Changzhou Hawd Flooring Co. v. United States

Slip Op. 14 - 95
UNITED STATES COURT OF INTERNATIONAL TRADE
CHANGZHOU HAWD FLOORING CO.,
LTD., et al.,
Plaintiffs,
v. Before: Donald C. Pogue,
Senior Judge
UNITED STATES,
Court No. 12-00020
Defendant.
OPINION and ORDER
[motion for voluntary remand granted]
Dated: August 14, 2014
Gregory S. Menegaz, J. Kevin Horgan, and John J.
Kenkel, deKieffer & Horgan, PLLC, of Washington, DC, for the
Plaintiffs.
Kristin H. Mowry, Jeffrey S. Grimson, Jill A. Cramer,
Sarah M. Wyss, and Daniel R. Wilson, Mowry & Grimson, PLLC, of
Washington, DC, for Plaintiff-Intervenor Fine Furniture
(Shanghai) Ltd.
H. Deen Kaplan, Craig A. Lewis, and Mark S. McConnell,
Hogan Lovells US LLP, of Washington, DC, for Plaintiff-
Intervenor Armstrong Wood Products (Kunshan) Co., Ltd.
Mark R. Ludwikowski, Arthur K. Purcell, Michelle L.
Mejia, Kristen Smith, and Lana Nigro, Sandler, Travis &
Rosenberg, PA, of Washington, DC for Plaintiff-Intervenors
Lumber Liquidators Services, LLC, and Home Legend, LLC.
Alexander V. Sverdlov, Trial Attorney, Commercial
Litigation Branch, Civil Division, U.S. Department of Justice,
of Washington, DC, for Defendant. With him on the brief were
Stuart F. Delery, Assistant Attorney General, Jeanne E.
Davidson, Director, and Claudia Burke, Assistant Director. Of
counsel was Shana Hofstetter, Attorney, International Office of
Court No. 12-00020 Page 2
the Chief Counsel for Trade Enforcement and Compliance, U.S.
Department of Commerce, of Washington, DC.
Pogue, Senior Judge: Before the court is Defendant’s
motion for voluntary remand in this challenge to an antidumping
duty determination. Def.’s Mot. for a Voluntary Remand,
ECF No. 92 (“Mot. for Voluntary Remand”).1 Specifically, the
United States Department of Commerce (“Commerce”) seeks a
partial remand “to determine whether it should conduct a
‘limited’ investigation of the eight separate rate
[P]laintiffs.” Id. at 1. Plaintiffs and Plaintiff-Intervenors
oppose Commerce’s request.2 Because Commerce’s concern is
substantial and legitimate, Defendant’s motion is GRANTED.
BACKGROUND
Plaintiffs, all separate rate respondents in the
underlying administrative proceedings, challenge Commerce’s
determination of their antidumping duty deposit rate in
1 The court has jurisdiction pursuant to § 516A(a)(2)(B)(i) of
the Tariff Act of 1930, as amended, 19 U.S.C. §
1516a(a)(2)(B)(i) (2012) and 28 U.S.C. § 1581(c) (2012). All
further citations to the Tariff Act of 1930, as amended, are to
Title 19 of the U.S. Code, 2012 edition.
2 Pls.’ Opp’n to U.S. Mot. for Voluntary Remand Re Second Remand
Redetermination, ECF No. 102 (“Pls. Opp’n”); Resp. of Fine
Furniture (Shanghai) Ltd to Def.’s Mot. for a Voluntary Remand,
ECF No. 99 (“Fine Furniture Opp’n”); Pl.-Intervenor Armstrong’s
Br. in Opp’n to Def.’s Mot. for Voluntary Remand, ECF No. 100
(“Armstrong Opp’n”); Resp. of Lumber Liquidators Services, LLC
in Opp’n to Def.’s Mot. for Voluntary Remand, ECF No. 101
(“Lumber Liquidators Opp’n”).
Court No. 12-00020 Page 3
Multilayered Wood Flooring from the People’s Republic of China,
76 Fed. Reg. 64,318 (Dep’t Commerce Oct. 18, 2011) (final
determination of sales at less than fair value). Compl.,
ECF No. 9 at ¶3.3 Litigation of this matter has thus far
produced two court opinions4 and two corresponding
redeterminations by Commerce.5 In the second redetermination,
rather than recalculate the separate rate for all separate rate
respondents, Commerce assigned seven of the Plaintiffs6 either
3 Plaintiffs’ action was previously consolidated with Court
Numbers 11-00452, 12-00007, and 12-00013, under Consolidated
Court Number 12-00007. Order, May 31, 2012, Consol. Ct. No. 12-
00007, ECF No. 37. Court Number 11-00452 was ultimately severed
and dismissed. Am. Order Nov. 27, 2012, Consol. Ct. No. 12-
00007, ECF No. 75; Judgment, Ct. No. 11-00452, ECF No. 68; see
Baroque Timber Indus. (Zhongshan) Co., Ltd. v. United States, __
CIT __, 853 F. Supp. 2d 1290 (2012); Baroque Timber Indus.
(Zhongshan) Co., Ltd. v. United States, __ CIT __, 865 F. Supp.
2d 1300 (2012).
4 Baroque Timber Indus. (Zhongshan) Co., Ltd. v. United States,
___ CIT ___, 925 F. Supp. 2d 1332 (2013) (“Baroque III”) and
Baroque Timber Indus. (Zhongshan) Co., Ltd. v. United States, __
CIT __, 971 F. Supp. 2d 1333 (2014) (“Baroque IV”).
5 Final Results of Redetermination Pursuant to Ct. Order, Consol.
Ct. No. 12-00007, ECF No. 132, and Final Results of
Redetermination Pursuant to Ct. Order, ECF No. 52
(“2d Redetermination”). Following the first remand
determination, Court Numbers 12-00007 and 12-00013 were severed
and final judgment entered. Order Granting Mot. to Sever,
Consol. Ct. No. 12-00007, ECF No. 162; Judgment, Ct. No. 12-
00007, ECF No. 163; Judgment, Ct. No. 12-00013, ECF No. 32.
These have since been appealed by Defendant-Intervenor CAHP.
Appeal of Judgment, Ct. No. 12-00007, ECF No. 166; Appeal of
Judgment, Ct. No. 12-00013, ECF No. 33.
6 Fine Furniture Shanghai, Ltd.; Dunhua City Jisen Wood Industry
Co., Ltd; Dunhua City Dexin Wood Industry Co., Ltd; Dalian
(footnote continued)
Court No. 12-00020 Page 4
the rate established for them in the first administrative review
of the antidumping duty order or their previously determined
provisional measure cap rate.7 Commerce initiated an individual
investigation for the remaining eighth Plaintiff,8 as that
company was not included in the first administrative review and
Commerce did not have enough data on the record to calculate a
rate reflective of that company’s economic reality.
2d Redetermination at 7-9.9 This redetermination was challenged
in extensive briefing before the court.10
Huilong Wooden Products Co.; Kunshan Yingyi-Nature Wood Industry
Co., Ltd.; Armstrong Wood Products (Kunshan) Co., Ltd.; and
Karly Wood Product Ltd. 2d Redetermination at 1-2, 7-8.
7 Commerce cites Multilayered Wood Flooring from the People’s
Republic of China, 78 Fed. Reg. 70,267 (Dep’t Commerce Nov. 25,
2013) (preliminary results of antidumping duty administrative
review; 2011-2012) for the first administrative review. See 2d
Redetermination at 7 n.21, 9 n.30. Commerce has since issued
Multilayered Wood Flooring from the People’s Republic of China,
79 Fed. Reg. 26,712 (Dep’t Commerce May 9, 2014) (final results
of antidumping duty administrative review; 2011-2012) and
Multilayered Wood Flooring from the People’s Republic of China,
79 Fed. Reg. 35,314 (Dep’t Commerce June 20, 2014) (amended
final results of antidumping duty administrative review; 2011-
2012).
8 Changzhou Hawd Flooring Co.
9 Changzhou Hawd subsequently filed a petition for a writ of
mandamus to compel Commerce (in the person of Penny S. Pritzker,
Secretary of the U.S. Department of Commerce) to refrain from
proceeding with its intended individual investigation.
Pl. Changzhou Hawd Flooring Co., Ltd. Pet. for Writ of Mandamus,
ECF No. 71. As Commerce has agreed to suspend the deadlines for
Changzhou Hawd’s individual investigation, Letter re Changzhou
Hawd’s Questionnaire Deadline, ECF No. 82, and now seeks
voluntary remand to reconsider whether it should conduct a full
(footnote continued)
Court No. 12-00020 Page 5
Commerce now requests a partial voluntary remand “to
determine whether it should conduct a ‘limited’ investigation of
the eight separate rate [P]laintiffs,” rather than a full
investigation of just one Plaintiff. Mot. for Voluntary Remand,
ECF No. 92 at 1.
DISCUSSION
Commerce “may request a remand (without confessing
error) in order to reconsider its previous position.” SKF USA
Inc. v. United States, 254 F.3d 1022, 1029 (Fed. Cir. 2001).
While the court will deny a request that is “frivolous or in bad
faith,” if Commerce’s concern is “substantial and legitimate, a
individual investigation of Changzhou Hawd at all, Mot. for
Voluntary Remand, ECF No. 92, Changzhou Hawd’s petition for writ
of mandamus is DENIED AS MOOT.
10See Comments of Certain Separate Rate Appellants to Second
Remand Redetermination, ECF No. 69 (“Pls. Comments”); Comments
of Def.-Intervenor Re Dep’t of Commerce Final Results of
Redetermination Pursuant to Remand, ECF No. 73; Comments of Fine
Furniture (Shanghai) Ltd. on Dep’t of Commerce May 30, 2014
Final Result of Redetermination Pursuant to Ct. Order, ECF No.
74 (“Fine Furniture Comments”); Comments in Opp’n to Dep’t of
Commerce May 29, 2014 Final Results of Redetermination Pursuant
to Ct. Remand, ECF No. 75 (“Armstrong Comments”); Resp. of
Lumber Liquidators Services, LLC in Opp’n to U.S. 2d Remand
Redetermination, ECF No. 76; Reply to Comments of Def.-
Intervenor Re Dep’t of Commerce Final Results of Redetermination
Pursuant to Remand, ECF No. 89; Reply Comments of Lumber
Liquidators Services, LLC in Opp’n to the U.S. 2d Remand
Redetermination, ECF No. 90; Reply Comments of Fine Furniture
(Shanghai) Ltd. on Dep’t of Commerce May 30, 2014 Final Result
of Redetermination Pursuant to Ct. Order, ECF No. 91; Reply
Comments of Def.-Intervenor Re Dep’t of Commerce Final Results
of Redetermination Pursuant to Remand, ECF No. 93.
Court No. 12-00020 Page 6
remand is usually appropriate.” Id. A concern is substantial
and legitimate when (1) Commerce has a compelling justification,
(2) the need for finality does not outweigh that justification,
and (3) the scope of the request is appropriate. Baroque III, __
CIT at __, 925 F. Supp. 2d at 1338-39.11
Here, Commerce has a compelling justification in that
it doubts the correctness of its decision not to calculate rates
for seven separate rate respondents and to individually
investigate an eighth. See Mot. for Voluntary Remand, ECF No. 92
at 2; see SKF, 254 F.3d at 1029 (when requesting remand,
Commerce “might simply state that it had doubts about the
correctness of its decision”).12 This doubt is not outweighed by
the need for finality in the present context, i.e., “a routine
appeal of a final determination.” See Baroque III, ___ CIT at
___, 925 F. Supp. 2d at 1339 (finding that dumping margin
accuracy outweighed finality in the context of a routine
11See also Ad Hoc Shrimp Trade Action Comm. v. United States, __
CIT __, 882 F.Supp.2d 1377, 1381 (2013); Shakeproof Assembly
Components Div. of Ill. Tool Works, Inc. v. United States, 29
CIT 1516, 1522–26, 412 F. Supp. 2d 1330, 1336–39 (2005); Timken
Co. v. United States, Slip Op. 14-51, 2014 WL 1760033 at *3 (CIT
May 2, 2014).
12Cf. SeAH Steel Corp. v. United States, __ CIT __, 704 F. Supp.
2d 1353, 1378-79 (2010) (granting a voluntary remand where “the
record [was] currently inadequate to allow Commerce to apply its
expertise”)(internal citation and quotation marks omitted).
Court No. 12-00020 Page 7
appeal).13 Given Commerce’s doubt, the scope of the remand, to
determine whether limited individual investigations of the
Plaintiffs is a viable alternative, is also appropriate.14
Accordingly, Commerce’s concern is substantial and legitimate,
and remand is appropriate.15
13Plaintiffs and Plaintiff-Intervenors express legitimate
concern about possible prejudicial delay. See Pls. Opp’n,
ECF No. 102 at 7-8; Fine Furniture Opp’n, ECF No. 99 at 3;
Armstrong Opp’n, ECF No. 100 at 4; Lumber Liquidators Opp’n, ECF
No. 101 at 4. However, the delay here is that of a routine
appeal. Compare Shakeproof Assembly, 29 CIT at 1523-24, 412 F.
Supp. 2d at 1337-38) (where a voluntary remand in the course of
a “routine appeal” of an antidumping determination did not
“present any unusually serious finality concerns”) with Former
Empls. of BMC Software, Inc. v. U.S. Sec’y of Labor, 30 CIT
1315, 1354, 454 F. Supp. 2d 1306, 1341 (2006) (where the
Department of Labor waited for appeal and then sought voluntary
remand “to belatedly conduct the thorough probe to which all
petitioning workers are entitled by law at the administrative
level”) (emphasis omitted). Moreover, rather than grant the 90
days Commerce requests to submit its remand results, Mot. for
Voluntary Remand, ECF No. 92 at 2, the court grants 60 days.
14Plaintiffs and Plaintiff-Intervenors balk at the burden a
limited investigation may impose on them. See Pls. Opp’n, ECF
No. 102 at 3-4, 9; Fine Furniture Opp’n, ECF No. 99 at 6-7;
Armstrong Opp’n, ECF No. 100 at 4; Lumber Liquidators Opp’n, ECF
No. 101 at 3. This would be more persuasive if they had not
been arguing for some sort of individualized review just prior
to Commerce’s motion for voluntary remand. See Pls. Comments,
ECF No. 69 at 4, 18; Fine Furniture Comments, ECF No. 74 at 9-
10; Armstrong Comments, ECF No. 75 at 5, 10.
15Plaintiffs and Plaintiff-Intervenors would have the court
instruct Commerce that the only “reasonable method” to calculate
the separate rate is to average the “dumping margins determined
for the exporters and producers individually investigated,”
i.e., the mandatory respondents, resulting in a de minimis rate.
19 U.S.C. § 1673d(c)(5)(B); see Pls. Opp’n, ECF No. 102 at 2-3;
Fine Furniture Opp’n, ECF No. 99 at 4; Armstrong Opp’n, ECF No.
100 at 1, 4-6; Lumber Liquidators Opp’n, ECF No. 101 at 1, 4.
(footnote continued)
Court No. 12-00020 Page 8
CONCLUSION
Because Defendant has shown that Commerce’s concern is
substantial and legitimate, its motion for voluntary remand is
GRANTED. Remand results shall be filed by October 14, 2014.
Comments may be filed by October 28, 2014. Replies may be filed
by November 12, 2014.
IT IS SO ORDERED.
/s/ Donald C. Pogue__________
Donald C. Pogue, Senior Judge
Dated: August 14, 2014
New York, NY
However, the court has already decided this matter in Baroque
IV, __ CIT at __, 971 F. Supp. 2d at 1340-41 (finding that “it
is not per se unreasonable for Commerce to use a simple average
of de minimis and AFA rates to calculate the separate rate
antidumping duty margin”). Plaintiffs and Plaintiff-Intervenors
accuse Commerce of taking a results-oriented approach and of
only seeking remand for another chance to rationalize an above
de minimis separate rate. Fine Furniture Opp’n, ECF No. 99 at 5;
Armstrong Opp’n, ECF No. 100 at 5; Lumber Liquidators Opp’n, ECF
No. 101 at 3. But for Commerce “[t]he power to reconsider is
inherent in the power to decide,” Tokyo Kikai Seisakusho, Ltd.
v. United States, 529 F.3d 1352, 1360 (Fed. Cir. 2008) (citation
omitted) and “[g]overnment officials are presumed to carry out
their duties in good faith and proof to the contrary must be
almost irrefragable to overcome that presumption,” Clemmons v.
West, 206 F.3d 1401, 1403-04 (Fed. Cir. 2000) (citation
omitted), such that voluntary remand presently remains
appropriate.