Sumecht NA, Inc. v. United States
| Citation | 437 F.Supp.3d 1316 |
| Decision Date | 12 March 2020 |
| Docket Number | Court No. 17-00244,Slip Op. 20-33 |
| Parties | SUMECHT NA, INC., d.b.a. Sumec North America, Plaintiff, v. UNITED STATES, Defendant, and SolarWorld Americas, Inc., Defendant-Intervenor. |
| Court | U.S. Court of International Trade |
Mark B. Lehnardt, Michael S. Snarr, Lindita Ciko Torza, and Jake Frischknecht, Baker Hostetler, LLP, of Washington, D.C., for Plaintiff Sumecht NA, Inc., d.b.a. Sumec North America.
Justin R. Miller, Attorney-in-Charge, International Trade Field Office, Civil Division, U.S. Department of Justice, of Washington, D.C., for Defendant United States. With him on the brief were Joseph H. Hunt, Assistant Attorney General, Jeanne E. Davidson, Director, and Reginald T. Blades, Jr., Assistant Director. Of counsel was Mykhaylo A. Gryzlov, Office of the Chief Counsel for Trade Enforcement & Compliance, U.S. Department of Commerce, of Washington, D.C.
Before the court is an application for an award of attorneys’ fees and expenses under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412, requested by Plaintiff Sumecht NA, Inc., d.b.a. Sumec North America ("Sumecht"). Pl.’s Mem. in Supp. for Appl. of Attorney's Fees Under the EAJA and Am. Br. in Supp., ECF Nos. 87–89 ("Pl. Mem.").1 Defendant United States ("Defendant") opposes the fee application. Def.’s Mem. in Opp'n, ECF No. 92 ("Def. Opp'n"). For the reasons set forth below, Sumecht's fee application is denied.
The court presumes familiarity with the facts and record of proceedings as set out in the court's prior opinion and recounts only those facts relevant to the pending motion for attorneys’ fees. See Sumecht NA, Inc. v. United States, 43 CIT ––––, 399 F. Supp. 3d 1370, 1372–76 (2019).
Commerce initiated an antidumping duty investigation of certain solar cells from China in 2011. Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled Into Modules, From the People's Republic of China, 76 Fed. Reg. 70,960 (Dep't Commerce Nov. 16, 2011) (initiation of antidumping duty investigation). In reaching an affirmative determination and issuing an antidumping order, Commerce concluded that Sumecht's affiliated exporter, Sumec Hardware, satisfied its showing for separate status and was assigned the separate rate of 24.48%.
Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled Into Modules, From the People's Republic of China, 77 Fed. Reg. 63,791, 63,794 (Dep't Commerce Oct. 17, 2012) (final determination of sales at less than fair value and affirmative final determination of critical circumstances, in part), Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled Into Modules, From the People's Republic of China, 77 Fed. Reg. 73,018, 73,021 (Dep't Commerce Dec. 7, 2012) (amended final determination of sales at less than fair value and antidumping duty order) (collectively, "AD Order"); Pl. Mem. in Supp. of Mot. for J. Upon the Agency Rec. 21, ECF No. 61-1 (). The China-wide entity rate for exporters who did not establish separate rate status was 238.95%. AD Order, 77 Fed. Reg. at 73,021.
Petitioner and Defendant-Intervenor SolarWorld Americas, Inc. challenged the final results of the investigation and Sumec Hardware's separate rate status. Jiangsu Jiasheng Photovoltaic Tech. Co. v. United States, 38 CIT ––––, 28 F. Supp. 3d 1317 (2014), review after remand, 39 CIT ––––, 121 F. Supp. 3d 1263 (2015) (" Jiangsu Jiasheng"). The Jiangsu Jiasheng litigation concluded when the court sustained Commerce's remand results in a confidential opinion and entered judgment on October 5, 2015. Jiangsu Jiasheng, 121 F. Supp. 3d at 1266. The court issued a public version of the opinion on December 22, 2015. Sumecht NA, Inc., 399 F. Supp. 3d at 1374.
On November 23, 2015, Commerce published a notice in the Federal Register regarding the court's decision in Jiangsu Jiasheng that was not in harmony with Commerce's final determination ("Timken Notice").2 Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled Into Modules, From the People's Republic of China, 80 Fed. Reg. 72,950 (Dep't Commerce Nov. 23, 2015) (notice of court decision not in harmony and amended final LTFV determination). The Timken Notice reflected a change in Sumec Hardware's antidumping duty rate from 13.18% to the 238.95% China-wide entity rate and stated that the new rate would apply retroactively 39 days to October 15, 2015 (beginning on the tenth day after the court decided Jiangsu Jiasheng ).3 Id. Commerce published the Timken Notice more than ten days after the court decided Jiangsu Jiasheng. Id.; Sumecht NA, Inc., 399 F. Supp. 3d at 1376–77.
Sumecht filed suit in 2017 challenging Commerce's decisions to issue the late Timken Notice and to make the new 238.95% rate effective retroactively to 39 days before Commerce published notice of the new rate in the Federal Register. Summons, ECF No. 1; Compl., ECF No. 2; Am. Compl., ECF Nos. 15–16. Sumecht filed a USCIT Rule 56.1 motion for judgment on the agency record that was opposed by Defendant, and the court held oral argument in March 2019. ECF Nos. 61, 70, 71, 78.
Sumecht appealed this court's orders denying its motion for a preliminary injunction and motion for reconsideration.
Sumecht NA, Inc. v. United States, 42 CIT ––––, 331 F. Supp. 3d 1408 (2018) ; Notice of Interlocutory Appeal, ECF No. 66. The U.S. Court of Appeals for the Federal Circuit affirmed this court's denial of the motion for reconsideration and denial of the requested injunction on May 8, 2019. Sumecht NA, Inc. v. United States, 923 F.3d 1340, 1348 (Fed. Cir. 2019) ().
The court decided Sumecht's motion for judgment on the agency record on September 6, 2019. In a matter of first impression, the court found that Commerce's late publication of the Timken Notice beyond the ten-day statutory timeframe violated 19 U.S.C. § 1516a(c)(1). Sumecht NA, 399 F. Supp. 3d at 1377. The court determined also that the plain language of 19 U.S.C. § 1516a(c)(1) compelled liquidating the subject merchandise entered by Sumecht between November 9, 2015 and November 23, 2015 at the 13.18% rate assigned in Commerce's prior determination. Id. at 1378. The court then concluded that Defendant's late publication of the Timken Notice "prejudiced the Plaintiff and amounted to more than harmless error." Id. at 1379.
Defendant did not appeal the court's decision. Sumecht filed an application for an award under 28 U.S.C. § 2412, EAJA. In the application, Sumecht seeks an EAJA award of $111,007.40. Pl. Mem. at 16.
Sumecht argues that a fee award is appropriate under two provisions in the EAJA. Sumecht contends that Section 2412(d)(1)(A) authorizes an award because (1) it is both an eligible and prevailing party in the action against the United States; (2) Defendant took a position that was not substantially justified; and (3) no special circumstances would make an award unjust. See Pl. Mem. at 6–11. Alternatively, Sumecht contends that Section 2412(b) provides a separate basis to award fees and expenses. Id. at 7. Defendant responds that Sumecht presented insufficient evidence to meet the "prevailing party" eligibility criteria. Def. Opp'n at 6. Defendant argues that even if Sumecht qualifies as a prevailing party, its position was substantially justified. Id. at 13–22. In the alternative, Defendant avers that special circumstances bar an award. Id. at 25.
The EAJA "ensure[s] that certain individuals, partnerships, corporations ... or other organizations will not be deterred from seeking review of, or defending against, unjustified governmental action because of the expense involved" in vindicating their rights. Scarborough v. Principi, 541 U.S. 401, 407, 124 S.Ct. 1856, 158 L.Ed.2d 674 (2004) (); see Comm'r, I.N.S. v. Jean, 496 U.S. 154, 163, 110 S.Ct. 2316, 110 L.Ed.2d 134 (1990) ().
The court may award EAJA fees and other expenses when the applicant shows that it is an eligible and prevailing party in a civil action brought by or against the United States, 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)–(B). A "prevailing party" is one that "has been awarded some relief by the court."
Buckhannon Bd. and Care Home, Inc. v. West Virginia Dep't of Health and Human Res., 532 U.S. 598, 603, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001). An eligible "party" includes a "partnership, corporation, ... or organization," if the entity did not have more than 500 employees and its net worth did not exceed $7,000,000 at the time the civil action was filed. 28 U.S.C. § 2412(d)(2)(B).
A plaintiff bears the burden of showing it is a "prevailing party" that meets the financial eligibility conditions (in this case, the net worth and headcount requirements) and that it filed a timely application containing an itemized account of fees and costs. See Scarborough, 541 U.S. at 405, 414, 124 S.Ct. 1856. The Government bears the burden of showing that its position was substantially justified. Id. at 415, 124 S.Ct. 1856 (). The Government need do so only by a preponderance of the evidence. De Allende v. Baker, 891 F.2d 7, 12 (1st Cir. 1989) (citation omitted).
The phrase "substantial justification" means "justified to a degree that could satisfy a reasonable person." Pierce v. Underwood, 487...
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