from the United States Court of International Trade in No.
1:13-cv-00157-RKM, Senior Judge R. Kenton Musgrave.
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 of the Chief Counsel for Import
Administration, United States Department of Commerce,
Newman, Taranto, and Chen, Circuit Judges.
Taranto, Circuit Judge.
case arises from the U.S. Department of Commerce'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
Commerce regulation. When Commerce actually initiated the
review about a month after receiving the request, it
published a notice of the initiation in the Federal Register,
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
representative for years in the steel-nail proceedings,
Suntec remained unaware of the review until Commerce
announced the final results (or a few days earlier).
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 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 concluded 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.
2008, Commerce issued an antidumping-duty order, under 19
U.S.C. § 1673, covering certain steel nails from China.
Certain Steel Nails from the People's Republic 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 information (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.
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, respectively,
Commerce published Federal Register notices announcing the
opportunity to request, Mid Continent requested, and Commerce
then initiated (announced by publication in the Federal
Register) administrative reviews 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 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 "separate 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 Republic 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).
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 published a notice of
initiation of the review in the Federal Register. Initiation
of Antidumping and Countervailing Duty Administrative Reviews
and Requests for Revocations 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.
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 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 undisputed that Suntec was in
fact unaware of the third administrative review until just
after, or perhaps nine days before, the final determination
issued. J.A. 73, 197, 244.
days after Commerce published the final results, Suntec
challenged the initiation of the administrative review in the
Court of International Trade, arguing 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).
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 regulation, "an interested
party that files with the Department a request for . . . an
administrative review . . . 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. United States, No. 13-00157,
2016 WL 1621088, at *1, *4 (Ct. Int'l Trade Apr. 21,
the court held that Suntec was not entitled 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 initiation
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.
appeals. We have jurisdiction under 28 U.S.C. §
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 summary 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 applies the standard of review set forth in 5 U.S.C.