Dixon Ticonderoga Co. v. United States Customs & Border Protection , 29 Ct. Int'l Trade 913 ( 2005 )

Slip Op. 05-98
UNITED STATES COURT OF INTERNATIONAL TRADE
____________________________________
x
Dixon Ticonderoga Company, :
Plaintiff, :
Court No. 04-00027
v. : Before: Judith M. Barzilay, Judge
United States Customs and Border :
Protection
and Robert C. Bonner, :
Defendants. :
____________________________________x
MEMORANDUM ORDER
[Defendants’ USCIT R. 59 Motion for Rehearing denied.]
Decided: August 18, 2005
Gray Robinson, P.A. (A. Anthony Giovanoli), Guy S. Haggard for Plaintiff.
Peter D. Keisler, Assistant Attorney General; David M. Cohen, Director; (Jeanne E. Davidson),
Deputy Director; (David S. Silverbrand), Trial Attorney, U.S. Department of Justice, Civil
Division, Commercial Litigation Branch; Charles Steuart, Office of Chief Counsel, United States
Customs & Border Protection, of counsel, for Defendant.
BARZILAY, JUDGE:
On April 4, 2005, this court entered a Judgment Order granting plaintiff Dixon
Ticonderoga Co.’s (“Dixon’s”) Motion for Judgment on the Agency Record. Dixon Ticonderoga
Co. v. United States Customs and Border Protection, Slip Op. 2005-46.1 Now defendants,
United States Customs and Border Protection and Robert C. Bonner (collectively “Defendant”)
ask this court to reconsider the above-mentioned judgment and opinion, to grant a rehearing, and
1
Familiarity with this prior opinion is presumed.
04-00027 Page 2
to dismiss Dixon’s cause of action pursuant to USCIT Rule 59(a)(2). After having considered
Defendant’s arguments to the contrary, the court finds no fundamental or significant mistake
resulting in manifest error. Therefore, Defendant’s motion is denied.
Rule 59(a)(2) allows this Court to order a rehearing in an action finally determined, for
any of the reasons that United States courts have granted rehearings in suits in equity. The
granting or denying of a motion for rehearing rests within the sound discretion of the court. See
Ammex, Inc. v. United States, 201 F. Supp. 2d 1374, 1375 (CIT 2002); Mitsubishi Heavy Indus.,
Ltd. v. United States, 112 F. Supp. 2d 1170, 1171 (CIT 2000). Reconsideration is appropriate
when meant to rectify a fundamental or significant flaw in the original proceeding that results in
a manifest error. Mitsubishi, 112 F. Supp. 2d at 1171 (citations and quotations omitted).
Defendant argues in this motion, as it did in opposition to Dixon’s Motion for Judgment
on the Agency Record, that Dixon was not substantially prejudiced by Defendant’s late published
notice. As Defendant points out, prejudice means injury to an interest that the statute, regulation,
or rule in question was designed to protect. Deft.’s R. 59 Mot. for Rehearing at 5 (citing
Intercargo Ins. Co. v. United States, 83 F.3d 391, 394 (Fed. Cir. 1996) (quotations omitted)). As
explained in the opinion, Dixon, being a domestic pencil manufacturer, had an interest in
applying for and receiving a distribution pursuant to the Continued Dumping and Subsidy Offset
Act of 2000 (“CDSOA”), also known as the Byrd Amendment. Both the CDSOA and the
Customs regulation at issue, 19 C.F.R. § 159.62(a), were designed to protect this interest.
Furthermore, none of the cases Defendant cites in its motion shed any new light on the
matter at hand. In Cathedral Candle Co., et. al. v. United States International Trade Comm’n,
04-00027 Page 3
et. al., 400 F.3d 1352 (Fed. Cir. 2005), the Federal Circuit considered a case where Customs
complied with 19 C.F.R. § 159.62(a) and provide timely notice. In that case Customs granted
discretion to the International Trade Commission’s (“ITC”) resolution of a conflict between the
confidentiality requirements of 19 U.S.C. § 1677f and the notice requirements of the Byrd
Amendment, 19 U.S.C. § 1675c. Therefore, the Court held that where the plaintiffs did not
waive the confidentiality they had originally opted for, the timely published notice did not violate
the Byrd Amendment when it failed to include plaintiffs on the list of affected domestic
producers.2 Cathedral Candle, 400 F.3d at 1367, 1372.
Also distinguishable is this Court’s recent opinion in Candle Artisans, Inc. v. United
States International Trade Comm’n, et. al., 29 CIT __, 362 F. Supp. 2d 1352 (2005). Similar to
the facts of Cathedral Candle3 and in contrast to those presented in this case, Customs published
timely notice of its intent to distribute, but did not include plaintiffs’ names on the list because
they had not waived confidentiality. In both Cathedral Candle and Candle Artisans, the
plaintiffs’ inability to obtain notice was not due to any fault or omission on the part of Customs.
Rather, Customs was held to have made a reasonable interpretation of two seemingly conflicting
statutes, and its decision not to publish the names of domestic producers who had not waived
confidentiality was accorded deference by the Courts. In the present case, Customs failed to
2
Although not relevant to the issues at hand, integral to the Federal Circuit’s holding in
Cathedral Candle were the additional determinations that section 4 of the Administrative
Procedure Act (“APA”) was not applicable to the facts in that case, and that the ITC was not
required under section 3 of the APA to publish Federal Register notice indicating that it was only
submitting the names of those persons that indicated public support for the petition. 400 F.3d at
1369, 1371-72.
3
As noted by the Court in Candle Artisans, 326 F. Supp. 2d at __, n.1.
04-00027 Page 4
abide by its own regulations by failing to provide timely notice to all affected domestic producers
of the CDSOA distribution for fiscal year 2003.
As explained in the court’s earlier opinion, Slip Op. 2005-46, because the Customs
regulations at issue in this matter were found to be merely procedural aids, Dixon could prevail
on its claim only if it demonstrated substantial prejudice. Id. at 9 (citing Kemira Fibres Oy v.
United States, 61 F.3d 866 (Fed. Cir. 1995) (citations omitted)). Because it was one of the
petitioners in Certain Cased Pencils from the People’s Republic of China, 59 Fed. Reg. 66909(Dec. 28, 1994), Dixon was an intended beneficiary of the CDSOA and its accompanying
regulations, including 19 C.F.R. § 159.62(a). Therefore, Dixon was substantially prejudiced by
Customs’ late published notice. Unlike the plaintiff in Intercargo Insurance Co. v. United
States, 83 F.3d 391 (1996), Dixon does not complain of a technical defect which, if disregarded,
would deprive Dixon of relief. Rather, Dixon’s interest in receiving its share of the distribution,
as an intended beneficiary of the CDSOA, was injured by Customs’ failure to provide timely
notice. Cf. Intercargo, 83 F.3d at 396 (“Prejudice means injury to an interest that the statute,
regulation or rule in question was designed to protect.”). In other words, Dixon was squarely
within the interest intended to be protected by both the statute involved and the timing
regulations implicated in this case, and was prejudiced when Customs failed to properly
administer that statute and accompanying regulation. Cf. Kemira, 61 F.3d at 875-76.
On April 29, 2005, the parties submitted a joint status report pursuant to the court’s order
directing the parties to confer regarding a remedy and to advise the court of this proposed
remedy. In this status report, the parties indicated their agreement that, “if after all opportunities
04-00027 Page 5
for rehearing and/or appeal have been exhausted, [this court’s April 4, 2005 opinion] is the final
court decision upon this action, Dixon would be entitled to distribution from Customs of
$618,896.03 in CDSOA funds for fiscal year 2003.” Thus, the court orders Customs to take
appropriate action to the extent authorized by law and to effect a distribution of $618,896.03 to
Dixon. Furthermore, the court notes that because the only interest available pursuant to 19
U.S.C. § 1675c(d)(3) is statutory interest charged on antidumping and countervailing duties at
liquidation, the sum to be distributed to Dixon does not include interest accrued. See 19 C.F.R. §
159.74(e). Accordingly, it is hereby
ORDERED that defendant’s USCIT R. 59 motion for rehearing is denied; and it is further
ORDERED that defendant will effect a distribution of $618,896.03 to plaintiff in
CDSOA funds for fiscal year 2003.
August 18, 2005 /s/ Judith M. Barzilay
______________________________ _________________________________
New York, NY Judith M. Barzilay, Judge