Suntec Indus. Co. v. United States

• Citation: 951 F.Supp.2d 1341
• Decision Date: 06 December 2013
• Docket Number: Court No. 13–00157.,Slip Op. 13–147.
• Parties: SUNTEC INDUSTRIES CO., LTD., Plaintiff, v. UNITED STATES, Defendant, and Mid Continent Nail Corp., Defendant–Intervenor.
• Court: U.S. Court of International Trade

951 F.Supp.2d 1341

SUNTEC INDUSTRIES CO., LTD., Plaintiff,
v.
UNITED STATES, Defendant,
and
Mid Continent Nail Corp., Defendant–Intervenor.

Slip Op. 13–147.
Court No. 13–00157.

United States Court of
International Trade.

Dec. 6, 2013.

[951 F.Supp.2d 1344]

Mark B. Lehnardt, Attorney, Lehnardt & Lehnardt LLC, of Liberty, MO, and Brian R. Soiset, Attorney, of Shanghai, PRC, for the plaintiff.

Stephen C. Tosini, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, DC, for the defendant. On the brief were Stuart F. Delery, Acting Assistant Attorney General, Jeanne E. Davidson, Director, Patricia M. McCarthy, Assistant Director, and Tara K. Hogan, Senior Trial Counsel. Of counsel on the brief was Nathaniel J. Halvorson, Attorney, Office of the Chief Counsel for Import Administration, U.S. Department of Commerce, of Washington, DC.

Adam H. Gordon, Jordan C. Kahn, and Nathan W. Cunningham, Attorneys, Picard, Kentz & Rowe, LLP, of Washington DC, for the defendant-intervenor.

OPINION AND ORDER
MUSGRAVE, Senior Judge:

The complaint claims jurisdiction under 28 U.S.C. § 1581(i) challenging the initiation of Certain Steel Nails from the People's Republic of China; Final Results of Third Antidumping Administrative Review; 2010–2011, 78 Fed.Reg. 16651 (Mar. 18, 2013) (“ AR3 Final ”), on the ground of improper notice to the plaintiff. The defendant moves to dismiss for lack of subject-matter jurisdiction under USCIT Rule 12(b)(1) or alternatively for failure to state a claim upon which relief may be granted under Rule 12(b)(5). The court denies both motions.

Background

Prior to AR3 Final, the plaintiff, Suntec Industries Co., Ltd. (“Suntec”), participated in the antidumping investigation and filed a separate rate application therein. The domestic petitioner Mid Continent Nail Corporation requested administrative review of Suntec (and others) for the first and second periods but subsequently withdrew those requests after Suntec filed separate rate certifications in each review. Compl. ¶¶ 6, 9–10.

On August 1, 2011, Commerce published a notice in the Federal Register of the opportunity to request review of companies subject to antidumping duty orders with anniversary dates of that month. Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation; Opportunity to Request Administrative Review, 76 Fed.Reg. 45773 (Aug. 1, 2011) (“Not later than the last day of August 2011, interested parties may request administrative review of the following orders, findings, or suspended investigations, with anniversary dates in August for the following periods: ... Steel Nails, A–570–909 8/1/10–7/31/11”). The petitioner again requested review of numerous companies for AR3 Final, including Suntec. Compl. ¶¶ 11–22. Suntec did not file a separate rate certification, and the petitioner did not withdraw its request for review of Suntec.

On October 3, 2011, Commerce published a notice of initiation in the Federal Register. Initiation of Antidumping and Countervailing Duty Administrative Reviews and Requests for Revocations in Part, 76 Fed.Reg. 61076 (Oct. 3, 2011) (“ AR3 Initiation ”). Commerce announced

[951 F.Supp.2d 1345]

as follows: “we are initiating administrative reviews of the following antidumping and countervailing duty orders and findings” including “ Certain Steel Nails, A–570–909” from the People's Republic of China (“PRC”), 76 Fed.Reg. at 61076–77. Among the companies listed in the initiation notice, Commerce included “Suntec Industries Co., Ltd.” Id. at 61077. Commerce advised:

All firms listed below that wish to qualify for separate-rate status in the administrative reviews involving [nonmarket economy] countries must complete, as appropriate, either a separate-rate application or certification ... For these administrative reviews, in order to demonstrate separate-rate eligibility, the Department requires entities for whom a review was requested, that were assigned a separate rate in the most recent segment of this proceeding in which they participated, to certify that they continue to meet the criteria for obtaining a separate rate.

76 Fed.Reg. at 61077. Although it was assigned a separate rate in the second segment of the antidumping duty proceeding, Suntec did not submit a certification in the instant review to demonstrate that it continued to satisfy the criteria for obtaining a separate rate. Compl. ¶¶ 6–11, 22–23.

Commerce published its preliminary results on September 4, 2012 in the Federal Register, listing Suntec under the heading “Companies that did not apply for separate rates and are considered to be part of the PRC-wide entity” and assigning the PRC-wide rate of 118.04% to Suntec as part of the PRC-wide entity. See Certain Steel Nails from the People's Republic of China, 77 Fed.Reg. 53845, app. IV (Sep. 4, 2012) (admin. review prelim. results). Commerce also invited parties to submit case briefs and written comments within thirty days of publication of the preliminary results.

Commerce published the final results of AR3 Final on March 18, 2013. 78 Fed.Reg. 16651 (March 18, 2013). Several other respondents brought challenges within 30 days of publication of the final results pursuant to 28 U.S.C. § 1581(c), but Suntec was not among them. On April 18, 2013 (31 days after publication of AR3 Final ), it filed its complaint here.

Standard of Review

On a motion to dismiss for lack of jurisdiction, the factual allegations in the complaint are not controlling and only uncontroverted factual allegations are accepted as true. Shoshone Indian Tribe of the Wind River Reservation v. United States, 672 F.3d 1021, 1030 (Fed.Cir.2012). In deciding such a motion, a court may review evidence extrinsic to the pleadings. Id. If a defendant challenges jurisdiction, the plaintiff cannot rely merely upon allegations in the complaint, but must bring forth relevant, competent proof to establish jurisdiction. McNutt v. General Motors Acceptance Corp. of Indiana, 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936). A court also has an independent duty to assure that jurisdiction is proper. See Yang v. I.N.S., 109 F.3d 1185,1192 (7th Cir.1997) (a court has jurisdiction to determine whether it has jurisdiction).

On a motion to dismiss for failure to state a claim, the court must decide whether the complaint raises factual allegations sufficient “to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A complaint has “facial plausibility” when it “pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

[951 F.Supp.2d 1346]

Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). If the complaint contains well-pled factual allegations, “a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Id. at 679, 129 S.Ct. 1937. That task is “context-specific” and “requires the reviewing court to draw on its judicial experience and common sense.” Id. In the process, the court may also consider matters of public record. Sebastian v. United States, 185 F.3d 1368, 1374 (Fed.Cir.1999).

28 U.S.C. § 1581 provides a waiver of sovereign immunity over the specified classes of cases. Humane Soc'y of the United States v. Clinton, 236 F.3d 1320, 1328 (Fed.Cir.2001). Waivers of sovereign immunity are strictly construed, and any ambiguities must be resolved in favor of immunity. See Ruckelshaus v. Sierra Club, 463 U.S. 680, 685, 103 S.Ct. 3274, 77 L.Ed.2d 938 (1983); see also United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 63 L.Ed.2d 607 (1980). Claims brought under 28 U.S.C. § 1581(i) are reviewed as provided in section 706 of the Administrative Procedure Act, 5 U.S.C. § 706, see28 U.S.C. § 2640(e), pursuant to which the court examines whether agency action is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law ... in excess of statutory jurisdiction, authority, or limitations, or short of statutory right ... without observance of procedure required by law”. 5 U.S.C. § 706(2)(A)-(D). The scope of review under that standard is narrow. Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). Where the agency whose action is under review shows a “rational connection between the facts found and the choice made,” the court will not substitute its own judgment for that of the agency. See id., quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962). Further, an agency's decision “of less than ideal clarity” will be upheld if a court can reasonably discern how the agency arrived at that decision, Bowman Trans., Inc., v. Arkansas–Best Freight Sys., Inc., 419 U.S. 281, 286, 95 S.Ct. 438, 42 L.Ed.2d 447 (1974) (internal citation omitted), but even if the decision is not arbitrary or capricious, it must still be “in accordance with law.” F.C.C. v. NextWave Pers. Commc'ns Inc., 537 U.S. 293, 300, 123 S.Ct. 832, 154 L.Ed.2d 863 (2003), referencing Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 413–14, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). This means all law. Id.

Discussion I. Rule 12(b)(1)

Suntec alleges that it never received notice from the petitioner of its request for the AR3 Final review as required by 19 C.F.R. § 351.303(f)(3)(ii), and that it first learned of AR3 Final (and being subjected to it) when one of its importers sent Suntec an email on March 8, 2013. Compl. ¶¶ 11–23. Suntec's complaint asserts jurisdiction pursuant to 28 U.S.C. § 1581(i) and states that “[t]his action is based upon the implication of a complete failure of notice,” and that “[t]he legal issue is whether Commerce is required not to initiate an administrative review and not apply the final results of an...