Suntec Indus. Co. v. United States

• Decision Date: 21 April 2016
• Docket Number: Slip Op. 16 - 40,Court No. 13-00157
• Parties: SUNTEC INDUSTRIES CO., LTD., Plaintiffs, v. UNITED STATES, Defendant, and MID CONTINENT NAIL CORP., Defendant-Intervenor.
• Court: U.S. Court of International Trade

SUNTEC INDUSTRIES CO., LTD., Plaintiffs, v. UNITED STATES, Defendant,andMID CONTINENT NAIL CORP., Defendant-Intervenor.

Slip Op. 16 - 40 Court No. 13-00157

UNITED STATES COURT OF INTERNATIONAL TRADE

April 21, 2016

Before: R. Kenton Musgrave, Senior Judge

OPINION

[Granting the defendant's motion for summary judgment.]

Mark B. Lehnardt, Attorney, Antidumping Defense Group, LLC, of Washington, DC, 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 Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Jeanne E. Davidson, Director, and Patricia M. McCarthy, Assistant Director. Of counsel on the brief was Michael T. Gagain, Attorney, Office of the Chief Counsel for Trade Enforcement & Compliance, U.S. Department of Commerce, of Washington, DC.

Adam H. Gordon, Attorney, The Bristol Group PLLC, of Washington, DC, for the defendant-intervenors.

Musgrave, Senior Judge: This matter is before the court on the plaintiff's motion for summary judgment and the defendant's cross-motion for judgment on the agency record or, in the alternative, summary judgment, regarding 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"). In bringing this action, the plaintiff Suntec Industries Co., Ltd. ("the plaintiff" or "Suntec") seeks to rescind the results of the AR3 Final as applied to Suntec, or to permit Commerce to reopen the record and permit Suntec to submit a separate rate certification for the third antidumping administrative review ("AR3"). Pl's Mot. for Summ. J. and Brief on Substantial Prejudice ("Pl's Br."), ECF No. 77, 24-25. Familiarity with the prior opinion, Suntec Industries Co., Ltd. v. United States, 37 CIT ___, 951 F. Supp. 2d 1341 (2013) ("Suntec I") is presumed.

In Suntec I, the court denied the motion of the defendant United States ("the defendant" or "the government") to dismiss for lack of jurisdiction or failure to state a claim upon which relief can be granted and determined to exercise jurisdiction over the case under 28 U.S.C. §1581(I). Suntec I, 37 CIT at ___, 951 F. Supp. 2d at 1347-48. Further, the court determined that Suntec should "have its day in court for further explanation of [its] claim" that Suntec suffered substantial prejudice resulting from its alleged lack of notice. Suntec I, 37 CIT at ___, 951 F. Supp. 2d at 1355.

Here, Suntec claims that it was substantially prejudiced because it never received actual notice of the Request for Review prior to the AR3 nor actual notice of the initiation of the AR3, and that the court should therefore enter summary judgment in its favor. The defendant argues that the court should enter summary judgment for the defendant because Suntec fails to offer evidence that it was substantially prejudiced given its constructive notice of the initiation of the AR3. For the reasons that follow, the court grants the defendant's motion for summary judgment.

Background

Briefly, on August 1, 2011, the defendant United States' International Trade Administration, Department of Commerce ("Commerce") published a notice in the Federal Register of the opportunity to request review of companies subject to antidumping duty orders including the order on certain steel nails from the People's Republic of China ("PRC"). Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation; Opportunity to Request Administrative Review, 76 Fed. Reg. 45773 (Aug. 1, 2011) ("Request for Review"). On August 31, 2011, petitioners Mid Continent Nail Corporation ("Mid Continent") requested review of PRC companies including Suntec. On October 3, 2011, Commerce published a notice of initiation in the Federal Register of the AR3, which included Suntec among the companies listed for review. Initiation of Antidumping and Countervailing Duty Administrative Reviews and Requests for Revocations in Part, 76 Fed. Reg. 61076 (Oct. 3, 2011) ("Notice of Initiation"). Suntec claims, and the defendant does not contest, that Suntec only received actual notice of its inclusion in the reviewed companies in the AR3 in March 2013 following the release of the AR3 Final.

Standard of Review

As discussed in Suntec I, this court exercises jurisdiction under 28 U.S.C. §1581(I) over Suntec's challenge to Commerce's decision to initiate review of Suntec in the AR3. Suntec I, 37 CIT at ___, 951 F. Supp. 2d at 1347-48. In exercising such jurisdiction, the court reviews the matter under the scope of review provided in section 706 of the Administrative Procedure Act ("APA"). See 28 U.S.C. §2640(e). Accordingly, "[t]o the extent necessary to decision and when presented," the court "shall decide all relevant questions of law" and "hold unlawful and set aside agency action . . . found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law . . . without observance of procedure required by law." See generally 5 U.S.C. §706; see also Fedmet Res. Corp. v. United States, 39 CIT ___, ___, 77 F. Supp. 3d 1336, 1339 (2015). The court will not set aside agency action for procedural errors unless the error is prejudicial to the party seeking to have the action set aside. Sea-Land Serv., Inc., v. United States, 14 CIT 253, 257, 735 F. Supp. 1059, 1063 (1990), aff'd and adopted, 923 F.2d 838 (Fed. Cir. 1991) (internal citations and quotes omitted).

Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine dispute as to any material fact and that the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see USCIT R. 56(a). "Where, as here, parties cross-move for summary judgment, each party carries the burden on its own motion to show entitlement to judgment as a matter of law after demonstrating the absence of any genuine disputes over material facts." Am. Fiber & Finishing, Inc. v. United States, 39 CIT ___, ___, 121 F. Supp. 3d 1273, 1279 (2015), quoting Massey v. Del Labs., Inc., 118 F.3d 1568, 1573 (Fed. Cir. 1997) (internal quotes omitted). "Once it is clear there are no material facts in dispute" and the case at hand "hinges on pure questions of law, resolution by summary judgment is appropriate." Canadian Wheat Bd. v. United States, 32 CIT 1116, 1121, 580 F. Supp. 2d 1350, 1356 (2008), opinion clarified on denial of reconsideration, 33 CIT 1204 (2009), aff'd, 641 F.3d 1344 (Fed. Cir. 2011). A motion for summary judgment is appropriate in this case because Suntec is not challenging the final results of an administrative review. See Michaels Stores, Inc. v. United States, 37 CIT ___, ___, 931 F. Supp. 2d 1308, 1313 (2013) (finding summary judgment appropriate where plaintiff was challenging liquidation and cash deposit instructions, not the administrative review itself). As there is no genuine dispute of material facts before the court¹, resolution by summary judgment is appropriate.

Discussion

I

Motions for summary judgment must be supported by "particular parts of materials in the record, including . . . affidavits or declarations" and affidavits or declarations "used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated." USCIT R. 56(c)(1), (4); see also Humane Soc. of United States v. Brown, 20 CIT 277, 307, 920 F. Supp. 178, 201 (1996) (to be successful on a motion for summary judgment, "the plaintiff . . . must set forth by affidavit or other evidence specific facts which for purposes of the summary judgment motion will be taken to be true").

While the defendant makes several unsuccessful evidentiary arguments as to why the affidavits proffered by Suntec should not be admissible at trial², it does not squarely dispute the factscontained therein. When considering a motion for summary judgment, "[i]f a party fails to properly address another party's assertion of fact, that assertion of fact may be deemed undisputed for purposes of the motion." Am. Power Pull Corp. v. United States, 37 CIT ___, ___, 121 F. Supp. 3d 1296, 1298-99 (2015) (internal quotes omitted), quoting USCIT R. 56(e)(2). Suntec has submitted affidavits that are based on personal knowledge, set out admissible facts, demonstrate competency by the affiants, are made under penalty of perjury, and are said to be "true". See USCIT R. 56(c)(1), (4) and 28 U.S.C. §1746; see also, e.g., Kersting v. United States, 865 F. Supp. 669, 676 (D. Haw. 1994) (finding unsworn documents satisfy statutory requirements if made under penalty of perjury and state that documents are true). The court will therefore consider the affidavits proffered by Suntec part of the record before the court for purposes of review of the parties' cross-motions for summary judgment.

II

It is a "general principle that agencies may relax or modify their procedural rules . . . when in a given case the ends of justice require it" and that a subsequent agency action is only rescindable "upon a showing of substantial prejudice to the complaining party." American Farm Lines v. Black Ball Freight Service, 397 U.S. 532, 538-39 (1970); PAM SpA v. United States, 463 F.3d 1345, 1348 (Fed. Cir. 2006) ("PAM"). "A party is not 'prejudiced' by a technical defect simply because that party will lose its case if the defect is disregarded. Prejudice . . . means injury to an interest that the statute, regulation, or rule in question was designed to protect." Intercargo Ins. Co. v. United States, 83 F.3d 391, 396 (Fed. Cir. 1996) (citations omitted); see also Guangdong Chems. Imp. & Exp. Corp. v. United States, 30 CIT 85, 95, 414 F. Supp. 2d...