Suntec Indus. Co. v. United States

857 F.3d 1363

SUNTEC INDUSTRIES CO., LTD., Plaintiff-Appellant

v.UNITED STATES, Defendant-Appellee

Mid Continent Nail Corporation, Defendant

2016-2093

United States Court of Appeals, Federal Circuit.

Decided: May 30, 2017

Mark B. Lehnardt , Antidumping Defense Group, LLC, Washington, DC, argued for plaintiff-appellant.

Stephen Carl Tosini , Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for defendant-appellee. Also represented by Benjamin C. Mizer , Jeanne E. Davidson , Patricia M. McCarthy ; Michael Thomas Gagain , Office of the Chief Counsel for Import Administration, United States Department of Commerce, Washington, DC.

Before Newman, Taranto, and Chen, Circuit Judges.

Dissenting opinion filed by Circuit Judge Newman.

Taranto, Circuit Judge.

This case arises from the U.S. Department of Commerce's third administrative review of its antidumping-duty order covering certain steel nails from China. Mid Continent Nail Corporation, a domestic entity, asked Commerce to initiate the third administrative review to determine the proper duty rates for the covered period, but Mid Continent did not serve the request directly on Suntec Industries, a Chinese exporter and producer named in the antidumping order and in the request. As this case comes to us, it is undisputed that Mid Continent thereby violated a service requirement stated in a Commerce regulation. When Commerce actually initiated the review about a month after receiving the request, it published a notice of the initiation in the Federal Register, as provided in 19 U.S.C. § 1675(a)(1), which states that Commerce shall initiate review "if a request for such a review has been received and after publication of notice of such review in the Federal Register." Despite the Federal Register publication, however, Suntec did not participate in the review. Evidently because of a lapse in its relationship with the counsel who had been its representative for years in the steel-nail proceedings, Suntec remained unaware of the review until Commerce announced the final results (or a few days earlier).

Based on the service deficiency regarding the request for the review, Suntec sued in the Court of International Trade to set aside the results of the review at least as applied to Suntec. The court rejected the challenge. It held that Suntec had failed to demonstrate that it was substantially prejudiced by the service error as to the request for the review in this case. In particular, it concluded that the Federal Register notice of initiation of the review constituted notice to Suntec as a matter of law and fully enabled Suntec to participate in the review because Suntec did not show any prejudice from not knowing of the request in the pre-initiation period. We affirm.

I

In 2008, Commerce issued an antidumping-duty order, under 19 U.S.C. § 1673, covering certain steel nails from China. Certain Steel Nails from the People's Republic of China: Final Determination of Sales at Less Than Fair Value and Partial Affirmative Determination of Critical Circumstances, 73 Fed. Reg. 33,977 (Dep't of Commerce June 16, 2008). The Final Determination expressly covers Suntec, which was among the few foreign entities for which Commerce specifically verified information (at Suntec's Shanghai location) pursuant to 19 U.S.C. § 1677m(i). Id. at 33,977, 33,980, 33,982, 33,983 ; see J.A. 194. Suntec had established its entitlement to a rate separate from the China-wide rate of 118.04 percent, and Commerce assigned Suntec a rate of 21.24 percent. 73 Fed. Reg. at 33,981, 33,984.

The common annual administrative-review process pursuant to 19 U.S.C. § 1675 then began. In the first two years after issuance of the 2008 order, i.e. , the years beginning August 1, 2008, and August 1, 2009, respectively, Commerce published Federal Register notices announcing the opportunity to request, Mid Continent requested, and Commerce then initiated (announced by publication in the Federal Register) administrative reviews of the proper duty rate under the order. In each year, the request and initiation included Suntec. In each year, Mid Continent served the request on a Chinese law firm that Suntec had designated as representing it; the certificates of service list that firm's Shanghai address, not Suntec's own, different Shanghai address. In each year, Suntec participated in the review by filing a "separate rate certification," Mid Continent then dropped its review request as to Suntec, and Commerce in turn rescinded the review of Suntec. See J.A. 194–96. The effect was to leave the 21.24 percent rate in place for Suntec. See Certain Steel Nails from the People's Republic of China: Notice of Partial Rescission of the First Antidumping Duty Administrative Review, 75 Fed. Reg. 43,149, 43,150 & nn.1–2 (Dep't of Commerce July 23, 2010).

This case concerns the third annual administrative review, for the year beginning August 1, 2010. On August 1, 2011, Commerce published a Federal Register notice of the opportunity to request a review, J.A. 196, and on August 31, 2011, Mid Continent requested such a review, naming Suntec among many other entities, J.A. 196, 208. The certificate of service shows that, as in the first two administrative reviews, Mid Continent mailed a copy of the request to the Suntec-designated Shanghai lawyers' address, not to Suntec's own Shanghai address. J.A. 196. Five weeks later, on October 3, 2011, Commerce published a notice of initiation of the review in the Federal Register. Initiation of Antidumping and Countervailing Duty Administrative Reviews and Requests for Revocations in Part, 76 Fed. Reg. 61,076 (Dep't of Commerce Oct. 3, 2011) (Notice of Initiation). The notice of initiation in the Federal Register expressly lists Suntec as a party subject to the administrative review. Id. at 61,082.

Commerce conducted the review and issued its final determination on March 18, 2013. Certain Steel Nails from the People's Republic of China; Final Results of Third Antidumping Duty Administrative Review; 2010–2011, 78 Fed. Reg. 16,651 (Dep't of Commerce Mar. 18, 2013). The final determination recites that Suntec, among other entities, did not apply for a rate separate from the China-wide rate and therefore was assigned the China-wide rate of 118.04 percent. Id. at 16,652. As for the reason for Suntec's non-participation, it is now undisputed that Suntec was in fact unaware of the third administrative review until just after, or perhaps nine days before, the final determination issued. J.A. 73, 197, 244.¹

Thirty-one days after Commerce published the final results, Suntec challenged the initiation of the administrative review in the Court of International Trade, arguing that the initiation was invalid as to Suntec because Mid Continent did not serve Suntec with the request for review as required by 19 C.F.R. § 351.303(f)(3)(ii). The court first denied Commerce's motion to dismiss. The court concluded that it had jurisdiction under 28 U.S.C. § 1581(i) and that Suntec's complaint allegations, if true, would establish that Mid Continent failed to comply with the service requirements contained in 19 C.F.R. § 351.303(f)(3)(ii). Suntec Indus. Co. v. United States , 951 F.Supp.2d 1341, 1346–48, 1349 (Ct. Int'l Trade 2013).

Subsequently, the court considered and granted Commerce's motion for summary judgment. The court concluded that Mid Continent did violate the service requirement of 19 C.F.R. § 351.303(f)(3)(ii). Under the regulation, "an interested party that files with the Department a request for ... an administrative review ... must serve a copy of the request by personal service or first class mail on each exporter or producer specified in the request ... by the end of the anniversary month or within ten days of filing the request for review, whichever is later." Id. Mid Continent did not serve a copy of the request on Suntec. Suntec Indus. Co. v. United States , No. 13-00157, 2016 WL 1621088, at *1, *4 (Ct. Int'l Trade Apr. 21, 2016).

Nevertheless, the court held that Suntec was not entitled to relief because it had failed to make a showing that would permit a reasonable finding that it was prejudiced by Mid Continent's failure to serve its request for initiation of the administrative review. In particular, the court concluded that the Federal Register notice of initiation sufficed as a matter of law to give Suntec notice of the proceeding upon its initiation, so that, to show prejudicial error, Suntec had to establish prejudice from losing the five-week pre-initiation period to prepare for participation in the review post-initiation. It held that Suntec had made no showing of any such pre-initiation prejudice. On that basis, the court granted Commerce's motion for summary judgment. Id. at *7.

Suntec appeals. We have jurisdiction under 28 U.S.C. § 1295(a)(5).

II

We review the existence of jurisdiction in the Court of International Trade in this case de novo.

Int'l Custom Prods. v. United States , 467 F.3d 1324, 1326 (Fed. Cir. 2006) ; Consol. Bearings Co. v. United States , 348 F.3d 997, 1001 (Fed. Cir. 2003). We review the grant of summary judgment de novo. StoreWALL, LLC v. United States , 644 F.3d 1358, 1361 (Fed. Cir. 2011). "When reviewing a Court of International Trade decision in an action initiated under 28 U.S.C. § 1581(i), this court applies the standard of review set forth in 5 U.S.C. § 706." PS Chez Sidney, L.L.C. v. U.S. Int'l Trade Comm'n , 684 F.3d 1374, 1379 (Fed. Cir. 2012) ; 28 U.S.C. § 2640(e).²

A

We begin with the government's contention that the Court of International Trade lacked jurisdiction to hear this case. Suntec's complaint invoked jurisdiction under 28 U.S.C. § 1581(i), whose language, as relevant here, confers jurisdiction over a civil action arising out of a law providing for duties on the importation of merchandise for reasons other than the raising of revenue or for "administration and enforcement with respect to" such duties. That...