Novolipetsk Steel Pub. Joint Stock Co. v. United States
| Decision Date | 13 April 2021 |
| Docket Number | Court No. 19-00172,Slip Op. 21-40 |
| Parties | NOVOLIPETSK STEEL PUBLIC JOINT STOCK COMPANY and NOVEX Trading (Swiss) SA, Plaintiffs, v. UNITED STATES, Defendant, and Nucor Corporation, Defendant-Intervenor. |
| Court | U.S. Court of International Trade |
Valerie Ellis, Curtis, Mallet-Prevost, Colt & Mosle LLP, of Washington, D.C., for plaintiffs Novolipetsk Steel Public Joint Stock Company and NOVEX Trading (Swiss) SA. Also on the briefs was Daniel L. Porter.
Kelly A. Krystyniak, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, D.C., for defendant. Also on the brief were Brian M. Boynton, Acting Assistant Attorney General, Jeanne E. Davidson, Director, and Tara K. Hogan, Assistant Director. Of counsel was Daniel J. Calhoun Trial Attorney, Attorney, Office of the Chief Counsel for Trade Enforcement and Compliance, U.S. Department of Commerce, of Washington, D.C.
Alan H. Price, Wiley Rein, LLP, of Washington, D.C., for defendant-intervenor Nucor Corporation. Also on the brief were Cynthia C. Galvez, Christopher B. Weld, and Jeffrey O. Frank.
Pursuant to U.S. Court of International Trade ("USCIT") Rules 52(b), 54(b), 60, or in the alternative, 59(e), Plaintiffs Novolipetsk Steel Public Joint Stock Company ("NLMK") and NOVEX Trading (Swiss) SA's ("NOVEX") (collectively, "Plaintiffs") move for the court to alter and amend Novolipetsk Steel Pub. Joint Stock Co. v. United States, 44 CIT ––––, 483 F. Supp. 3d 1281 (2020) (" Novolipetsk"). See Mot. to Alter & Amend Slip Op. 20-170 & Mot. to Stay Judgment, Dec. 30, 2020, ECF No. 58 .1 Defendant and Defendant-Intervenor Nucor Corporation ("Nucor") oppose. See Def.’s Resp. Opp'n , Feb. 3, 2021, ECF No. 61 ("Def.’s Resp."); Def.-Intervenor [Nucor's] Opp'n , Feb. 3, 2021, ECF No. 62 ("Nucor's Resp."). For the following reasons, the court denies Plaintiffs’ motion.
The court presumes familiarity with the facts of this case as set out in its previous opinion sustaining the U.S. Department of Commerce's ("Commerce") final determination in the 2016–2017 administrative review of the antidumping duty ("ADD") order on certain hot-rolled flat rolled carbon-quality steel products ("HRC") from the Russian Federation ("Russia"), and only sets forth facts relevant to disposition of this motion. See Novolipetsk, 44 CIT at ––––, 483 F. Supp. 3d at 1284–85 ; see also [HRC] from [Russia], 84 Fed. Reg. 38,948 (Dep't Commerce Aug. 8, 2019) (final results and rescission of [ADD] admin. review; 2016–2017) ("Final Results") and accompanying Issues & Decision Memo. for the [Final Results], A-821-809, (Aug. 2, 2019), ECF No. 21-5 ("Final Decision Memo"). In Novolipetsk, Plaintiffs challenged Commerce's final determination that NLMK's single U.S. sale of subject HRC was not bona-fide, as well as Commerce's resultant decision to rescind the 2016–2017 administrative review, as contrary to law and unsupported by substantial evidence. 44 CIT at ––––, 483 F. Supp. 3d at 1283–85 ; see also Compl., Sept. 9, 2019, ECF No. 6; Summons, Sept. 9, 2019, ECF No. 1.
On November 30, 2020, the court sustained Commerce's final determination. See generally Novolipetsk, 44 CIT ––––, 483 F. Supp. 3d 1281 ; see also Judgment, Nov. 30, 2020, ECF No. 52. The court held that it is reasonable for Commerce to interpret the statute as authorizing it to disregard transactions that it determines are not bona fide sales in an administrative review, Novolipetsk, 44 CIT at ––––, 483 F. Supp. 3d at 1286–88, and that Commerce reasonably exercised its discretion to examine the bona fides of NLMK's sale of subject HRC. Id. at ––––, 483 F. Supp. 3d at 1288–89. Moreover, the court held that Commerce's determination that NLMK's entry is not a bona fide sale was supported by substantial evidence. Id. at ––––, 483 F. Supp. 3d at 1289–93. Thus, the court sustained Commerce's decision to rescind the 2016–2017 administrative review and explained that the 184.56 percent all-others rate continues to apply to NLMK as a function of their failure to make a bona fide sale. Id. at ––––, 483 F. Supp. 3d at 1293–94.
On December 30, 2020, Plaintiffs moved to alter and amend Novolipetsk and for a stay of judgment. See generally Pls.’ Mot. On January 29, 2021, Plaintiffs filed a notice of appeal of the court's judgment and order in Novolipetsk to the Court of Appeals for the Federal Circuit ("Court of Appeals"). Notice of Appeal, Jan. 29, 2021, ECF No. 60. Defendant and Defendant-Intervenor Nucor replied to Plaintiffs’ motion on February 3, 2021. See generally Def.’s Resp.; Nucor's Resp. On February 4, 2021, the Court of Appeals issued an order deactivating the appeal in light of the pending motion, stating that the appeal would be reactivated upon final disposition of Plaintiffs’ motion. See Court of Appeals’ Order, Feb. 4, 2021, ECF No. 64; see also Court of Appeals’ Letter, Feb. 4, 2021, ECF No. 65. On March 1, 2021, after being granted a brief extension of time, Plaintiffs filed a reply in support of their motion to alter and amend. See [Pls.’] Reply Br. Supp. , Mar. 1, 2021, ECF No. 68 ( ); see also Order, Feb. 23, 2021, ECF No. 67.
Plaintiffs assert that Counts I and V are relevant to consideration of their motion. See Pls.’ Mot. at 3. Count I of Plaintiffs’ complaint states "Commerce's refusal to complete an administrative review and calculate an accurate assessment and deposit rate for the sale under review is not in accordance with the law." Compl. at 4–5 (Count I). Count V of Plaintiffs’ complaint states "Commerce's assessment of NLMK's entry during the [period of review] at an AFA rate of 184.56 percent is not supported by substantial evidence and not in accordance with law." Id. at 8 (Count V).
The court has jurisdiction pursuant to section 516A(a)(2)(B)(iii) of the Tariff Act of 1930, as amended, 19 U.S.C. § 1516a(a)(2)(B)(iii) (2018)2 and 28 U.S.C. § 1581(c) (2018), which grant the court authority to review actions contesting the final determination in an administrative review of an ADD order.
As a threshold matter, Plaintiffs invoke USCIT Rules 54(b), 59(e), and 60, claiming that "fewer than all[ ] claims" were litigated and that amending the judgment would prevent manifest injustice or correct the court's "oversight or omission." See Pls.’ Reply Br. at 2. Entertaining Plaintiffs’ construction of their motion when setting forth the applicable standard of review would require the court to accept the premise that Novolipetsk did not adjudicate all of Plaintiffs’ claims. The court does not accept that premise. For the reasons set forth below, the court finds that the arguments underlying Plaintiffs’ motion fail to articulate a reason to question the validity of the court's judgment based on any of the cited rules. Since Plaintiffs’ arguments lack merit either way, for purposes of discussion, the court considers Plaintiffs’ arguments in support of their premise and also examines Plaintiffs’ motion as a request for reconsideration under USCIT Rule 59.
A motion for reconsideration rests within the sound discretion of the court. Yuba Natural Res., Inc. v. United States, 904 F.2d 1577, 1583 (Fed. Cir. 1990). The court will grant such a motion "to address a fundamental or significant flaw in the original proceeding." USEC, Inc. v. United States, 25 C.I.T. 229, 230, 138 F. Supp. 2d 1335, 1336–37 (2001) (citations omitted).
Plaintiffs argue that the court's opinion does not address Count I in full "because it does not speak to Commerce's statutory obligation to determine assessment rates." Pls.’ Mot. at 5. According to Plaintiffs, "Commerce's bona fides findings do not relieve the agency of its statutory obligation to determine the actual margin of dumping for each entry and to calculate an importer-specific assessment rate," and the court's opinion only "speaks to the rate approximating the exporter's selling practices—the cash deposit rate." Id. Moreover, Plaintiffs submit that the court's opinion fails to address Count V of their complaint entirely because it does not speak to "whether imposition of an adverse facts available assessment rate is in accordance with law or ... whether assessment at a 184.56% rate is supported by substantial evidence." Id. at 6. Defendant and Defendant-Intervenor counter that the court's holding that Commerce has authority to find that a U.S. sale is not bona fide, and to subsequently rescind the administrative review where there are no bona fide sales upon which to calculate a dumping margin, fully addresses Count I. See Def.’s Resp. at 3–4; Nucor's Resp. at 3–4. With respect to Count V, Defendant and Defendant-Intervenor submit that the court's observation that the 184.56% rate went unchallenged and continues to apply in the absence of a bona-fide U.S. sale addresses Plaintiffs’ claim as to whether assessment at a 184.56% all-others rate is reasonable. See Def.’s Resp. at 5; Nucor's Resp. at 3–4. Defendant and Defendant-Intervenor add that the court is under no obligation to explicitly address every aspect of an argument raised by a party. See Def.’s Resp. at 3; Nucor's Resp. at 4 (citation omitted).
Plaintiffs’ invocation of USCIT Rules 54(b), 59(e), and 60 in moving for adjudication of all claims, and seeking to prevent manifest injustice or correct the court's oversight or omission, is a veiled attempt to re-litigate issues already addressed in Novolipetsk. First, Novolipetsk’s ruling that Commerce lawfully rescinded the review adjudicates Count I, which challenges Commerce's refusal to complete the administrative review and calculate an accurate assessment and deposit rate for the sale under review. Compare Compl. at 4–5 (Count I), with Novolipetsk, 44 CIT at ––––, 483 F. Supp. 3d at 1286–94. Plaintiffs characterize Novolipetsk as speaking to the cash deposit rate, as opposed to the...
To continue reading
Request your trial