KYD, Inc. v. United States

836 F. Supp. 2d 1410

Ct. Intl. Trade

2012

Check Treatment

Docket

KYD, INC., Plaintiff, v. UNITED STATES, Defendant. Polyethylene Retail Carrier Bag Committee, Hilex Poly Co., LLC, and Superbag Corporation, Defendant-Intervenors.

Court No. 09-00034

United States Court of International Trade

May 8, 2012

Slip Op. 12-61

POGUE, Chief Judge

1410-1415

plaintiff “... challenge[d] the manner in which Commerce administered the final results.” 348 F.3d at 1002. However, Plaintiffs here are complaining about Commerce‘s actions during the administrative review process before a final determination and not the administration of the final results after a final determination was made. For example, Plaintiffs allege the administration and enforcement of the regulations “distorts the final results in [administrative reviews]“. Pl.‘s Reply Mem. to Def. Intervenors’ Reply Brief at 8. Even if Plaintiffs’ allegations are true, the complained of conduct occurred during the review process and not after the final results. Another example where Plaintiffs illustrate their concern for the 15th Administrative Review process itself and not the administration of those results is when they allege that “[b]y delegating to defendant-intervenors the privilege of identifying those companies that could be excluded from the 15th [Administrative Review] threw [sic] the process of first requesting a review for a named company and then withdrawing the review requests for that named company, Commerce bestowed on the defendant-intervenors ... the privilege of manipulating the rates assigned by Commerce to other companies.” Id. All of these assertions, if true, occurred within the administrative review process and not after a final determination. Since Plaintiffs’ chief concerns involve Commerce‘s activities leading up to the 15th Administrative Review Final Results and not the administration and enforcement of those final results, reliance on Consolidated Bearings is misguided.

Additionally, the Court of Appeals recently found jurisdiction improper under 28 U.S.C. § 1581(i) for an importer seeking duty free treatment of plasma flat panel televisions imported from Mexico. Although that case involved jurisdiction under 28 U.S.C. § 1581(a) instead of 28 U.S.C. § 1581(c), the logic remains the same. “Because Hitachi‘s claim had not already been allowed or denied, Hitachi could have established jurisdiction under § 1581(a). Therefore jurisdiction under § 1581(a) is not ‘manifestly inadequate’ and jurisdiction under § 1581(i) is improper.” Hitachi Home Elecs. (Am.), Inc. v. United States, 661 F.3d 1343, 1350 (Fed. Cir. 2011).

Given the allegations in Plaintiffs’ Complaint, Plaintiffs should have sought review of the 15th Administrative Review Final Results under 28 U.S.C. § 1581(c). Plaintiffs have not shown that a remedy under 28 U.S.C. § 1581(c) would be manifestly inadequate. As such, the Court lacks jurisdiction to hear this case under 28 U.S.C. § 1581(i). Because the Court does not have jurisdiction to hear this case under 28 U.S.C. § 1581(i), the other arguments herein are moot.

CONCLUSION

Based on the foregoing the Court dismisses the Complaint in its entirety for lack of jurisdiction.

David John Craven, Riggle and Craven, of Chicago, IL, for Plaintiff.

Carrie Anna Dunsmore, Renee A. Gerber, Stephen Carl Tosini and Vincent de-Paul Phillips, Trial Attorneys, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, DC, for Defendant. With them on the brief were Stuart Delery, Assistant Attorney General, Jeanne E. Davidson, Director, Patricia M. McCarthy, Assistant Director. Of counsel on the brief were Rachel Elizabeth Wenthold and Scott McBride, Attorneys, U.S. Department of Commerce, of Washington, DC.

Daniel Lawrence Schneiderman and Stephen Andrew Jones, King & Spalding LLP, of Washington, DC, for Defendant-Intervenors.

OPINION

POGUE, Chief Judge:

This opinion addresses a motion filed by Plaintiff KYD, Inc. (“KYD“) seeking reconsideration of KYD, Inc. v. United States, 36 CIT ___, 807 F. Supp. 2d 1372 (2012) (”KYD IV“).¹ KYD IV affirmed the Department of Commerce‘s (“Commerce“) Second Final Remand Redetermi-

nation Results (“Second Remand Results“) imposing a 94.62 percent adverse facts available (“AFA“) antidumping duty rate upon KYD‘s entries of certain retail carrier bags (“carrier bags“) from Thailand. See KYD IV, 807 F. Supp. 2d at 1377-78.

Plaintiff claims that in KYD IV, the Court failed to address Plaintiff‘s argument that the 94.62 percent AFA rate violated the excessive fines and forfeitures clause of the 8th Amendment of the U.S. Constitution, and therefore failed to rule on all issues before the court.

For the reasons discussed below, Plaintiff‘s motion is denied.

STANDARD OF REVIEW

A USCIT Rule 59 motion for reconsideration will be granted, only in limited circumstances, including [instances of] 1) an error or irregularity, 2) a serious evidentiary flaw, 3) the discovery of new evidence which even a diligent party could not have discovered in time, or 4) an accident, unpredictable surprise or unavoidable mistake which impaired a party‘s ability to adequately present its case. Target Stores v. United States, 31 CIT 154, 156, 471 F. Supp. 2d 1344, 1347 (2007).

It follows that a motion for reconsideration will not be granted “merely to give a losing party another chance to relitigate the case.” Totes-Isotoner Corp. v. United States, 32 CIT 1172, 580 F. Supp. 2d 1371, 1374 (2008) (citation omitted); see also Tianjin Magnesium Int‘l. Co. v. United States, No. 09-00535, 35 CIT ___, 2011 WL 4433102, at *1 (2011).

DISCUSSION

Plaintiff contends that it raised an 8th Amendment issue during the first administrative remand, claiming that Commerce‘s selection of a 122.88 percent AFA rate for KYD‘s merchandise was punitive rather than remedial. Pl.‘s Mot. at 2-3. Plaintiff argues that this rate inappropriately punishes it for the behavior of an uncooperative producer with which it did business, and that even the reduced 94.62 percent AFA rate selected in the Second Remand Results bears no relationship to KYD‘s offense. Pl.‘s Mot. at 5-6. Plaintiff claims that the court did not reach this 8th Amendment issue in ruling on the first remand redetermination because Commerce‘s determination was rejected on other grounds, but that the issue was still pending before the court during the second remand redetermination. Pl.‘s Mot. at 7.

A. Exhaustion of Administrative Remedies

However, Plaintiff has failed to exhaust its administrative remedies with respect to this issue. Even though Plaintiff challenged the dumping margin that Commerce calculated in its second redetermination, see Draft Results of Redetermination Pursuant to Court Remand, A-549-821, ARP 06-07 (July 6, 2011), Remand R. Pub. Doc. 2 (“Draft Remand Results“); see also Comment on Draft Results of Redetermination, A-549-821, ARP 06-07 (July 18, 2011), Remand R. Pub. Doc. 9 (“Pl.‘s Cmts. on Draft Remand Results“), Plaintiff did not claim, during that second remand proceeding, that the reduced dumping margin selected in the Second Remand Results violated the 8th Amendment. Def.-Ints.‘s Resp. in Opp. to KYD‘s Mot. for Recons. at 2, ECF No. 126 (“Def.-Ints.‘s Br.“).

A Plaintiff must exhaust its administrative remedies “where appropriate.” See 28 U.S.C. § 2637(d). The exhaustion requirement serves to promote judicial efficiency and to protect the legitimate exercise of agency authority. Corus Staal BV v. United States, 502 F.3d 1370, 1379 (Fed. Cir. 2007).

A plaintiff is “procedurally required to raise [an] issue before Commerce at the time Commerce was addressing the issue.” Mittal Steel Point Lisas Ltd. v. United States, 548 F.3d 1375, 1383 (Fed. Cir. 2008). Because of this litigation‘s long history, with multiple remands, it is particularly appropriate for Plaintiff to be required to exhaust its administrative remedies by challenging the reduced margin at issue in the second remand redetermination. It has failed to do so.

B. Waiver of the Issue

Likewise, Plaintiff has waived this issue by not raising it before the court at the proper time. Commerce issued the final results of its second redetermination on August 18, 2011. In its September 9, 2011 comments, Plaintiff challenged the dumping margin selected in that second redetermination. Pl.‘s Cmts. on the Department‘s Remand Determination, ECF No. 101. However, Plaintiff did not raise an 8th Amendment issue in those September 9 comments. Id.; Def.‘s Resp. to Pl.‘s Mot. for Reconsideration at 3, 5, ECF No. 129 (“Def.‘s Br.“); Def.-Ints.‘s Br. at 2. Plaintiff states that it did challenge the 122.88 percent margin in the first redetermination on this basis. See Pl.‘s Mot. at 6; Pl.‘s Cmts. on First Redetermination (Sept. 29, 2010), ECF No. 73. However, Plaintiff did not raise the same challenge to Commerce or this Court regarding the lower margin that was assessed during the second determination. Def.-Ints.‘s Br. at 2.

“[A]ll claims, arguments, and objections that [a Plaintiff has] elected not to address in its post-remand briefs must be deemed waived.” Bond Street, Ltd. v. United States, 35 CIT ___, 774 F. Supp. 2d 1251, 1261 (2011). Plaintiff was therefore obligated to raise its 8th Amendment issue before this court in its September 9, 2011 comments on the second remand results.² Moreover, for the reasons articulated in Part C below, this is not a case involving such “significant questions of general impact or of great public concern” as to excuse such a waiver. Cf. Ninestar Tech. Co. v. Int‘l Trade Comm‘n, 667 F.3d 1373, 1382 (Fed. Cir. 2012) (quoting Interactive Gift Express, Inc. v. Compuserve Inc., 256 F.3d 1323, 1345 (Fed. Cir. 2001)). Thus, the Court did not fail to rule on the 8th Amendment issue because Plaintiff did not raise the issue properly following the second remand results.

C. Merit

Finally, even if the issue had not been waived, Plaintiff‘s claim lacks merit: antidumping laws “are remedial not punitive,“... an antidumping rate based on AFA is designed “to provide respondents with an incentive to cooperate, not to impose punitive ... margins,” De Cecco [v. United States], 216 F.3d [1027] at 1032 [ (Fed. Cir. 2000)]. For that reason, an AFA dumping margin determined in accordance with the statutory requirements is not a punitive measure, and the limitations applicable to punitive damages assessments therefore have no pertinence to duties imposed based on lawfully derived margins such as the margin at issue in this case. KYD, Inc. v. United States, 607 F.3d 760, 767-68 (Fed. Cir. 2010) (”KYD II“).

It follows that any 8th Amendment issue has already been foreclosed because “[a] statutorily proper AFA rate is remedial rather than punitive, and a ‘punitive’ rate is statutorily improper.” KYD, Inc. v. United States, 35 CIT ___, 779 F. Supp. 2d 1361, 1384 n. 24 (2011) (”KYD III“) (citations omitted).

Finally, by ruling that the margin Commerce calculated in the second determination complies with the statute, KYD IV confirmed that the rate was remedial in nature. Def.-Ints.‘s Br. at 3; see also S. Shrimp Alliance v. United States, 33 CIT ___, 617 F. Supp. 2d 1334, 1340 (2009); Nat‘l Knitwear & Sportswear Ass‘n v. United States, 15 CIT 548, 558, 779 F. Supp. 1364, 1372 (1991). KYD IV determined that the antidumping rate applied to Plaintiff‘s merchandise “could reasonably be accepted as an approximation of KYD‘s rate, albeit with a built in increase intended as a deterrent to non-compliance.” KYD IV, 807 F. Supp. 2d at 1378.

The rate is reasonably remedial and is intended to aid the enforcement of tariff regulations rather than to serve as a punitive sanction. See One Lot Emerald Cut Stones & One Ring v. United States, 409 U.S. 232, 237, 93 S. Ct. 489, 493, 34 L. Ed. 2d 438 (1972) (customs statute permitting the civil sanction of forfeiture is remedial, not punitive). Because the AFA rate selected by Commerce is remedial and not punitive, it cannot violate the 8th Amendment.

CONCLUSION

For the reasons discussed above, the court denies Plaintiff‘s motion.

It is SO ORDERED.

POGUE

CHIEF JUDGE

Notes

See Pl.‘s Mem. Supp. Mot. Recons. Ct.‘s Order in Slip Op. 12-10, ECF No. 125 (“Pl.‘s Mot.“).

Plaintiff waives an argument which was not presented to the court “until after it had filed its principal summary judgment brief, ... [because] parties must give a trial court a fair opportunity to rule on an issue other than by raising that issue for the first time in a reply brief[.]” .

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