Consol. Fibers, Inc. v. United States
| Decision Date | 27 November 2017 |
| Docket Number | Court No. 14-00222,Slip Op. 17-157 |
| Parties | CONSOLIDATED FIBERS, INC., Plaintiff, v. UNITED STATES, Defendant. |
| Court | U.S. Court of International Trade |
Before: Timothy C. Stanceu, Chief Judge
OPINION AND ORDER[Denying plaintiff's application for attorneys' fees and expenses under the Equal Access to Justice Act]
Gregory S. Menegaz, deKieffer & Horgan, PLLC, of Washington, D.C., for plaintiff Consolidated Fibers, Inc. With him on the brief were Alexandra H. Salzman and J. Kevin Horgan.
Jason M. Kenner, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of New York, N.Y., for defendant United States. With him on the brief were Benjamin C. Mizer, Principal Deputy Assistant Attorney General, and Amy M. Rubin, Assistant Director.
Consolidated Fibers, Inc. ("Consolidated Fibers") applies for attorneys' fees and other expenses pursuant to the Equal Access to Justice Act ("EAJA"). For the reasons discussed herein, the court denies the application.
Consolidated Fibers, an importer of polyester staple fiber ("PSF") from Korea, commenced this action in 2014 to contest the denial by Customs and Border Protection ("Customs" or "CBP") of its protest of CBP's reliquidation of a single entry of PSF at an antidumping duty rate of 48.14% ad valorum. Summons (Sept. 19, 2014), ECF No. 1. The uncontested facts relevant to plaintiff's EAJA application, as set forth in the submissions of the parties, and relevant facts ascertainable from Federal Register publications of which the court may take judicial notice, are presented below.
Consolidated Fibers made the entry of PSF that resulted in this litigation, Entry No. 315-4707817-5, on December 7, 2005, depositing estimated antidumping duties at the rate of 7.91% ad valorum. At the time the entry was made, PSF from Korea was subject to an antidumping duty order. See Certain Polyester Staple Fiber from Korea: Notice of Amended Final Determination and Amended Order Pursuant to Final Court Decision, 68 Fed. Reg. 74,552 (Int'l Trade Admin. Dec. 24, 2003) ("Amended Order"). The exporter of the merchandise on the entry, Dongwoo Industry Co. ("Dongwoo"), was a reviewed exporter/producer in a periodic administrative review of the antidumping duty order conducted by the International Trade Administration, U.S. Department of Commerce ("Commerce" or the "Department"), covering a period of review from May 1, 2005 through April 30, 2006. Certain Polyester Staple Fiber from Korea: Final Results of the 2005-2006 Antidumping Duty Administrative Review, 72 Fed. Reg. 69,663 (Int'l Trade Admin. Dec. 10, 2007) ("Final Results"). As a result of the review, liquidation of the entry was administratively suspended pursuant to 19 U.S.C. § 1675.1
On December 10, 2007, Commerce published the final results of the administrative review, in which it assigned an antidumping duty rate of 48.14% ad valorum to entries of subject merchandise produced or exported by Dongwoo. Final Results, 72 Fed. Reg. at 69,663-66. On January 14, 2008, Commerce issued liquidation instructions directing Customs to assessantidumping duties at the 48.14% rate on shipments of PSF from Korea produced or exported by Dongwoo. Customs failed to liquidate the entry in response to the instructions.
On May 6, 2011, Customs posted a bulletin notice pursuant to its regulation, 19 C.F.R. § 159.9(c)(2)(ii),2 announcing that the entry had been deemed liquidated on June 10, 2008 at the entered antidumping duty rate of 7.91%. On June 17, 2011, Customs notified Consolidated Fibers that it had "rate advanced" the entry to the 48.14% rate specified in the Department's January 14, 2008 liquidation instructions, with interest. Customs then took action to reliquidate the entry on July 22, 2011, assessing antidumping duties at the 48.14% rate. Consolidated Fibers filed a protest of the reliquidation on November 14, 2011, which Customs denied on May 21, 2014. Plaintiff commenced this action on September 19, 2014 to contest the denial of the protest of the reliquidation. Summons.
Defendant moved for entry of confession of judgment on December 21, 2015, in which it stated its view that it was making this motion because plaintiff "will not sign a stipulated judgment on agreed statement of facts without certain concessions regarding attorney's fees pursuant to the Equal Access to Justice Act (EAJA)." Def.'s Mot. for Entry of Confession of J. in Pl.'s Favor 4 n.1 (Dec. 21, 2015) ("Mot. for Confession of J."), ECF No. 28. The judgment entered in response to defendant's motion ordered reliquidation of the entry at an antidumping duty rate of 7.91% and the payment of interest as provided by law on the duty refunds. Judgment (May 16, 2016), ECF No. 31.
Plaintiff filed its EAJA application on June 15, 2016 pursuant to 28 U.S.C. § 2412 and USCIT Rule 54.1. Pl.'s App. for Attys' Fees and Other Expenses (June 15, 2016), ECF No. 33("Application"). In the application, plaintiff seeks an EAJA award of $30,980.18. Attach. 1 to Application (June 15, 2016), ECF No. 33-1 (Plaintiff's Proposed Order). Defendant opposed the application in its response, filed on August 19, 2016. Resp. in Opp. To Mot. for Fees pursuant to the EAJA (Aug. 19, 2016), ECF No. 36.
Plaintiff claims entitlement to attorneys' fees and expenses under § 2412(d) of the EAJA, which in pertinent part provides:
Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses . . . incurred by that party in any civil action . . . brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.
28 U.S.C. § 2412(d)(1)(A). As an alternative to its application under § 2412(d), plaintiff requests attorneys' fees and expenses under a separate provision of the EAJA, § 2412(b), that authorizes shifting fees and expenses to the government "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).
A court must award attorneys' fees and other expenses under § 2412(d) if: (1) the claimant is a prevailing party in a civil action brought by or against the United States; (2) the government's position was not substantially justified; (3) no special circumstances make an award unjust; and (4) the fee application is timely and supported by an itemized fee statement. Libas, Ltd. v. United States, 314 F.3d 1362, 1365 (Fed. Cir. 2003) (citing 28 U.S.C. § 2412(d)(1)(A)-(B); INS v. Jean, 496 U.S. 154, 158 (1990)). In addition to these criteria, § 2412(d)(2)(B) imposes financial eligibility standards under which a for-profit company may qualify for an EAJA award only if its net worth was not more than $7,000,000 and it had not more than 500 employees at the time the civil action was filed. 28 U.S.C. § 2412(d)(2)(B)(ii).
In this litigation, plaintiff attained the benefit it sought, i.e., reliquidation of the entry at the entered rate of 7.91% and the payment of duty refunds with interest, and, therefore, prevailed in the civil action. Because the court concludes, for the reasons discussed later in this Opinion and Order, that defendant's position was substantially justified, the court does not address the remaining factors.
The government bears the burden of demonstrating that its position was substantially justified. Libas, 314 F.3d at 1365. The term "substantially justified" means Pierce v. Underwood, 487 U.S. 552, 565 (1988) (internal quotation marks and citations omitted). To meet its burden, the government must "show that it was clearly reasonable in asserting its position, including its position at the agency level, in view of the law and the facts." Gavette v. Office of Pers. Mgmt., 808 F.2d 1456, 1467 (Fed. Cir. 1986) (emphasis in original) (footnote omitted). The analysis is independent of the results on the merits, and a party's prevailing in the underlying case does not give rise to a presumption that the government's position was not substantially justified. See Luciano Pisoni Fabbrica Accessori Instrumenti Musicali v. United States, 837 F.2d 465, 467 (Fed. Cir. 1988).
Defendant expressed no litigation position before the court, the case never having reached briefing on the merits. Instead, following discovery defendant sought to conclude the litigation by satisfying plaintiff's claim in full. Mot. for Confession of J. A civil plaintiff may recover under the EAJA for a government position taken at the agency level. See Gavette, 808 F.2d at 1467. The government's burden, therefore, is to show that the position it took, which in this case was the one taken at the agency level in denying the protest, was substantially justified.
The issue presented in the protest, and in this litigation, was whether CBP's action to reliquidate Entry No. 315-4707817-5 at an antidumping duty rate of 48.14% had legal effect, such that Consolidated Fibers became liable as the importer of record for antidumping duties at that rate, or whether CBP's action was invalid, such that the antidumping duty liability was limited to the antidumping duty cash deposit made upon entry, which was at the rate of 7.91%. The issue is affected by two statutory provisions. The first is section 501 of the Tariff Act of 1930 ("Tariff Act"), 19 U.S.C. § 1501, which provides Customs general statutory authority to reliquidate entries. The second is section 504(d) of the Tariff Act, 19 U.S.C. § 1504(d), under which Customs...
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