I.D.I. International Development and Investment Corporation v. United States

PUBLIC VERSION
Slip Op. 21-82
UNITED STATES
COURT OF INTERNATIONAL TRADE
Court No. 20-00107
I.D.I. INTERNATIONAL DEVELOPMENT AND
INVESTMENT CORPORATION,
Plaintiff,
v.
UNITED STATES,
Defendant,
and
CATFISH FARMERS OF AMERICA, et al.,
Defendant-Intervenors.
Before: M. Miller Baker, Judge
OPINION
[The court denies Plaintiff’s motion for judgment on
the agency record and grants judgment for Defendant
and Defendant-Intervenors.]
Dated: July 6, 2021
Robert L. LaFrankie, Crowell & Moring LLP of Wash-
ington, DC, for Plaintiff.
Kara M. Westercamp, Trial Attorney, Commercial Lit-
igation Branch, U.S. Department of Justice of Wash-
ington, DC, for Defendant. With her on the brief were
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Brian Boynton, Acting Assistant Attorney General;
Jeanne E. Davidson, Director; and Patricia M. McCar-
thy, Assistant Director. Of counsel on the brief was
Kirrin A. Hough, Attorney, Office of the Chief Counsel
for Trade Enforcement and Compliance, U.S. Depart-
ment of Commerce of Washington, DC.
Jonathan M. Zielinski, Cassidy Levy Kent (USA) LLP
of Washington, DC, for Defendant-Intervenors. With
him on the brief was James R. Cannon, Jr.
Baker, Judge: In this case, a Vietnamese fish ex-
porter challenges the Department of Commerce’s de-
nial of its application for a separate antidumping rate
and imposition of the far higher country-wide rate gen-
erally applicable to frozen fish imports from Vietnam.
For the reasons explained below, the court sustains
Commerce’s decision.
Regulatory Background
When Commerce imposes antidumping duties on
imports from countries with non-market economies, it
presumes that all exporters in such countries are con-
trolled 	by 	the 	government. 	Hung 	Vuong 	Corp. 	v.
United States, 483 F. Supp. 3d 1321, 1340–41 (CIT
2020). Any exporter in a country with a non-market
economy will accordingly receive that country’s anti-
dumping duty rate unless the exporter applies for a
separate rate and demonstrates that it is both de jure
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and de facto independent of the government. Id.1 If
Commerce determines that the applicant failed to
demonstrate either type of independence, Commerce
denies the separate rate and the applicant receives the
country-wide rate. See 53-Foot Domestic Dry Contain-
ers from the People’s Republic of China: Issues and De-
cision Memorandum for the Final Determination of
Sales at Less Than Fair Value at 53 (Dep’t Commerce
Apr. 15, 2015). 2 Thus, Commerce assigns an exporter
the country-wide rate by default unless the exporter
applies for, and receives, a separate rate.
A separate-rate applicant has the burden of rebut-
ting the presumption of government control. Zhejiang
Zhaofeng Mech. & Elec. Co. v. United States, 355
F. Supp. 3d 1329, 1333 (CIT 2018) (citing Sigma Corp.
v. United States, 117 F.3d 1401, 1406 (Fed. Cir. 1997)).
The applicant has this burden because it is the party
with “the best access to information pertinent to the
‘state control’ issue.” Sigma Corp., 117 F.3d at 1406
(citing Zenith Elecs. Corp. v. United States, 988 F.2d
1573, 1583 (Fed. Cir. 1993) (“The burden of production
1 The relevant statute itself is silent about the presumption
of government control. See An Giang Fisheries Imp. & Exp.
Joint Stock Co. v. United States, 203 F. Supp. 3d 1256, 1289
& n.46 (CIT 2017) (referring to Commerce implementing
the 	presumption 	“[t]hrough 	practice” 	and 	noting 	that
19 U.S.C. § 1677f-1 does not prescribe the presumption).
2 	https://enforcement.trade.gov/frn/summary/prc/2015-08903-1.pdf
(accessed July 6, 2021).
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should belong to the party in possession of the neces-
sary information.”)).
Factual and Procedural Background
In 2003, Commerce issued an antidumping order
applicable to frozen fish imported from Vietnam. See
Notice of Antidumping Duty Order: Certain Frozen
Fish Fillets from the Socialist Republic of Vietnam, 68
Fed. Reg. 47,909 (Dep’t Commerce Aug. 12, 2003). In
that order, Commerce found that certain frozen fish
fillets from Vietnam were being sold in the U.S. at less
than normal value and imposed duties accordingly.
The order imposed specific rates for certain exporters
and a “Vietnam-wide” rate for exporters not specifi-
cally listed. See id. at 47,909–10. In the intervening
years, that order has undergone multiple administra-
tive reviews.3
This case stems from the 15th such administrative
review, which Commerce initiated at the request of
Catfish Farmers of America4 and several of its constit-
uent members. 	See Initiation of Antidumping and
3 For an explanation of the purpose of an administrative
review in the regulatory scheme, see Hung Vuong, 483
F. Supp. 3d at 1334–35.
4 Catfish Farmers of America is a trade association repre-
senting domestic catfish farmers and processors.
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Countervailing Duty Administrative Reviews, 83 Fed.
Reg. 50,077, 50,080–81 (Dep’t Commerce Oct. 4, 2018).
In an administrative review involving a non-mar-
ket economy country such as Vietnam,5 Commerce
does not review the country-wide rate unless either a
party requests such review or Commerce initiates it.
See Certain Frozen Fish Fillets from the Socialist Re-
public of Vietnam: Preliminary Results of the Anti-
dumping Duty Administrative Review and Prelimi-
nary Determination of No Shipments; 2017–2018, 84
Fed. Reg. 56,420, 56,421 (Dep’t Commerce Oct. 22,
2019).
In the review at issue here, no party requested a
review of the Vietnam-wide rate and Commerce de-
clined to initiate such a review. Accordingly, the coun-
try-wide rate of $2.39 per kilogram that was already
in effect did not change. Id. This rate therefore auto-
matically applied to all Vietnamese exporters that did
not receive separate rates.
I.D.I. International Development and Investment
Corporation, a Vietnamese exporter and the plaintiff
5 See Notice of Final Antidumping Determination of Sales
at Less Than Fair Value and Affirmative Critical Circum-
stances: Certain Frozen Fish Fillets from the Socialist Re-
public of Vietnam, 68 Fed. Reg. 37,116, 37,119 (Dep’t Com-
merce June 23, 2003) (designating Vietnam as a non-mar-
ket economy for purposes of U.S. antidumping laws).
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in this case, submitted a separate rate application to
Commerce and subsequently submitted three supple-
mental 	applications. 	Appx1012–1059 	(original);
Appx1065–1113 (first supplemental); Appx1114–1128
(second supplemental); Appx1129–1145 (third supple-
mental). Catfish Farmers opposed IDI’s application.
Appx1151–1156.
As it was undisputed that IDI was free from de jure
control of the Vietnamese government, Appx1206 &
n.149, Commerce’s decision focused on the de facto
control test, under which a separate-rate applicant
“ ‘must show [among other things] that the govern-
ment neither actually selects management nor directly
or indirectly involves itself in the day-to-day manage-
ment of the company’ to demonstrate independence
from the government.” Appx1206 (quoting An Giang,
203 F. Supp. 3d at 1289–90). Commerce determined
that IDI did not meet that standard for several rea-
sons.
First, Commerce found that a government official
and 	Communist 	Party 	member—referred 	to 	as
Mr. X6 —represented the Vietnamese government on
the 	boards 	of 	both 	IDI 	and 	its 	corporate 	parent,
6 During the period of review, Mr. X served as deputy of the
People’s Council of An Giang Province. Appx1207.
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Company Y.7 Commerce cited IDI’s submissions in
finding that the boards “are charged with making ‘im-
portant decisions of the company’ as required by law”
and are responsible for selecting the companies’ man-
agement, “who in turn handle the day-to-day opera-
tions of the company, including setting import prices.”
Appx1207 (citing Appx1192 and Appx1028).8
Second, Commerce observed that Mr. X was also a
“Deputy General Director” of Company Y, where he
was “in charge of external affairs . . . and thus respon-
sible for arranging and attending meetings with the
company’s investors, customers, partners[,] and visi-
tors from other companies.” Appx1207 (omission in
7 [[ 	]]—referred to in this opinion as Com-
pany Y—is a [[ 	]] share-
holder of IDI. Appx80023; Appx80075. (Redacted infor-
mation provides name of Company Y and describes its own-
ership share of IDI.) Company Y in turn is publicly traded,
Appx80075, with “thousands of individuals and entities”
holding shares and no “entity shareholder” owning more
than [[ 	]]. Appx80075–80076, Appx80077. (Re-
dacted information describes maximum percentage owner-
ship by any shareholder in Company Y.) The Vietnamese
government has no ownership interest in either IDI or
Company Y. Appx80025–80026.
8 Commerce cited IDI’s description of a document attached
to the company’s separate rate application as showing “the
decision of the Board of Directors appointing the General
Director of the company,” which IDI stated “evidences IDI’s
independence in the selection of management.” Appx1028.
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original) (quoting Appx1119–1120). Commerce con-
cluded that this meant Mr. X—and by extension, the
Vietnamese government—was involved in the day-to-
day 	management 	of 	both 	Company 	Y 	and 	IDI.
Appx1207. Commerce also noted that Mr. X’s meetings
with customers and external parties likely included
price negotiations and discussions of export practices.
Appx1207 n.156.
Third, Commerce found that Mr. X’s influence on
IDI’s 	board 	of 	directors 	was 	“heightened 	and 	ex-
panded” because [[ 	]] of both IDI’s and Com-
pany Y’s boards were Communist Party members.
Appx80388; 	Appx80392 	(citing 	Appx80305–80308).
(Redacted information describes extent of party mem-
bership among IDI and Company Y board members.)
Although Commerce acknowledged that party mem-
bership is not the same thing as holding government
office, it reasoned that “ ‘mere’ [party] membership” is
not meaningless for the government control analysis.
Appx1207 (quoting Appx1189).
Specifically, Commerce determined that in a one-
party state like Vietnam, party membership
signifies that an individual is not just sympa-
thetic to the ruling Vietnamese government’s
goals, but is an active participant in furthering
those goals. Accordingly, when a government of-
ficial, such as Mr. X, is in a position of authority
and 	power 	in 	companies 	such 	as 	IDI 	and
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Company Y, absent record information to the
contrary, it is reasonable to presume that mem-
bers of the Communist Party of Vietnam also in
power in those companies will support and af-
firm the votes and influence of that government
official to further the goals of the Vietnamese
government.
Appx1207–1208. Thus, Commerce found that Mr. X’s
position as a government official meant that he effec-
tively led the other party members on the two com-
pany boards.
Fourth, the influence of the Communist Party in
the affairs of Company Y and IDI wasn’t limited to
party members [[
]] (Redacted information
provides specific examples of party involvement in the
affairs of Company Y and IDI.)
Finally, Commerce noted that there was no evi-
dence in the administrative record suggesting that any
of the Communist Party members on the board of
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either IDI or Company Y had ever voted or acted in a
way contrary to Mr. X. Appx1208. Commerce also
found that the specific powers of the two companies’
boards, including selection of management, as well as
the “particular decisions” of the boards demonstrated
the “actual impact” of Mr. X and his party colleagues
on IDI’s operations. Appx1208.
Based on these findings, Commerce found that the
presence of Communist Party members on both com-
panies’ boards “emboldened and furthered” Mr. X’s au-
thority and control over those companies, such that his
presence was representative of the government’s inter-
ests. Appx1208. Commerce reasoned that “the pres-
ence of a government official on the board of IDI/Com-
pany Y, in addition to the existence of multiple associ-
ates or members of the Communist Part [sic] of Vi-
etnam, taken together, for the reasons explained above,
supports a finding of de facto control.” Appx1208 n.158
(emphasis added).
Commerce concluded as follows:
To 	summarize, 	there 	are 	several 	avenues
through which the [government of Vietnam] can
and does impact the operation of IDI. A manager
of IDI’s parent company, i.e., Company Y, is a
government official. That same government offi-
cial plays a role in the boards of directors, which
perform oversight of IDI and its parent and are
involved in the selection of management. On
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both 	boards, 	members 	and 	associates 	of 	the
Communist Party of Vietnam who are loyal to
the ruling politicians in the [government of Vi-
etnam] hold powerful positions. Taken together,
these factors indicate that the government can
control the company through traditional corpo-
rate control. Accordingly, we continue to find
that IDI is de facto controlled by the [govern-
ment of Vietnam] and is not entitled to a sepa-
rate rate.
Appx1208. Commerce therefore deemed IDI to be “part
of the Vietnam-wide entity.” Certain Frozen Fish Fil-
lets from the Socialist Republic of Vietnam: Final Re-
sults of Antidumping Duty Administrative Review and
Final Determination of No Shipments; 2017–2018, 85
Fed. Reg. 23,756, 23,757 (Dep’t Commerce Apr. 29,
2020). This finding meant IDI received the $2.39-per-
kilogram rate. Id. The successful separate-rate appli-
cants, in contrast, received a rate of 15¢ per kilogram.
Id.
In response to Commerce’s final decision, IDI filed
this suit pursuant to 19 U.S.C. §§ 1516a(a)(2)(A)(i)(I)
and (a)(2)(B)(iii) (authorizing “an interested party who
[was] a party to the proceeding in connection with
which the matter [arose]” to commence an action in
this court contesting Commerce’s final determination
in an administrative review of an antidumping order).
See also 28 U.S.C. § 2631(c) (authorizing “any inter-
ested party who was a party to the proceeding in
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connection with which the matter arose” to commence
an action in this court contesting a determination
“listed in” § 1516a).
IDI’s complaint asks the court to hold that Com-
merce’s final decision denying IDI’s separate rate ap-
plication is “not supported by substantial evidence on
the record and otherwise not in accordance with law”
and requests a remand to Commerce “for disposition
consistent with the final opinion and order of this
Court.” ECF 7, at 12. Catfish Farmers intervened as of
right to defend Commerce’s final decision. ECF 15. IDI
then filed the pending motion for judgment on the
agency record. ECF 28 (public); ECF 27 (confidential).
The court thereafter heard oral argument on IDI’s mo-
tion. ECF 58.
Jurisdiction and Standard of Review
The court has jurisdiction to hear this case under
28 U.S.C. § 1581(c), which grants this court exclusive
jurisdiction over civil actions commenced pursuant to
19 U.S.C. § 1516a.
In actions such as this brought under 19 U.S.C.
§ 1516a(a)(2), “[t]he court shall hold unlawful any de-
termination, finding, or conclusion found . . . to be un-
supported by substantial evidence on the record, or
otherwise 	not 	in 	accordance 	with 	law.” 	19 	U.S.C.
§ 1516a(b)(1)(B)(i).
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Under this standard, the question is not whether
the court would have reached the same decision on the
same record—rather, it is whether the administrative
record permitted Commerce to reach the conclusion it
did even if the court would have reached a different
result:
Substantial evidence has been defined as more
than a mere scintilla, as such relevant evidence
as a reasonable mind might accept as adequate
to support a conclusion. To determine if substan-
tial evidence exists, we review the record as a
whole, including evidence that supports as well
as evidence that fairly detracts from the sub-
stantiality of the evidence.
Nippon Steel Corp. v. United States, 337 F.3d 1373,
1379 (Fed. Cir. 2003) (cleaned up).
Discussion
IDI argues that Commerce’s decision to deny the
separate rate application was both contrary to law and
not supported by substantial evidence. The court con-
siders these arguments in turn.
I.
A.
IDI identifies what it contends are three legal er-
rors 	by 	Commerce, 	the 	first 	of 	which 	is 	that 	the
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Department only considered record evidence pertain-
ing to one element of its four-part test for determining
independence from de facto control. That test is:
(1) whether the export prices are set by or are
subject to the approval of a government author-
ity; (2) whether the [exporter] has authority to
negotiate and sign contracts and other agree-
ments; (3) whether the [exporter] has autonomy
from the government in making decisions re-
garding the selection of management; and (4)
whether the [exporter] retains the proceeds of its
export sales and makes independent decisions
regarding disposition of profits or financing of
losses.
Zhejiang, 355 F. Supp. 3d at 1333 (citing Ad Hoc
Shrimp Trade Action Comm. v. United States, 925
F. Supp. 2d 1315, 1320 n.21 (CIT 2013), and Silicon
Carbide from the People’s Republic of China, 59 Fed.
Reg. 22,585, 22,587 (Dep’t Commerce May 2, 1994));
see also Appx1205 (Commerce’s recitation of the test).9
In its opening brief, IDI argued that it was “unlaw-
ful” for Commerce to address only the third element—
management autonomy—because “Commerce may not
simply base its separate rate findings only on one ‘sin-
gle 	criterion’ 	(i.e., 	management 	control), 	thereby
9 At argument, counsel for IDI confirmed that IDI does not
challenge the validity of Commerce’s four-part test.
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ignoring ‘the other three prongs.’ ” ECF 49, at 17–18
(citing Shandong Rongxin Imp. & Exp. Co. v. United
States, 203 F. Supp. 3d 1327, 1348 (CIT 2017) (herein-
after Rongxin II)).
But in its reply brief, IDI clarified its argument,
stating that
IDI does not dispute as a legal matter (as the
Court 	held 	in 	Yantai 	[CMC 	Bearing 	Co. 	v.
United 	States, 	203 	F. 	Supp. 	3d 	1317 	(CIT
2017)10 ]) that “Commerce [permissibly] requires
that exporters satisfy all four factors of the de
facto control test in order to qualify for separate
rate.”
ECF 51, at 7 n.3.
IDI instead argues that even though a separate-
rate applicant must “satisfy all four factors of the de
facto control test in order to qualify,” id., Commerce
nonetheless is obligated “to review the evidence sub-
mitted, including the evidence provided for all four cri-
teria.” Id. (emphasis added and citing Rongxin II, 203
10 In Yantai, the court held that a separate-rate applicant’s
failure to demonstrate any one of the four elements meant
that Commerce had no need to examine the remaining ele-
ments. See 203 F. Supp. 3d at 1326 (“Yantai CMC failed to
meet the third factor of the test. Given that all four factors
must be satisfied, Commerce had no further obligation to
continue with the analysis.”).
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F. Supp. 3d at 1348, and Shandong Rongxin Imp. &
Exp. Co. v. United States, 331 F. Supp. 3d 1390, 1400–
03 (CIT 2018) (hereinafter Rongxin III)).
IDI reads too much into Rongxin II and Rongxin III.
In 	the 	earlier 	decision, 	the 	court 	sustained 	Com-
merce’s determination that the separate-rate appli-
cant did not demonstrate that it selected management
autonomously, and, as IDI notes, the court neverthe-
less remanded for Commerce to address the remaining
elements. What IDI fails to acknowledge, however, is
that the Rongxin II court remanded so Commerce
could better explain the nature of the four-part test.
See 203 F. Supp. 3d at 1348 (remanding for an expla-
nation of the “ultimate calculus”). “In so doing,” the
court expressly reserved judgment on whether a sepa-
rate-rate applicant
must satisfy each of the four criteria, or whether,
for example, the failure to establish autonomy
from the government in the selection of manage-
ment, or a finding of lack of such autonomy, can
alone justify denial of a separate rate, even when
there is evidence supportive of the exporter of-
fered with respect to the other criteria. These
are issues that may be addressed on remand.
Rongxin II, 203 F. Supp. 3d at 1348–49. Thus, the
court in Rongxin II required Commerce to address ev-
idence pertaining to all four elements because of its
uncertainty as to Commerce’s actual standard.
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In the next round following remand, the court an-
swered the question that it reserved in Rongxin II: “a
respondent must demonstrate that it meets each crite-
rion of the analysis in order to be considered de facto
independent of the government . . . .” Rongxin III, 331
F. Supp. 3d at 1403 (emphasis added) (citing Yantai,
203 F. Supp. 3d at 1326 (CIT 2017)); see also id. at
1406 (“[T]o be eligible for a separate rate, a company
from [a non-market economy] country must establish
each of the four factors to rebut the presumption of
government 	control.” 	(emphasis 	in 	original) 	(citing
Yantai, 203 F. Supp. 3d at 1326)).
In view of this legal conclusion and the court’s ear-
lier determination in Rongxin II that the applicant
failed to establish the third element, the Rongxin III
court’s sustaining of Commerce’s remand determina-
tion as to the remaining elements simply amounted to
affirming on alternative grounds, see 331 F. Supp. 3d
at 1400–03. That the Rongxin III court took this addi-
tional work upon itself hardly obligated Commerce
here to review evidence pertaining to the remaining
elements that were no longer material after the De-
partment concluded that IDI failed to establish the
third element.
Administrative agencies—no less than courts, pri-
vate litigants, and the Justice Department’s litigating
divisions—have finite resources. To require Commerce
to needlessly address evidence that is no longer mate-
rial to the task at hand would be at best nonsensical.
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“The law does not require a vain and useless thing
. . . .” McMicking v. Schields, 238 U.S. 99, 103 (1915).
Here, Commerce found that IDI was unable to
demonstrate “that the government neither actually se-
lects management nor directly or indirectly involves
itself 	in 	the 	day-to-day 	management 	of 	the 	com-
pany.”11 Appx1206 (cleaned up) (citing An Giang, 203
F. Supp. 3d at 1289–90); see also Shandong Rongxin
Imp. & Exp. Co. v. United States, 415 F. Supp. 3d 1319,
1323 (CIT 2019) (hereinafter Rongxin 2019) (affirming
Commerce’s finding of de facto control when respond-
ent “fail[ed] . . . to show independence in the selection
of management, a dispositive prong in rebutting the
presumption of de facto government control”). As the
four-part test for de facto control requires the exporter
to 	satisfy 	all 	four 	elements 	to 	demonstrate 	inde-
11 The court observes that the standard Commerce applied
here—“that the government neither actually selects man-
agement nor directly or indirectly involves itself in the day-
to-day management of the company,” Appx1206 (emphasis
added)—arguably deviates somewhat from the actual third
element 	of 	Commerce’s 	ostensible 	four-part 	test, 	i.e.,
“whether the [exporter] has autonomy from the govern-
ment in making decisions regarding the selection of man-
agement.” Appx1205. IDI has not challenged this aspect of
Commerce’s determination, and the parties have treated
Commerce’s consideration of the Vietnamese government’s
involvement in day-to-day management as part and parcel
of the applicable third element. Accordingly, the court as-
sumes the same.
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pendence, Commerce was entitled to stop there: “Be-
cause Plaintiffs failed to satisfy one de facto criterion,
Commerce had no further obligation to continue with
the analysis.” Zhejiang Quzhou Lianzhou Refrigerants
Co. v. United States, 350 F. Supp. 3d 1308, 1321 (CIT
2018) (cleaned up). Contrary to IDI’s argument, Com-
merce did not act contrary to law by declining to con-
sider evidence pertaining to the remaining elements
that were unnecessary to address.
B.
IDI asserts that Commerce’s second legal error was
to “appl[y] the wrong overall legal standard” in consid-
ering the de facto control test. ECF 49, at 20–21. Spe-
cifically, IDI characterizes Commerce as having deter-
mined that the Vietnamese government only
had the potential to control IDI and not that it
actually controlled IDI. This is clear from Com-
merce’s 	statement 	that 	“the 	government 	can
control the company through traditional corpo-
rate control.” Thus, Commerce only found that
the [government of Vietnam] had the ability to
control IDI, and it did not explicitly find that the
[government] actually controlled IDI.
ECF 49, at 22 (all emphasis in original) (citation to
Appx1208 omitted).
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To begin with, even if IDI’s characterization of
Commerce’s decision were correct, the Department’s
determination 	that 	an 	exporter 	is 	potentially 	con-
trolled by the government—in the sense that the gov-
ernment has the “ability to exercise actual control
(even without exercising it)”—suffices to establish that
the exporter has failed to demonstrate its independ-
ence from de facto government control. An Giang Fish-
eries Imp. & Exp. Joint Stock Co. v. United States, 284
F. Supp. 3d 1350, 1359 (CIT 2018) (emphasis added);
see also Zhejiang, 350 F. Supp. 3d at 1318 (noting that
where a non-market economy country’s government
holds a majority stake in an exporter, the potential for
the government to exert the control it is entitled to ex-
ercise suffices for Commerce to find de facto control).
A puppet master is no less in control when the strings
are slack.
In any event, IDI mischaracterizes Commerce’s de-
cision, which found that government official Mr. X and
his fellow Communist Party members on the boards of
IDI and Company Y select company management and
make “important decisions,” Appx1207, while the com-
pany management in turn handles day-to-day opera-
tions. “Mr. X’s presence on the board of IDI and Com-
pany Y, along with his role in Company Y’s manage-
ment, indicates that the [government of Vietnam] is
involved in company-level decision making.” Id. (em-
phasis added).
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PUBLIC VERSION
Commerce thus found that the Vietnamese govern-
ment, through the presence of Mr. X and his party col-
leagues on the IDI and Company Y boards, controls
the selection of IDI’s management and hence has at
least an indirect involvement in day-to-day affairs,
while Mr. X himself has direct involvement in such af-
fairs as an executive in Company Y. Commerce there-
fore did not rely on just the ability of the Vietnamese
government to control IDI; the Department deter-
mined that the Vietnamese government actually con-
trols IDI through the involvement of Mr. X and his
party colleagues.
C.
The third and final legal error asserted by IDI is
that Commerce failed to consider that the Vietnamese
government has no actual ownership interest in the
company. IDI argues that as a matter of law, “it is un-
reasonable for Commerce to find de facto control . . .
where the Government has no known ownership in the
[separate-rate applicant], whether direct or indirect.”
ECF 49, at 26. In effect, IDI asks the court to hold that
a separate-rate applicant rebuts the presumption of
control as a matter of law when it demonstrates the
absence of any ownership interest by the government
of a country with a non-market economy.
Congress, however, delegated to Commerce—not
the court—“broad authority to interpret the antidump-
ing statute and devise procedures to carry out the
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PUBLIC VERSION
statutory mandate.” Sigma Corp. v. United States, 117
F.3d 1401, 1405 (Fed. Cir. 1997). The court has no au-
thority to foist IDI’s proposed per se rule upon Com-
merce, and therefore declines IDI’s invitation to do so.
II.
IDI argues that Commerce’s decision “is not only
unlawful . . . but it is also otherwise unsupported by
substantial evidence.” ECF 49, at 28. IDI asserts es-
sentially three reasons why substantial evidence is
lacking.
First, IDI asserts that its evidentiary submissions
in the record demonstrate that it sets its own export
prices, that it has authority to sign agreements and
negotiate prices, and that it retains the proceeds of its
export sales—the three elements of Commerce’s test
for rebutting the presumption of de facto governmen-
tal 	control 	that 	the 	Department 	did 	not 	address.
ECF 49, at 29–32. But as explained above, to rebut the
presumption of governmental control, IDI needed to
establish all four elements of the test. Thus, IDI’s evi-
dence as to the three elements not addressed by Com-
merce is irrelevant here except insofar as it also bears
on the fourth element considered by the Department,
IDI’s autonomy in the selection of management. And if
that evidence is relevant here, IDI has not explained
how.
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PUBLIC VERSION
Second, IDI points to its evidentiary submissions
confirming that it “autonomously selects its own man-
agement.” ECF 49, at 32. This evidence included vari-
ous certifications and statements by IDI that its man-
agement is selected without governmental involve-
ment. Id. IDI then asserts that it “satisfied this factor.”
Id. But “[i]t is not within the Court’s domain either to
weigh the adequate quality or quantity of the evidence
for sufficiency or to reject a finding on grounds of a dif-
fering interpretation of the record.” Timken Co. v.
United States, 699 F. Supp. 300, 306 (CIT 1988). Com-
merce weighed the evidence and reached a different
conclusion. It’s not for the court to reweigh the evi-
dence as IDI requests.
Finally, IDI takes aim at the evidence upon which
Commerce based its conclusion—“the presence of a
government official on the board of IDI and Company
Y, in addition to the existence of multiple associates or
members of the Communist Party of Vietnam on these
boards, taken together, . . . supports a finding of de
facto control.” Appx1208 n.158 (emphasis added).
IDI argues that Mr. X’s role as a provincial govern-
mental official is irrelevant because his duties have
nothing to do with the national government, ECF 49,
at 34–36; that regardless of what governmental posi-
tion he holds, Mr. X casts only one vote on the nine-
member boards of Company Y and IDI, id. at 36–39;
and that Commerce “has not pointed to any actual de-
cision of the company that was impacted or affected by
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PUBLIC VERSION
the [Vietnamese government] acting through Mr. X,”
id. at 40 (emphasis removed). IDI further argues Com-
munist Party membership by Mr. X and [[
]] IDI and Company Y board colleagues is “mean-
ingless” and based on “outdated stereotypes.” Id. at 43.
(Redacted information describes extent of party mem-
bership among IDI and Company Y board members.)12
Once again, IDI asks the court to weigh the evi-
dence. As to Mr. X’s position in provincial government,
Commerce specifically gave respondents notice that its
analysis might examine “whether any managers hold
government positions at the national or sub-national
government levels.” De Facto Criteria for Establishing
a Separate Rate in Antidumping Proceedings Involv-
ing 	Non-Market 	Economy 	Countries, 	78 	Fed. 	Reg.
40,430, 40,432 (Dep’t Commerce July 5, 2013) (empha-
sis added); see also Appx1208 n.158 (citing that same
statement). 13
12 In response to a question at oral argument, IDI’s counsel
stated that there is no evidence in the administrative rec-
ord indicating whether Communist Party membership in
Vietnam is open to anyone who wishes to join.
13 IDI’s second supplemental separate rate application ad-
mitted that local authorities are part of the government of
Vietnam. See Appx1124. Moreover, Commerce noted that
the provincial government in question [[
]]. Appx80393. (Redacted
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Ct. No. 20-00107 	Page 25
PUBLIC VERSION
Commerce was entitled to take Mr. X’s official role
into consideration, and the Department’s inference
that Mr. X seeks to further government policy is not
unreasonable. See Can Tho Imp.-Exp. Joint Stock Co.
v. United States, 415 F. Supp. 3d 1187, 1192 (CIT
2019) (“Commerce considers the totality of the circum-
stances for a given period of review and may draw rea-
sonable inferences that the respondent company does
not control its export activities.”) (emphasis added)
(citing, 	inter 	alia, 	Domestic 	Dry 	Containers 	from
China, above, at 46–53).
Shifting gears, IDI argues that whatever Mr. X’s
role was in the Vietnamese government, Commerce as-
cribed far too much significance to him because his
was only one of nine votes on the IDI and Company Y
boards: “Mr. X is but one of 9 members with the power
to vote. As such, he clearly does not have the power to
control the company on his own.” ECF 49, at 37;
ECF 51, at 17 (quoting same). IDI devotes the better
part of five pages of its opening brief explaining that
the relevant governing documents do not allow a sin-
gle board member to exercise control. ECF 49, at 35–
39.
But Commerce’s decision did not rest solely on
Mr. X’s status as a government officeholder. Critically
information describes provincial government actions in
connection with Company Y.)
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PUBLIC VERSION
for present purposes, Commerce coupled that finding
with an additional finding that
Communist Party of Vietnam members and as-
sociates [sat] on the boards of both companies.
Accordingly, we find that the [government of Vi-
etnam’s] interests are represented in IDI (and
Company Y) by the presence of the government
official, and furthered and expanded by the ad-
ditional key Communist Party of Vietnam asso-
ciates/members on the decision-making boards
of those companies.
Appx1208. Commerce went on to cite “the actual im-
pact of Mr. X and the members and associates of the
Communist Party of Vietnam 	in IDI’s operations.”
Appx1208 (emphasis added).
Thus, IDI’s argument that “Mr. X was certainly not
in a position to ‘control’ any actions of either company
on his own,” ECF 49, at 39, misses the point because
Commerce did not find that he controlled either com-
pany by himself. Rather, Commerce found that Mr. X
and his fellow Communist Party members who voted
in lockstep with him effectively controlled the com-
pany boards. Unlike in An Giang, where the court
found that Commerce failed to explain its conclusion
that smaller shareholders “could not band together” to
overcome the government’s minority share, see 203
F. Supp. 3d at 1293, in this case Commerce explained
that the evidence in the administrative record showed
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Ct. No. 20-00107 	Page 27
PUBLIC VERSION
that the Communist Party members, led by Mr. X,
voted as a bloc so as to give the government actual con-
trol in practice.
Commerce’s conclusion is reinforced by the confi-
dential addendum to its decision, which was drawn
from [[
]]. The confidential
addendum explained that [[
]]. Appx80392 (citing
Appx80305–80308). (Redacted information describes
extent of party membership among IDI and Company
Y board members.) This is significant because Com-
merce found that [[
]]. Appx80392
(citing 	Appx80305–80312 	and 	Appx80034–80042).
(Redacted information describes authority of IDI and
Company Y boards.)
And as to the Communist Party membership of Mr.
X and [[ 	]] his IDI and Company Y board
colleagues, it isn’t for the court to decide whether IDI
is correct about “outdated stereotypes.” (Redacted in-
formation 	describes 	extent 	of 	party 	membership
among IDI and Company Y board members.) Com-
merce found that although party membership does not
carry the same weight as holding governmental office,
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Ct. No. 20-00107 	Page 28
PUBLIC VERSION
it is still relevant: “Although we do not disagree with
IDI that there are differences between government po-
sitions and Communist Party of Vietnam membership,
we do not agree that ‘mere’ membership in the Com-
munist Party of Vietnam is meaningless for purposes
of an analysis of government control.” Appx1207. Com-
merce 	explained 	its 	reasons 	for 	that 	finding. 	See
Appx1207–1208.
Whether the court agrees or disagrees with that
analysis, Commerce was entitled to make it, and it is
not for this court to revisit. Cf. Rongxin 2019, 415
F. Supp. 3d at 1325 n.3 (“Because inconsistent conclu-
sions could be drawn, Commerce reasonably concluded
that [the respondent] did not rebut the presumption
that [the government] retained potential de facto con-
trol of [the respondent’s] Board.”) (citing Suramerica
de Aleaciones Laminadas, C.A. v. United States, 44
F.3d 978, 985 (Fed. Cir. 1994)).
In any event, Commerce did not rely on its infer-
ence regarding the presumed voting behavior of the
Company Y and IDI board members who are Com-
munist Party members—it determined that in prac-
tice, 	those 	board 	members 	voted 	in 	lockstep 	with
Mr. X, the government official also serving on the
boards. Appx1208.
Finally, in its reply brief, IDI argues for the first
time that the court should remand and order Com-
merce to address the power of the Company Y and IDI
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PUBLIC VERSION
shareholders to “ratify the ‘election, dismissal, and re-
placement’ ” of board members and to approve all
changes in the organizational structure or changes to
the charter. ECF 51, at 26–27 (quoting IDI’s opening
brief, ECF 49, at 38, which in turn quoted Article
14.2.e of IDI’s charter, Appx80111).14 IDI argues that
even if the Vietnamese government “somehow control[s]
the Board[s], the [Vietnamese government] still cannot
control the shareholders.” ECF 51, at 26 (emphasis
added).
Before Commerce, however, IDI did not argue that
the shareholders’ authority negated any control by the
government over the company boards; to the contrary,
IDI argued that the shareholders’ authority was of no
14 In the quoted passages from IDI’s opening and reply
briefs, IDI characterized the shareholders’ power as the
power to “ratify” the “election, dismissal, and replacement”
of board members. The court’s review of the English trans-
lation of the IDI and Company Y corporate charters indi-
cates that the shareholders have the power to “adopt deci-
sions in writing” regarding, among other things, the “[t]he
election, dismissal, and replacement” of board members.
See Appx80111 (IDI charter Article 14.2.e); Appx80159
(Company Y charter Article 14.2.e). The court construes
these provisions as providing that the shareholders may
elect, dismiss, and replace board members, not merely “rat-
ify” the election, dismissal, and replacement of board mem-
bers.
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Ct. No. 20-00107 	Page 30
PUBLIC VERSION
moment.15 Having told Commerce that the sharehold-
ers’ authority was of no consequence (and in effect, not
worth considering), IDI is now judicially estopped from
contending otherwise.
“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 posi-
tion in a subsequent proceeding where its interests
have changed.” Data Gen. Corp. v. Johnson, 78 F.3d
1556, 1565 (Fed. Cir. 1996) (citing Davis v. Wakelee,
156 U.S. 680, 689 (1895)). Judicial estoppel “applies
just as much when one of the tribunals is an adminis-
trative agency as it does when both tribunals are
courts.” Trustees in Bankr. of N. Am. Rubber Thread
15 See Appx1023 (IDI’s statement to Commerce that it “is a
publicly-listed company on the Ho Chi Minh city stock ex-
change. As such, there are thousands of individuals and
entities who buy and sell shares of IDI on a daily basis. As
such, it is not possible for IDI to report information on
those shareholders, as they are constantly in flux. However,
since those shares are bought and sold on the Ho Chi Minh
city stock exchange, these shareholders are mere stock hold-
ers, and do not have the ability to control or influence the
day-to-day operations of IDI.”) (emphasis added); see also
Appx1075–1076 (IDI making the identical argument re-
garding the authority of Company Y’s shareholders, with
this additional sentence: “By way of example, General Mo-
tors’ day-to-day operations are not ‘controlled’ by the thou-
sands of individuals/entities that own a share of General
Motors.”).
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Co. v. United States, 593 F.3d 1346, 1354 (Fed. Cir.
2010) (quoting Lampi Corp. v. Am. Power Prods., Inc.,
228 F.3d 1365, 1377 (Fed. Cir. 2000)).
Considerations that inform application of judicial
estoppel in the administrative law context include
(1) whether the party’s later position is clearly
inconsistent with its earlier position; (2) whe-
ther the party has succeeded in persuading [the
agency] to accept that party’s earlier position, so
that judicial acceptance of an inconsistent posi-
tion in a later proceeding would create the per-
ception that either the [agency] or the [review-
ing] court was misled; and (3) whether the party
seeking to assert an inconsistent position would
derive an unfair advantage or impose an unfair
detriment on the opposing party if not estopped.
Id. (cleaned up).
Each of these considerations applies here. IDI’s po-
sition in this court—that Commerce should have ad-
dressed the shareholders’ authority—is inconsistent
with its position below, where IDI effectively told the
Department not to do so because the shareholders’ au-
thority was insignificant. Commerce accordingly did
not address the shareholders’ authority. To require
Commerce on remand to now address an issue that IDI
told it not to consider would be to give the latter an
unfair advantage. Not only that, it would incentivize
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PUBLIC VERSION
parties in administrative proceedings to plant remand
booby traps by affirmatively downplaying issues.
And even if IDI is not judicially estopped from rais-
ing its new shareholder authority argument, it waived
that argument by failing to raise it in its opening brief
in this court. See Novosteel SA v. United States, 284
F.3d 1261, 1274 (Fed. Cir. 2002) (“Raising the issue for
the first time in a reply brief does not suffice; reply
briefs reply to arguments made in the response brief—
they do not provide the moving party with a new op-
portunity to present yet another issue for the court’s
consideration.”) (emphasis in original). In its opening
brief, IDI at most made a passing reference to its new
shareholder authority argument. See ECF 49, at 40
(arguing that “Commerce has not explained how” the
Vietnamese government “exerted control over Mr. X
. . . . This is particularly true in light of the operational
procedures (discussed above) specified in the corporate
charters . . . .”). Passing references do not raise argu-
ments. ArcelorMittal France v. AK Steel Corp., 700
F.3d 1314, 1325 n.6 (Fed. Cir. 2012) (“ArcelorMittal
makes passing reference to other [issues], but Arce-
lorMittal has not briefed those issues sufficiently to
preserve them.”).
Finally, even if IDI had properly raised it in its
opening brief, this argument fails on the merits be-
cause the shareholders’ authority to elect and dismiss
board members does not fairly detract from Com-
merce’s decision. Cf. Hung Vuong, 483 F. Supp. 3d
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Ct. No. 20-00107 	Page 33
PUBLIC VERSION
at 1366 (Commerce must address information in the
record that “fairly detracts” from its decision).
To begin with, IDI—the entity at issue—is [[
]] by Company Y, Appx80075 (redacted infor-
mation describes ownership proportion), which Com-
merce 	has 	found 	is 	controlled 	by 	the 	government
through Mr. X and his party colleagues on the board.
If the shareholders’ authority actually matters, as IDI
now belatedly contends, the Vietnamese government
(according to Commerce) can control [[ 	]] of
IDI’s shares. (Redacted information describes owner-
ship proportion.)
More importantly, IDI was right the first time
when it told Commerce that the shareholders’ author-
ity was of no moment in this context. IDI’s board—not
its shareholders, much less Company Y’s sharehold-
ers—selects IDI’s management, which “in turn han-
dle[s] the day-to-day operations of the company, in-
cluding setting export prices.” Appx1207. Commerce
concluded that during the period of review here, the
Vietnamese government effectively controlled the IDI
and Company Y boards through the good offices of Mr.
X and his party colleagues. Whatever their nominal
authority to do otherwise, in practice the IDI and Com-
pany Y shareholders placed agents of the Vietnamese
government in control of the company boards, which
in turn selected management. Accordingly, the nomi-
nal authority of the IDI and Company Y shareholders
to replace the Vietnamese government’s agents on the
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PUBLIC VERSION
company boards does not fairly detract from Com-
merce’s decision.
* * *
In antidumping proceedings involving imports from
a country with a non-market economy such as Vi-
etnam, Commerce presumes that all producers and ex-
porters are under government control, and their bur-
den is to prove otherwise. In this case, substantial ev-
idence permitted Commerce to conclude that the Viet-
namese government exercised control over IDI and
Company Y through the presence of Mr. X and fellow
Communist Party members on the company boards
who followed his lead. As those boards selected man-
agement of both companies, and as Mr. X was also in-
volved in the management of Company Y, Commerce
reasonably concluded that IDI did not rebut the pre-
sumption of de facto government control because “au-
tonomy from the government in making decisions re-
garding the selection of management” is one of the four
elements a party seeking a separate rate must demon-
strate.
Conclusion
For the reasons explained above, the court denies
IDI’s motion for judgment on the agency record and
grants judgment on the agency record in favor of the
government and Catfish Farmers. See USCIT 56.2(b)
(authorizing the court to enter judgment in favor of a
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Ct. No. 20-00107 	Page 35
PUBLIC VERSION
party opposing a motion for judgment on the agency
record, “notwithstanding the absence of a cross-mo-
tion”). A separate judgment will enter. See USCIT
R. 58(a).
Dated: 	July 6, 2021 	/s/ M. Miller Baker
New York, NY 	M. Miller Baker, Judge
Case 1:20-cv-00107-MMB Document 65 Filed 07/21/21 Page 35 of 35