In its August 2013 decision, the CAFC ruled that the CIT had abused its discretion, and reinstated the case. The CAFC found that it would have been “futile” to require exhaustion, given the agency’s position that it was precluded by statute from granting the earlier timeframe: “there was no reasonable prospect that Commerce would have changed its position in the present changed-circumstances review if only Itochu had re-filed its comments.” It also mattered that the Commerce determination would have been expressly delayed if comments were submitted: “Such extra time, of up to seven months, would have prejudiced Itochu, which would have had to continue to depositing antidumping duties…”
Although the CAFC decision demonstrates that circumstances will exist where parties will be excused from exhausting their administrative remedies, it is clear that the CIT remains prepared to employ the doctrine in the cases it hears. Either way, as a general matter parties should raise all concerns before the agency during the administrative proceeding in order to avoid having to fall back on one of the rarely-justified exceptions. Doing so will best preserve the ability to appeal and avoid having to defend against the anticipated attempt to dismiss for failure to exhaust that appears to be increasingly applied at the CIT. In Itochu, the CAFC informed the CIT that such application must be measured and fair to litigants before withstanding appellate review – despite the discretionary standard. While the CIT did not hesitate to dismiss based on exhaustion last week, it expressly did so within the evolving bounds of that doctrine articulated by the CAFC.