Consol.Textiles, Inc. v. United States , 28 Ct. Int'l Trade 1304 ( 2004 )

Slip Op. 04-101
UNITED STATES COURT OF INTERNATIONAL TRADE
BEFORE: HON. RICHARD W. GOLDBERG, SENIOR JUDGE
CONSOLIDATED TEXTILES, INC.,
Plaintiff,
Court No. 03-00872
v.
UNITED STATES,
Defendant.
[Defendant’s motion to dismiss granted.]
Date: August 11, 2004
Gregory S. Menegaz (Sonnenschein Nath & Rosenthal LLP) for
plaintiff Consolidated Textiles, Inc.
Peter D. Keisler, Assistant Attorney General, David M. Cohen,
Director, Jeanne E. Davidson, Deputy Director, Commercial
Litigation Branch, Civil Division, United States Department of
Justice (Stephen C. Tosini) for defendant United States.
OPINION
GOLDBERG, Senior Judge: In this action, plaintiff Consolidated
Textiles, Inc. (“Consolidated Textiles”) seeks an order requiring
defendant United States (“the Government”) to liquidate and
reliquidate certain entries of polyester staple fiber from the
Republic of Korea imported by Consolidated Textiles (“the subject
entries”). Pursuant to liquidation instructions issued by the
U.S. Department of Commerce (“Commerce”), the subject entries are
subject to antidumping duties at the initial “all other”
exporters and producers rate of 11.35 percent ad valorem.
Court No. 03-00872 Page 2
Consolidated Textiles, which did not challenge the initial “all
others” rate established in the antidumping duty determination,
argues that it is entitled to the lowered “all others” rate of
7.91 percent ad valorem determined by Commerce on remand. The
Government moves to dismiss pursuant to USCIT R. 12(b)(1) and
12(b)(5).
For the reasons that follow, the Court grants the
Government’s motion to dismiss.
I. BACKGROUND
On April 29, 1999, Commerce initiated an investigation into
an antidumping petition filed with Commerce regarding certain
polyester staple fiber from Korea and Taiwan. See Initiation of
Antidumping Duty Investigations: Certain Polyester Staple Fiber
From The Republic Of Korea And Taiwan, 64 Fed. Reg. 23053 (Apr.
29, 1999). As an importer of the subject merchandise,
Consolidated Textiles participated in this investigation. On May
25, 2000, Commerce issued its Notice of Amended Final
Determination Of Sales At Less Than Fair Value: Certain Polyester
Staple Fiber From The Republic Of Korea (“Amended Final
Determination”), 65 Fed. Reg. 33807 (May 25, 2000), in which
Commerce determined rates for two of the investigated producers
as well as an “all others” rate of 11.35 percent applicable to
all other importers in the investigation, including Consolidated
Textiles. Id.Court No. 03-00872 Page 3
On June 22, 2000, timely complaints were filed with the
Court of International Trade by domestic petitioner E.I. DuPont
de Nemours, Inc., and by Geum Poong Corp. and Sam Young
Synthetics, two investigated producers of the subject
merchandise, contesting the manner in which Commerce determined
their dumping margins in the Amended Final Determination.
Consolidated Textiles did not challenge Commerce’s determination
at this time. In that action, the Court remanded Commerce’s
determination for proper calculation of Geum Poong’s constructed
value rate on two occasions. See Geum Poong Corp. v. United
States, 25 CIT 1089, 163 F. Supp. 2d 669 (2001). In its second
redetermination, Commerce determined Geum Poong’s antidumping
margin to be de minimis, and although the “all others” cash
deposit rate was not at issue in that case, it was recalculated
and lowered from 11.35 percent to 7.91 percent. Redetermination
Pursuant to Court Remand Order in Geum Poong Corp. v. United
States, Court. No. 00-06-00298 (Apr. 30, 2002) at 1, aff’d, No.
03-1056, 1057 (Fed. Cir., Oct. 9, 2003).
Consolidated Textiles attempted to intervene in the Geum
Poong litigation in July 2002. On July 26, 2002, the Court
granted Consolidated Textiles status as a plaintiff-intervenor,
and issued a temporary restraining order preventing Commerce from
liquidating Consolidated Textiles’s entries. Geum Poong and Sam
Young Synthetics filed timely objections under USCIT R. 24, which
Court No. 03-00872 Page 4
requires that interested parties may only intervene after 30 days
of the filing of the complaint upon a showing of “good cause.”
Based on USCIT R. 24, the Court vacated its order granting
Consolidated Textiles intervenor status and dissolved the
temporary restraining order. Geum Poong v. United States, 26 CIT
__, Slip Op. 02-84 (Aug. 6, 2002), aff’d, No. 02-1573, 1578 (Fed.
Cir., Oct. 2, 2002).
On July 17, 2002, Commerce issued liquidation instructions
to the United States Bureau of Customs and Border Protection
(“Customs”) ordering the liquidation of certain entries imported
by Consolidated Textiles at the 11.35 percent cash deposit rate
established in the Amended Final Determination. Customs began
liquidating entries made in the third period of review – May 1,
2002 through April 30, 2003. On July 1, 2003, Commerce initiated
an administrative review of the subject merchandise for the third
period of review. See Initiation of Antidumping and
Countervailing Duty Administrative Reviews and Request for
Revocation in Part, 68 Fed. Reg. 39055 (July 1, 2003). On
December 10, 2003, Consolidated Textiles filed a complaint and a
motion for a preliminary injunction. In its complaint,
Consolidated Textiles requested that the Court “enjoin any
further liquidation of Plaintiff’s third review entries of
subject [polyester staple fiber] from Korea until the litigation
affecting the legality of the ‘all others’ rate is final[,]” and
Court No. 03-00872 Page 5
“require the Commerce Department to instruct Customs to re-
liquidate all liquidated entries made during the period May 1,
2002 through April 30, 2003 . . . by Plaintiff of the subject
merchandise that were liquidated at 11.35 percent if the final
rate is 7.91 percent[.]” Compl. at 6. Sitting in motion part,
the Court granted Consolidated Textiles’s motion for preliminary
injunctive relief by Memorandum Opinion and Order dated December
19, 2003. Per the Court’s order, Customs remains enjoined from
further liquidating any entries of polyester staple fiber from
the Republic of Korea that were imported by Consolidated Textiles
on or after May 1, 2002.
II. DISCUSSION
A. The Court Has Subject Matter Jurisdiction Pursuant to 28
U.S.C. § 1581(i).
The Government contends that the Court lacks subject matter
jurisdiction over Consolidated Textiles’s claim pursuant to 28
U.S.C. § 1581(i). Defendant’s Memorandum Of Law In Support Of
Its Motion To Dismiss (“Def.’s Br.”) at 14. The Government
argues that § 1581(i) jurisdiction cannot be invoked because
Consolidated Textiles could have brought an action under 28
U.S.C. § 1581(c). Id. at 16. However, like the importer in
Consolidated Bearings v. United States, Consolidated Textiles is
not challenging the final results of an administrative review,
but rather the liquidation instructions Commerce issued to
Customs, an action which could not have been brought under 28
Court No. 03-00872 Page 6
U.S.C. § 1581(c). 348 F.3d 997, 1002 (Fed. Cir. 2003); see also
Shinyei Corp. of America v. United States, 355 F.2d 1297, 1305
(Fed. Cir. 2004) (quoting Consolidated Bearings, 348 F.3d at
1002). Thus, in accordance with the Court’s finding in its
Memorandum Opinion and Order granting Consolidated Textiles’s
motion for a preliminary injunction, the Court finds that 28
U.S.C. § 1581(i) provides jurisdiction over the instant matter.
B. Consolidated Textiles’s Claim Is Not Barred by the Doctrine
of Collateral Estoppel.
The Government contends that Consolidated Textiles’s claim
is barred by the doctrine of collateral estoppel because
Consolidated Textiles is seeking a remedy it could have sought,
and previously attempted to seek, from the Court. Def.’s Br. at
19. The Government maintains that Consolidated Textiles is
merely realleging a claim already made in challenging Commerce’s
application of the initial “all others” rate to entries of
merchandise entered during the first, second, and third
administrative periods of review. Id. at 21. However, upon
consideration of the four-prong test set forth in Thomas v.
General Services Administration, the Court finds that
Consolidated Textiles’s claim is not precluded. 794 F.2d 661,
664 (Fed. Cir. 1986). Thomas requires that the following four
conditions be met in order to apply collateral estoppel:
(1) the issue previously adjudicated is identical with
that now presented;
(2) that issue was actually litigated in the prior
Court No. 03-00872 Page 7
case;
(3) the previous determination of that issue was
necessary to the end-decision then made; and
(4) the party precluded was fully represented in the
prior action.
Id.In addressing the first and second prongs of the Thomas
test, the Court finds that the legal issue presented here is not
identical to any issue that was actually litigated previously in
the Geum Poong litigation. In this case, Consolidated Textiles
contests Commerce’s instructions to Customs ordering liquidation
of the subject entries at the “all others” rate of 11.35 percent.
In the Geum Poong litigation, the issue was whether Commerce had
properly determined the dumping margins of Geum Poong Corp. and
Sam Young Synthetics. Whether Consolidated Textiles is entitled
to the lowered “all others” rate of 7.91 percent clearly is not
an issue that was previously adjudicated in the Geum Poong
litigation, thereby barring the application of collateral
estoppel. In addition, the fourth prong of the Thomas test lends
further support to the Court’s finding that collateral estoppel
is not applicable because Consolidated Textiles was not even a
party to the prior action, much less a “fully represented” party.
Moreover, the Court has been reluctant to apply collateral
estoppel in trade cases as a matter of policy:
The burden on the party seeking issue preclusion is and
should be exacting. This is especially so in trade
cases . . . . Since the agencies involved perform the
function of expert finders of fact concerning different
Court No. 03-00872 Page 8
programs, different time frames, economic statistics
and other factors . . ., principles of issue preclusion
should be carefully applied. To hold otherwise would
have a chilling effect upon the administrative
processes envisioned by the Congress.
E.I. DuPont de Nemours & Co. v. United States, 23 CIT 343, 347
n.6 (1999) (citing PPG Indus., Inc. v. United States, 13 CIT 297,
302, 712 F. Supp. 195, 199 (1989)).
Accordingly, the Court holds that Consolidated Textiles’s
claim is not barred by the doctrine of collateral estoppel.
C. Consolidated Textiles Has Failed to State a Claim Upon Which
Relief Can Be Granted.
The Government argues that Consolidated Textiles has failed
to state a claim upon which relief can be granted. According to
the Government, liquidation of the subject entries is in
accordance with 19 U.S.C. § 1516a(c)(1), which provides that:
entries of merchandise of the character covered by a
determination . . . shall be liquidated in accordance
with the determination of the Secretary . . . if they
are entered, or withdrawn from warehouse, for
consumption on or before the date of publication in the
Federal Register by the Secretary or the administering
authority of a notice of a decision of the United
States Court of International Trade, or of the United
States Court of Appeals for the Federal Circuit, not in
harmony with that determination.
19 U.S.C. § 1516a(c)(1). Pursuant to this statutory authority,
Commerce ordered liquidation of the subject entries under 19
C.F.R. § 351.212(c), which provides for automatic assessment of
antidumping duties at the rate equal to cash deposit of estimated
antidumping duties required at the time of entry on merchandise
Court No. 03-00872 Page 9
not covered by a timely request for an administrative review.
See 19 C.F.R. § 351.212(c)(2).
An importer should not benefit from a lower rate established
by a judicial or administrative decision if in fact the importer
did not participate in the underlying proceedings. See J.S.
Stone, Inc. v. United States, 27 CIT __, __, 297 F. Supp. 2d
1333, 1343-45 (2003); see also United States v. ITT Indus., Inc.,
28 CIT __, __, Slip Op. 04-81, 30 (July 8, 2004) (citing
Consolidated Bearings, 348 F.3d at 1005-06).
In J.S. Stone, the antidumping duty order at issue set the
estimated duty rate of J.S. Stone, an importer of the subject
merchandise, at 43.72 percent ad valorem. Id. at __, 297 F.
Supp. 2d at 1336. SICC, a producer from whom J.S. Stone imported
the subject merchandise, requested an administrative review. Id.J.S. Stone did not participate in the review, however. Id. at
__, 297 F. Supp. 2d at 1337. In its questionnaire responses,
SICC failed to report its sales of the subject merchandise to
J.S. Stone. Id. As a result, SICC’s sales to J.S. Stone were
not used by Commerce in computing the revised 0.11 percent
dumping rate for SICC, and Commerce ultimately instructed Customs
to liquidate J.S. Stone’s entries at the 43.72 percent cash
deposit rate. Id.J.S. Stone filed suit in the CIT, seeking a refund on the
difference between the cash deposit rate it paid on antidumping
Court No. 03-00872 Page 10
duties and the rate determined for SICC. Id. at __, 297 F. Supp.
2d at 1342. In rejecting J.S. Stone’s claim, the Court held that
“[n]ormally, the only means an interested party has of ensuring
that it receives the actual antidumping duty rate is through
participation in the antidumping review. . . . If an importer
decides not to participate in an administrative review, it bears
the risk that Commerce may err in calculating the dumping
margin.” Id. at __, 297 F. Supp. 2d at 1344. Thus, “if an
antidumping review is not requested, antidumping duties are
collected on the unspecified merchandise in the amount of the
cash deposit paid at the time of importation, which is published
as the ‘all others’ rate in the Federal Register.”
Id. (referring to 19 C.F.R. § 351.212 (1998)).
Here, Consolidated Textiles did not timely intervene in the
Geum Poong litigation. See Geum Poong v. United States, 26 CIT
__, Slip Op. 02-84 (Aug. 6, 2002), aff’d, No. 02-1573, 1578 (Fed.
Cir., Oct. 2, 2002). Rather, as the Government correctly points
out, “the Geum Poong litigation concerned only the individual
rate assessed for Geum Poong Corp.” Reply Memorandum in Support
of Defendant’s Motion to Dismiss at 11. The “all others” rate
was lowered only incidentally, as a consequence of the reduction
in Geum Poong Corp.’s rate. Thus, since Consolidated Textiles
did not participate in the Geum Poong litigation, Consolidated
Textiles is not legally entitled to the revised “all others” rate
Court No. 03-00872 Page 11
resulting from that litigation. Consequently, Commerce may apply
19 C.F.R. § 351.212(c)(2) to order liquidation of the subject
entries now that the deadline for filing a writ of certiorari
with the U.S. Supreme Court has passed, thus rendering Geum
Poong a final decision.
Accordingly, the Court holds that Consolidated Textiles has
failed to present a justiciable claim.
III. CONCLUSION
For the aforementioned reasons, the Court has subject matter
jurisdiction under 28 U.S.C. § 1581(i) and holds that the
doctrine of collateral estoppel does not apply to Consolidated
Textiles’s claim. Because Consolidated Textiles has failed to
state a claim upon which judicial relief can be granted, this
action is dismissed and the preliminary injunction issued in this
matter on December 19, 2003 is dissolved.
A separate judgment order will be issued accordingly.
/s/ Richard W. Goldberg
Richard W. Goldberg
Senior Judge
Date: August 11, 2004
New York, New York