conclusion the agency com- plied with the substantial-evidence standard and
6 The antidumping and countervailing duty orders in ques-
tion only cover Chinese-made plywood containing “at least three plies.” Vietnam Finewood Co. v. United States, 633 F. Supp. 3d 1243, 1262 (CIT 2023). 7 When a producer in one country uses inputs made in an-
other country covered by an antidumping or countervailing duty order, the former nation is deemed the country of origin if the inputs were “substantial[ly] transform[ed]” there. Bell Supply Co. v. United States, 888 F.3d 1222, 1228 (Fed. Cir. 2018). Consol. Ct. No. 20-03914 Page 11
refrained from arbitrary decision making. See Slip Op. 25-87, at 13–15, 791 F. Supp. 3d at 1357–58. Inter- Global’s clarification of its argument is unavailing.
D
InterGlobal contends that the court erred in declin- ing to apply judicial estoppel against Customs for tak- ing a position here—that LB Wood could not manufac- ture the imported three-ply plywood—when the agency conceded the exact opposite (albeit as to differ- ent entries) by its capitulation in the Richmond cases. It argues that “[j]udicial estoppel may apply because a court accepted the party’s position, even though the party lost the judgment.” ECF 140, at 13 (quoting 18B Wright & Miller, Federal Practice & Procedure § 4477.2 (3d ed. Sept. 2025 update)).
But in the Richmond cases, it was the importers’ position regarding what LB Wood could produce, not the agency’s, that the court accepted. “The doctrine of judicial estoppel is that where a party successfully urges a particular position in a legal proceeding, it is estopped from taking a contrary position in a subse- quent proceeding where its interests have changed.” RF Del., Inc. v. Pac. Keystone Techs., Inc., 326 F.3d 1255, 1262 (Fed. Cir. 2003) (quoting Data Gen. Corp. v. Johnson, 78 F.3d 1556, 1565 (Fed. Cir. 1996)) (em- phasis by the RF Delaware court). Thus, a litigant that makes a concession and does “not succeed in urging its position” is not later judicially estopped from taking a position inconsistent with that concession. Id. That’s Consol. Ct. No. 20-03914 Page 12
because a concession does not induce reliance by the court to accept the party’s position, which “judicial es- toppel requires.” Wright & Miller, § 4477.2.
Customs was unsuccessful in advancing its position in the Richmond litigation, and the position it takes here is entirely consistent with that (unsuccessful) po- sition. Its interests remain unchanged; its only incon- sistency here is with its concessions that produced de- feat in those cases. A concession that results in the court’s rejection of a litigant’s position cannot support judicial estoppel.
And for good reason. As the court explained in American Pacific Plywood II, “[t]o hold otherwise would discourage parties from ever settling or confess- ing error.” Slip Op. 25-87, at 27, 791 F. Supp. 3d at 1362–63. Settlements and concessions reduce litiga- tion, and for that reason should be promoted, not de- terred. See id. The court accordingly declines to recon- sider its refusal to apply judicial estoppel.
E
InterGlobal argues at length that both res judicata (claim preclusion) and collateral estoppel (issue pre- clusion) stemming from the Richmond I confessed judgment and the Richmond II stipulated judgment bar Customs from contending that LB Wood could not produce the plywood at issue here. See ECF 140, at 9– 10, 15–26. Consol. Ct. No. 20-03914 Page 13
Neither of these theories has any merit for the sim- ple reason that classification adjudications do not have claim or issue preclusive effects as to different entries of the same merchandise. See Schott Optical Glass, Inc. v. United States, 750 F.2d 62, 64 (Fed. Cir. 1984) (“[A] determination of fact or law with respect to one importation is not res judicata as to another importa- tion of the same merchandise by the same parties.”) (citing United States v. Stone & Downer Co., 274 U.S. 225, 236 (1927)); Avenues in Leather, Inc. v. United States, 317 F.3d 1399, 1403 (Fed. Cir. 2003) (“[T]he doctrine of issue preclusion does not hold sway over classification disputes under U.S. Customs law.”) (cit- ing Stone & Downer, 274 U.S. at 234).
But even if classification adjudications could have preclusive effects in non-classification cases (such as this EAPA action) involving different entries of the same merchandise, InterGlobal’s argument would still fail. Under claim preclusion, “a judgment on the mer- its in a prior suit bars a second suit involving the same parties or their privies based on the same cause of ac- tion.” Acumed LLC v. Stryker Corp., 525 F.3d 1319, 1323 (Fed. Cir. 2008) (quoting Parklane Hosiery Co. v. Shore, 439 U.S. 322, 327 n.5 (1979)). The court need not examine each of these elements because Inter- Global was neither a party to the Richmond cases nor in privity with the private plaintiffs in those actions.
The importer contends that it can avoid this imped- iment because exporter LB Wood, a plaintiff-interve- Consol. Ct. No. 20-03914 Page 14
nor in this case, is in privity with the Richmond plain- tiffs. See ECF 140, at 17. In other words, InterGlobal asserts that it stands under LB Wood’s claim preclu- sion umbrella. The court disagrees. To begin with, LB Wood has not participated in the remand proceedings, and so has waived any such protection it might have had. And even if it had not done so, any success it en- joyed would not extend to InterGlobal, a bystander. For claim preclusion purposes, “[t]he bare fact that one plaintiff is joined with others who were parties and who can properly be bound by a prior proceeding does not justify [binding] the nonparty plaintiff as well.” 18A Wright & Miller § 4449 (3d ed. Sept. 2025 update).
InterGlobal’s issue preclusion argument is equally flimsy. That doctrine applies when “(1) a prior action presents an identical issue; (2) the prior action actu- ally litigated and adjudged that issue; (3) the judg- ment in that prior action necessarily required deter- mination of the identical issue; and (4) the prior action featured full representation of the estopped party.” Stephen Slesinger, Inc. v. Disney Enters., Inc., 702 F.3d 640, 644 (Fed. Cir. 2012).
Although the relevant issue in the Richmond cases is identical to the one here—whether LB Wood could manufacture the plywood it exported during the period of review—it was not actually litigated in Rich- mond I’s confessed judgment and Richmond II’s stip- ulated judgment. See Restatement (Second) of Judg- ments § 27 (1982) (“In the case of a judgment entered Consol. Ct. No. 20-03914 Page 15
by confession, consent, or default, none of the issues is actually litigated.”); see also 18A Wright & Miller § 4443 (3d ed. Sept. 2025 update) (“[S]ettlement agree- ments and consent judgments ordinarily support claim preclusion but not issue preclusion.”). Thus, Inter- Global’s issue preclusion argument fails as well. 8
8 InterGlobal also asserts that because of the Richmond
judgments, “the doctrine of stare decisis” somehow “pre- clude[s]” Customs from finding that LB Wood’s plywood is of Chinese origin. ECF 140, at 25–26. That doctrine cannot attach here because those judgments are not judicial rul- ings. See Langton v. Hogan, 71 F.3d 930, 935 (1st Cir. 1995) (“The way in which a consent judgment or consent decree resolves, between the parties, a dispute over a legal issue is not a ruling on the merits of the legal issue that . . . be- comes precedent applicable to any other proceedings under the law of stare decisis . . . .”) (emphasis in original). More- over, stare decisis only applies to legal questions decided in precedential decisions. See Deckers Corp. v. United States, 752 F.3d 949, 956 (Fed. Cir. 2014) (“Stare decisis, therefore, is limited to only the legal determinations made in a prior precedential opinion and does not apply to either issues of fact, such as classification of specific goods within a con- strued tariff provision, or issues of law that were not part of a holding in a prior decision.”) (emphasis added). The country-of-origin determination reflected in the Richmond judgments is a question of fact, and it is axiomatic that trial court decisions (adjudicated or otherwise) are not prece- dential. Cf. Ohio A. Philip Randolph Inst. v. Larose, 761 F. App’x 506, 513 n.4 (Fed. Cir. 2019) (citing Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 469 n.10 (1996) (footnote continues on next page) Consol. Ct. No. 20-03914 Page 16
F
After wildly flailing about, InterGlobal finally lands a punch. It argues that Customs’s finding that LB Wood could not produce the plywood it sold to Inter- Global is arbitrary and capricious given the agency’s contrary concessions in the Richmond litigation. See ECF 140, at 26, 30.
The government responds that “the issues in the Richmond cases and those here are not identical.” ECF 150, at 29. Although not literally identical, those ac- tions and this case did substantially overlap in mate- rial respects, including as to the critical factual ques- tion of whether LB Wood had the capability—during the same relevant time frame—to manufacture its ply- wood exports to this country. As to that question, the agency’s concession in the Richmond cases flatly con- tradicts its position in this case. Making the contradic- tion all the more glaring, in Richmond II Customs cited—before its surrender—the administrative record
(“[I]f there is a federal district court standard, it must be from the Court of Appeals, not from the [many] district court judges in [each district], each of whom sits alone and renders decisions not binding on the others.”)) (brackets in Larose).). Consol. Ct. No. 20-03914 Page 17
in this case as evidence that LB Wood had no such ca- pacity. 9
An agency’s factual determination “‘may be sup- ported by substantial evidence,’ yet ‘nonetheless re- flect arbitrary and capricious action.’” Vicor Corp. v. SynQor, Inc., 869 F.3d 1309, 1323 (Fed. Cir. 2017) (quoting Bowman Transp., Inc. v. Ark.–Best Freight Sys., Inc., 419 U.S. 281, 284 (1974)). “The touchstone” for such review is “rationality,” Hyundai Elecs. Indus. Co. v. ITC, 899 F.2d 1204, 1209 (Fed. Cir. 1990), which includes the “agency’s responsibility to behave” in a “reasonably consistent” manner, Am. Fed’n of Gov’t Emps. v. Fed. Labor Rels. Auth., 777 F.2d 751, 760 (D.C. Cir. 1985) (Scalia, J., concurring).
“[N]ot every instance of an agency reaching incon- sistent outcomes in similar, related cases will neces- sarily be erroneous.” Vicor, 869 F.3d at 1322. But where it “simultaneously issues opinions on the same technical issue between the same parties on the same record, and reaches opposite results without explana-
9 The court may take judicial notice of the fact of Customs’s
concessions in the Richmond cases and of its reliance in Richmond II on the administrative record from this case because those facts are not subject to dispute and can be readily determined from public records. See Tri Union Fro- zen Prods., Inc. v. United States, 161 F. Supp. 3d 1333, 1339 (CIT 2016). Consol. Ct. No. 20-03914 Page 18
tion, . . . the best course is to vacate and remand these findings for further consideration.” Id.
Although the importers in the Richmond actions are not involved here, the dispositive factual issue— whether LB Wood had the capability to produce the plywood at issue during the relevant time frame—is the same. So are the record facts bearing on that ques- tion. Given this stark inconsistency and the absence of any justification for it, the court must vacate its judg- ment in Case 20-3916 and return that matter to the agency. 10
On remand, Customs must provide a reasoned ex- planation of why it found in this proceeding that LB Wood could not produce its plywood exports when it conceded precisely the opposite in the Richmond ac- tions. Cf. Vicor, 869 F.3d at 1323 (“On remand, the [agency] must at least provide some reasoned basis for its opposite holdings, if it chooses to maintain those same, opposing results.”).
10 As the case had been submitted when InterGlobal dis-
covered the contradiction in the agency’s position, the court finds that the company did not have an adequate oppor- tunity to fully present this potentially outcome-determina- tive issue. Cf. 11 Wright & Miller § 2805 (3d ed. Sept. 2025) (“The court has the power and duty to” grant Rule 59 relief “whenever, in its judgment, this action is required in order to prevent injustice.”). Consol. Ct. No. 20-03914 Page 19
G
In its comments opposing the agency’s redetermi- nation, InterGlobal “hypothesize[d]” that it had been denied access to “a laundry list of secret materials bearing on Customs’s decision.” Am. Pac. Plywood II, Slip Op. 25-87, at 22, 791 F. Supp. 3d at 1361. The court concluded that “[e]ven assuming the existence of this supposed data trove,” it was of no moment because the company made “no specific citations to where [the agency] relied on this information in its determination of evasion.” Id. at 22–23, 791 F. Supp. 3d at 1361 (em- phasis and brackets in original) (quoting Royal Brush Mfg., Inc. v. United States, 75 F.4th 1250, 1259 n.10 (Fed. Cir. 2023)). 11
It turns out there is a secret agency data trove after all. InterGlobal’s motion for reconsideration points to the government’s discovery responses in Richmond II. See ECF 140, at 20–22. There, Customs produced not only the public administrative record from this case, but also certain additional materials related to its in- vestigation of LB Wood, including a near-contempora- neous site-visit report conspicuously missing from the
11 In Royal Brush, the Federal Circuit “held that Customs’s
refusal to allow importers accused of evasion to review and address ‘information on which the agency relied in reach- ing its decision’ violated procedural due process.” Id. at 6, 791 F. Supp. 3d at 1354 (quoting Royal Brush, 75 F.4th at 1262). Consol. Ct. No. 20-03914 Page 20
public and confidential record here. 12 See Richmond II, Case 21-318, ECF 36-2, at 6–7.
Having stumbled across a smoking gun, the im- porter nearly turns the weapon on itself. It frivolously asserts that the court should apply an “adverse infer- ence” against the government under 19 U.S.C. § 1677e(b). 13 See ECF 140, at 28–29. But it recovers by more plausibly contending that “the record must be supplemented” with this missing material. See id. at 28 (citing Axiom Res. Mgmt., Inc. v. United States, 564 F.3d 1374, 1380 (Fed. Cir. 2009)).
The government cagily avoids directly responding to InterGlobal’s charge that Customs withheld secret documents. It contends that “in the event” these mate- rials—all of which were in the agency’s possession— are missing from the record, it’s InterGlobal’s fault for not adding them. See ECF 150, at 28. In the face of this
12 InterGlobal’s comments contesting the redetermination
bitterly complained that the record lacked any “contempo- raneous reports, records, or communications by the [inves- tigator], save for eight photographs taken during” the site visit. Am. Pac. Plywood II, Slip Op. 25-87, at 11, 791 F. Supp. 3d at 1356. The agency’s evasion finding largely rested on its investigator’s emails written over a year after that visit. See id. at 12, 791 F. Supp. 3d at 1356. 13 By its plain language, § 1677e(b) only authorizes the De-
partment of Commerce and the International Trade Com- mission to take such action in antidumping and counter- vailing duty investigations. It has no bearing in this EAPA context and it does not empower the court in any setting. Consol. Ct. No. 20-03914 Page 21
dissembling, the court ordered the government to forthrightly state whether the agency included in the administrative record the additional materials pro- duced in Richmond II related to the investigation of LB Wood. See ECF 155.
The jig being up, the government filed a declaration by Tobias Vandall, the agency’s lead analyst in its EAPA investigation. See ECF 156-2. He states that the materials in question “are not on the administrative record, including the remand record, of” this case. Id. ¶ 5. He further states that his requests for “any reports regarding the site visit were unanswered.” Id. ¶ 13 (emphasis added). Nor was he provided with the other materials, notwithstanding that he “specifically asked for any photos and reports obtained during or gener- ated after the visit.” Id. ¶ 10.
“Review on the administrative record, the so-called ‘record rule,’ is a common, well-established limitation placed on judicial review of agency decisions.” Euzebio v. McDonough, 989 F.3d 1305, 1322 (Fed. Cir. 2021) (citing Home Prods. Int’l, Inc. v. United States, 633 F.3d 1369, 1379 (Fed. Cir. 2011)). “The record rule, however, is not without exceptions.” Id. (cleaned up). Under one such exception, “a reviewing court is not precluded under the record rule from considering events that occurred between the date of an agency de- cision and the date of decision on appeal.” Id. (cleaned up) (citing Borlem S.A.-Empreedimentos Industrias v. United States, 913 F.2d 933, 939 (Fed. Cir. 1990)). Consol. Ct. No. 20-03914 Page 22
Indeed, “[w]here such intervening events are properly brought to the attention of the reviewing court, that court may rely on that occurrence and typically will remand for consideration by the decision-maker.” Bor- lem, 913 F.2d at 939.
That is precisely the situation presented here. Cus- toms’s Mr. Vandall states that he specifically asked his colleagues to provide him with any “reports that were generated following” the site visit to LB Wood, ECF 156-2, ¶ 9, and any “photos or reports obtained during or generated after the visit,” id. ¶ 10, but they did not do so, id. ¶¶ 9–10. Thus, this case presents a situation where “intervening events” have made it clear that Customs employees prevented their own agency from considering materials that the relevant decisionmakers wanted to see.
“Just because review is confined to the record does not mean that an agency may deliberately or negli- gently exclude from its record documents that may have been adverse to its decision.” Gilmore ex rel. Est. of Insinga v. Comm’r of Internal Revenue, 149 F.4th 709, 722 (D.C. Cir. 2025) (cleaned up) (quoting City of Dania Beach v. FAA, 628 F.3d 581, 590 (D.C. Cir. 2010)). Here, Customs admits that its employees neg- ligently excluded from the decisionmakers’ considera- tion (and thus the record) materials that the latter group wanted to see and that may have been adverse to its determination. This is an independent basis for vacating the judgment in Case 20-3916 under Rule 59. Consol. Ct. No. 20-03914 Page 23
The court therefore remands that action for reconsid- eration in light of this new information, which must be added to the record. 14
* * *
The court grants InterGlobal’s motion for reconsid- eration, vacates the judgment entered in Case 20-3916, and remands that action for further proceed- ings consistent with this opinion.
Dated: February 27, 2026 /s/ M. Miller Baker New York, NY Judge
14 Although the secret data trove kept hidden from agency
decisionmakers is of no moment under Royal Brush—after all, they could hardly rely on data they were unaware of, see note 11—it matters under the Administrative Proce- dure Act given Mr. Vandall’s admission that the relevant officials wanted to consider this information. By definition, such material is an “important aspect of the problem.” Mo- tor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).