Suntec Industries Co., Ltd. v. United States , 857 F.3d 1363 ( 2017 )

United States Court of Appeals
for the Federal Circuit
______________________
SUNTEC INDUSTRIES CO., LTD.,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
MID CONTINENT NAIL CORPORATION,
Defendant
______________________
2016-2093
______________________
Appeal from the United States Court of International
Trade in No. 1:13-cv-00157-RKM, Senior Judge R. Kenton
Musgrave.
______________________
Decided: May 30, 2017
______________________
MARK B. LEHNARDT, Antidumping Defense Group,
LLC, Washington, DC, argued for plaintiff-appellant.
STEPHEN CARL TOSINI, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, argued for defendant-appellee. Also
represented by BENJAMIN C. MIZER, JEANNE E. DAVIDSON,
PATRICIA M. MCCARTHY; MICHAEL THOMAS GAGAIN, Office
2 SUNTEC INDUSTRIES CO., LTD. v. UNITED STATES
of the Chief Counsel for Import Administration, United
States Department of Commerce, Washington, DC.
______________________
Before NEWMAN, TARANTO, and CHEN, Circuit Judges.
Opinion for the court filed by Circuit Judge TARANTO.
Dissenting opinion filed by Circuit Judge NEWMAN.
TARANTO, Circuit Judge.
This case arises from the U.S. Department of Com-
merce’s third administrative review of its antidumping-
duty order covering certain steel nails from China. Mid
Continent Nail Corporation, a domestic entity, asked
Commerce to initiate the third administrative review to
determine the proper duty rates for the covered period,
but Mid Continent did not serve the request directly on
Suntec Industries, a Chinese exporter and producer
named in the antidumping order and in the request. As
this case comes to us, it is undisputed that Mid Continent
thereby violated a service requirement stated in a Com-
merce regulation. When Commerce actually initiated the
review about a month after receiving the request, it
published a notice of the initiation in the Federal Regis-
ter, as provided in 19 U.S.C. § 1675(a)(1), which states
that Commerce shall initiate review “if a request for such
a review has been received and after publication of notice
of such review in the Federal Register.” Despite the
Federal Register publication, however, Suntec did not
participate in the review. Evidently because of a lapse in
its relationship with the counsel who had been its repre-
sentative for years in the steel-nail proceedings, Suntec
remained unaware of the review until Commerce an-
nounced the final results (or a few days earlier).
Based on the service deficiency regarding the request
for the review, Suntec sued in the Court of International
Trade to set aside the results of the review at least as
applied to Suntec. The court rejected the challenge. It
SUNTEC INDUSTRIES CO., LTD. v. UNITED STATES 3
held that Suntec had failed to demonstrate that it was
substantially prejudiced by the service error as to the
request for the review in this case. In particular, it con-
cluded that the Federal Register notice of initiation of the
review constituted notice to Suntec as a matter of law and
fully enabled Suntec to participate in the review because
Suntec did not show any prejudice from not knowing of
the request in the pre-initiation period. We affirm.
I
In 2008, Commerce issued an antidumping-duty or-
der, under 19 U.S.C. § 1673, covering certain steel nails
from China. Certain Steel Nails from the People’s Repub-
lic of China: Final Determination of Sales at Less Than
Fair Value and Partial Affirmative Determination of
Critical Circumstances, 73 Fed. Reg. 33,977 (Dep’t of
Commerce June 16, 2008). The Final Determination
expressly covers Suntec, which was among the few foreign
entities for which Commerce specifically verified infor-
mation (at Suntec’s Shanghai location) pursuant to 19
U.S.C. § 1677m(i). Id. at 33,977, 33,980, 33,982, 33,983;
see J.A. 194. Suntec had established its entitlement to a
rate separate from the China-wide rate of 118.04 percent,
and Commerce assigned Suntec a rate of 21.24 percent.
73 Fed. Reg. at 33,981, 33,984.
The common annual administrative-review process
pursuant to 19 U.S.C. § 1675 then began. In the first two
years after issuance of the 2008 order, i.e., the years
beginning August 1, 2008, and August 1, 2009, respective-
ly, Commerce published Federal Register notices an-
nouncing the opportunity to request, Mid Continent
requested, and Commerce then initiated (announced by
publication in the Federal Register) administrative re-
views of the proper duty rate under the order. In each
year, the request and initiation included Suntec. In each
year, Mid Continent served the request on a Chinese law
firm that Suntec had designated as representing it; the
4 SUNTEC INDUSTRIES CO., LTD. v. UNITED STATES
certificates of service list that firm’s Shanghai address,
not Suntec’s own, different Shanghai address. In each
year, Suntec participated in the review by filing a “sepa-
rate rate certification,” Mid Continent then dropped its
review request as to Suntec, and Commerce in turn
rescinded the review of Suntec. See J.A. 194–96. The
effect was to leave the 21.24 percent rate in place for
Suntec. See Certain Steel Nails from the People’s Repub-
lic of China: Notice of Partial Rescission of the First
Antidumping Duty Administrative Review, 75 Fed. Reg.
43,149, 43,150 & nn.1–2 (Dep’t of Commerce July 23,
2010).
This case concerns the third annual administrative
review, for the year beginning August 1, 2010. On August
1, 2011, Commerce published a Federal Register notice of
the opportunity to request a review, J.A. 196, and on
August 31, 2011, Mid Continent requested such a review,
naming Suntec among many other entities, J.A. 196, 208.
The certificate of service shows that, as in the first two
administrative reviews, Mid Continent mailed a copy of
the request to the Suntec-designated Shanghai lawyers’
address, not to Suntec’s own Shanghai address. J.A. 196.
Five weeks later, on October 3, 2011, Commerce pub-
lished a notice of initiation of the review in the Federal
Register. Initiation of Antidumping and Countervailing
Duty Administrative Reviews and Requests for Revoca-
tions in Part, 76 Fed. Reg. 61,076 (Dep’t of Commerce Oct.
3, 2011) (Notice of Initiation). The notice of initiation in
the Federal Register expressly lists Suntec as a party
subject to the administrative review. Id. at 61,082.
Commerce conducted the review and issued its final
determination on March 18, 2013. Certain Steel Nails
from the People’s Republic of China; Final Results of
Third Antidumping Duty Administrative Review; 2010–
2011, 78 Fed. Reg. 16,651 (Dep’t of Commerce Mar. 18,
2013). The final determination recites that Suntec,
among other entities, did not apply for a rate separate
SUNTEC INDUSTRIES CO., LTD. v. UNITED STATES 5
from the China-wide rate and therefore was assigned the
China-wide rate of 118.04 percent. Id. at 16,652. As for
the reason for Suntec’s non-participation, it is now undis-
puted that Suntec was in fact unaware of the third ad-
ministrative review until just after, or perhaps nine days
before, the final determination issued. J.A. 73, 197, 244. 1
Thirty-one days after Commerce published the final
results, Suntec challenged the initiation of the adminis-
trative review in the Court of International Trade, argu-
ing that the initiation was invalid as to Suntec because
Mid Continent did not serve Suntec with the request for
review as required by 19 C.F.R. § 351.303(f)(3)(ii). The
court first denied Commerce’s motion to dismiss. The
court concluded that it had jurisdiction under 28 U.S.C.
§ 1581(i) and that Suntec’s complaint allegations, if true,
would establish that Mid Continent failed to comply with
the service requirements contained in 19 C.F.R.
§ 351.303(f)(3)(ii). Suntec Indus. Co. v. United States, 951
F. Supp. 2d 1341, 1346–48, 1349 (Ct. Int’l Trade 2013).
Subsequently, the court considered and granted
Commerce’s motion for summary judgment. The court
concluded that Mid Continent did violate the service
requirement of 19 C.F.R. § 351.303(f)(3)(ii). Under the
1 Suntec participated in the fourth and fifth admin-
istrative reviews, seeking and receiving a rate separate
from the (still 118.04 percent) China-wide rate. See
Certain Steel Nails from the People’s Republic of China:
Final Results of Fourth Antidumping Duty Administra-
tive Review; 2011–2012, 79 Fed. Reg. 19,316, 19,318
(Dep’t of Commerce Apr. 8, 2014) (assigning Suntec 10.42
percent rate); Certain Steel Nails from the People’s Re-
public of China: Final Results of Fifth Antidumping Duty
Administrative Review; 2012–2013, 80 Fed. Reg. 18,816,
18,817 (Dep’t of Commerce Apr. 8, 2015) (assigning Sun-
tec 16.62 percent rate).
6 SUNTEC INDUSTRIES CO., LTD. v. UNITED STATES
regulation, “an interested party that files with the De-
partment a request for . . . an administrative re-
view . . . must serve a copy of the request by personal
service or first class mail on each exporter or producer
specified in the request . . . by the end of the anniversary
month or within ten days of filing the request for review,
whichever is later.” Id. Mid Continent did not serve a
copy of the request on Suntec. Suntec Indus. Co. v. Unit-
ed States, No. 13-00157, 2016 WL 1621088, at *1, *4 (Ct.
Int’l Trade Apr. 21, 2016).
Nevertheless, the court held that Suntec was not enti-
tled to relief because it had failed to make a showing that
would permit a reasonable finding that it was prejudiced
by Mid Continent’s failure to serve its request for initia-
tion of the administrative review. In particular, the court
concluded that the Federal Register notice of initiation
sufficed as a matter of law to give Suntec notice of the
proceeding upon its initiation, so that, to show prejudicial
error, Suntec had to establish prejudice from losing the
five-week pre-initiation period to prepare for participation
in the review post-initiation. It held that Suntec had
made no showing of any such pre-initiation prejudice. On
that basis, the court granted Commerce’s motion for
summary judgment. Id. at *7.
Suntec appeals. We have jurisdiction under 28 U.S.C.
§ 1295(a)(5).
II
We review the existence of jurisdiction in the Court of
International Trade in this case de novo. Int’l Custom
Prods. v. United States, 467 F.3d 1324, 1326 (Fed. Cir.
2006); Consol. Bearings Co. v. United States, 348 F.3d
997, 1001 (Fed. Cir. 2003). We review the grant of sum-
mary judgment de novo. StoreWALL, LLC v. United
States, 644 F.3d 1358, 1361 (Fed. Cir. 2011). “When
reviewing a Court of International Trade decision in an
action initiated under 28 U.S.C. § 1581(i), this court
SUNTEC INDUSTRIES CO., LTD. v. UNITED STATES 7
applies the standard of review set forth in 5 U.S.C. § 706.”
PS Chez Sidney, L.L.C. v. U.S. Int’l Trade Comm’n, 684
F.3d 1374, 1379 (Fed. Cir. 2012); 28 U.S.C. § 2640(e). 2
A
We begin with the government’s contention that the
Court of International Trade lacked jurisdiction to hear
this case. Suntec’s complaint invoked jurisdiction under
28 U.S.C. § 1581(i), whose language, as relevant here,
confers jurisdiction over a civil action arising out of a law
providing for duties on the importation of merchandise for
reasons other than the raising of revenue or for “admin-
istration and enforcement with respect to” such duties.
That language covers antidumping duties, and associated
administration and enforcement, but to ensure that the
statute works as intended, “we have held ‘that jurisdiction
under subsection 1581(i) may not be invoked if jurisdic-
tion under another subsection of section 1581 is or could
have been available, unless the other subsection is shown
to be manifestly inadequate.’” Hutchison Quality Furni-
ture, Inc. v. United States, 827 F.3d 1355, 1360 (Fed. Cir.
2016) (quoting Hartford Fire Ins. Co. v. United States, 544
F.3d 1289, 1292 (Fed. Cir. 2008)). To determine whether
another subsection could have been available, “[w]e look
to the ‘true nature of the action.’” Id. (quoting Hartford
Fire Ins., 544 F.3d at 1293).
The government argues that this case is outside
§ 1581(i) because Suntec could have challenged Com-
merce’s final determination under § 1581(c). We disagree.
To adopt the government’s contention that this case
2 Commerce argues that the Court of International
Trade misapplied the standard of review when it consid-
ered Suntec’s extra-record evidence. We need not address
that argument because we conclude that affirmance is
required even in light of Suntec’s evidence.
8 SUNTEC INDUSTRIES CO., LTD. v. UNITED STATES
comes within § 1581(c), we would have to conclude that
Suntec was or could have been a party to the administra-
tive review. We cannot draw that conclusion.
28 U.S.C. § 1581(c) gives the Court of International
Trade exclusive jurisdiction over any civil action com-
menced under 19 U.S.C. § 1516a. The relevant provisions
of § 1516a are those which allow “an interested party who
is a party to the proceeding in connection with which the
matter arises” to “commence an action” to “contest[] any
factual findings or legal conclusions upon which” a “final
determination” in an administrative review under 19
U.S.C. § 1675 “is based.” 19 U.S.C. § 1516a(a)(2)(A),
(B)(iii) (emphasis added). The requirement that the
plaintiff have been a party in the administrative review is
reinforced by 28 U.S.C. § 2631(c) (“A civil action contest-
ing a determination listed in [19 U.S.C. § 1516a] may be
commenced . . . by any interested party who was a party
to the proceeding in connection with which the matter
arose.”) (emphasis added). See 19 C.F.R. § 351.102(b)(36)
(“‘Party to the proceeding’ means any interested party
that actively participates, through written submissions of
factual information or written argument, in a segment of
a proceeding.”).
Suntec was not a party to the administrative review.
And we cannot conclude, in our jurisdictional analysis,
that Suntec could have been such a party. We assume the
correctness of Suntec’s merits contention for the jurisdic-
tional analysis here. Cf. Rocky Mountain Helium, LLC v.
United States, 841 F.3d 1320, 1325 (Fed. Cir. 2016)
(standing analysis assumes correctness of merits allega-
tions). Suntec’s claim on the merits is that it could not
have participated because it did not get notice of the
proceeding and hence did not know that the proceeding
was underway. 28 U.S.C. § 1581(c) is manifestly inade-
quate where a party is challenging the initiation of an
administrative review based on the contention that it did
not participate in the review precisely because it did not
SUNTEC INDUSTRIES CO., LTD. v. UNITED STATES 9
get the legally required notice. The Court of International
Trade therefore had jurisdiction in this case under
§ 1581(i). 3
B
The merits question presented to us takes as a given
two premises not contested on this appeal. One is that
Mid Continent violated a regulation in requesting the
third administrative review when it failed to mail a copy
of the request to Suntec itself and instead mailed a copy
to Suntec’s designated legal representatives in Shanghai,
as it had done in the first two administrative reviews.
The second is that Suntec’s non-participation in the third
administrative review likely cost it a good deal of money,
at least on a per-unit basis. Rather than retaining its
earlier 21.24 percent rate, it was assigned the China-wide
rate of 118.04 percent. What is at issue here is the con-
nection between the service deficiency and Suntec’s non-
participation in the review.
The question on appeal is not whether the regulatory
service deficiency could be a basis for judicial review
under 5 U.S.C. § 706 even aside from whether the defi-
ciency was prejudicial. The Court of International Trade
did not rule, and Commerce does not contend on appeal,
that Suntec is barred from challenging Commerce’s ac-
tions (its initiation of and final determinations in the
review) because it was only Mid Continent, not Com-
merce, that was responsible for providing, and failed to
provide, service as required by the governing regulation.
3 The government argues that PAM, S.p.A. v. Unit-
ed States, 463 F.3d 1345 (Fed. Cir. 2006), demonstrates
that § 1581(c) was available to Suntec in this case to
challenge the initiation of the review. But PAM is unlike
this case, because the exporter in PAM participated in the
administrative review. See PAM, 463 F.3d at 1346–47.
10 SUNTEC INDUSTRIES CO., LTD. v. UNITED STATES
We may therefore assume that such a service deficiency
can be a basis, in a proper case, for setting aside Com-
merce’s actions as, e.g., “without observance of procedure
required by law.” 5 U.S.C. § 706(2)(D).
Section 706, however, does not stop there in prescrib-
ing when a court may set aside agency action. Section
§ 706 commands that, when a court hears a challenge to
an agency action, “due account shall be taken of the rule
of prejudicial error.” 5 U.S.C. § 706. The Supreme Court
has held that the § 706 “rule of prejudicial error” com-
mand requires application of a traditional harmless-error
analysis and that the person seeking relief from the error
has the burden of showing prejudice caused by the error.
Shinseki v. Sanders, 556 U.S. 396, 406, 409 (2009).
Accordingly, the question presented here is whether
Suntec has met its burden of establishing the connection
between the service deficiency and Suntec’s absence from
the review that is required to constitute a showing of
prejudicial error.
The crucial fact here is that there was an intervening
event between the request and the review: the Federal
Register notice of initiation of the review. If that notice of
initiation constituted notice as a matter of law, then
Suntec was responsible for its own non-participation in
the review after that notice, and to show harm from the
earlier service defect it would have had to show that it
lost an opportunity for pre-initiation preparation that it
would have needed to make post-initiation participation
effective. Such a showing might be difficult, given that
Commerce gave Suntec and others 60 days after initiation
to make pertinent filings. See Notice of Initiation, 76 Fed.
Reg. at 61,077. We need not say, however, what might be
required to make such a showing. In this case, Suntec
made no such showing based on the pre-initiation period
and does not meaningfully argue otherwise in this court.
SUNTEC INDUSTRIES CO., LTD. v. UNITED STATES 11
The question therefore comes down to whether the
Federal Register notice constituted effective notice as a
matter of law, to be treated as indistinguishable from
actual notice. Like the Court of International Trade, we
conclude that the Federal Register notice did constitute
notice as a matter of law.
Our court and other courts have often recognized that
a failure to give a person a required notice can be harm-
less—e.g., where the person has actual knowledge of the
relevant information or the notice defect was cured by a
subsequent notice given in time for the person to act on
the matter. See, e.g., United States v. Great Am. Ins. Co.
of N.Y., 738 F.3d 1320, 1329–30 (Fed. Cir. 2013) (denying
relief despite Commerce’s violation of notice requirement
in context of suspension of liquidation); Dixon Ticondero-
ga Co. v. United States, 468 F.3d 1353, 1355–56 (Fed. Cir.
2006) (denying remedy where party did not show that it
was prejudiced by agency’s failure to provide notice at
time required by regulation); Kemira Fibres Oy v. United
States, 61 F.3d 866, 875–76 (Fed. Cir. 1995) (as Dixon,
468 F.3d at 1355, summarized, “holding that failure to
timely comply with the notice requirement of 19 C.F.R. §
353.25(d) did not deprive the Department of Commerce of
the authority to commence an administrative review
where the antidumping review was noticed by the agency
after the regulatory deadline”); Intercargo Ins. Co. v.
United States, 83 F.3d 391, 394–96 (Fed. Cir. 1996) (find-
ing lack of required information in notice harmless); 4 see
4 We implicitly recognized the point in Carter v.
McDonald, 794 F.3d 1342 (Fed. Cir. 2015), when we held
that a notice defect was not cured by eventual notification
after the deadline for submission of evidence. See id. at
1345 (“At least in this context, a ‘cure’ of the notice defect
must mean some source providing notification of the same
opportunity a correct notice would have provided.”).
12 SUNTEC INDUSTRIES CO., LTD. v. UNITED STATES
also U.S. Telecom Ass’n v. Fed. Communication Comm’n,
825 F.3d 674, 725 (D.C. Cir. 2016) (denying remedy for
failure to provide notice where parties had actual
knowledge of the final rule); Riverbend Farms, Inc. v.
Madigan, 958 F.2d 1479, 1487–88 (9th Cir. 1992) (deny-
ing remedy for failure to provide notice during rulemak-
ing because the parties had actual notice of the
proceedings); Aero Mayflower Transit Co., Inc. v. Inter-
state Commerce Comm’n, 711 F.2d 224, 232 (D.C. Cir.
1983) (denying remedy for insufficiently informative
agency notice where party contesting decision learned the
relevant information in subsequent proceedings in time to
present challenges).
We applied that familiar principle, and the require-
ment to show substantial prejudice of a notice defect, in
PAM, S.p.A. v. United States, 463 F.3d 1345, 1348 (Fed.
Cir. 2006), specifically in the context of the same regula-
tory service deficiency that is at issue here. In PAM, the
domestic petitioners failed to serve PAM, a foreign ex-
porter, with their request that Commerce initiate an
administrative review, as required by 19 C.F.R.
§ 351.303(f)(3)(ii). Four weeks later, Commerce initiated
the review and published notice of initiation in the Feder-
al Register. PAM, listed in the notice, entered an appear-
ance in the review the next day. PAM, 463 F.3d at 1346.
When the review was complete, PAM argued that it was
entitled to have the review set aside as to it because of the
service defect. Id. at 1347. This court rejected that
contention, reversing the Court of International Trade’s
contrary ruling. Id. at 1346.
The court held that PAM had to show prejudice to se-
cure relief for the service defect. The court explained:
“Even if a regulation is intended to confer an important
procedural benefit, if the failure of a party to provide
notice as required by such a regulation does not prejudice
the non-notified party, then we think neither the govern-
ment, the non-serving party, nor the public should be
SUNTEC INDUSTRIES CO., LTD. v. UNITED STATES 13
penalized for such a failure.” Id. at 1348. Acknowledging
the procedural benefit provided by the regulation, the
court followed American Farm Lines v. Black Ball Freight
Service, 397 U.S. 532, 539 (1970), as well as this court’s
Kemira and Intercargo decisions, and held that PAM had
to “show substantial prejudice” from the service deficiency
to secure relief. PAM, 463 F.3d at 1347–48.
The court then held that PAM had not shown “that it
was substantially prejudiced by [petitioners’] lack of
service, which delayed its notification by several weeks.”
Id. at 1349. The court relied on the fact that “PAM re-
ceived constructive and actual notice of the review by
publication in the Federal Register” before the review
began. Id. And while PAM did not have the pre-initiation
time to prepare, it did not show prejudice as a result,
because Commerce gave it “more than enough time to
‘catch up.’” Id.
PAM makes clear how a deficiency in service of the
request for a review could in some cases be prejudicial
notwithstanding a fully effective Federal Register notice
of initiation of the review. In particular, the un-served
person may be able to prove prejudice from loss of pre-
initiation time to prepare for effective post-initiation
participation in the review. The regulation demanding
service of the request is therefore not rendered unenforce-
able by treating the Federal Register notice of initiation
as effective notice. But there was no such (uncured)
prejudice in PAM. And in the present matter, as we have
noted, Suntec has not shown, or even meaningfully ar-
gued for, prejudice relating to the pre-initiation period.
Accordingly, this case differs from PAM only in that
here the Federal Register notice was not actually seen by
Suntec, whereas PAM evidently saw the notice in its case.
The question is whether the Federal Register notice
nevertheless suffices to require the same no-prejudice
result as in PAM. We conclude that it does, based on the
14 SUNTEC INDUSTRIES CO., LTD. v. UNITED STATES
background law regarding Federal Register notices and
the specific congressional prescription of Federal Register
notice for the initiation of administrative reviews under
19 U.S.C. § 1675(a).
The background law includes two provisions of the
Federal Register Act, codified in Title 44 of the U.S. Code.
Those provisions establish a broad, non-agency-specific
default rule that Federal Register notices are treated as
legally effective notices in a wide range of circumstances.
See, e.g., Wolfson v. United States, 492 F.2d 1386, 1392
(Ct. Cl. 1974) (“It is well settled that when regulations are
published in the Federal Register they give legal notice of
their contents to all who may be affected thereby.”); Aris
Gloves, Inc. v. United States, 281 F.2d 954, 958 (C.C.P.A.
1958) (“Congress intended a proper publication in the
Federal Register to be considered reasonable public notice
unless otherwise provided by statute.”).
One of the Title 44 provisions says: “Unless otherwise
specifically provided by statute, filing of a document,
required or authorized to be published by section 1505 of
this title, except in cases where notice by publication is
insufficient in law, is sufficient to give notice of the con-
tents of the document to a person subject to or affected by
it.” 44 U.S.C. § 1507. That provision applies to the initia-
tion notice here. Congress specifically required Com-
merce to publish the notice in the Federal Register, 19
U.S.C. § 1675(a)(1), and Commerce did so. Section 1507,
standing alone, therefore applies to make the publication
“sufficient to give notice of [its] contents . . . to a person
subject to or affected by it,” 44 U.S.C. § 1507, which
includes Suntec.
The second Title 44 provision of relevance is 44 U.S.C.
§ 1508, which addresses a narrower situation of certain
notices of timing information regarding hearings or
opportunities to be heard. The provision says: “A notice of
hearing or of opportunity to be heard, required or author-
SUNTEC INDUSTRIES CO., LTD. v. UNITED STATES 15
ized to be given by an Act of Congress, . . . shall be
deemed to have been given to all persons residing within
the States of the Union and the District of Columbia,
except in cases when notice by publication is insufficient
in law, where the notice is published in the Federal
Register” and it satisfies certain timing conditions related
to “the date fixed in the notice for the hearing or for the
termination of the opportunity to be heard.” 44 U.S.C.
§ 1508. In this case, it is undisputed that the initiation
notice at issue gave Suntec an opportunity to be heard by
specified dates after the initiation. Notice of Initiation, 76
Fed. Reg. at 61,076–77, 61,082; see 19 U.S.C. § 1675(e)
(requiring that in administrative reviews, Commerce
“shall, upon the request of an interested party, hold a
hearing in accordance with section 1677c(b)”); 19 U.S.C.
§ 1677(9) (“interested party” includes a “foreign manufac-
turer, producer, [and] exporter”). But for the fact that
Suntec is not a resident of the States or the District of
Columbia, 44 U.S.C. § 1508 would supplement section
1507’s confirmation that the Federal Register notice of
initiation sufficed to give notice.
Section 1508, however, does not apply to Suntec, a
foreign firm, and so does not aid Commerce here. On the
other hand, section 1508 does not resolve this case against
Commerce. The provision merely declares the legal
sufficiency of Federal Register notices of opportunities to
be heard for the designated domestic firms, as a default
rule applicable in a wide range of contexts not specific to
any particular statutory regime. It sets a generic back-
ground floor of sufficient notice for domestic firms for the
hearing-related circumstances covered. Section 1508 does
not go further and declare that such notice is legally
insufficient for foreign firms, regardless of the statutory
context. It does not do so in terms, and it would not be
sensible to read this generic, floor-setting provision as
doing so impliedly. In particular, section 1508 cannot
reasonably be read to deem Federal Register notice of a
16 SUNTEC INDUSTRIES CO., LTD. v. UNITED STATES
hearing or opportunity to be heard legally insufficient as
to foreign firms where a specific statutory or regulatory
regime makes clear that such Federal Register notice
provides foreign entities legally sufficient notice. That is
the case here.
Under the relevant provisions of Title 19, we must
conclude that a Federal Register publication of a notice of
a review’s initiation is sufficient as a matter of law to give
notice to the named foreign exporters and producers.
Congress was explicit in prescribing Federal Register
publication as the mechanism of notice: Commerce “shall”
review the duties “if a request for such a review has been
received and after publication of notice of such review in
the Federal Register.” 19 U.S.C. § 1675(a)(1). It said just
that while also guaranteeing “a hearing in accordance
with” 19 U.S.C. § 1677c(b) to any “interested party”
requesting one. 19 U.S.C. § 1675(e). Congress recognized
that it is central, not incidental, to the review process that
the “interested parties” typically include foreign firms
named in the antidumping order as subject to antidump-
ing duties: in defining “interested party,” Congress listed
“foreign manufacturer, producer, [and] exporter” first in
its covered examples. 19 U.S.C. § 1677(9). And in the
“hearing” provision mentioned in § 1675(e), Congress
further confirmed that Federal Register notice suffices to
give notice: “Any hearing required or permitted under this
title shall be conducted after notice published in the
Federal Register . . . .” 19 U.S.C. § 1677c(b). 5
5 Indicating the distinctive character of the statuto-
rily prescribed “hearing,” the same provision declares that
the hearing “shall not be subject to” a “procedure” sub-
chapter of the Administrative Procedure Act, 5 U.S.C.
§§ 551–559, or to that Act’s “right of review” provision, 5
U.S.C. § 702. 19 U.S.C. § 1677c(b).
SUNTEC INDUSTRIES CO., LTD. v. UNITED STATES 17
The legal sufficiency of Federal Register notice, we
conclude, follows from the statutory provisions at issue.
And we do not think that Suntec has identified anything
implausible about the congressional scheme when so
understood. A foreign exporter or producer that is ex-
pressly named in an antidumping order, and is subject to
continuing antidumping duties for the protection of U.S.
industry, can reasonably be expected to have knowledge
of the established mechanism for regular reviews (upon
request) to determine the final amount of duties owed, of
the potentially severe consequences of non-participation
by a foreign entity from a non-market economy, and of the
need to maintain representation to monitor developments.
Suntec itself had such knowledge, participating in the
first two annual reviews and maintaining, until the lapse
that caused the problem in this review, a relationship
with counsel to provide the necessary monitoring. It is
not unreasonable for Congress to provide a simple, famil-
iar Federal Register notice mechanism that deems those
in Suntec’s position properly notified upon publication.
Suntec argues that it is irrelevant whether it is
deemed to have gotten notice of the initiation of the
review because Commerce can initiate a review only after
receiving a valid request and a request is not valid unless
it includes a certification of service. But that argument is
just a reformulation of the assertion that, under the
regulations, there was a service deficiency as to the re-
quest; deeming the request invalid changes nothing. 6 The
6 We note that the statute requires only receipt of a
request and Federal Register publication of a notice of
initiation, not service of the request on identified export-
ers. 19 U.S.C. § 1675(a)(1). A regulation requires “[e]ach
document filed with [Commerce to] include a certificate of
service,” with the penalty for failure to do so being that
the “Secretary may refuse to accept [the] document.” 19
18 SUNTEC INDUSTRIES CO., LTD. v. UNITED STATES
alternative articulation of the same point thus does not
alter at all the need to show prejudice from the identified
error. Suntec has not made that showing, because the
Federal Register notice was effective as to initiation and
Suntec showed no prejudice from the pre-initiation defi-
ciency.
III
For the foregoing reasons, we affirm the judgment of
the Court of International Trade.
AFFIRMED
C.F.R. § 351.303(f)(2). Here, the Secretary accepted the
request for review. Furthermore, the regulation that
addresses the required contents of requests does not
mention service on the exporters. See 19 C.F.R.
§ 351.213(b)(1) (stating that an interested party may
request review of particular exporters or producers only if
it “states why [it] desires the Secretary to review those
particular exporters or producers”).
United States Court of Appeals
for the Federal Circuit
______________________
SUNTEC INDUSTRIES CO., LTD.,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
MID CONTINENT NAIL CORPORATION,
Defendant
______________________
2016-2093
______________________
Appeal from the United States Court of International
Trade in No. 1:13-cv-00157-RKM, Senior Judge R. Kenton
Musgrave.
______________________
NEWMAN, Circuit Judge, dissenting.
I respectfully dissent. Suntec did not receive the per-
sonal service required by regulation; the Court of Interna-
tional Trade held that the regulation was violated.
Suntec Indus. Co. v. United States, 2016 WL 1621088, at
*1, *4 (Ct. Int’l Trade Apr. 21, 2016). And Suntec never
had actual notice of the review by Commerce and did not
participate in the review. Id. at *3 (accepting Suntec’s
affidavits as true).
2 SUNTEC INDUSTRIES CO., LTD. v. UNITED STATES
The regulatory violation was not harmless, and Sun-
tec was substantially prejudiced, for it did not have the
opportunity to participate at all. Constructive notice is
not within the statute or rule. Commerce is required to
enforce its regulation that requires the requestor to
provide service to a party. 19 C.F.R. § 351.303(f)(3)(ii)
contemplates that foreign entities may not be readers of
the Federal Register and explicitly requires direct notice.
PAM, S.p.A. v. United States, 463 F.3d 1345 (Fed. Cir.
2006), describes the potential harm to a party that had
actual notice and actually participated in the proceeding.
Suntec had no such notice, and did not participate.
Precedent includes some situations in which notice
defects were harmless. In PAM and other cases, the
person complaining about the lack of required regulatory
notice nonetheless had actual notice and appeared to
participate in the action. Since the early 1800’s, a party
who appeared in person or by attorney was deemed to
have waived any defects in service. Knox v. Summers, 7
U.S. 496, 497 (1806) (“The court were unanimously of the
opinion, that the appearance by attorney cured all irregu-
larity of process.”); Pollard v. Dwight, 8 U.S. 421, 428–29
(1808) (“By appearing to the action, the defendants in the
court below placed themselves precisely in the situation in
which they would have stood, had process been served
upon them, and consequently waived all objections to the
non-service of process.”); Creighton v. Kerr, 87 U.S. 8, 12
(1873) (“A general appearance waives all question of the
service of process.”). The same principle applies here; a
party who is un-served but appears anyway waives the
issue of defects in service. However, Suntec was not
served and did not appear.
The Administrative Procedure Act’s prejudice re-
quirement allows for harmless error, but the error here
was not harmless. Suntec did not participate because it
was, as we must accept, unaware of the proceeding.
Suntec was unaware of the proceeding because it was not
SUNTEC INDUSTRIES CO., LTD. v. UNITED STATES 3
informed that the request for review had been filed, and
therefore had no reason to expect that a review would be
instituted.
Without the notice required by Commerce’s rule, the
request was faulty and Commerce could not institute
review of Suntec. By statute, the administering authority
shall review “if a request for such a review has been
received.” 19 U.S.C. § 1675(a)(1) (emphasis added).
Absent a request that was properly served, Commerce
cannot institute a review. Commerce requires the reques-
tor of an administrative review to provide actual notice to
foreign manufacturers as part of the request for review.
Commerce’s rule requires:
Request for review. In addition to the certificate
of service requirements under paragraph (f)(2) of
this section, an interested party that files with the
Department a request for an expedited antidump-
ing review, an administrative review, a new ship-
per review, or a changed circumstances review
must serve a copy of the request by personal ser-
vice or first class mail on each exporter or produc-
er specified in the request and on the petitioner by
the end of the anniversary month or within ten
days of filing the request for review, whichever is
later. If the interested party that files the request
is unable to locate a particular exporter or pro-
ducer, or the petitioner, the Secretary may accept
the request for review if the Secretary is satisfied
that the party made a reasonable attempt to serve
a copy of the request on such person.
19 C.F.R. § 351.303(f)(3)(ii). This regulation requires that
a requestor “must serve a copy of the request by personal
service or first class mail on each exporter or producer
specified in the request.” Compliance with
351.303(f)(3)(ii) is not optional. The provision stating that
the “Secretary may refuse to accept [the] document”
4 SUNTEC INDUSTRIES CO., LTD. v. UNITED STATES
appears in Rule 351.303(f)(2), which generally deals with
certificates of service for “documents filed with the De-
partment.” Rule 351.303(f)(3)(ii) expressly states that its
requirements are “in addition to the certificate of service
requirements under paragraph (f)(2).”
Here, there was no personal service, and the Secre-
tary made no finding that the requestor made a reasona-
ble attempt to serve. Without one of those two
requirements, the rule is violated and the request is
defective.
Commerce brushes off the violation as a harmless
procedural defect. But the only way to render the viola-
tion harmless is by assuming that Suntec was obligated to
appear, although without notice that the request had
been filed. The court creates that obligation by charging
Suntec with constructive notice by publication of the
institution of the review in the Federal Register. Con-
structive notice is a legal fiction. Torry v. Northrop
Grumman Corp., 399 F.3d 876, 878 (7th Cir. 2005)
(“When a court says that the defendant received ‘con-
structive notice’ of the plaintiff's suit, it means that he
didn't receive notice but we’ll pretend he did”).
However, constructive notice is not applicable here.
Given Commerce’s regulations, Suntec’s duty to inquire
did not begin until it received the required actual notice of
the request. The Federal Register Act does not, by itself,
compel foreign entities to monitor the Federal Register.
Nor does the Tariff Act. The regulations require actual
notice. Commerce assigned the burden to the requestor to
provide actual notice to all the foreign manufacturers that
a request had been filed. Foreign manufacturers are
entitled to rely on the regulations that Commerce has
promulgated. “It is no less good morals and good law that
the Government should turn square corners in dealing
with the people than that the people should turn square
SUNTEC INDUSTRIES CO., LTD. v. UNITED STATES 5
corners in dealing with their Government.” St. Regis
Paper Co. v. United States, 368 U.S. 208, 229 (1961).
Commerce cannot, after the fact, nullify the regulato-
ry scheme it created. From the court’s contrary holding, I
respectfully dissent.