Hor Liang Indus. Corp. v. United States

• Decision Date: 24 September 2018
• Docket Number: Slip Op. 18-124,Court No. 18-00029
• Citation: 337 F.Supp.3d 1310
• Parties: HOR LIANG INDUSTRIAL CORP. and Romp Coil Nails Industries Inc., Plaintiffs, v. UNITED STATES, Defendant, and Mid Continent Steel & Wire, Inc., Defendant-Intervenor.
• Court: U.S. Court of International Trade

337 F.Supp.3d 1310

HOR LIANG INDUSTRIAL CORP. and Romp Coil Nails Industries Inc., Plaintiffs,

v. UNITED STATES, Defendant,andMid Continent Steel & Wire, Inc., Defendant-Intervenor.

Slip Op. 18-124

Court No. 18-00029

United States Court of International Trade.

September 24, 2018

Ned H. Marshak, Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP, of New York, NY, argued for Plaintiff. With him on the brief were Max F. Schutzman, and Andrew T. Schutz.

Sosun Bae, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, DC, argued for Defendant. With her on the brief were Chad A. Readler, Acting Assistant Attorney General, Jeanne E. Davidson, Director, and Patricia M. McCarthy, Assistant Director. Of counsel on the brief was Natan P. L. Tubman, Attorney, Office of the Chief Counsel for Trade Enforcement and Compliance, U.S. Department of Commerce.

Adam H. Gordon, The Bristol Group PLLC, of Washington, DC, argued for Defendant-Intervenor. With him on the brief were Ping Gong and Lydia K. Childre.

OPINION AND ORDER

Barnett, Judge:

Hor Liang Industrial Corp. ("Hor Liang") and Romp Coil Nails Industries Inc. ("Romp") (together, "Plaintiffs") seek to challenge the U.S. Department of Commerce's ("Commerce" or the "agency") final results in the first administrative review of the antidumping duty order covering certain steel nails from Taiwan. See Am. Compl., ECF No. 20; Certain Steel Nails from Taiwan , 83 Fed. Reg. 6,163 (Dep't Commerce Feb. 13, 2018) (final results of antidumping admin. review and partial rescission of admin. review; 2015-2016) (" Final Results "). Defendant United States ("Defendant" or the "Government") moves to dismiss Plaintiffs' amended complaint for lack of subject matter jurisdiction pursuant to United States Court of International Trade ("USCIT") Rule 12(b)(1). Def.'s Mot. to Dismiss for Lack of Subject Matter Jurisdiction and to Dissolve Corresponding Statutory Inj. ("Def.'s Mot."), ECF No. 26. Plaintiffs oppose the motion. Resp. to Def.'s Mot. to Dismiss Pls.' Compl. for Lack of Subject Matter Jurisdiction ("Pls.' Opp'n"), ECF No. 35. Defendant-Intervenor Mid Continent Steel & Wire, Inc. ("Mid Continent") supports the motion. Def.-Int.'s Resp. in Supp. of Def.'s Mot. to Dismiss and to Dissolve Statutory Inj. ("Def.-Int.'s Resp."), ECF No. 28.

The questions before the court are whether (1) Plaintiffs were parties to the administrative proceeding with standing to challenge the Final Results pursuant to 28 U.S.C. § 1581(c) even though their sole submission consisted of ministerial error comments, which were rejected by Commerce and removed from the administrative record; (2) the court otherwise has subject matter jurisdiction pursuant to 28 U.S.C. § 1581(i) to resolve Plaintiffs' challenges; and (3) if the court possesses subject matter jurisdiction, the doctrine of administrative exhaustion nevertheless precludes Plaintiffs from presenting their arguments to the court.

For the reasons discussed herein, the court finds that Plaintiffs have standing to invoke the court's jurisdiction pursuant to 28 U.S.C. § 1581(c) ; thus, jurisdiction pursuant to 28 U.S.C. § 1581(i), which was alleged in the alternative, is unavailable. Accordingly, Defendant's motion is denied. The court dismisses certain of Plaintiffs' claims, however, for failure to exhaust administrative remedies.

BACKGROUND

In September 2016, Commerce initiated the first administrative review of the antidumping duty order covering certain steel nails from Taiwan. Initiation of Antidumping and Countervailing Duty Admin. Reviews , 81 Fed. Reg. 62,720 (Dep't Commerce Sept. 12, 2016). Plaintiffs, Taiwanese producers and exporters of steel nails, were subject to the review but were not selected for individual examination. Id. , 81 Fed. Reg. at 62,726 ; Am. Compl. ¶¶ 3, 11. Three companies, PT Enterprise, Inc. ("PT Enterprise"), Bonuts Hardware Logistics Co., LLC ("Bonuts"), and Unicatch Industrial Co., Ltd. ("Unicatch") were individually examined. See Am. Compl. ¶ 14.

In June 2017, Mid Continent first urged Commerce to assign to Unicatch and PT Enterprise dumping margins based on the facts available with an adverse inference (referred to as "adverse facts available" or "AFA").¹ Def.-Int.'s Resp. at 3. Mid Continent also met with Commerce officials to discuss the matter. See id.

On August 7, 2017, Commerce published its preliminary results. Certain Steel Nails from Taiwan , 82 Fed. Reg. 36,744 (Dep't Commerce Aug. 7, 2017) (prelim. results of antidumping duty admin. review and partial rescission of admin. review; 2015-2016) ("Prelim. Results "). Therein, Commerce determined that PT Enterprise and Bonuts had failed to cooperate to the best of their ability and assigned them weighted-average dumping margins equal to 78.17 percent based on adverse facts available. Id. , 82 Fed. Reg. at 36,744 -45. Commerce preliminarily calculated a weighted-average dumping margin of 34.20 percent for Unicatch, based on the data it had submitted. Id. ; see also Am. Compl. ¶ 12.

To calculate dumping margins for non-examined companies—such as Romp and Hor Liang—Commerce is guided by 19 U.S.C. § 1673d(c)(5).² See Prelim. Results , 82 Fed. Reg. at 36,744. Section 1673d(c)(5)(A) provides that the "all-others rate" assigned to non-examined companies is calculated as "the weighted average of the estimated weighted average dumping margins" assigned to individually-examined companies, "excluding any zero and de minimis margins, and any margins determined entirely under section 1677e of this title [i.e., on the basis of adverse facts available]." 19 U.S.C. § 1673d(c)(5)(A). If, however, the dumping margins assigned to all individually-examined companies are zero, de minimis, or based on adverse facts available, Commerce "may use any reasonable method to establish the estimated all-others rate for exporters and producers not individually investigated, including averaging the estimated weighted average dumping margins determined for the exporters and producers individually investigated." Id. § 1673d(c)(5)(B). Citing to 19 U.S.C. § 1673d(c)(5)(A), Commerce preliminarily assigned Unicatch's rate to Romp and Hor Liang. Prelim. Results , 82 Fed. Reg. at 36,744.

Plaintiffs did not file case or rebuttal briefs in response to the preliminary results. Def.'s Mot. at 2. Mid Continent filed a case brief again urging Commerce to reject Unicatch's data and, instead, assign to Unicatch a rate based on adverse facts available. Def.-Int.'s Resp. at 4.

On February 6, 2018, Commerce issued the Final Results . See Final Results , 83 Fed. Reg. at 6,165.³ Therein, Commerce determined to use adverse facts available to determine the rate for Unicatch as well as for the other individually-examined respondents—PT Enterprise and Bonuts—resulting in all individually examined respondents receiving final dumping margins of 78.17 percent. Final Results , 83 Fed. Reg. at 6,164 ; Am. Compl. ¶ 14. Commerce assigned Romp and Hor Liang weighted-average dumping margins of 78.17 percent; i.e., "the rate determined for all mandatory respondents." Final Results , 83 Fed. Reg. at 6,164 (citing 19 U.S.C. § 1673d(c)(5)(B) ); Am. Compl. ¶¶ 14-15.⁴

Soon thereafter, Romp and Hor Liang filed notices of appearance and requests for an administrative protective order. See Am. Compl. ¶ 4. On February 20, 2018, Romp and Hor Liang filed ministerial error comments. Id. ¶ 19; see also Pls.' Opp'n, Attach. 1 ("Pls.' Ministerial Error Allegation"), ECF No. 35. Therein, Romp and Hor Liang argued that Commerce assigned them a rate based on adverse facts available without considering readily available evidence regarding alternative rates, and this failure constituted a clerical error that Commerce could correct pursuant to 19 U.S.C. § 1675(h)⁵ and 19 C.F.R. § 351.224.⁶ Pls.' Ministerial Error Allegation at 3-7; Am. Compl. ¶ 19.

On February 27, 2018, Commerce rejected (or otherwise denied) Romp and Hor Liang's ministerial error allegation. Rejection of Submission (Feb. 27, 2018) ("Commerce Feb. 27 Letter"), ECF No. 43-1; Am. Compl. ¶ 24. Commerce explained that it had not made a ministerial error as that term is defined by statute and regulation, and, "[b]ased upon [its] analysis of the comments received, [ ] will not amend [Romp's and Hor Liang's] margins." Commerce Feb. 27 Letter at 1; Am. Compl. ¶ 24. The following day, Commerce removed the ministerial error allegation from the record. Rejection of Submissions: Romp and Hor Liang (Feb. 28, 2018) ("Commerce Feb. 28 Letter), ECF No. 43-3; Am. Compl. ¶¶ 25-26.

On March 2, 2018, Romp and Hor Liang requested Commerce to reinstate their ministerial error allegation on the administrative record. Pls.' Opp'n, Attach. 3, ECF No. 35. On March 15, 2018, Commerce denied the request. Rejection of Submission (March 15, 2018) ("Commerce March 15 Letter"), ECF No. 43-5. Commerce explained that it had "denied" and "rejected" Romp and Hor Liang's ministerial error allegation because they "[had] not raise[d] a good faith ministerial error argument, but instead raised arguments clearly pertaining to the substantive nature of Commerce's methodological decision to determine the rate for the separate rate companies." Id. at 1-2. Thus, Commerce reasoned, it had properly rejected the submission and removed it from the record. Id. at 2.

On February 22, 2018, Romp and Hor Liang initiated this action challenging the Final Results . Summons, ECF No. 1. Plaintiffs alleged jurisdiction pursuant to 28 U.S.C. § 1581(c) and (i) (hereinafter referred to as "(c) jurisdiction" and "(i) jurisdiction," respectively). Am. Compl. ¶ 2. Plaintiffs alleged that they were interested parties who were parties to the proceeding on the basis of their timely filed ministerial error allegation. Id. ¶¶ 3-4.

On March 26, 2018, S.T.O. Industries, Inc. ("STO Industries") moved to intervene in this action as a plaintiff-intervenor. See Proposed Pl.-Int.'s Second Am. Mot. to Intervene as a Matter...