Tri Union Frozen Products, Inc. et al v. United States

Slip Op. 16-20
UNITED STATES COURT OF INTERNATIONAL TRADE
TRI UNION FROZEN PRODUCTS, INC. ET AL.,
Plaintiffs and Consolidated
Plaintiffs,
v.
UNITED STATES ,
Defendant,
and
AD HOC SHRIMP TRADE ACTION
COMMITTEE,
Defendant-Intervenor.
Before: Claire R. Kelly, Judge
Consol. Court No. 14-00249
MEMORANDUM AND ORDER
[Denying VASEP’s motion for judicial notice.]
Dated: March 7, 2016
Jonathan Michael Freed, Trade Pacific, PLLC, of Washington DC argued for Plaintiffs Tri
Union 	Frozen 	Products, 	Inc., 	Mazzetta 	Company 	LLC, 	Ore-Cal 	Corporation, 	and
Consolidated Plaintiff Quoc Viet Seaproducts Processing Trading and Import-Export Co.,
Ltd. With him on the brief was Robert George Gosselink.
William Henry Barringer and Matthew Paul McCullough, Curtis, Mallet-Prevost, Colt &
Mosle LLP, of Washington DC argued for Consolidated Plaintiffs Vietnam Association of
Seafood Exporters and Producers and certain of its individual member companies. With
them on the brief were Claudia Denise Hartleben, Curtis, Mallet-Prevost, Colt & Mosle
LLP, of Washington DC, Alexandra Bradley Hess and Matthew Robert Nicely, Hughes
Hubbard & Reed LLP, of Washington DC.
Nathaniel Jude Maandig Rickard, Picard, Kentz & Rowe, LLP, of Washington DC argued
for 	Consolidated 	Plaintiff 	and 	Defendant-Intervenor 	Ad 	Hoc 	Shrimp 	Trade 	Action
Committee.
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Joshua Ethan Kurland, Trial Attorney, and Kara Marie Westercamp, Trial Attorney,
Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington
DC, argued for Defendant. 	With him on the brief were Benjamin C. Mizer, Principal
Deputy Assistant Attorney General, Jeanne E. Davidson, Director, and Patricia M.
McCarthy, Assistant Director. Of Counsel on the brief was Mykhaylo Alexander Gryzlov,
Senior Attorney, Office of the Chief Counsel for Trade and Compliance, U.S. Department
of Justice, of Washington DC.
Kelly, Judge: This matter is before the court on a motion for judicial notice filed by
Consolidated Plaintiffs Vietnam Association of Seafood Exporters and Producers and
certain of its individual member companies (collectively “VASEP”). 	See generally
Consolidated Pls.’ Mot. for Judicial Notice, Dec. 3, 2015, ECF No. 90 (“Motion”). 	In the
Motion, VASEP asks that the court take judicial notice of certain information in further
support of its USCIT Rule 56.2 motion for judgment on the agency record challenging the
U.S. Department of Commerce’s (“Department” or “Commerce”) final determination in the
eighth administrative review of the antidumping duty order covering certain frozen
warmwater shrimp from the Socialist Republic of Vietnam for the period of February 1,
2012 through January 31, 2013. 	See generally id.; Resp’t Pls. VASEP and Individual
VASEP Members’ Br. Supp. Mot. J. Agency R., Mar. 30, 2015, ECF No. 50 (“VASEP
Br.”). Specifically, VASEP asks the court to take judicial notice of the following:
1. Public comments submitted by university professors in response to a
Department of Commerce request for public comments on differential
pricing analysis published in the Federal Register.
2. Academic articles on the Cohen’s d methodology that explain relevant
underlying statistical principles, including an online statistics textbook
published by an accredited university and an academic paper published at
an educational research conference.
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Motion 1. 1 	On December 23, 2015, Defendant United States (“Defendant”) filed its
response opposing VASEP’s motion for judicial notice. See generally Def.’s Resp Opp’n
to Pls.’ Mot. for Judicial Notice, Dec. 23, 2015, ECF No. 96 (“Def.’s Resp.”). Defendant
argues that “VASEP’s motion misapplies the principle of judicial notice, and seeks to
improperly convert this Court’s examination of an agency’s action based on the contents
of the administrative record into de novo review.” Id. at 1. Specifically, Defendant argues
that judicial notice “is not appropriately exercised in a record-review case, such as this
one,” and “[c]ontrary to VASEP’s assertions, the materials it seeks to submit are not of
the type that satisfy the standards of judicial notice.” Id. at 2–3. On February 10, 2016,
the court held oral argument allowing the parties to further argue their positions on the
1 VASEP provided the following citations for the offered materials attached to its Motion:
1. 	J. 	Gastwirth, 	R. 	Modarres, 	Q. 	Pan, “Some 	statistical 	aspects of 	the
Department’s use of Cohen’s D in measuring differential pricing in Anti-
Dumping cases that should be considered before it is formally adopted”,
received 	June 	19, 	2014, 	available 	at
http://enforcement.trade.gov/download/dpa/diff-pricing-analysis-cmts-
062014.html. (last viewed December 2, 2015).
2. 	Online 	statistics 	Education: 	A 	Multimedia 	Course 	of 	Study
(http://onlinestatbook.com/). 	Project 	Leader: 	David 	M. 	Lane, 	Rice
University., Chapter 19 “Effect Size”, Section 2 “Difference Between Two
Means,” 	available 	at
http://onlinestatbook.com/2/effect_size/two_means.html 	(last 	viewed
December 2, 2015).
3. 	Robert Coe, “It’s the Effect Size, Stupid: What effect size is and why it is
important,” 	Paper 	presented 	at 	the 	Annual 	Conference 	of 	British
Educational 	Research 	Association, 	September 	2002, 	available 	at
http://www.leeds.ac.uk/educol/documents/00002182.htm 	(last 	viewed
December 2, 2015).
Motion 5.
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issues in this case, including VASEP’s Motion. See generally Oral Arg., Feb. 10, 2016,
ECF No. 101. 	The other parties in this action have not taken a position on VASEP’s
Motion. For the following reasons, the court denies VASEP’s Motion. 2
DISCUSSION
Judicial notice is the means by which a court recognizes a fact in the absence of
evidentiary proof. “Judicial notice provides a flexible procedure to take notice that certain
information is true.” Weinstein on Evidence § 201.02[1]. Pursuant to 28 U.S.C. § 2641(a),
“the Federal Rules of Evidence shall apply to all civil actions in the Court of International
Trade.” 28 U.S.C. § 2641(a). Rule 201 of the Federal Rules of Evidence provides that a
court may, at any stage of the proceeding, take judicial notice of any fact “not subject to
reasonable dispute because: (1) it is generally known within the trial court’s territorial
jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy
cannot reasonably be questioned.” Fed. R. Evid. 201(b), (d). The court may take judicial
notice on its own without a request, but “must take judicial notice if a party requests it and
the court is supplied with the necessary information.” Fed. R. Evid. 201(c).
2 In its USCIT Rule 56.2 motion for judgment on the agency record, VASEP also argues that
Commerce wrongfully rejected portions of mandatory respondent Minh Phu Group’s case brief
for containing untimely filed new factual information. 	See VASEP Br. 10–16. 	Much of the
information that VASEP argues Commerce wrongfully rejected from Minh Phu Group’s case brief
overlaps with the information that VASEP requests the court to take judicial notice of here. See
Motion 5; Rejection of New Information in Case Brief, PD 248 at bar code 3218413-01 (July 29,
2014). Despite this common aspect of both motions, the court notes that VASEP’s argument in
its motion for judicial notice is separate and distinct from the argument it has made with respect
to Minh Phu Group’s case brief in its Rule 56.2 motion, and thus the court’s decision here has no
bearing on the latter.
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To be entitled to judicial notice, the moving party must submit the necessary
information to show that the matter is not “subject to reasonable dispute because it: (1) is
generally known within the trial court’s territorial jurisdiction; or (2) can be accurately and
readily determined from sources whose accuracy cannot reasonably be questioned.”
Fed. R. Evid. 201(b)–(c). 	Rule 201 of the Federal Rules of Evidence requires the court
to consider not only whether matter at issue is “not subject to reasonable dispute,” but
also whether it is not subject to reasonable dispute because it is either “generally known”
or “can be accurately and readily determined from sources whose accuracy cannot
reasonably be questioned.” 	Fed. R. Evid. 201(b)(1)–(2). 	Therefore, a condition
precedent to indisputability is whether the movant submits information showing the matter
“is generally known within the trial court’s territorial jurisdiction,” or, alternatively, “can be
accurately and readily determined from sources whose accuracy cannot reasonably be
questioned.” 	Fed. R. Evid. 201(b). 	VASEP’s Motion does not address either condition
precedent. VASEP fails to demonstrate that the information within the offered materials
are in any way not subject to reasonable dispute as required by the rule.
The public comments are not properly the subject of judicial notice. 	VASEP has
supplied no information showing that the public comments are beyond reasonable
dispute, let alone beyond reasonable dispute because they are “generally known” or
capable of accurate verification “from sources whose accuracy cannot reasonably be
questioned.” 	Fed. R. Evid. 201(b). 	VASEP’s own motion concedes that the public
comments are in support of a particular position, not in any way indisputable:
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The public comments . . . were provided to the Department of Commerce in
response to a request for comment on differential pricing. See Differential
Pricing Analysis; Request for Comments, 79 Fed. Reg. 26,720 (Dep’t of
Commerce May, 9, 2014). . . . These comments are relevant because they
support Plaintiff’s position that the differential pricing approach applied in
the underlying proceeding is fundamentally flawed.
Information that is relevant and supports one’s position is not the same as information
that is “not subject to reasonable dispute.” Beyond conclusory statements, VASEP fails
to address the applicable standard and fails to provide support for the proposition that the
public comments satisfy the requirements of Rule 201 of the Federal Rules of Evidence.
VASEP asserts “[a] court may take judicial notice of information appearing on a
government website.” 	Motion 2. 	VASEP relies on two cases which are not binding on
this court and also fail to support VASEP’s position. See id. VASEP cites to Daniels-Hall
v. Nat’l Educ. Ass’n, 629 F.3d 992 (9th Cir. 2010), where the Ninth Circuit, in considering
a suit by employees in connection with “403(b) retirement plans,” took judicial notice of
information displayed on school district websites. See Daniels-Hall, 629 F.3d at 998–99.
VASEP also cites to Laborers' Pension Fund v. Blackmore Sewer Constr., Inc., 298 F.3d
600 (7th Cir. 2002), where the Seventh Circuit took judicial notice that one bank was a
branch office of another, which was information found on an official website of the Federal
Deposit Insurance Corporation. 	See Laborers' Pension Fund, 298 F.3d at 607–08.
VASEP therefore argues that the court should take judicial notice of the public comments
because they “were provided to the Department of Commerce in response to a request
for comment on differential pricing” and "are available on Commerce’s website at
http://enforcement.trade.gov/download/dpa/diff-pricing-analysis-cmts-062014.html.”
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Motion 2. However, VASEP’s reliance on these cases reveals a misunderstanding of the
standard.
The fact that information appears on a government website does not make that
information generally known or readily verified for accuracy and thus not subject to
reasonable dispute. 	In Daniels-Hall, the court took judicial notice of a “list of approved
403(b) vendors” and “neither party dispute[d] the authenticity of the web sites or the
accuracy of the information displayed therein.” 	Daniels-Hall, 629 F.3d at 998–99. 	In
Laborers’ Pension, the court took judicial notice of the fact that one bank was a branch
office of and owned by another bank, which was not subject to reasonable dispute
because the truth of the matter could be “accurately and readily determined” from an
official website. 	Laborers’ Pension, 298 F.3d at 607–08. 	Here, however, the posted
information is subject to reasonable dispute. Defendant argues the public comments “are
not generally known within the trial court’s territorial jurisdiction and are subject to
reasonable dispute––indeed, the whole point of a party submitting comments is to
express its views and make an argument on a disputed issue.” Def.’s Resp. 3. The truth
of the public comments also cannot be accurately and readily determined by referring to
the government website. All that can be determined is that those comments were made,
which is not the purpose for which VASEP has offered the public comments. 	The
standard is not that the offered information is “not subject to reasonable dispute” because
it is published on a website, but rather, the standard is that the offered information is not
subject to reasonable dispute because it is “generally known” or “can be accurately and
readily determined from sources whose accuracy cannot reasonably be questioned.”
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Fed. R. Evid. 201(b). Thus, it is not appropriate for the court to take judicial notice of the
public comments because VASEP has not demonstrated that they are not subject to
reasonable dispute.
The academic materials are also not the proper subject of judicial notice. VASEP
again fails to demonstrate that the information contained within the academic materials is
not 	subject 	to 	reasonable 	dispute. 	VASEP 	simply 	states 	that 	the 	materials 	are
“[a]cademic articles on the Cohen’s d methodology that explain relevant underlying
statistical principles, including an online statistics textbook published by an accredited
university and an academic paper published at an educational research conference” and
that “they are directly relevant to the differential pricing analysis that Commerce applied
in the underlying proceeding.” Motion 1, 3. VASEP additionally states that “[t]hese papers
are further unique in that Commerce in issuing its final results in the underlying proceeding
indirectly relied upon other aspects of the materials to support its own position.” Id. at 3.
Again, VASEP refers to these materials as “relevant” and “unique.” See id. 	However,
neither relevance nor uniqueness is the standard for judicial notice. 	The applicable
standard is whether the facts in the documents are not subject to reasonable dispute
because they are either “generally known” or “can be accurately and readily determined
from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b).
Nowhere does VASEP address this standard and explain why the information from the
academic materials is not reasonably subject to dispute. 	VASEP has simply failed to
supply “the necessary information” warranting judicial notice of the academic materials.
Fed. R. Evid. 201(c).
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VASEP claims that the court should take judicial notice of the information in the
academic materials because it “undermine[s] Commerce’s rationale and underlying
assumptions.” Motion 3. But the standard for judicial notice is not whether the information
sought 	might 	undermine 	Commerce’s 	rationale, 	but 	whether 	the 	information 	is
indisputable because it is “generally known” or “can be accurately and readily determined
from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b).
VASEP’s citation to Borlem S.A. – Empreedimentos Industriais v. United States, 913 F.2d
933 (Fed. Cir. 1990), does not support its position that information that undermines
Commerce’s position is subject to judicial notice notwithstanding the standard embodied
in Rule 201 of the Federal Rules of Evidence. 3 	In Borlem, the Court of Appeals for the
Federal Circuit considered the International Trade Commission’s (“ITC”) authority to
reconsider a determination pursuant to an order from the Court of International Trade.
See Borlem, 913 F.2d at 940. 	The Court of International Trade had ordered the ITC to
reconsider its affirmative threat of injury determination after taking judicial notice of
3 VASEP also cites Union Camp Corp. v. United States, 23 CIT 264, 53 F. Supp. 2d 1310 (1999)
which is not binding on this court and, in any event, fails to support VASEP’s position. In Union
Camp, the court granted a motion to reconsider the court’s prior remand order finding that the
“Remand Order was ambiguous, in so far as Commerce interpreted the Remand Order as
preventing it from considering record evidence of market prices in valuing the octanol-2.” Union
Camp, 23 CIT at 264, 53 F. Supp. 2d at 1313. In doing so, the court took judicial notice of the
fact that “in its third administrative review of antidumping duties on sebacic acid from the [People’s
Republic of China], Commerce, on the basis of a letter from the editor of the Chemical Weekly
(India), reversed its previous position and found that the ‘octanol’ quote from this publication did
not refer to octanol–1.” Id. at 265, 53 F. Supp. 2d at 1313. Taking judicial notice of an agency’s
finding in a final determination is something that cannot be disputed because it can be accurately
and readily verified. 	That the court went on to direct the agency on remand to open the
administrative record and consider the letter from the judicially noticed determination does not
support supplementing of the record before the court in this case.
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Commerce’s amended final determination of sales at less than fair value of tubeless steel
disc wheels from Brazil, noting:
[T]his Court must take judicial notice of decisions of federal executive
departments when requested by a party. See, Fed.R.Evid. 201; Caha v.
United States, 152 U.S. 211, 221–22, 14 S.Ct. 513, 516–17, 38 L.Ed. 415
(1894); 	10 	Moore's 	Federal 	Practice 	§ 	201.02(1) 	(2nd 	Ed.1988 	&
Supp.1989). Since plaintiff requested this Court to take judicial notice of the
Second–Amended Determination by Commerce, this Court must and does
take 	judicial 	notice 	of 	that 	determination. 	The 	Second–Amended
Determination terminated suspension of liquidation for all entries of TSDWs
from Brazil by FNV. In the Second–Amended Determination Commerce
indicated the reason for the suspension was its finding of de minimis
dumping margins.
Borlem S.A.-Empreedimentos Industriais v. United States, 13 CIT 535, 541, 718 F. Supp.
41, 46 (1989), aff'd and remanded, 913 F.2d 933 (Fed. Cir. 1990). The Court of Appeals
affirmed the Court of International Trade’s decision to take judicial notice of a finding in
an administrative proceeding. Borlem, 913 F.2d at 940. The Court of Appeals’ decision
in Borlem fits within the framework of the Rule 201(b). In Borlem, Commerce’s finding in
the amended final determination was not subject to dispute because the result reached
by Commerce was “on the record, having been published in the Federal Register,” and
could be accurately and readily determined. Borlem, 913 F.2d at 940. While one might
have contested that Commerce reached the correct result, one could not dispute that
Commerce reached the result it did. The latter point is the point that was judicially noticed.
Here, VASEP does not seek to have the court take notice of the fact that the academic
articles were written or that the public comments were made, it wishes to have the
information from those materials judicially noticed for the truth of the statements contained
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within for the court to consider. VASEP has failed to put forth any showing that the truth
of the information from these materials is indisputable.
VASEP’s argument that Commerce relied on the offered academic materials in the
final results here mischaracterizes Commerce’s conduct. 	VASEP states that “[t]hese
papers are further unique in that Commerce in issuing its final results in the underlying
proceeding indirectly relied upon other aspects of the materials to support its own
position. Specifically, Commerce relied upon findings and direct quotations from Certain
Activated Carbon from the People's Republic of China: Final Results of Antidumping Duty
Administrative 	Review, 	77 	Fed. 	Reg. 	67,337 	(Dep't 	of 	Commerce 	Nov. 	9, 2012)
(“Activated Carbon”), I&D Memo at Comment 4.” 	Motion 3. 	However, as Defendant
correctly points out, Commerce relied on a prior determination that was reached after
considering similar materials, but Commerce did not rely upon those materials in reaching
its determination here. 	See Def.’s Resp. 4. 	The record in Activated Carbon, not the
administrative proceeding here, contained these materials. 	Commerce’s reliance on a
finding from a prior determination did not consequently incorporate the information from
the record of that proceeding to the record of the instant administrative review.
Moreover, 	granting 	VASEP’s 	Motion 	in 	this 	case 	would 	run 	counter 	to 	a
fundamental principle of administrative law, namely that “the focal point for judicial review
should be the administrative record already in existence, not some new record made
initially in the reviewing court.” Camp v. Pitts, 411 U.S. 138, 142 (1973). The purpose of
judicial notice is to promote judicial economy by dispensing with formal proof when a
matter cannot be disputed. 	See Weinstein on Evidence § 201.02[2]. 	Judicial notice is
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not meant to circumvent the creation and review of an agency record. 	Therefore, the
Court of Appeals has recognized, as a general rule supplementation of the administrative
record is not permitted. See Axiom Res. Mgmt. v. United States, 564 F.3d 1374, 1379–
80 (Fed. Cir. 2009) (determining the lower court abused its discretion by admitting extra-
record evidence because an administrative record “should be supplemented only if the
existing record is insufficient to permit meaningful review consistent with the APA”);
Murakami v. United States, 46 Fed. Cl. 731, 739 (2000), aff’d, 398 F.3d 1342 (Fed. Cir.
2005) (explaining that the court is disinclined to allow judicial notice to circumvent the rule
against supplementing an agency’s record on review). While there may be exceptions to
that general rule, such as when effective review cannot be had without the information,
see, e.g., Axiom Res. Mgmt., 564 F.3d at 1379–80 (Fed. Cir. 2009); Murakami, 46 Fed.
Cl. at 735, aff’d, 398 F.3d 1342 (Fed. Cir. 2005), grounds for an exception do not exist
here. VASEP gives the court no reason to ignore this general rule. There is no showing
that the absence of these materials precludes judicial review. 	The court declines to
consider information that was not a part of the administrative record before Commerce.
Most importantly, VASEP has made no showing that the information at issue is not subject
to reasonable dispute let alone not subject to reasonable dispute because it is generally
known or because its accuracy can be readily determined.
CONCLUSION
VASEP has not demonstrated that the public comments or the academic materials
meet the requirements of Rule 201 of the Federal Rules of Evidence. 	Therefore, upon
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consideration of VASEP’s Motion, all papers and proceedings in this action, and upon
due deliberation, it is hereby
ORDERED that VASEP’s motion for judicial notice is denied.
/s/ Claire R. Kelly
Claire R. Kelly, Judge
Dated:March 7, 2016
New York, New York
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