CAFC addresses fraud in agency proceedings AND an agency’s convenient litigating

Nominally, this case is about the impact of fraud
on agency proceedings. The CAFC decision begins:
This case concerns the obligation of a court to remand
a case to an administrative agency when new evidence
indicates that the agency’s proceedings were tainted by
material fraud.

The Conclusion of the CAFC is of some interest:

Because we find that the Trade Court abused its dis-
cretion in denying Home Products’ motions to amend and
remand, the judgment is reversed, and we remand with
instructions that the Trade Court remand this case to
Commerce for further proceedings consistent with this
opinion. In ordering that the case be remanded to Com-
merce, we express no opinion as to whether Commerce
must exercise its authority to reopen; nor do we mandate
a finding of fraud. In deciding whether the proceeding
should be reopened, Commerce may appropriately con-
sider the interests in finality, the extent of the inaccura-
cies in the second administrative review, whether fraud
existed in the second administrative review, the strength
of the evidence of fraud, the level of materiality, and other
appropriate factors. While the agency’s counsel in this
appeal has opposed reopening, the views of Commerce
must be expressed by the agency itself, not by litigating
counsel. See Abbott Labs. v. United States, 573 F.3d 1327,
1332–33 (Fed. Cir. 2009) (“[W]e owe deference only to
those considered agency judgments as to the issue directly
involved in the litigation, not to the views of litigation
counsel.”); see also Bowen v. Georgetown Univ. Hosp., 488
U.S. 204, 213 (1988) (“Deference to what appears to be
nothing more than an agency’s convenient litigating
position would be entirely inappropriate.”). A remand is
necessary to secure the views of the agency itself. If
Commerce decides not to reopen, that decision may in
turn be reviewed by the Trade Court and, if necessary, by
our court.