Chemours Co. v. United States

393 F.Supp.3d 1186

The CHEMOURS COMPANY FC LLC, Plaintiff,

v. UNITED STATES, Defendant,andAGC Chemicals America, et al., Defendant-Intervenors.

Slip Op. 19-82

Consol. Court No. 18-00174

United States Court of International Trade.

July 3, 2019

James R. Cannon, Jr., Mary J. Alves, Ulrika K. Swanson, and James E. Ransdell, Cassidy Levy Kent (USA) LLP, of Washington, DC, for Plaintiff.

Karl S. Von Schriltz, Attorney-Advisor, Office of the General Counsel, U.S. International Trade Commission, of Washington, DC, for Defendant. With him on the brief were Andrea C. Casson, Assistant General Counsel for Litigation, and Roop K. Bhatti, Attorney-Advisor.

John M. Gurley, Matthew M. Nolan, and Nancy A. Noonan, Arent Fox LLP, of Washington, DC, for Defendant-Intervenor Gujarat Fluorochemicals Limited.

Jordan C. Kahn, Max F. Schutzman, Dharmendra N. Choudhary, and Eve Q. Wang, Grunfeld Desiderio Lebowitz Silverman & Klestadt LLP, of New York, NY, for Defendant-Intervenor PTFE Processors Alliance and Consolidated Defendant-Intervenors Zhejiang Jusheng Fluorochemical Co., Ltd., Shandong Dongyue Polymer Material Co., Ltd., Shanghai Huayi 3F New Materials Sales Co., Ltd., Zhonghao Chenguang Research Institute of Chemical Industry Co., Ltd., Jiangxi Lee & Man Chemical Ltd., Jiangsu Meilan Chemical Co., Ltd., and China Chamber of Commerce of Metals, Minerals & Chemical Importers.

OPINION AND ORDER

Barnett, Judge:

This matter is before the court on Plaintiff's motion to supplement the administrative record, amend its complaints, and remand the matter to the U.S. International Trade Commission ("the ITC" or "the Commission"). Confidential Mot. to Suppl. the Admin. R., to Am. the Compls., and to Remand the Case to the Agency ("Pl.'s Mot."), ECF No. 49. Defendant United States ("Defendant" or "the ITC") and Defendant-Intervenors oppose the motion. Confidential Def.'s Mem. in Opp'n to Pl.'s Mot. to Suppl. the Admin. R., to Am. the Compls., and to Remand the Case to the Agency ("Def.'s Opp'n"), ECF No. 60; Def.-Ints.' Resp. in Opp'n to Pl.'s Mot., ECF No. 62; Confidential Gujarat Fluorochemicals Ltd.'s Resp. to Pl.'s Mot. to Suppl. the Admin. R., to Am. the Complaints and to Remand the Case to the Agency and Gujarat Fluorochemicals Ltd.'s Mot. to Suppl. the Admin. R. in the Event that the Court Grants Pl.'s Mot. ("GFL's Opp'n and Cross-Mot."), ECF No. 64. Defendant-Intervenor Gujarat Fluorochemicals Ltd. ("GFL") cross-moves to supplement the administrative record in the event the court grants Chemours' motion. GFL's Opp'n and Cross-Mot. at 28. For the reasons discussed herein, Plaintiff's motion is denied; GFL's cross-motion is denied as moot.

BACKGROUND

In July 2018, the ITC issued a negative injury determining regarding polytetrafluoroethylene resin ("PTFE resin" or "PTFE") from India found by the U.S. Department of Commerce ("Commerce") to be subsidized by the Government of India.¹ See Polytetrafluoroethylene Resin from China and India , Inv. Nos. 701-TA-588 and 731-TA-1392-1393, USITC Pub. 4801 (July 2018) (final) ("ITC Final I "), PR 127, ECF No. 34.² In November 2018, the ITC issued a negative injury determination regarding PTFE resin from the People's Republic of China ("China") and India found by Commerce to have been sold in the United States at less than fair value. See Polytetrafluoroethylene Resin from China and India , Inv. Nos. 731-TA-1392-1393, USITC Pub. 4841 (Nov. 2018) (final) ("ITC Final II "), SPR 138, ECF No. 51-1. In making its determinations regarding material injury and threat of material injury, the ITC cumulated subject imports from India and China. CVD Views at 29, 58.³

Plaintiff, The Chemours Company FC LLC ("Chemours"), initiated separate actions challenging ITC Final I and ITC Final II , which the court consolidated under this lead action. See Order to Consol. (Feb. 6, 2019), ECF No. 42. Chemours alleges that the ITC's determinations lack substantial evidence or are otherwise contrary to law with respect to the Commission's definition of the domestic injury and its analyses of material injury and the threat of material injury. See, e.g. , Compl. ¶¶ 34-49, ECF No. 8.

On March 8, 2019, Chemours filed the instant motion. See generally Pl.'s Mot. Chemours seeks to supplement the administrative record to include "information impugning the veracity of the foreign producer questionnaire[ responses] submitted by [GFL], a foreign producer and exporter of [PTFE] from India." Id. at 1. Chemours also seeks leave to amend the complaints filed in the consolidated actions to reflect its allegations of fraud in the questionnaire responses. Id. at 2. Chemours further requests the court to remand ITC Final I and ITC Final II to the Commission to reconsider its injury determinations in light of this information. See id. The court has jurisdiction pursuant to Section 516A(a)(2)(B)(ii) of the Tariff Act of 1930, as amended, 19 U.S.C. § 1516a(a)(2)(B)(ii) (2012), and 28 U.S.C. § 1581(c) (2012).⁴

LEGAL STANDARDS

I. Supplementing the Administrative Record

The court's review of an ITC determination is limited to the administrative record. 19 U.S.C. § 1516a(b)(1)(B)(i). The record consists of "all information presented to or obtained by ... the Commission during the course of the administrative proceeding, id. § 1516a(b)(2)(A)(i) ;⁵ that is, "information which was before the relevant decision-maker and was presented and considered at the time the decision was rendered," Nucor Corp. v. United States , 28 C.I.T. 188, 229, 318 F. Supp. 2d 1207, 1244 (2004) (quoting Beker Indus. Corp. v. United States, 7 C.I.T. 313, 315, 1984 WL 3727 (1984) ) (internal quotation marks omitted).⁶ Limiting the court's review to the agency record furthers important efficiency and finality considerations. See Vt. Yankee Nuclear Power Corp. v . Nat'l Res. Def. Council, Inc. , 435 U.S. 519, 554–55, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978) ; Essar Steel Ltd. v. United States ("Essar Steel I "), 678 F.3d 1268, 1277 (Fed. Cir. 2012). Nevertheless, supplementation of the administrative record and a remand for reconsideration by the Commission may be appropriate when "a party brings to light clear and convincing new evidence sufficient to make a prima facie case that the agency proceedings under review were tainted by material fraud." Home Prods. Int'l, Inc. v. United States , 633 F.3d 1369, 1378 (Fed. Cir. 2011).

II. Amending the Complaints

Pursuant to U.S. Court of International Trade ("USCIT") Rule 15(a), a plaintiff may amend its complaint after 21 days of serving it "only with the opposing party's written consent or the court's leave." USCIT Rule 15(a)(2) (applicable to pleadings); see also USCIT Rule 7(a)(1) (a complaint is a pleading).⁷ Whether to grant leave to amend a complaint is committed to the court's discretion. See, e.g. , Foman v. Davis , 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962) ; Fuwei Films (Shandong) Co. v. United States , 35 C.I.T. 1229, 1229, 791 F. Supp. 2d 1381, 1383 (2011). "The court should freely give leave when justice so requires." USCIT Rule 15(a)(2). Leave may be denied when the court finds "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [or] futility of amendment." Foman , 371 U.S. at 182, 83 S.Ct. 227.

DISCUSSION

I. Chemours' Motion to Supplement the Administrative Record, Amend its Complaints, and Remand the Matter to the ITC⁸

A. Parties' Contentions

Chemours contends that the information it seeks to add to the administrative record provides clear and convincing evidence that GFL submitted fraudulent foreign producer questionnaire responses that were material to the Commission's negative final determination. Pl.'s Mot. at 4-13.⁹ Chemours further contends that leave to amend its complaints should be granted because it was not until the Commission released its determinations that Chemours' company officials were alerted to discrepancies between business intelligence it routinely collected on GFL and the Commission's findings concerning GFL's questionnaire responses. Id. at 14-15.

The ITC contends that leave to amend and a remand should be denied because Plaintiff failed to exhaust its administrative remedies by timely alerting the Commission to the information during the pendency of the investigations. Def.'s Opp'n at 9-15. The ITC further contends that Chemours has failed to satisfy the standards for supplementation of the record and remand as established by the Federal Circuit. Id. at 15-20. The ITC also contends that Chemours has not provided clear and convincing evidence that GFL's questionnaire responses were fraudulent or materially incorrect. Id. at 20-32.¹⁰

GFL contends that Chemours has not supplied clear and convincing new evidence of fraudulent questionnaire responses, GFL's Opp'n and Cross-Mot. at 3, and materially misstates facts regarding GFL's capacity and production, id. at 4-6. GFL further asserts that Chemours' allegations, even if true, are immaterial to the Commission's injury determination. Id. at 6-7. GFL contends that it responded to the Commission's foreign producer questionnaires truthfully and accurately. Id. at 9; see also id. at 11-13 (arguing that Chemours capacity and production allegations are incorrect); id. at 13-26 (responding to the evidence underlying Chemours' allegations). GFL cross-moves the court to supplement the administrative record with additional documents in the event the court grants Chemours' motion. Id. at 28.¹¹ GFL further contends that leave to amend the complaints should be denied on the basis of undue delay, lack of good faith by Chemours, and prejudice. Id. at 8.

B. Chemours Failed to Exhaust its Administrative Remedies Before the Commission; Thus, Supplementation of the Record Must Be Denied

"[T]he Court of International Trade shall, where appropriate, require the exhaustion of administrative remedies."...