Boomerang Tube LLC v. United States , 856 F.3d 908 ( 2017 )

United States Court of Appeals
for the Federal Circuit
______________________
BOOMERANG TUBE LLC, TMK IPSCO, ENERGEX
TUBE, A DIVISION OF JMC STEEL GROUP,
WELDED TUBE USA INC., UNITED STATES STEEL
CORPORATION,
Plaintiffs-Appellants
v.
UNITED STATES, JUBAIL ENERGY SERVICES
COMPANY, DUFERCO SA,
Defendants-Appellees
______________________
2016-1554, 2016-1561
______________________
Appeals from the United States Court of International
Trade in Nos. 1:14-cv-00196-TCS, 1:14-cv-00201-TCS,
Chief Judge Timothy C. Stanceu.
______________________
Decided: May 8, 2017
______________________
ROGER BRIAN SCHAGRIN, Schagrin Associates, Wash-
ington, DC, argued for plaintiffs-appellants Boomerang
Tube LLC, TMK IPSCO, Energex Tube, Welded Tube
USA Inc. Also represented by JOHN W. BOHN,
CHRISTOPHER CLOUTIER, PAUL WRIGHT JAMESON, JORDAN
CHARLES KAHN.
2 BOOMERANG TUBE LLC v. US
JONATHAN GORDON COOPER, Quinn Emanuel Ur-
quhart & Sullivan, LLP, Washington, DC, argued for
plaintiff-appellant United States Steel Corporation. Also
represented by DEBBIE LEILANI SHON, JON DAVID COREY,
KELSEY RULE, PHILIP CHARLES STERNHELL.
EMMA BOND, Commercial Litigation Branch, Civil Di-
vision, United States Department of Justice, Washington,
DC, argued for defendant-appellee United States. Also
represented by BENJAMIN C. MIZER, JEANNE E. DAVIDSON,
CLAUDIA BURKE; HEATHER NOEL DOHERTY, United States
Department of Commerce, Washington, DC.
NANCY NOONAN, Arent Fox, LLP, Washington, DC,
argued for defendants-appellees Jubail Energy Services
Company, Duferco SA. Also represented by JOHN M.
GURLEY, DIANA DIMITRIUC QUAIA.
______________________
Before REYNA, HUGHES, and STOLL, Circuit Judges.
REYNA, Circuit Judge.
Boomerang Tube LLC and United States Steel Corpo-
ration appeal a decision from the U.S. Court of Interna-
tional Trade, which affirmed the U.S. Department of
Commerce’s final determination in an antidumping
investigation. The parties failed to exhaust their argu-
ments before Commerce, and the Trade Court abused its
discretion in waiving the exhaustion requirement in this
case. Therefore, we vacate and remand.
BACKGROUND
A. Investigation and Preliminary Determination
On July 29, 2013, Commerce initiated an investiga-
tion into whether oil country tubular goods (“OCTGs”)
from Saudi Arabia and other countries imported into the
United States from July 1, 2012 through June 20, 2013
BOOMERANG TUBE LLC v. US 3
were sold for less than fair value—i.e., dumped. 1 OCTGs
are a family of seamless rolled steel products consisting of
drill pipes, casing, and tubing used in connection with oil
and gas production. Commerce selected Duferco SA, the
largest of fourteen known Saudi Arabian OCTGs export-
ers, to serve as the sole mandatory respondent in the
investigation. Duferco is the exporter of record for OC-
TGs produced by Jubail Energy Services Company
(“JESCO”).
In August 2013, the Trade Commission preliminarily
determined that there is a reasonable indication that a
U.S. domestic industry was materially injured by reason
of sales in the United States of OCTGs from Saudi Arabia
at less than fair value. 2 In February 2014, Commerce
issued its preliminary determination that OCTGs from
Saudi Arabia were being, or were likely to be, sold in the
United States at less than fair value. Commerce prelimi-
narily calculated an anti-dumping duty margin of 2.92
percent ad valorem. 3
In its preliminary determination, in accordance with
19 C.F.R. § 351.401(f), Commerce sua sponte determined
to treat Duferco SA and three of its affiliates as a single
entity (“Duferco entity”) because it found a significant
potential for manipulation of price or production. After
1 Initiation of Antidumping Duty Investigations, 78
Fed. Reg. 45,505 (Dep’t of Commerce July 29, 2013).
2 Certain Oil Country Tubular Goods from India,
Korea, the Philippines, Saudi Arabia, Taiwan, Thailand,
Turkey, Ukraine, and Vietnam: Determinations, 78 Fed.
Reg. 52,213 (Dep’t of Commerce Aug. 22, 2013).
3 Certain Oil Country Tubular Goods from Saudi
Arabia: Preliminary Determinations of Sales at Less Than
Fair Value, and Postponement of Final Determination, 79
Fed. Reg. 10,489, 10,490 (Dep’t of Commerce Feb. 24,
2014).
4 BOOMERANG TUBE LLC v. US
collapsing the Duferco affiliates into a single entity,
Commerce further determined that Duferco is affiliated
with JESCO, the producer of the subject OCTGs imported
into the United States. This affiliation was based on the
fact that the Duferco entity owns ten percent of JESCO.
JESCO was not included in the Duferco entity, nor were
several other Duferco SA affiliates. J.A. 6628−29 & n.26.
JESCO participated in the antidumping duty investi-
gation as a voluntary respondent. Early in the investiga-
tion, Commerce asked JESCO to submit data regarding
its third-country sales of OCTGs for potential use in
calculating normal value. JESCO responded by providing
data of sales made in Colombia to an unaffiliated custom-
er and an affiliated distributor.
In calculating normal value, Commerce concluded
that JESCO had no viable home market sales, because its
home market sales either failed the arm’s length test or
were made below cost of production. Commerce deter-
mined to construct normal value under 19 U.S.C.
§ 1677b(e)(2)(B)(iii), which provides for using “any other
reasonable method.” Commerce calculated a profit value
for JESCO’s constructed value (“CV”) using the profit
figures in the public 2012 audited financial statements of
Saudi Steel Pipes Company (“Saudi Steel”). J.A. 6630−33,
6640−41.
B. Party Briefing to Commerce
Following Commerce’s preliminary determination, in-
terested parties submitted briefs on, among other issues,
the profit value used in CV for JESCO. Boomerang,
JESCO, and Duferco submitted case and rebuttal briefs.
U.S. Steel did not.
Boomerang’s case brief challenged Commerce’s reli-
ance on the financial statements of Saudi Steel, arguing
that the data were unreliable because the company is
more of a pipe line producer than an OCTGs producer.
BOOMERANG TUBE LLC v. US 5
Boomerang suggested that Commerce use profit data from
Tenaris S.A., a multinational corporation that produces
OCTGs in several countries, or profit data of the U.S.
producers of OCTGs. Data for each of those options were
added to the record after Commerce’s preliminary deter-
mination.
Duferco’s and JESCO’s case briefs contended that
Commerce should continue using the financial statements
of Saudi Steel, or, alternately, the financial statements of
Arabian Pipes Company, a Saudi entity. As another
option, Duferco and JESCO suggested that Commerce use
profit data from JESCO’s sales to its affiliated Colombian
distributor. These data were placed in the investigation
record prior to the preliminary determination.
Boomerang submitted a rebuttal brief that argued
against using JESCO’s Colombia sales: “[JESCO] sug-
gests that the Department can use the profits on JESCO’s
sales to Colombia for CV profit. Again, this is sort of a
mini-alternative (i) scenario, and there is no basis in the
statute to use such a method to calculate CV profit.”
J.A. 7033 (redactions omitted). Significantly, Boomerang
did not argue that the affiliated Colombian distributor
was a member of the Duferco entity, or that the Colombi-
an sales were intra-company sales.
C. Commerce’s Final Determination
Commerce published its final determination in July
2014, again concluding that Saudi OCTGs were being
dumped in the U.S. and recalculating the antidumping
duty margin of 2.69 percent ad valorem. 4 With respect to
CV profit, Commerce determined that JESCO’s sales to
4 Certain Oil Country Tubular Goods from Saudi
Arabia: Final Determination of Sales at Less Than Fair
Value, 79 Fed. Reg. 41,986 (Dep’t of Commerce July 18,
2014) (final determination).
6 BOOMERANG TUBE LLC v. US
Colombia were “the best available option” and explained
why the Colombian transactions were preferable.
J.A. 7140−46.
Following issuance of the final determination, JESCO
identified a ministerial error in Commerce’s calculation of
CV profit; specifically, Commerce failed to deduct certain
movement expenses. Correcting this error lowered
JESCO’s CV profit, significantly reducing the dumping
margin for JESCO from 2.69 percent to the de minimis
value of 1.37 percent. Commerce issued an amended
negative final determination that imposed no antidump-
ing duties on imports of OCTGs from Saudi Arabia and
terminated its investigation. 5
D. Appeal to the U.S. Court of International Trade
Boomerang and U.S. Steel appealed Commerce’s final
determination to the Trade Court. The sole issue raised
on appeal was whether Commerce erred in its use of
JESCO’s sales to the affiliated Colombian distributor to
calculate CV profit. Plaintiffs argued that JESCO’s sales
to the Colombian distributor were intra-company trans-
fers within the Duferco entity and were, therefore, not an
appropriate basis to construct CV profit. Duferco and
JESCO countered that plaintiffs failed to exhaust their
administrative remedies with respect to this argument
because it was not made during the dumping investiga-
tion and was raised for the first time on appeal before the
Trade Court.
The Trade Court affirmed Commerce’s determination
and found that Boomerang and U.S. Steel did not fail to
5 Amended Final Determination and Termination of
the Investigation of Sales at Less Than Fair Value: Cer-
tain Oil Country Tubular Goods from Saudi Arabia, 79
Fed. Reg. 49,051 (Dep’t of Commerce Aug. 19, 2014).
BOOMERANG TUBE LLC v. US 7
exhaust their administrative remedies. 6 The Trade Court
reasoned that applying the exhaustion requirement would
be unwarranted in this case because the parties did not
have any indication that Commerce was considering using
the Colombian sales until it issued the final determina-
tion. The Trade Court rejected the argument that U.S.
Steel and Boomerang were on notice that Commerce
might use the Colombian transactions because this argu-
ment was made in JESCO’s case brief. According to the
Trade Court, adopting that argument would require
parties to predict among proposed substitutes in an
opposing brief, and preemptively defend against it:
Denying relief on exhaustion grounds would re-
quire the court to conclude that plaintiffs should
have predicted that Commerce might accept
JESCO’s proposal to use sales by Duferco
SA/JESCO to Colombia to calculate CV profit and
should have raised, in their case briefs, potential
arguments against that possibility. The court de-
clines to require such speculation. The court con-
cludes, instead, that petitioners did not have a full
and fair opportunity during the investigation to
challenge the Department’s method of determin-
ing CV profit. Therefore, the court adjudicates on
the merits the claims of all plaintiffs in this litiga-
tion.
J.A. 10.
The Trade Court further decided that substantial evi-
dence supports Commerce’s treatment of the Colombian
distributor as a separate entity. The Trade Court charac-
terized Commerce’s decision as an implicit determination
that the Colombian distributor is not part of the Duferco
6 Boomerang Tube LLC v. United States, 125 F.
Supp. 3d 1357 (Ct. Int’l Trade 2015).
8 BOOMERANG TUBE LLC v. US
entity, a determination supported by substantial evi-
dence. J.A. 14−18. As a result of the Trade Court’s
decision, the de minimis dumping margin remained in
effect.
Boomerang and U.S. Steel appeal. This court has ju-
risdiction pursuant to 28 U.S.C. § 1295(a)(5).
STANDARD OF REVIEW
This court reviews decisions of the Trade Court de no-
vo, applying the same standard of review applied by the
Trade Court in reviewing the administrative record before
Commerce. Union Steel v. United States, 713 F.3d 1101,
1106 (Fed. Cir. 2013). Thus, this court will uphold Com-
merce’s determination unless it is unsupported by sub-
stantial evidence in the record or otherwise not in
accordance with law. Id.We review a decision of the Trade Court on whether to
require exhaustion in a particular case for abuse of discre-
tion. See Corus Staal BV v. United States, 502 F.3d 1370,
1381 (Fed. Cir. 2007). Thus, we will reverse only if the
Trade Court erred in interpreting the law, exercised its
judgment on clearly erroneous findings of material fact, or
made an irrational judgment in weighing the relevant
factors. See Int’l Custom Prods., Inc. v. United States, 843
F.3d 1355, 1358 (Fed. Cir. 2016).
DISCUSSION
On appeal, Boomerang and U.S. Steel argue that
Commerce erred when it failed to collapse the affiliated
Colombian distributor into the Duferco entity. The gov-
ernment, JESCO, and Duferco respond that Boomerang
and U.S. Steel failed to exhaust their administrative
remedies because they did not argue before Commerce
that the Colombian distributor should be collapsed into
the Duferco entity. Boomerang and U.S. Steel argue that
the Trade Court acted within its discretion in finding that
the exhaustion requirement did not apply in this case.
BOOMERANG TUBE LLC v. US 9
By statute, the Trade Court “shall, where appropriate,
require the exhaustion of administrative remedies.” 28
U.S.C. § 2637(d). We have explained that this statutory
mandate “indicates a congressional intent that, absent a
strong contrary reason, the court should insist that par-
ties exhaust their remedies before the pertinent adminis-
trative agencies.” Corus Staal, 502 F.3d at 1379; see also
Kingdomware Techs., Inc. v. United States, 136 S. Ct.
1969, 1977 (2016) (“Unlike the word ‘may,’ which implies
discretion, the word ‘shall’ usually connotes a require-
ment.”).
Here, the Trade Court found that Boomerang and
U.S. Steel exhausted their administrative remedies
because they were not required to speculate from posi-
tions advanced in briefs which position Commerce would
adopt, thereby depriving them of a full and fair opportuni-
ty to present their argument. According to the Trade
Court, Boomerang and U.S. Steel did not have notice that
Commerce might use data relating to JESCO’s third party
transaction with the affiliated Colombian distributor to
calculate CV profit. We disagree.
The Trade Court’s decision constitutes an abuse of
discretion for two reasons. First, the decision is legally
erroneous to the extent it stands for the proposition that
Commerce must expressly notify interested parties any
time it intends to change its methodology between its
preliminary and final determinations, despite the inclu-
sion of the relevant data in the record and the advance-
ment of arguments related to that data before Commerce.
There is no support for such a requirement.
Second, the decision is based on a clearly erroneous
finding of material fact that the parties did not have an
opportunity to raise their single entity objection to using
the Colombian transactional data before Commerce. It is
undisputed that the data regarding JESCO’s transactions
with the affiliated distributor were in the record prior to
10 BOOMERANG TUBE LLC v. US
Commerce’s preliminary determination. At that point,
U.S. Steel and Boomerang either knew or should have
known that Commerce may consider those data during its
calculations, especially given that the basis of CV profit
was at issue. It is also undisputed that, in its case brief,
JESCO suggested using those data to calculate CV before
Commerce. At that point, Boomerang and U.S. Steel had
notice of the potential that Commerce might use the
Colombian data to calculate JESCO’s CV profit. Indeed,
Boomerang’s rebuttal brief to Commerce reveals that it
recognized JESCO’s suggestion to use the Colombian data
for CV profit and that Boomerang objected to that ap-
proach. Unfortunately for Boomerang, its rebuttal brief
made no mention of its current argument that the affiliat-
ed Colombian entity should be collapsed into the Duferco
entity. As such, the argument was not exhausted before
Commerce and should not have been considered by the
Trade Court.
CONCLUSION
Because Boomerang and U.S. Steel failed to exhaust
administrative remedies before Commerce, the Trade
Court should have dismissed this appeal without reaching
the merits. Its failure to do so was an abuse of discretion.
Accordingly, we vacate the Trade Court’s decision and
remand for proceedings in accordance with this opinion.
VACATED AND REMANDED
COSTS
Each party to bear its own costs.