Nexteel Co. v. United States , 389 F. Supp. 3d 1343 ( 2019 )

Slip Op. 19-62
UNITED STATES COURT OF INTERNATIONAL TRADE
NEXTEEL CO., LTD.,
Plaintiff,
HYUNDAI STEEL COMPANY,
HUSTEEL CO., LTD., AJU BESTEEL
CO., LTD., MAVERICK TUBE
CORPORATION, and SEAH STEEL
CORPORATION,
Consolidated Plaintiffs,
and
ILJIN STEEL CORPORATION, Before: Jennifer Choe-Groves, Judge
Plaintiff-Intervenor, Consol. Court No. 17-00091
v.
UNITED STATES,
Defendant,
and
TMK IPSCO, VALLOUREC STAR, L.P.,
WELDED TUBE USA INC., and UNITED
STATES STEEL CORPORATION,
Defendant-Intervenors.
OPINION AND ORDER
[Denying both motions for reconsideration.]
Dated: May 21, 2019
J. David Park, Henry D. Almond, Daniel R. Wilson, and Leslie C. Bailey, Arnold & Porter Kaye
Scholer LLP, of Washington, D.C., for Plaintiff NEXTEEL Co., Ltd. and Consolidated Plaintiff
Hyundai Steel Company. Michael T. Shor and Kang W. Lee also appeared.
Consol. Court No. 17-00091 Page 2
Jeffrey M. Winton and Amrietha Nellan, Law Office of Jeffrey M. Winton PLLC, of
Washington, D.C., for Consolidated Plaintiff SeAH Steel Corporation.
Gregory J. Spak, Frank J. Schweitzer, and Kristina Zissis, White & Case, LLP, of Washington,
D.C., for Consolidated Plaintiff and Defendant-Intervenor Maverick Tube Corporation.
Formerly on the brief were Robert E. DeFrancesco, III, Alan H. Price, and Cynthia C. Galvez,
Wiley Rein, LLP, of Washington, D.C.
Roger B. Schagrin, Christopher T. Cloutier, and Elizabeth J. Drake, Schagrin Associates, of
Washington, D.C., for Defendant-Intervenor TMK IPSCO, Vallourec Star, L.P., and Welded
Tube USA Inc. Paul W. Jameson also appeared.
Thomas M. Beline and Sarah E. Shulman, Cassidy Levy Kent (USA) LLP, of Washington, D.C.,
for Defendant-Intervenor United States Steel Corporation.
Hardeep K. Josan, Attorney, U.S. Department of Justice, of New York, N.Y., argued for
Defendant United States. With her on the brief were Joseph H. Hunt, Assistant Attorney
General, Jeanne E. Davidson, Director, and Claudia Burke, Assistant Director. Of counsel on the
brief was Mykhaylo A. Gryzlov, Senior Counsel, U.S. Department of Commerce, Office of the
Chief Counsel for Trade Enforcement and Compliance, of Washington, D.C.
Joel D. Kaufman and Richard O. Cunningham, Steptoe & Johnson LLP, of Washington, D.C.,
for Plaintiff-Intervenor ILJIN Steel Corporation.
Donald B. Cameron, Eugene Degnan, Brady W. Mills, Julie C. Mendoza, Mary S. Hodgins, and
Rudi W. Planert, Morris, Manning & Martin, LLP, of Washington, D.C., appeared for
Consolidated Plaintiff Husteel Co., Ltd.
Jarrod M. Goldfeder and Robert G. Gosselink, Trade Pacific, PLLC, of Washington, D.C.,
appeared for Consolidated Plaintiff AJU Besteel Co., Ltd.
Choe-Groves, Judge: Before the court are two motions for reconsideration filed by
Consolidated Plaintiff SeAH Steel Corporation (“SeAH”) and Defendant-Intervenors Maverick
Tube Corporation, TMK IPSCO, Vallourec Star, L.P., Welded Tube USA, and United States
Steel Corporation (collectively, “Defendant-Intervenors”). See Mot. Pl. SeAH Steel Corporation
Reconsideration Ct.’s Jan. 2, 2019 Order, Jan. 28, 2019, ECF No. 149 (“SeAH’s Mot.”); Rule 59
Mot. Reconsideration Ct.’s Remand Order, Feb. 1, 2019, ECF No. 150 (“Def.-Intervenors’
Consol. Court No. 17-00091 Page 3
Mot.”). Both motions request that the court reconsider certain aspects of its decision in
NEXTEEL Co., Ltd. v. United States, 43 CIT __, 355 F. Supp. 3d 1336 (2019) (“NEXTEEL I”).
SeAH’s motion addresses specifically the court’s decision to sustain (1) the U.S. Department of
Commerce’s (“Commerce” or “Department”) decision to set SeAH’s ocean freight expenses of
Canadian shipments equal to the weighted average for Canadian bulk shipments, and (2) its
application of its differential pricing analysis in the first administrative review of oil country
tubular goods from the Republic of Korea. See SeAH’s Mot. 5–6, 9. Defendant-Intervenors
request that the court reconsider and alter or amend its instruction that Commerce “reverse the
finding of a particular market situation and recalculate the dumping margin for the mandatory
respondents and non-examined companies.” See Def.-Intervenors’ Mot. 1–2 (quoting
NEXTEEL I, 43 CIT at __, 355 F. Supp. 3d at 1351). For the following reasons, the court denies
both motions for reconsideration.
BACKGROUND
The court presumes familiarity with the facts of this case. See NEXTEEL I. In
NEXTEEL I, the court considered seven Rule 56.2 motions for judgment on the agency record
and fourteen issues presented by the Parties. See id. at __, 355 F. Supp. 3d at 1343–44.
Relevant here, the court held that: (1) Commerce’s determination to set SeAH’s ocean freight
expenses of Canadian shipments equal to the weighted average for Canadian bulk shipments was
supported by substantial evidence, (2) Commerce’s application of its differential pricing analysis
was supported by substantial evidence and in accordance with the law, and (3) Commerce’s
decision to apply a particular market situation adjustment to NEXTEEL’s reported costs of
production was unsupported by substantial evidence. See id. at __, 355 F. Supp. 3d at 1364. The
Consol. Court No. 17-00091 Page 4
court sustained the first two issues and remanded the third issue for Commerce to “reverse the
finding of a particular market situation and recalculate the dumping margin for the mandatory
respondents and non-examined companies.” Id. at __, 355 F. Supp. 3d at 1351. No judgment
has been issued in this case yet.
SeAH and Defendant-Intervenors each filed a motion for reconsideration. SeAH’s
motion contests the court’s holdings regarding ocean freight costs and differential pricing
analysis, see SeAH’s Mot. 2, 6, which are two aspects of Commerce’s final results that the court
sustained. Defendant-Intervenors challenge the court’s conclusion regarding the particular
market situation issue, see Def.-Intervenor’s Mot. 1–2, which the court remanded for further
proceedings.
Defendant-Intervenors filed a response in opposition to SeAH’s motion for
reconsideration. See Resp. Def.-Intervenors Pl. SeAH’s Rule 59 Mot. Reconsideration Ct.’s
Remand Order, Feb. 19, 2019, ECF No. 163 (“Def.-Intervenors’ Resp.”). Plaintiff NEXTEEL
Co., Ltd., Consolidated Plaintiff Hyundai Steel Company, and Plaintiff-Intervenor ILJIN Steel
Corporation submitted responses in opposition to Defendant-Intervenors’ motion for
reconsideration. See Resp. Pls. NEXTEEL & Hyundai Steel Opp’n Def.-Intervenors’ Mot.
Reconsideration, Mar. 21, 2019, ECF No. 166; Resp. Pl.-Intervenor Def.-Intervenors, Maverick
Tube Corporation, TMK IPSCO, Vallourec Star, L.P., Welded Tube USA, & United States Steel
Corporation’s Rule 59 Mot. Reconsideration Ct.’s Remand Order, Mar. 21, 2019, ECF No. 164.
Defendant United States (“Defendant” or “Government”) filed a response opposing SeAH’s
Consol. Court No. 17-00091 Page 5
motion and supporting Defendant-Intervenors’ motion. 1 See Def.’s Resp. Def-Intervenors’ &
SeAH Steel Corporation’s Mots. Reconsideration Ct.’s Remand Order, Mar. 21, 2019, ECF No.
165 (“Def.’s Resp.”).
JURISDICTION AND STANDARD OF REVIEW
The court has jurisdiction pursuant to 19 U.S.C. § 1516a(a)(2)(B)(i) (2012) 2
and 28 U.S.C. § 1581(c), which grant the court the authority to review actions contesting the
final results of an administrative review of an antidumping duty order.
SeAH cites Rule 59(e) of the Rules of this Court as supporting authority for the court to
entertain its motion. See SeAH’s Mot. 1–2. Defendant and Defendant-Intervenors submit that
Rule 59(e) is the improper authority. See Def.’s Resp. 4 n.1; Def.-Intervenors’ Resp. 2 n.1.
Defendant-Intervenors direct the court instead to Rule 59(a), which Defendant-Intervenors cite
for their own motion for reconsideration. See Def.-Intervenors’ Resp. 2 n.1; Def.-Intervenors’
Mot. 2. Rule 59(e) states that a “motion to alter or amend a judgment must be served no later
than 30 days after the entry of the judgment.” USCIT R. 59(e). In contrast, Rule 59(a) allows
the court, “on motion,” to “grant a new trial or rehearing on all or some of the issues -- and to
any party” after a nonjury trial. USCIT R. 59(a)(1)(B). Rule 59 applies when a judgment has
been entered in a case, which has not occurred yet in this action because the court remanded
1
Defendant requested an extension of time to file its own motion for reconsideration, which the
court denied. See Order, Mar. 28, 2019, ECF No. 168.
2
All further citations to the Tariff Act of 1930, as amended, are to the relevant provisions of
Title 19 of the U.S. Code. All further citations to the U.S. Code are to the 2012 edition, with
exceptions. All further citations to 19 U.S.C. § 1677b(e) are to the 2015 version, as amended
pursuant to The Trade Preferences Extension Act of 2015, Pub. L. No. 114–27, 129 Stat. 362
(2015). All citations to the Code of Federal Regulations are to the 2017 edition.
Consol. Court No. 17-00091 Page 6
Commerce’s determination. See NEXTEEL I, 43 CIT at __, 355 F. Supp. 3d at 1364. The court
finds that Rule 59 is not the proper avenue for bringing a motion for reconsideration under the
current circumstances.
The court considers both SeAH’s and Defendant-Intervenors’ motions for reconsideration
under Rule 54(b), which addresses actions that adjudicate multiple claims for relief. The rule
reads, in relevant part:
[A]ny order or other decision, however designated, that adjudicates fewer
than all the claims or the rights and liabilities of fewer than all the parties
does not end the action as to any of the claims or parties and may be revised
at any time before the entry of a judgment adjudicating all the claims and
all the parties’ rights and liabilities.
USCIT R. 54(b) (emphasis added). Because active issues still exist in this action and because no
judgment has been issued yet, the court may entertain the motions for reconsideration under Rule
54(b).
The court has discretion when deciding a motion for reconsideration “as justice requires.”
Irwin Indus. Tool Co. v. United States, 41 CIT __, __, 269 F. Supp. 3d 1294, 1300 (2017), aff’d,
920 F.3d 1356 (Fed. Cir. 2019). Grounds for reconsideration include “an intervening change in
the controlling law, the availability of new evidence, the need to correct a clear factual or legal
error, or the need to prevent manifest injustice.” Ford Motor Co. v. United States, 30 CIT 1587,
1588 (2006); see also Irwin Indus. Tool, 41 CIT at __, 269 F. Supp. 3d at 1301. A motion for
reconsideration is not an opportunity for the losing party “to re-litigate the case or present
arguments it previously raised.” Totes-Isotoner Corp. v. United States, 32 CIT 1172, 1173, 580
F. Supp. 2d 1371, 1374 (2008).
Consol. Court No. 17-00091 Page 7
ANALYSIS
I. SeAH’s Motion for Reconsideration
SeAH’s motion for reconsideration contests the court’s decision in NEXTEEL I with
respect to (1) Commerce’s decision to set SeAH’s ocean freight expenses of Canadian shipments
equal to the weighted average for Canadian bulk shipments and (2) Commerce’s application of
its differential pricing analysis. See SeAH’s Mot. 5–6, 9. SeAH contends that the court’s
“decision contains a few manifest errors,” and asks the court to reconsider both findings. Id. at
2.
SeAH’s shipments to one Canadian customer were made in containers, while shipments
to other Canadian customers and United States customers were made in bulk. NEXTEEL I, 43
CIT at __, 355 F. Supp. 3d at 1359. The per-unit international freight rates for the container
shipments were higher than the per-unit rates for bulk shipments, and Commerce adjusted
SeAH’s Canadian ocean freight expenses “to account for the difference between the per-unit
rates for containerized and bulk shipments.” Id. The court held that Commerce’s determination
to set SeAH’s ocean freight expenses for Canadian shipments equal to the weighted average for
Canadian bulk shipments was supported by substantial evidence. Id. at __, 355 F. Supp. 3d at
1360. SeAH argues that the court’s conclusion is unsupported by law and contrary to the
statutory scheme. See SeAH’s Mot. 3. SeAH provides no new arguments in support of this
contention but instead continues to dispute the amount of the adjustment, arguing that Commerce
should have used the actual cost for ocean freight container sales. See id. at 4–5; NEXTEEL I,
43 CIT at __, 355 F. Supp. 3d at 1359. Because the court evaluated SeAH’s arguments already
Consol. Court No. 17-00091 Page 8
in NEXTEEL I and the holding regarding ocean freight was not manifestly erroneous, the court
will not disturb its previous decision.
SeAH contends also that the court improperly upheld Commerce’s application of its
differential pricing analysis because the court “must engage in an analysis of the ‘Differential
Pricing Analysis’ that is similar to the analysis required by this Court in the Carlisle Tire case
and by the Federal Circuit in [the] Washington Red Raspberry case.” SeAH’s Mot. 9 (citing
Carlisle Tire & Rubber Co., Div. of Carlisle Corp. v. United States, 10 CIT 301, 634 F. Supp.
419 (1986), and Wash. Red Raspberry Comm’n v. United States, 859 F.2d 898 (Fed. Cir. 1988)).
SeAH made this exact argument in NEXTEEL I. See NEXTEEL I, 43 CIT at __, 355 F. Supp.
3d at 1355–56. SeAH’s motion constitutes an impermissible attempt to re-litigate the issue. See
Totes-Isotoner, 32 CIT at 1173, 580 F. Supp. 2d at 1374. Because SeAH fails to demonstrate
that there is manifest error with the court’s reasoning and repeats the same arguments evaluated
by the court previously, the court declines to reconsider its decision in NEXTEEL I.
II. Defendant-Intervenors’ Motion for Reconsideration
Defendant-Intervenors’ motion for reconsideration asks the court to alter or amend its
decision with respect to Commerce’s finding of a particular market situation. See Def.-
Intervenors’ Mot. 1–2. During the initial administrative proceedings, Commerce did not find the
existence of a particular market situation in its preliminary results, but later relied on the same
administrative record to reverse its position and conclude that a particular market situation
existed in the final results. See NEXTEEL I, 43 CIT at __, 355 F. Supp. 3d at 1345–46. The
court concluded that Commerce’s determination was unsupported by substantial evidence and
instructed Commerce on remand to remove its finding of a particular market situation from its
Consol. Court No. 17-00091 Page 9
antidumping duty calculations. See id. at __, 355 F. Supp. 3d at 1349–51. Defendant-
Intervenors argue that the court’s instruction exceeds the scope of the court’s authority to review
administrative determinations under 19 U.S.C. § 1516a, and request that the court modify the
language in the opinion to permit Commerce to “reconsider or further explain” its finding of a
particular market situation on remand. See Def.-Intervenors’ Mot. 6. The Government supports
Defendant-Intervenors’ argument and contends that Defendant-Intervenors have met the standard
required for a motion for reconsideration. See Def.’s Resp. 5–7.
This Court’s standard of review under 19 U.S.C. § 1516a and 28 U.S.C. § 1581(c) require
the court to evaluate whether Commerce’s determinations are supported by substantial evidence
and otherwise in accordance with the law. The court held that Commerce’s particular market
situation finding was unsupported by substantial evidence. NEXTEEL I, 43 CIT at __, 355 F.
Supp. 3d at 1349–51. The record contained thousands of pages of information, and Commerce
explained in a nineteen-page memorandum how its evaluation of the record showed that
Maverick’s four particular market situation allegations were unfounded. Id. Without any
intervening new factual information on the record between the preliminary results and the final
results, the court concluded that Commerce failed to explain adequately how the same record
supported both Commerce’s previous conclusion of no particular market situation and its
subsequent finding of a single particular market situation. Id. Because of the lack of record
evidence, the court directed Commerce to remove the particular market situation finding from
the dumping margin calculations on remand. Id. The court applied its standard of review
Consol. Court No. 17-00091 Page 10
properly when analyzing Commerce’s determination, and it was not erroneous for the court to
give Commerce specific remand instructions consistent with its opinion.3
Defendant-Intervenors’ proposed revisions to the remand instructions essentially mirror
the Government’s previous broad request for a voluntary remand on the particular market
situation issue, which the court rejected in NEXTEEL I. The court expressed concern that the
Government’s request amounted to a “do-over” and constituted an impermissible attempt to
rationalize the agency’s actions after the fact. See NEXTEEL I, 43 CIT at __, 355 F. Supp. 3d at
1348; see also Sec. & Exch. Comm’n v. Chenery Corp., 332 U.S. 194, 196 (1947) (“[A]
reviewing court . . . must judge the propriety of such action solely by the grounds invoked by the
agency.”). The court was not persuaded by the Government’s argument before and likewise will
not grant Defendant-Intervenors’ request here for similar reasons already considered by the
court.
3
The U.S. Court of Appeals for the Federal Circuit has rejected an argument similar to
Defendant-Intervenors’:
It is true that, by ruling that Commerce’s decision . . . was not legally or
factually supportable, the court limited Commerce’s options on remand.
But that is frequently the result when a court overturns an agency’s factual
finding for lack of substantial evidence, particularly if the factual issue is
binary in nature. Even though a reviewing court’s decision that substantial
evidence does not support a particular finding may have the practical effect
of dictating a particular outcome, that is not the same as the court’s making
its own factual finding.
Nucor Corp. v. United States, 371 Fed. Appx. 83, 90 (Fed. Cir. 2010).
Consol. Court No. 17-00091 Page 11
CONCLUSION
Accordingly, upon consideration of the two motions for reconsideration, and all other
papers and proceedings in this action, it is hereby
ORDERED that SeAH’s motion, ECF No. 149, is denied; and it is further
ORDERED that Defendant-Intervenors’ motion, ECF No. 150, is denied.
/s/ Jennifer Choe-Groves
Jennifer Choe-Groves, Judge
Dated: May 21, 2019
New York, New York