American Pacific Plywood Inc. v. United States

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.]
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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)
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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.
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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.
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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.
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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
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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.
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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-
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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.”).
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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).
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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
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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.
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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-
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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
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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)
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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).).
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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).
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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.”).
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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).
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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.
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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)).
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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.
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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).
Case 1:20-cv-03914-MMB Document 157 Filed 02/27/26 Page 23 of 23