Nan Ya Plastics Corp. v. United States

916 F.Supp.2d 1376

NAN YA PLASTICS CORPORATION, AMERICA, Plaintiff,

v.UNITED STATES of America, United States Customs and Border Protection, Thomas S. Winkowski (Acting Commissioner, United States Customs and Border Protection), United States International Trade Commission, and Irving Williamson (Chairman, United States International Trade Commission), Defendants.

Slip Op. 13–60. Court No. 08–00138.

United States Court of International Trade.

May 10, 2013.

J. Kevin Horgan and Gregory S. Menegaz, deKieffer & Horgan, of Washington, DC, for Plaintiff Nan Ya Plastics Corporation, America.

Jessica R. Toplin, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, DC, for Defendants United States, U.S. Customs and Border Protection, and Thomas S. Winkowski, Acting Commissioner of U.S. Customs and Border Protection. With her on the briefs were Stuart F. Delry, Principle Deputy Assistant Attorney General, Jeanne E. Davidson, Director, Franklin E. White, Jr., Assistant Director. Of counsel on the brief was Andrew G. Jones, Office of Assistant Chief Counsel, U.S. Customs and Border Protection, of Washington, DC.

Neal J. Reynolds, Assistant General Counsel for Litigation, and Patrick V. Gallagher, Jr., Attorney Advisor, Office of the General Counsel, U.S. International Trade Commission, of Washington, DC, for Defendants U.S. International Trade Commission and Irving Williamson, Chairman, U.S. International Trade Commission.

Before: GREGORY W. CARMAN, Judge, TIMOTHY C. STANCEU, Judge, LEO M. GORDON, Judge.

OPINION AND ORDER

STANCEU, Judge:

Before the court is a motion for rehearing in which plaintiff Nan Ya Plastics Corporation, America (“Nan Ya”) seeks an order vacating the judgment entered in Nan Ya Plastics Corp., Am. v. United States, 36 CIT ––––, 853 F.Supp.2d 1300 (2012) (“Nan Ya ”). Pl.'s Mot. for Reh'g (Aug. 27, 2012), ECF No. 59 (“Mot. for Reh'g”). Also before the court is plaintiff's motion for leave to amend the Second Amended Complaint. Mot. for Leave to Amend Compl. (Jan. 7, 2013), ECF No. 69 (“Mot. to Amend”).

On motions of defendants, the court entered a judgment dismissing plaintiff's action for failure to state a claim upon which relief can be granted. Judgment (July 12, 2012), ECF No. 59. In that action, Nan Ya contested, on constitutional and statutory grounds, certain administrative decisions taken by defendants, the U.S. International Trade Commission (the “ITC”) and U.S. Customs and Border Protection (“Customs”), under the Continued Dumping and Subsidy Offset Act of 2000, 19 U.S.C. § 1675c (2000) (“CDSOA” or “Byrd Amendment”).¹ The administrative decisions denied Nan Ya eligibility to receive disbursements of antidumping duties collected under antidumping duty orders on imports of certain polyester staple fiber (“PSF”) from the Republic of Korea (“Korea”) and Taiwan.

In seeking rehearing, plaintiff relies principally on what it views as an intervening change in the controlling law, citing the opinion of the United States Court of Appeals for the Federal Circuit (“Court of Appeals”) in PS Chez Sidney, L.L.C. v. U.S. Int'l Trade Comm'n, 684 F.3d 1374 (Fed.Cir.2012) ( “PS Chez Sidney ”). Subsequent to filing its motion for rehearing, plaintiff filed, on January 17, 2013, its motion for leave to amend the Second Amended Complaint, on which the court based its dismissal of this action. Defendants oppose both motions.

We find merit in plaintiff's motions and decide for the reasons stated herein to vacate the judgment dismissing the action in Nan Ya, to issue a new judgment under USCIT Rule 54(b) dismissing only plaintiff's constitutional claims, and to allow plaintiff's statutory claims to proceed upon a third amended complaint.²

I. Background

The background of this litigation and a summary of the relevant provisions of the CDSOA are presented in our opinion in Nan Ya. 36 CIT at ––––, 853 F.Supp.2d at 1304–07.

II. Discussion

As provided in USCIT Rule 59(a)(1)(B), rehearing may be granted “for any reason for which a rehearing has heretofore been granted in a suit in equity in federal court.” Granting or denying rehearing under Rule 59 lies “ ‘within the sound discretion of the court.’ ” Home Prods. Inc. v. United States, 36 CIT ––––, ––––, 837 F.Supp.2d 1294, 1298 (2012) ( quoting USEC, Inc. v. United States, 25 CIT 229, 230, 138 F.Supp.2d 1335, 1336 (2001)). An intervening change in the controlling law is one of the recognized grounds upon which motions for rehearing have been granted. See Virgin Atl. Airways, Ltd. v. Nat'l Mediation Bd., 956 F.2d 1245, 1255 (2d Cir.1992).

According to plaintiff, the decision of the Court of Appeals in PS Chez Sidney, 684 F.3d 1374, effected an intervening change in the controlling law that invalidates the basis of our decision in Nan Ya. Mot. for Reh'g 5–9. The Court of Appeals held that the plaintiff in the case (PS Chez Sidney, L.L.C.) qualified as an “affected domestic producer” (“ADP”) under the Byrd Amendment by taking certain actions in support of the relevant antidumping duty petition. Those actions included expressing support for that petition in the response to the ITC's questionnaire in the preliminary phase of the ITC's investigation. Distinguishing the circumstances in which PS Chez Sidney arose from those of SKF USA, Inc. v. United States, 556 F.3d 1337 (Fed.Cir.2009) (“SKF ”), and referring specifically to responses to ITC questionnaires, the Court of Appeals noted that PS Chez Sidney, L.L.C. “submitted two detailed responses, checking the ‘support’ box in its preliminary response but checking the ‘take no position’ box in its final response.” PS Chez Sidney, 684 F.3d at 1381. Later in its opinion, the Court of Appeals summarized the circumstances upon which it concluded that PS Chez Sidney, L.L.C. qualified as “an ADP within the meaning of the Byrd Amendment,” again pointing out that PS Chez Sidney, L.L.C. “expressed abstract support in the preliminary response and took no position in its final response.” Id. at 1383.

During the final phase of the ITC's injury investigation, Nan Ya “ ‘filed a U.S. producer questionnaire taking no position with respect to support for the petitions against Korea and Taiwan.’ ” Nan Ya, 36 CIT at ––––, 853 F.Supp.2d at 1309 (quoting Second Am. Compl. ¶ 23 (Apr. 4, 2011), ECF No. 37–4). However, as we stated in our Nan Ya opinion, the Second Amended Complaint did not allege that Nan Ya expressed support for either of the petitions in the preliminary phase of the ITC's investigation. Id. at ––––, 853 F.Supp.2d at 1309 n. 5. We opined that even had such an allegation appeared, it still would fail, reasoning that Nan Ya “negated any prior expression of support that it may have made” by affirmatively declining to support either petition in the final phase of the investigation. Id. at ––––, 853 F.Supp.2d at 1309. Under the holding of the Court of Appeals in PS Chez Sidney, however, checking the “take no position” box of the questionnaire in the final phase of the ITC's investigation does not negate a prior expression of support made by the checking of the “support” box in the preliminary phase. See PS Chez Sidney, 684 F.3d at 1381, 1383.

Although it did not allege expressly that Nan Ya checked the “support box” in the preliminary phase of the investigation, the Second Amended Complaint did not admit any facts to the contrary. Now, in paragraphs 22 and 41 of its proposed Third Amended Complaint, plaintiff would allege that Nan Ya “indicated support for the petitions” in “its preliminary questionnaire response to the ITC.” ³ Proposed Third Am. Compl. ¶ 22 (Jan. 1, 2013), ECF No. 69–2; see also id. ¶ 41 (alleging that Nan Ya's preliminary response to the ITC “indicated its support for the petitions.”

In ruling on a motion to amend the complaint, “[t]he court should freely give leave when justice so requires.” USCIT R. 15(a)(2); see also Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962) (indicating that the court's discretion to give leave to amend must be balanced against considerations of futility, undue delay, and prejudice to the opposing party). The intervening appellate decision in PS Chez Sidney attached significance to an expression of support for a petition in the preliminary phase of the ITC's investigation that is followed by a final phase questionnaire response that “took no position” on that petition. See PS Chez Sidney, 684 F.3d at 1381–83. That significance became apparent to a party in Nan Ya's situation only after the Court of Appeals issued its decision. Plaintiff now should have the opportunity to attempt to show that its actions during the ITC investigation qualified it as an ADP by meeting the petition support requirement of the Byrd Amendment, 19 U.S.C. § 1675c(b)(1)(A), (d)(1). To allow this, it is necessary that we vacate the judgment entered in Nan Ya and allow the complaint to be amended to add the allegation that Nan Ya expressed support for the petitions in the questionnaire response it filed in the preliminary phase of the ITC's investigation.

In deciding to vacate the judgment and to allow an amendment to the complaint, we do not decide that there necessarily is merit in plaintiff's statutory claims, i.e., the claims that Customs and the ITC violated the CDSOA in denying Nan Ya eligibility for disbursements. Nor do we find any error in our previous dismissal of plaintiff's constitutional claims, for which the holding of PS Chez Sidney did not change the controlling law as established by the holding of SKF. See PS Chez Sidney, 684 F.3d at 1379 n. 3. Attendant to our vacating of the judgment in Nan Ya, we reconsider defendants' motions to dismiss this action, and in so doing we again conclude, for the reasons the court stated in Nan Ya, 36 CIT at ––––, 853 F.Supp.2d at 1310–14, that the constitutional claims in this case lack merit. We see no just reason for delay, and accordingly the court will enter judgment dismissing...