KYD, Inc. v. United States

Slip Op. 12-61
UNITED STATES COURT OF INTERNATIONAL TRADE
KYD, INC.,
Plaintiff,
v.
UNITED STATES,
Defendant.
POLYETHYLENE RETAIL CARRIER BAG
COMMITTEE, HILEX POLY CO., LLC,
and SUPERBAG CORPORATION,
Defendant-Intervenors.
Before: Donald C. Pogue,
Chief Judge
Court No. 09-00034
OPINION
[Denying Plaintiff’s Motion for Reconsideration.]
Dated: May 8, 2012
David John Craven, Riggle and Craven, of Chicago, IL,
for Plaintiff.
Carrie Anna Dunsmore, Renee A. Gerber, Stephen Carl
Tosini and Vincent dePaul Phillips, Trial Attorneys, Commercial
Litigation Branch, Civil Division, U.S. Department of Justice, of
Washington, DC, for Defendant. 	With them on the brief were
Stuart Delery, Assistant Attorney General, Jeanne E. Davidson,
Director, Patricia M. McCarthy, Assistant Director. 	Of counsel
on the brief were Rachel Elizabeth Wenthold and Scott McBride,
Attorneys, U.S. Department of Commerce, of Washington, DC.
Daniel Lawrence Schneiderman and Stephen Andrew Jones,
King & Spalding LLP, of Washington, DC, for Defendant-
Intervenors.
Pogue, Chief Judge: This opinion addresses a motion
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filed by Plaintiff KYD, Inc. (“KYD”) seeking reconsideration of
Slip Op. 12-10, KYD, Inc. v. United States, 36 CIT __, 807 F.
Supp. 2d 1372 (2012) (“KYD IV”). 1 	KYD IV 	affirmed the
Department of Commerce’s (“Commerce”) Second Final Remand
Redetermination Results (“Second Remand Results”) imposing a
94.62 percent adverse facts available (“AFA”) antidumping duty
rate upon KYD’s entries of certain retail carrier bags (“carrier
bags”) from Thailand. See KYD IV, 807 F. Supp. 2d at 1377–78.
Plaintiff claims that in KYD IV, the Court failed to
address Plaintiff’s argument that the 94.62 percent AFA rate
violated the excessive fines and forfeitures clause of the 8th
Amendment of the U.S. Constitution, and therefore failed to rule
on all issues before the court.
For the reasons discussed below, Plaintiff’s motion is
denied.
STANDARD OF REVIEW
A USCIT Rule 59 motion for reconsideration will be
granted,
only in limited circumstances, including [instances of]
1) an error or irregularity, 2) a serious evidentiary
flaw, 3) the discovery of new evidence which even a
diligent party could not have discovered in time, or 4)
an accident, unpredictable surprise or unavoidable
mistake which impaired a party’s ability to adequately
present its case.
1 See Pl.’s Mem. Supp. Mot. Recons. Ct.’s Order in Slip Op.
12-10, ECF No. 125 (“Pl.’s Mot.”).
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Target Stores v. United States, 31 CIT 154, 156, 471 F. Supp. 2d
1344, 1347 (2007).
It follows that a motion for reconsideration will not
be granted “merely to give a losing party another chance to
re-litigate the case.” Totes–Isotoner Corp. v. United States, 32
CIT 1172, 580 F. Supp. 2d 1371, 1374 (2008) (citation omitted);
see also Tianjin Magnesium Int’l. Co., v. United States, No. 09-
00535, 35 CIT __, 2011 WL 4433102, at *1 (2011).
DISCUSSION
Plaintiff contends that it raised an 8th Amendment
issue during the first administrative remand, claiming that
Commerce’s selection of a 122.88 percent AFA rate for KYD’s
merchandise was punitive rather than remedial. Pl.’s Mot. at 2–3.
Plaintiff argues that this rate inappropriately punishes it for
the behavior of an uncooperative producer with which it did
business, and that even the reduced 94.62 percent AFA rate
selected in the Second Remand Results bears no relationship to
KYD’s offense. Pl.’s Mot. at 5–6. 	Plaintiff claims that the
court did not reach this 8th Amendment issue in ruling on the
first remand redetermination because Commerce’s determination was
rejected on other grounds, but that the issue was still pending
before the court during the second remand redetermination. Pl.’s
Mot. at 7.
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A. Exhaustion of Administrative Remedies
However, Plaintiff has failed to exhaust its
administrative remedies with respect to this issue. 	Even though
Plaintiff challenged the dumping margin that Commerce calculated
in its second redetermination, see Draft Results of
Redetermination Pursuant to Court Remand, A-549-821, ARP 06-07
(July 6, 2011), Remand R. Pub. Doc. 2 (“Draft Remand Results”);
see also Comment on Draft Results of Redetermination, A-549-821,
ARP 06-07 (July 18, 2011), Remand R. Pub. Doc. 9 (“Pl.’s Cmts. on
Draft Remand Results”), Plaintiff did not claim, during that
second remand proceeding, that the reduced dumping margin
selected in the Second Remand Results violated the 8th Amendment.
Def-Ints.’s Resp. in Opp. to KYD’s Mot. for Recons. at 2, ECF No.
126 (“Def.-Ints.’s Br.”).
A Plaintiff must exhaust its administrative remedies
“where appropriate.” See 28 U.S.C. § 2637(d). 	The exhaustion
requirement serves to promote judicial efficiency and to protect
the legitimate exercise of agency authority. Corus Staal BV v.
United States, 502 F.3d 1370, 1379 (Fed. Cir. 2007). 	A plaintiff
is “procedurally required to raise [an] issue before Commerce at
the time Commerce was addressing the issue.” Mittal Steel Point
Lisas Ltd. v. United States, 548 F.3d 1375, 1383 (Fed. Cir.
2008). 	Because of this litigation’s long history, with multiple
remands, it is particularly appropriate for Plaintiff to be
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required to exhaust its administrative remedies by challenging
the reduced margin at issue in the second remand redetermination.
It has failed to do so.
B. Waiver of the Issue
Likewise, Plaintiff has waived this issue by not
raising it before the court at the proper time. 	Commerce issued
the final results of its second redetermination on August 18,
2011. 	In its September 9, 2011 comments, Plaintiff challenged
the dumping margin selected in that second redetermination. Pl.’s
Cmts. on the Department’s Remand Determination, ECF No. 101.
However, Plaintiff did not raise an 8th Amendment issue in those
September 9 comments. Id.; Def.’s Resp. to Pl.’s Mot. for
Reconsideration at 3, 5, ECF No. 129 (“Def.’s Br.”); Def.-Ints.’s
Br. at 2. 	Plaintiff states that it did challenge the 122.88
percent margin in the first redetermination on this basis. See
Pl.’s Mot. at 6; Pl.’s Cmts. on First Redetermination (Sept. 29,
2010), ECF No. 73. 	However, Plaintiff did not raise the same
challenge to Commerce or this Court regarding the lower margin
that was assessed during the second determination. Def.-Ints.’s
Br. at 2.
“[A]ll claims, arguments, and objections that [a
Plaintiff has] elected not to address in its post-remand briefs
must be deemed waived.” Bond Street, Ltd. v. United States, 35
CIT __, 774 F. Supp. 2d 1251, 1261 (2011). 	Plaintiff was
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therefore obligated to raise its 8th Amendment issue before this
court in its September 9, 2011 comments on the second remand
results. 2 	Moreover, for the reasons articulated in Part C below,
this is not a case involving such “significant questions of
general impact or of great public concern” as to excuse such a
waiver. Cf. Ninestar Tech. Co. v. Int’l Trade Comm’n, 667 F.3d
1373, 1382 (Fed. Cir. 2012) (quoting Interactive Gift Express,
Inc. v. Compuserve Inc., 256 F.3d 1323, 1345 (Fed. Cir. 2001)).
Thus, the Court did not fail to rule on the 8th Amendment issue
because Plaintiff did not raise the issue properly following the
second remand results.
C. Merit
Finally, even if the issue had not been waived,
Plaintiff’s claim lacks merit:
antidumping laws “are remedial not punitive,”. . .an
antidumping rate based on AFA is designed “to provide
respondents with an incentive to cooperate, not to
impose punitive . . . margins,” DeCecco, 216 F.3d at
1032. For that reason, an AFA dumping margin
determined in accordance with the statutory
requirements is not a punitive measure, and the
limitations applicable to punitive damages
assessments therefore have no pertinence to duties
imposed based on lawfully derived margins such as the
margin at issue in this case.
2 Plaintiff waives an argument which was not presented
to the court “until after it had filed its principal
summary judgment brief, . . . [because] parties must give a
trial court a fair opportunity to rule on an issue other
than by raising that issue for the first time in a reply
brief[.]” Novosteel SA v. United States, 284 F.3d 1261,
1274 (Fed. Cir. 2002).
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KYD, Inc. v. United States, 607 F.3d 760, 767–68 (Fed. Cir.
2010)(“KYD II”).
It follows that any 8th Amendment issue has already
been foreclosed because “[a] statutorily proper AFA rate is
remedial rather than punitive, and a ‘punitive’ rate is
statutorily improper.” KYD, Inc. v. United States, 35 CIT __, 779
F. Supp. 2d 1361, 1384 n.24 (2011) (“KYD III”) (citations
omitted).
Finally, by ruling that the margin Commerce calculated
in the second determination complies with the statute, KYD IV
confirmed that the rate was remedial in nature. Def.-Ints.’s Br.
at 3; see also S. Shrimp Alliance v. United States, 33 CIT __,
617 F. Supp. 2d 1334, 1340 (2009); Nat’l Knitwear & Sportswear
Ass’n v. United States, 15 CIT 548, 558, 779 F. Supp. 1364, 1372
(1991). 	KYD IV determined that the antidumping rate applied to
Plaintiff’s merchandise “could reasonably be accepted as an
approximation of KYD’s rate, albeit with a built in increase
intended as a deterrent to non-compliance.” KYD IV, 807 F. Supp.
2d at 1378.
The rate is reasonably remedial and is intended to aid
the enforcement of tariff regulations rather than to serve as a
punitive sanction. See One Lot Emerald Cut Stones & One Ring v.
United States, 409 U.S. 232, 237, 93 S. Ct. 489, 493 (1972)
(customs statute permitting the civil sanction of forfeiture is
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remedial, not punitive). 	Because the AFA rate selected by
Commerce is remedial and not punitive, it cannot violate the 8th
Amendment.
CONCLUSION
For the reasons discussed above, the court denies
Plaintiff’s motion.
It is SO ORDERED.
/s/ Donald C. Pogue
Donald C. Pogue, Chief Judge
Dated: May 8, 2012
New York, N.Y.
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