Mid Continent Nail Corp. v. United States , 61 F. Supp. 3d 1287 ( 2015 )

Slip Op.15-35
UNITED STATES COURT OF INTERNATIONAL TRADE
MID CONTINENT NAIL CORP.,
Plaintiff,
v.
Before: Nicholas Tsoucalas,
Senior Judge
UNITED STATES,
Court No. 10-00247
Defendant.
TARGET CORP.,
Defendant-Intervenor.
OPINION
[Commerce’s Final Results of Redetermination Pursuant to Remand
Order is sustained.]
Dated:April 22, 2015
Adam H. Gordon and Jordan C. Kahn, Picard Kentz & Rowe LLP, of
Washington, DC, for Mid Continent Nail Corporation, plaintiff.
Benjamin C. Mizer, Acting Assistant Attorney General, Jeanne E.
Davidson, Director, and Patricia M. McCarthy, Assistant Director,
Department of Justice, Civil Division, Commercial Litigation
Branch, Washington, DC, for defendant. Of counsel on the brief
was Justin R. Becker, Attorney, Office of the Chief Counsel for
Trade Enforcement and Compliance, U.S. Department of Commerce, of
Washington, DC.
Marguerite E. Trossevin, Jochum Shore & Trossevin, PC, of
Washington, DC, for Target Corporation, defendant-intervenor.
Tsoucalas, Senior Judge: before the court are the final
results of defendant United States Department of Commerce’s
(“Commerce”) redetermination of its scope ruling on nails within
Court No. 10-00247 Page 2
toolkits imported by Defendant-Intervenor, Target Corporation
(“Target”). See Final Results of Redetermination Pursuant to
Remand Order, ECF No. 123 (Jan. 21, 2015) (“Fourth Remand
Results”). Both Plaintiff, Mid Continent Nail Corp., and Commerce
insist that the court sustain the Fourth Remand Results. See Pl.’s
Response to Def.-Int.’s Cmts. on Remand Results, ECF No. 127 (Mar.
9, 2015) (“Def-Int.’s Br.”); Def.'s Resp. to Cmts. Regarding Fourth
Remand Redetermination, ECF No. 128 (Mar. 9, 2015). Alternatively,
Target respectfully protests Commerce’s redetermination. See
Def.-Int.’s Cmts. on Def.’s Redetermination Pursuant to Remand
Order, ECF No. 125 (Jan. 21, 2015).
In the Fourth Remand Results Commerce “examine[d] the
nails themselves, without regard to the toolkits,” and therefore
concluded that the nails were within the scope of the antidumping
duty order on nails from the People’s Republic of China (“Order”).
Fourth Remand Results at 8. The relevant facts and procedural
history are set forth in Mid Continent Nail Corp. v. United States.
Mid Continent Nail Corp. v. United States, 38 CIT __, 24 F. Supp. 3d
1279 (2014) (“MCN IV”). Familiarity with the facts and procedural
history is presumed.
As an initial matter, the court declines to consider the
Comments Target has submitted to this court. Def-Int.’s Br. at 1-
Court No. 10-00247 Page 3
4. It is well settled that a party must exhaust its administrative
remedies in order for this court to consider its comments. Aimcor
v. United States, 141 F.3d 1098 (Fed. Cir. 1998). Furthermore, a
party has not exhausted its administrative remedies if it failed
to raise an issue at the administrative level. See Aimcor, 141
F.3d at 1111; Budd Co., Wheel & Brake Div. v. United States, 15
CIT 446, 773 F. Supp. 1549 (1991) (a party failing to raise an issue
at the administrative level during remand proceedings cannot raise
the issue de novo before a reviewing court). Therefore, Target’s
failure to raise its arguments before Commerce at the
administrative stage of the proceedings precludes the court from
considering its comments. See id.; Fourth Remand Results at 7.
In the Fourth Remand Results, Commerce, under respectful
protest, determined that “the mixed-media test is not applicable
in determining whether the nails in the toolkit are subject to the
scope” of the Order. Fourth Remand Results at 7. Therefore,
Commerce “examined the nails themselves, without regard to the
toolkits” and concluded that the nails found within the toolkits
are subject to the Order. Id. at 8. Commerce’s Fourth Remand
Results comply with the court’s remand order and are supported by
substantial evidence. Furthermore, no party procedurally entitled
to object has done so.
Court No. 10-00247 Page 4
For the foregoing reasons, Commerce’s Fourth Remand
Results is SUSTAINED. Judgment will be entered accordingly.
/s/ Nicholas Tsoucalas
Nicholas Tsoucalas
Senior Judge
Dated: April 22, 2015
New York, New York