Tokyo Kikai Seisakusho, Ltd. v. U.S.

• Decision Date: 17 June 2008
• Docket Number: No. 2007-1227.,No. 2007-1254.,No. 2007-1226.,2007-1226.,2007-1227.,2007-1254.
• Citation: 529 F.3d 1352
• Parties: TOKYO KIKAI SEISAKUSHO, LTD. and TKS (U.S.A.), Inc., Plaintiffs-Cross Appellants, and Mitsubishi Heavy Industries, Ltd., Plaintiff, v. UNITED STATES, Defendant-Appellant, and Goss International Corporation, Defendant-Appellant.
• Court: U.S. Court of Appeals — Federal Circuit

529 F.3d 1352

TOKYO KIKAI SEISAKUSHO, LTD. and TKS (U.S.A.), Inc., Plaintiffs-Cross Appellants, and Mitsubishi Heavy Industries, Ltd., Plaintiff, v. UNITED STATES, Defendant-Appellant, and Goss International Corporation, Defendant-Appellant.

No. 2007-1226.

No. 2007-1227.

No. 2007-1254.

United States Court of Appeals, Federal Circuit.

June 17, 2008.

Lawrence R. Walders, Sidley Austin LLP, of Washington, DC, argued for plaintiffs-cross appellants. With him on the

brief were Neil R. Ellis, and Jennifer Haworth McCandless. Of counsel on the brief were Peter J. Toren, Kasowitz Benson Torres & Friedman, of New York, NY; and Hoken S. Seki, Law Offices of Hoken S. Seki, of Lake Forest, IL. Of counsel was Neil Charles Pratt, Sidley Austin LLP, of Washington, DC.

Maame A.F. Ewusi-Mensah, Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for defendant-appellant, United States. With her on the brief were Michael F. Hertz, Deputy Assistant Attorney General, Jeanne E. Davidson, Director, and Patricia M. McCarthy, Assistant Director. Of counsel was Kent G. Huntington, Attorney. Of counsel on the brief were Michele D. Lynch, Senior Counsel, and Hardeep K. Josan, Attorney International, Office of the Chief Counsel for Import Administration, United States Department of Commerce, of Washington, DC.

John R. Shane, Wiley Rein LLP, of Washington, DC, argued for defendant-appellant, Goss International Corporation. With him on the brief were Charles O. Verrill, Jr. and Eileen P. Bradner.

Before LOURIE, LINN, and PROST, Circuit Judges.

LINN, Circuit Judge.

In this antidumping case, we are asked to determine the scope of the Department of Commerce's ("Commerce's") authority to reopen proceedings tainted by fraud. Following Commerce's receipt of information indicating that Tokyo Kikai Seisakusho, Ltd. and TKS (U.S.A.), Inc. (collectively, "TKS") had provided false information during yearly administrative reviews of an existing antidumping duty order to which they were subject, Commerce initiated a "changed circumstances review." It initiated that proceeding to reconsider the administrative reviews themselves, as well as its revocation of the antidumping duty order, which was based in part on the results of those administrative reviews. In the final results of the changed circumstances review, Commerce concluded that TKS had provided false information during one of the administrative reviews and modified the result of that review accordingly. Because the result of that review originally led Commerce to revoke-in-part the antidumping duty order as it applied to TKS, Commerce reinstated that portion of the antidumping duty order. Finally, Commerce also stated its intention to reopen in a future, separate proceeding the sunset review that had revoked the antidumping duty order in its entirety.

The Court of International Trade ("the trial court") concluded that Commerce possessed authority to conduct the changed circumstances review, Tokyo Kikai Seisakusho, Ltd. v. United States, 473 F.Supp.2d 1349, 1355 (Ct. Int'l Trade 2007) ("TKS"), but concluded, after determining that the issue was ripe, that Commerce lacked authority to reopen the sunset review for reconsideration, id. at 1361-62. The United States and Goss International Corporation (collectively, "Appellants") appeal the trial court's decision, arguing that the issue of whether Commerce has authority to reopen the sunset review is not ripe, and alternatively, that Commerce possesses such authority. TKS cross-appeals the trial court's decision, arguing that Commerce lacks authority to conduct a changed circumstances review in the circumstances of this case for the purpose of reconsidering the yearly administrative reviews or the revocation of the antidumping duty order.

We conclude that the trial court correctly determined that Commerce possesses inherent authority to reconsider the results of the yearly administrative reviews in light of TKS's fraud, but that it incorrectly determined that Commerce's stated intention to reopen the sunset review made it ripe for judicial review. Thus, we affirm-in-part and reverse-in-part.

I. BACKGROUND

This case involves the importation of large newspaper printing presses and their components, which the parties and the trial court refer to as "LNPPs." Goss International Corporation ("Goss"), a domestic producer of LNPPs, alleged that TKS and Mitsubishi Heavy Industries, Ltd. ("MHI") were engaged in dumping that was causing material injury to the domestic industry.¹ In 1996, Commerce determined that TKS and MHI were selling LNPPs imported from Japan at less than fair value. Notice of Final Determination of Sales at Less Than Fair Value: Large Newspaper Printing Presses and Components Thereof, Whether Assembled or Unassembled, From Japan, 61 Fed.Reg. 38,139, 38,139 (Dep't of Commerce July 23, 1996); see also Notice of Antidumping Duty Order and Amended Final Determination of Sales at Less Than Fair Value: Large Newspaper Printing Presses and Components Thereof, Whether Assembled or Unassembled, From Japan, 61 Fed.Reg. 46,621 (Dep't of Commerce Sept. 4, 1996). Following a finding by the International Trade Commission that this dumping was causing material injury to the domestic industry, Commerce issued a final antidumping duty order covering these LNPPs. 61 Fed.Reg. at 46,622.

During three successive one-year periods — 1997-1998, 1998-1999, and 1999-2000 — Commerce conducted yearly administrative reviews to determine whether TKS was continuing to dump LNPPs, and concluded that it was not. Large Newspaper Printing Presses and Components Thereof, Whether Assembled or Unassembled, From Japan: Final Results of Antidumping Duty Administrative Review and Revocation in Part, 67 Fed.Reg. 2,190, 2,191-92 (Dep't of Commerce Jan. 16, 2002). Section 351.222(b) of 19 C.F.R. provides for revocation of an antidumping duty order based on certain showings, including evidence of sales at not less than normal value for three consecutive years. In January 2002, pursuant to section 351.222(b) and based on the results of the three consecutive administrative reviews showing a zero dumping margin, Commerce revoked the antidumping duty order with respect to TKS. Id.

In August 2001, during the course of the yearly administrative reviews, Commerce initiated a "sunset review" of the antidumping duty order as applied to all parties. Large Newspaper Printing Presses and Components Thereof, Whether Assembled or Unassembled, from Japan (A-588-837) and Germany (A-428-821): Notice of Final Results of Five-Year Sunset Reviews and Revocation of Antidumping Duty Orders, 67 Fed.Reg. 8,522, 8,522 (Dep't of Commerce Feb. 19, 2002). Goss initially filed a notice of intent to participate as a domestic party, but later withdrew from participation. Id. Goss was the sole domestic interested party. Because Goss, as the sole domestic interested party, withdrew its interest in participating, Commerce "determined to treat th[e] situation as if no domestic interested party responded to the notice of initiation of th[e] sunset reviews." Id. at 8,523. Consequently, Commerce, effective September 4, 2001, revoked the antidumping duty order in its entirety, citing statutory and regulatory provisions requiring revocation of the order if no domestic interested party participates. Id. (citing § 751(c)(3)(A) of the Tariff Act of 1930 and 19 C.F.R. § 351.218(d)(1)(iii)(B)(3)).

While the foregoing matters were before Commerce, Goss, in May 2000, brought a civil action against TKS under the Antidumping Act of 1916, 15 U.S.C. § 72, alleging that TKS had unlawfully dumped LNPPs from Japan.² See Goss Int'l Corp. v. Tokyo Kikai Seisakusho, Ltd., 321 F.Supp.2d 1039, 1042 (N.D.Iowa 2004). In December 2003, the jury returned a verdict in Goss's favor, and the district court subsequently found, in the context of TKS's motions for new trial and for judgment as a matter of law, that the evidence at trial supported the jury's verdict that TKS had "dumped" LNPPs in the United States. See generally id. In upholding the jury's verdict, the district court pointed specifically to evidence presented at trial that TKS had provided a "secret rebate" to the Dallas Morning News newspaper to prevent Goss from making that sale, and that "TKS and its counsel engaged in a concerted effort to conceal the secret rebates." Id. at 1045. The sale in question was the sole transaction considered during Commerce's 1997-1998 administrative review of TKS. Large Newspaper Printing Presses and Components Thereof, Whether Assembled or Unassembled, from Japan: Initiation of Changed Circumstances Review, 70 Fed.Reg. 24,514, 24,515-16 (Dep't of Commerce May 10, 2005).

Although it is unclear from the record how, the decision, including the jury's verdict and the findings of the district court relating to the evidence, came to the attention of Commerce, and in May 2005, Commerce self-initiated a changed circumstances review for the purpose of reconsidering the results of the three yearly administrative reviews in which it found that TKS had a zero dumping margin. Id. In September 2005, after giving interested parties an opportunity to submit factual information, Commerce published its preliminary results of the changed circumstances review. Large Newspaper Printing Presses and Components Thereof, Whether Assembled or Unassembled, From Japan: Preliminary Results of Changed Circumstances Review, 70 Fed. Reg. 54,019 (Dep't of Commerce Sept. 13, 2005). In the Preliminary Results, Commerce concluded that "TKS provided false information in the context of the 1997-1998 administrative review." Id. at 54,021. This preliminary conclusion was based on two findings: (1) TKS granted a secret rebate in connection with the sale to the Dallas Morning News; and (2) TKS, when specifically asked whether it had granted a rebate in connection with that sale, unequivocally stated that it...