Slip Op. 19-4
UNITED STATES COURT OF INTERNATIONAL TRADE
ABB INC.,
Plaintiff,
v.
UNITED STATES,
Before: Mark A. Barnett, Judge
Defendant,
Consol. Court No. 16-00054
and
HYOSUNG CORPORATION, HYUNDAI
HEAVY INDUSTRIES CO., LTD., AND
HYUNDAI CORPORATION USA,
Defendant-Intervenors.
OPINION AND ORDER
[Denying Hyundai Heavy Industries, Co., Ltd. and Hyundai Corporation, USA’s motion
for reconsideration.]
Dated: April 12, 2019
Melissa M. Brewer and R. Alan Luberda, Kelley Drye & Warren LLP, of Washington,
DC, for Plaintiff.
John J. Todor, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, U.S.
Department of Justice, of Washington, DC, for Defendant. With him on the brief were
Joseph H. Hunt, Assistant Attorney General, Jeanne E. Davidson, Director, and Franklin
E. White, Jr., Assistant Director. Of Counsel on the brief was David W. Richardson,
Senior Counsel, Office of the Chief Counsel for Trade Enforcement and Compliance,
U.S. Department of Commerce, of Washington, DC.
Consol. Court No. 16-00054 Page 2
David E. Bond, William J. Moran, and Ron Kendler, White & Case LLP, of Washington,
DC, for Defendant Intervenors Hyundai Heavy Industries, Co., Ltd. 1 and Hyundai
Corporation USA.
Barnett, Judge: Before the court is a motion for reconsideration filed by Hyundai
Heavy Industries, Co., Ltd. and Hyundai Corporation, USA (collectively “Hyundai”)
pursuant to Rule 59(e) of the U.S. Court of International Trade (“USCIT”). See
Confidential Def.-Ints.’ Mot. for Recons. (“Mot. for Recons.”), ECF No. 133. Hyundai
requests that the court reconsider its decision sustaining the U.S. Department of
Commerce’s (“Commerce” or “the agency”) use of facts available in applying the
agency’s capping methodology to service-related revenue with respect to transactions
based on communications between Hyundai and Hyundai’s unaffiliated customers. See
ABB Inc. v. United States, 42 CIT __, __, 355 F. Supp. 3d 1206, 1217-23 (2018).
Plaintiff, ABB Inc., and Defendant, United States, oppose the motion on the basis that
Hyundai improperly re-litigates issues addressed and rejected by the court. See Pl.’s
Resp. in Opp’n to Def.-Ints.’ Mot. for Recons. at 3, ECF No. 139; Def.’s Resp. to Mot. for
Recons. at 4, ECF No. 145. For the reasons that follow, Hyundai’s motion is denied.
BACKGROUND
In ABB Inc., the court addressed challenges to Commerce’s remand
redetermination in the second administrative review of the antidumping duty order on
large power transformers from the Republic of Korea for the period of review August 1,
1Hyundai Electric & Energy Systems Co., Ltd. is the successor-in-interest to Hyundai
Heavy Industries, Co., Ltd. See Letter from David E. Bond, Attorney, White & Case
LLP, to the Court (Sept. 12, 2018), ECF No. 120.
Consol. Court No. 16-00054 Page 3
2013, through July 31, 2014. ABB Inc., 355 F. Supp. 3d at 1210; 2 see also Confidential
Final Results of Redetermination Pursuant to Court Remand (“Remand Results”), ECF
No. 96. Relevant here, the court analyzed whether substantial evidence supports
Commerce’s finding that Hyundai “refused to provide the necessary information for
Commerce to apply its capping methodology” to service-related revenue. ABB Inc., 355
F. Supp. 3d at 1217-18. The court concluded that “substantial evidence supports
Commerce’s finding that Hyundai failed to provide information necessary for Commerce
to apply its capping methodology” with respect to “those transactions for which
Commerce identified communications (e.g., purchase orders and invoices) between
Hyundai and its unaffiliated customers indicating that the provision of those services
may reasonably have been separately negotiable.” Id. at 1221. Hyundai now contends
that the court made a factual error in reaching its conclusion and the court’s “conclusion
appears to be inconsistent with other aspects of its ruling.” Mot. for Recons. at 2-4.
JURISDICTION
The court has jurisdiction pursuant to § 516A(a)(2)(B)(iii) of the Tariff Act of 1930,
as amended, 19 U.S.C. § 1516a(a)(2)(B)(iii) (2012), and 28 U.S.C. § 1581(c).
DISCUSSION
I. Standard of Review
Pursuant to USCIT Rule 59(e), the court may consider “[a] motion to alter or
amend a judgment,” which is served “no later than 30 days after the entry of the
judgment.” USCIT Rule 59(e). “‘Judgment’ . . . includes a decree and any order from
2ABB Inc. contains further background information on this case, familiarity with which is
presumed.
Consol. Court No. 16-00054 Page 4
which an appeal lies.” USCIT Rule 54(a). 3 As a general rule, “[a]n order remanding a
matter to an administrative agency for further findings and proceedings is not final,” and
therefore, not appealable. 4 Cabot Corp., 788 F.2d at 1542-43 (dismissing an appeal of
a USCIT order that “resolve[d] an important legal issue” but remanding the matter to the
administrative agency for further findings and proceedings because the order was not
final).
In ABB Inc., the court considered Hyundai’s claims that Commerce’s use of facts
available with an adverse inference was unsupported by substantial evidence and
contrary to law. ABB Inc., 335 F. Supp. at 1216-23. The court sustained Commerce’s
use of facts available but remanded Commerce’s decision to use an adverse inference
in selecting among the facts available. Id. at 1223. The decision in ABB Inc. is not a
final appealable order, see Cabot Corp. 788 F.2d at 1542, but instead is an interlocutory
order, see NSK Corp. v. United States, 32 CIT 1497, 1502, 593 F. Supp. 2d 1355, 1362
(2008) (characterizing a remand order as an interlocutory order). 5 Accordingly, because
the court’s decision in ABB Inc. is not final, USCIT Rule 59(e) does not apply.
USCIT Rule 59(e), however, is not the only provision pursuant to which the court
may reconsider an order. Pursuant to USCIT Rule 54(b), “any order or other decision . .
. that adjudicates fewer than all the claims . . . does not end the action as to any of the
3 A “final decision” of the U.S. Court of International Trade is appealable to the U.S.
Court of Appeals for the Federal Circuit. 28 U.S.C. § 1295(a)(5). A decision is final only
when it “ends the litigation on the merits and leaves nothing for the court to do but
execute judgment.” Cabot Corp. v. United States, 788 F.2d 1539, 1542 (Fed. Cir. 1986)
(quoting, inter alia, Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 373 (1981)).
4 Any potential exceptions to this rule are inapplicable.
5 When numerous claims for relief are presented, the court may direct entry of a final
judgment on fewer than all claims “only if the court expressly determines that there is no
just reason for delay.” USCIT Rule 54(b). The court has not done so in this case.
Consol. Court No. 16-00054 Page 5
claims . . . and may be revised at any time before the entry of a judgment adjudicating
all the claims . . . .” USCIT Rule 54(b); see also Beijing Tianhai Indus. Co., Ltd. v.
United States, 41 CIT __, __, 234 F. Supp. 3d 1322, 1328 (2017) (“This [c]ourt has held
that it may reconsider a prior, non-final decision pursuant to its plenary power, which is
recognized by Rule 54(b).”) (citations omitted). The court has the discretion to
reconsider a prior decision under USCIT Rule 54(b) “as justice requires, meaning when
the court determines that reconsideration is necessary under the relevant
circumstances.” Irwin Indus. Tool Co. v. United States, 41 CIT __, __, 269 F. Supp. 3d
1294, 1301 (2017), aff’d, No. 2018-1215, 2019 WL 1523053 (Fed. Cir. Apr. 9, 2019)
(internal quotation marks and citation omitted). A motion for reconsideration is not,
however, an opportunity for the losing party “to re-litigate the case or present arguments
it previously raised.” Totes-Isotoner Corp. v. United States, 32 CIT 1172, 1173, 580 F.
Supp. 2d 1371, 1374 (2008). The court will consider Hyundai’s motion pursuant to
USCIT Rule 54(b).
II. Hyundai’s Motion for Reconsideration is Denied
Hyundai claims that the court incorrectly concluded that Hyundai did not provide
Commerce with requested information that would have enabled the agency to apply its
capping methodology until verification in the underlying review. Mot. for Recons. at 2-3.
Hyundai avers that the court overlooked that Hyundai submitted sales documentation
for SEQU 11—one of five U.S. sales that Commerce examined at verification—two
months before verification, and this documentation demonstrated that Hyundai had a
breakout of service-related revenue. Id. at 2; see also ABB Inc., 355 F. Supp. 3d at
1215 n.15 (listing the sales that Commerce examined). Hyundai further avers that the
Consol. Court No. 16-00054 Page 6
SEQU 11 documentation “was indistinguishable from the invoices reviewed at
verification with respect to the presentation of separate revenue for services.” Mot. for
Recons. at 3. While recognizing that the court specifically addressed Hyundai’s
placement of SEQU 11 documentation on the record before verification, id. at 3 (citing
ABB Inc., 355 F. Supp. 3d at 1222 n.25), Hyundai next claims that the court failed to
give due weight to that documentation and advances several reasons why the court
should reconsider its decision, id. at 3-7. The court first addresses Hyundai’s claim that
the court made a factual error in its decision, then addresses the merits of Hyundai’s
arguments for why reconsideration is necessary.
A. The court did not make a factual error in its decision in ABB Inc.
The issue addressed by the court was whether Hyundai failed to provide
Commerce information in the form and manner that Commerce requested. See ABB
Inc., 355 F. Supp. 3d at 1217-19. Commerce specifically asked Hyundai to report the
gross unit price as follows: “If the invoice to your customer includes separate charges
for other services directly related to the sale, . . . create a separate field for reporting
each additional charge.” Id. at 1217-18 (quoting Initial Antidumping Duty Questionnaire
(Dec. 1, 2014) at C-18, 6 CRJA Tab 4, PRJA Tab 4, PR 25, ECF No. 113 at C-18)).
Despite the fact that Hyundai had multiple invoices to U.S. customers that contained
separate line items for services, Hyundai failed to create separate fields for the price of
those services in its reporting methodology, thereby failing to respond to the agency’s
6The administrative record for this case is divided into a Public Administrative Record,
ECF No. 27-3, and a Confidential Administrative Record (“CR”), ECF No. 27-4. Parties
submitted joint appendices containing record documents cited in their remand
briefs. See Confidential Remand Proceeding J.A. (“CRJA”), ECF No. 113; Public
Remand Proceeding J.A. (“PRJA”), ECF No. 114.
Consol. Court No. 16-00054 Page 7
questionnaire in the form and manner requested. Id. at 1218-19 & n.19. 7 Instead,
Hyundai “provided a seemingly complete response to Commerce’s initial questionnaire,”
id. at 1222; see also id. at 1218 (discussing Hyundai’s response), and did not notify
Commerce that it had invoices with separate line items for services, which would have
alerted the agency to the deficiencies in Hyundai’s initial response.
In a supplemental questionnaire, Hyundai explained that “when the purchase
order and invoice included separate line items for services,” Hyundai “included the
separately listed revenue in the gross unit price for the LPT.” Id. at 1218 n.18.
Nowhere in this explanation, however, did Hyundai reference the SEQU 11
documentation or point to any other documentation alerting Commerce to the existence
of such invoices. Hyundai had provided the SEQU 11 documentation with its May 13,
2015, supplemental response without any explanation; it “was not until Commerce
sorted through Hyundai's sales documentation [at verification] that the agency
recognized that Hyundai's documentation was inconsistent with its reporting.” Id. at
1222.
Moreover, in ABB Inc., the court addressed Hyundai’s claims that the sales
documentation for SEQU 11 was on the record before verification. ABB Inc., 355 F.
Supp. 3d at 1222 n.25. Indeed, Hyundai’s renewed claim in this motion that it had
documentation that demonstrated a breakout of service-related revenue only confirms
the court’s conclusion that Hyundai failed to provide a complete response to
Commerce’s questionnaire in the form and manner requested.
7Hyundai does not challenge the court’s finding that Hyundai failed to create the
separate fields in accordance with Commerce’s request.
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B. Justice does not require reconsideration
Hyundai first claims that the court should reconsider its decision because
Commerce “reached the opposite conclusion” to the court’s decision in the final results
of the review underlying this appeal. Id. at 3-4 (quoting Issues and Decision Mem., A–
580–867 (Mar. 8, 2016) at 50, ECF No. 27-2, accompanying Large Power Transformers
from the Republic of Korea, 81 Fed. Reg. 14,087 (Dep’t Commerce March 16, 2016)
(final determination of sales at less than fair value)). Hyundai’s argument lacks merit
because Commerce requested and was granted a remand to reconsider the record on
this issue and ensure that it was properly applying its revenue-capping methodology.
See ABB Inc., 355 F. Supp. 3d at 1210; ABB, Inc. v. United States, 41 CIT__, __, 273
F. Supp. 3d 1200, 1205-06 (2017); see also SKF USA Inc. v. United States, 254 F.3d
1022, 1029 (Fed. Cir. 2001) (it is usually appropriate to grant a remand request when
the agency, without confession of error, raises a concern that is substantial and
legitimate). Upon reconsideration of the record, Commerce reached a different
conclusion with respect to Hyundai’s reporting, which it was permitted to do provided it
explained its determination and supported its findings with substantial evidence. See
Nakornthai Strip Mill Public Co. Ltd., v. United States, 32 CIT 1272, 1274, 587 F. Supp.
2d 1303, 1306 (2008) (reviewing remand determination for compliance with the court’s
remand order and applying the standard of review set out in 19 U.S.C.
§ 1516a(b)(1)(B)). 8
Hyundai next argues that the court’s conclusion that the invoices reviewed at
verification were directly responsive to the agency’s request for information regarding
separately negotiated revenues and demonstrated a failure to provide that requested
Consol. Court No. 16-00054 Page 9
information “appears to be inconsistent with other aspects of its ruling.” Mot. for
Recons. at 4. Hyundai does not identify the alleged inconsistency, except it argues that
the SEQU 11 documentation that was on the record prior to verification “provided the
same information for a different sale.” Id. As the court explained above, Hyundai did
not provide the SEQU 11 documentation in response to Commerce’s specific questions
concerning service-related revenue and did not reference it when responding to
Commerce’s supplemental questions on this subject. Supra Discussion Section II.A;
see also ABB Inc., 355 F. Supp. 3d at 1222 n.25 (“While Hyundai explained its reporting
methodology, it did not alert the agency to the existence of the very information—to wit,
invoices—that the agency had requested but Hyundai was choosing not to provide in
the manner requested by Commerce.”).
Hyundai last argues that the court failed to give appropriate weight to the
agency’s acceptance of Hyundai’s reporting in the original investigation that it had no
service-related revenues. Mot. for Recons. at 4-6. According to Hyundai, the agency’s
acceptance of Hyundai’s reporting reflected the agency’s adoption of a “definition” of
service-related revenue, upon which Hyundai was entitled to rely in this review. Id. at 5-
6. Hyundai’s arguments on this point amount to nothing more than disagreement with
the court’s decision, see ABB Inc., 355 F. Supp. 3d at 1221, which is an insufficient
basis for reconsideration, see Irwin Indus. Tool Co., 269 F. Supp. 3d at 1301.
CONCLUSION
For the foregoing reasons, it is
8 At oral argument, the Government stated that Commerce’s decision as articulated in
the Issues and Decision Memorandum was incorrect. Oral Arg. Tr. at 28:24-29:5.
Consol. Court No. 16-00054 Page 10
ORDERED that Hyundai’s motion for reconsideration is DENIED.
/s/ Mark A. Barnett
Judge
Dated: April 12, 2019
New York, New York