JBF Rak LLC v. United States

Slip Op. 14-90
UNITED STATES COURT OF INTERNATIONAL TRADE
JBF RAK LLC,
Plaintiff,
v. Before: Judith M. Barzilay, Senior Judge
UNITED STATES, Court No. 12-00099
Defendant,
and
MITSUBISHI POLYESTER FILM, INC.,
DUPONT TEIJIN FILMS and SKC, INC.,
TORAY PLASTICS (AMERICA), INC.,
Defendant-Intervenors.
OPINION
[Defendant’s motion to dismiss granted.]
July 30, 2014
Jack D. Mlawski and John J. Galvin, Galvin & Mlawski, for Plaintiff.
Stuart F. Delery, Assistant Attorney General; Jeanne E. Davidson, Director; Patricia M.
McCarthy, Assistant Director, (David F. D’Alessandris), Trial Counsel, Commercial Litigation
Branch, Civil Division, U.S. Department of Justice, of counsel, Justin R. Becker and Shana A.
Hofstetter, Office of the Chief Counsel for Import Administration, U.S. Department of
Commerce, for Defendant.
Ronald I. Meltzer, Patrick J. McLain, David M. Horn, and Jeffrey I. Kessler, Wilmer Cutler
Pickering Hale and Dorr LLP, for Defendant-Intervenors.
BARZILAY, Senior Judge: Before the court is Plaintiff JBF RAK LLC’s (“JBF RAK”)
motion for judgment on the agency record under USCIT Rule 56.2, challenging Defendant U.S.
Court No. 12-00099 Page 2
Department of Commerce’s (“Commerce”) final results of the administrative review covering
polyethylene terephthalate film (“PET Film”) from United Arab Emirates for the November 1,
2009 through October 31, 2010 period of review. See Polyethylene Terephthalate Film, Sheet,
and Strip From the United Arab Emirates, 77 Fed. Reg. 20,357 (Dep’t Commerce Apr. 4, 2012)
(final results) (“Final Results”); see also Issues and Decision Memorandum for Polyethylene
Terephthalate Film, Sheet, and Strip from the United Arab Emirates, A-520-803 (Mar. 29,
2012), available at http://enforcement.trade.gov/frn/summary/UAE/2012-8108-1.pdf (last visited
July 30, 2014). JBF RAK claims that Commerce erred by applying its zeroing methodology in
the context of an administrative review. JBF RAK Br. 6. JBF RAK claims that the Federal
Circuit’s decision in Union Steel v. United States, 713 F.3d 1101 (Fed. Cir. 2013) is contrary to
Dongbu Steel Co. v. United States, 635 F.3d 1363 (Fed. Cir. 2011) and JTEKT Corp. v. United
States, 642 F.3d 1378 (Fed. Cir. 2011). JBF RAK Br. 8. Commerce, in turn, has filed a motion
to dismiss for failure to state a claim upon which relief may be granted under USCIT Rule
12(b)(5). Def. Br. 4. The court has jurisdiction under 28 U.S.C. § 1581(c). Commerce’s
determinations, findings, and conclusions will be upheld unless they are “unsupported by
substantial evidence on the record, or otherwise not in accordance with law.” 19 U.S.C. §
1516a(b)(1)(B)(i).
The Federal Circuit’s decision in Union Steel has settled this issue. In Union Steel, the
Federal Circuit sustained Commerce’s explanation for applying its zeroing methodology in
administrative reviews (and not in investigations). See Union Steel, 713 F.3d at 1107-1111.
“Commerce explained that its differing applications of zeroing are due to the contextual
differences between antidumping investigations and administrative reviews, as well as
Commerce’s discretion to take necessary and statutorily permitted measures to meet international
obligations.” Tianjin Wanhaua Co. v. United States, 38 CIT __, __, 961 F. Supp. 2d 1335, 1336
Court No. 12-00099 Page 3
(2014) (“Tianjin”) (citing Union Steel, 713 F. 3d at 1108-10). Commerce, therefore, may
lawfully apply its zeroing methodology in administrative reviews. Although JBF RAK attempts
to characterize Union Steel as having “misapprehended” zeroing, JBF RAK Br. 4, 9-10, it is
nevertheless binding authority on the issue presented here concerning Commerce’s application of
zeroing in the context of a review. JBF RAK, moreover, has failed to distinguish this case from
Union Steel in a manner that might justify reaching the merits. Commerce, for its part, has
provided an explanation of its zeroing policy in this case that is consistent with the explanation
provided in Union Steel. See Issues and Decision Memorandum at 2-10. In the court’s view, JBF
RAK is attempting to litigate an issue that has already been settled by the Federal Circuit. See
Tianjin, 961 F. Supp. 2d at 1336. Accordingly, JBF RAK has failed to state a claim upon which
relief can be granted. See USCIT R. 12(b)(5). Judgment will be entered accordingly.
Dated: July 30, 2014 /s/ Judith M. Barzilay ______
New York, New York Judith M. Barzilay, Senior Judge