Diamond Sawblades Mfrs. Coal. v. United States

• Decision Date: 26 January 2012
• Docket Number: Slip Op. 12–12.Court No. 09–00110.
• Citation: 816 F.Supp.2d 1342,34 ITRD 1147
• Parties: DIAMOND SAWBLADES MANUFACTURERS COALITION, Plaintiff, v. UNITED STATES, Defendant.
• Court: U.S. Court of International Trade

34 ITRD 1147

816 F.Supp.2d 1342

DIAMOND SAWBLADES MANUFACTURERS COALITION, Plaintiff,

v.UNITED STATES, Defendant.

Slip Op. 12–12.Court No. 09–00110.

United States Court of International Trade.

Jan. 26, 2012.

Wiley, Rein & Fielding LLP (Daniel B. Pickard and Maureen E. Thorson, Washington, DC), for the plaintiff.

Tony West, Assistant Attorney General; Jeanne E. Davidson, Director, Franklin E. White, Jr., Assistant Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, Washington, DC, (Delisa M. Sanchez); and Office of Chief Counsel for Import Administration, U.S. Department of Commerce (Hardeep K. Josan), of counsel, for the defendant.

OPINION AND ORDER

MUSGRAVE, Senior Judge:

Diamond Sawblades Manufacturers Coalition (“DSMC”) petitions for award of $73,466.11 (current estimate) in fees and expenses against The United States pursuant to 28 U.S.C. § 2412 of the Equal Access to Justice Act (“EAJA”). DSMC succeeded in obtaining a writ of mandamus from the underlying litigation, and the following explains why award is appropriate.

Background

The overall unfair trade litigation to which the underlying litigation relates provides context. In 2005, DSMC filed an antidumping petition to obtain relief from imported diamond sawblades from the Republic of Korea and the People's Republic of China. After affirmative preliminary determination before the U.S. Department of Commerce, International Trade Administration (“Commerce” or the “Department”) and the U.S. International Trade Commission (“ITC” or “Commission”), the investigation moved into the final determination phase. Commerce reached a final affirmative determination of sales at less than fair value, and at that point issuance of the antidumping duty order depended upon an affirmative final determination of material injury or threat thereof by the Commission. The Commission subsequently made a final determination of no material injury or threat thereof, which effectively put an end to the administrative aspect of the antidumping investigation.

DSMC then brought several separate judicial challenges here. One matter, not relevant here, contests Commerce's margin calculations in the final less-than-fair-value determination concerning respondents from the Republic of Korea. See Court No. 06–00248. The other matter, with which DSMC first proceeded, and which is now at an end, challenged the Commission's negative final determination of no material injury or threat thereof. See Court No. 06–00247. The challenge resulted in remand to the Commission and ultimately an affirmative determination on the threat of material injury, which remand results were sustained. Slip Op. 09–5, 33 CIT ––––, 2009 WL 289606 (Jan. 13, 2009).

By letter dated January 22, 2009, ITC notified Commerce that this court had issued a final decision sustaining its affirmative remand determination and that the court's decision was “ ‘not in harmony with’ the Commission's original negative injury determination.” Pub. Doc. 3 at 1. DSMC commented to Commerce simultaneously, see Pub. Doc. 1, arguing that in addition to suspension of liquidation, Commerce should order U.S. Customs and Border Protection to begin immediate collection of cash deposits on the antidumping duties in accordance with Decca Hospitality Furnishings, LLC v. United States, 30 CIT 357, 371, 427 F.Supp.2d 1249, 1262 (2006) (“ Decca ”), Timken Co. v. United States, 893 F.2d 337, 341 (Fed.Cir.1990) (“ Timken ”), and congressional intent “that cash deposit rates be accurate and current” and that “cash deposit rates are important in providing provisional relief to the domestic industry.” Id. at 3–4 (quoting Decca, 30 CIT at 372, 427 F.Supp.2d at 1263 (citation omitted), and Tianjin Magnesium Intern. Co. v. United States, 32 CIT 1, ––––, 533 F.Supp.2d 1327, 1331 n. 12 (2008), respectively). DSMC also pointed out that “general principles of administrative [law] require that both judicial and administrative agency decisions, such as CIT's current [final] decision and the Commission's affirmative [threat of] material injury finding, be executed despite pending judicial review” at the appellate level, and that seeking stay of a judgment is the proper procedural avenue to avoid immediate execution on the court's judgment. Id. at 4.

Commerce published notice of the court's decision in the Federal Register on February 10, 2009. Diamond Sawblades and Parts Thereof from the People's Republic of China and the Republic of Korea: Notice of Court Decision Not In Harmony With Final Determination of the Antidumping Duty Investigations, 74 Fed.Reg. 6570 (Dep't of Comm. Feb. 10, 2009) (“ Timken Notice ”). See 19 U.S.C. § 1516a(c)(1); see also Timken, 893 F.2d at 341. Therein, Commerce announced that liquidation of subject import entries would be suspended within ten days of that notice and that an antidumping duty order would be issued if the ITC notified it that slip opinion 09–05 “is not appealed or is affirmed on appeal.” Id. With respect to DSMC's plea to order collection of cash deposits, Commerce stated that it would not do so until issuance of a final and conclusive court decision, and that it “interprets Timken to require suspension of liquidation, but not to direct the Department to require cash deposits on or after the date of the notice.” Pub. Doc. 4 at 4 (Dep't of Comm. memorandum to Timken Notice ). Commerce reasoned as follows:

As the Federal Circuit explained, “an adverse CIT decision merely suspends liquidation.” Timken, 893 F.2d at 342. The Federal Circuit made this comment when explaining its desire to avoid the “ ‘yo-yo’ effect” of different treatment of entries based upon the latest court decision affecting those entries. Further, the Federal Circuit in Timken indicated that suspension of liquidation is sufficient “so that subsequent entries can be liquidated in accordance with {the} conclusive decision.” Id. We find Decca distinguishable on its facts. There, an importer sought mandamus for the Department to lower the cash deposit rate from 198.08% to 6.65% pending appeals and prior to publication of an amended final determination. Decca, 427 F.Supp.2d at 1253–54. Further, we respectfully disagree that the CIT decided Decca correctly. Accordingly, we will not order CBP to collect cash deposits until the ITC informs us of a conclusive court decision.

Id.

Familiarity with what further transpired is here presumed (including vindication of Decca ). The EAJA petition before the court is solely concerned with the fees and costs associated with the underlying litigation petitioning for a writ of mandamus requiring Commerce to publish antidumping duty orders and collect cash deposits on diamond sawblades from the Republic of Korea and the People's Republic of China. See Slip Op. 09–107, 33 CIT ––––, 650 F.Supp.2d 1331 (2009), aff'd 626 F.3d 1374 (Fed.Cir.2010).

Argument on the EAJA Petition

Summarizing, DSMC argues (1) it obviously prevailed in the underlying litigation and its net worth and number of employees meets EAJA's eligibility requirements, (2) the government's position throughout was not substantially justified, (3) no special circumstances make an award unjust, and (4) its fee application is timely and supported by an itemized fee statement. See 28 U.S.C. §§ 2412(a)(1), 2412(d)(1); see also Libas, Ltd. v. United States, 314 F.3d 1362, 1365 (Fed.Cir.2003) (“ Libas ”). If that provision of EAJA does not provide relief, DSMC also seeks to hold the United States “liable for such fees and expenses to the same extent that any other party would be liable under the common law or under the terms of any statute which specifically provides for such an award.” 28 U.S.C. § 2412(b). Cf. Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 478 U.S. 546, 562 n. 6, 106 S.Ct. 3088, 92 L.Ed.2d 439 (1986) (courts have authority to enforce their own orders by assessing attorney's fees against a party that willfully violates a court order).

The government agrees DSMC prevailed, see Def.'s Resp. at 21, but it argues DSMC's petition fails to establish that DSMC was the party that authorized and incurred the legal fees in the underlying litigation or establish that DSMC was the direct beneficiary of the underlying litigation for which it seeks EAJA fees. Def.'s Resp. at 6–7. More precisely, the government disputes that DSMC is an eligible “party” as described in EAJA and argues that DSMC is merely a “front” for the “real parties in interest” consisting of those who fund the litigation and to whom beneficial interests in the litigation flow; therefore it “would be appropriate to consider, and perhaps aggregate [,] the assets of the individual members of DSMC for purposes of determining EAJA eligibility[,]” assuming such evidence is present. Id. at 18. Apart from party eligibility, the government also contends Commerce's position was substantially justified. If not, and the motion is to be granted, the government argues DSMC's requests for a special enhancement to the statutory maximum rate and for paralegal fees and for fees for work on the EAJA application should be denied.

Discussion

I. Whether DSMC Is Eligible For Award Under EAJA

EAJA permits award of attorney's fees and costs to, inter alia, an “association ... the net worth of which did not exceed $7,000,000 at the time the civil action was filed, and which had not more than 500 employees at the time the civil action was filed[.]” 28 U.S.C. § 2412(d)(2)(B)(ii). DSMC's petition therefor includes averment that DSMC “is an ad hoc trade association made up of primarily small, family-owned U.S. producers of diamond sawblades” (Pl.'s Br. at 4); that DSMC was established in 2005 for the purpose of petitioning the government for relief from unfairly priced imports; that the affiant has served as DSMC's Executive Chairman since 2005; that DSMC obtained relief in 2009; that DSMC has engaged in “several activities in addition to petitioning for relief” including...