Slip Op. 07-21
UNITED STATES COURT OF INTERNATIONAL TRADE
------------------------------x
FAIRMONT DESIGNS, INC., :
DONGGUAN SUNRISE FURNITURE :
CO., TAICANG SUNRISE WOOD :
INDUSTRY CO., LTD. AND :
SHANGHAI SUNRISE FURNITURE :
CO., LTD. :
:
Plaintiffs, :
: Before: Pogue, Judge
v. : Court No. 06-00249
:
UNITED STATES, :
:
Defendant, :
:
AMERICAN FURNITURE MFRS. :
COMM. FOR LEGAL TRADE :
:
Defendant- :
Intervenors :
:
------------------------------x
[Defendant’s motion to dismiss granted; judgment of dismissal
entered.]
Dated: February 14, 2007
Miller & Chevalier Chartered (Peter J. Koenig, Daniel P.
Wendt) for Plaintiffs.
Peter D. Keisler, Assistant Attorney General; Jeanne
Davidson, Acting Director, Patricia M. McCarthy, Assistant
Director, Commercial Litigation Branch, Civil Division, U.S.
Department of Justice (Michael D. Panzera); Natasha C. Robinson,
Attorney, Of Counsel, Office of Chief Counsel for Import
Administration, U.S. Department of Commerce, for the Defendant.
King & Spalding, LLP (Joseph W. Dorn, Stephen A. Jones,
Jeffrey M. Telep, J. Michael Taylor) for the Defendant-
Intervenor.
Court No. 06-00249 Page 2
OPINION AND ORDER
Pogue, Judge: The matter before the court is, in all material
respects save for one, identical to the companion case before the
court in American Signature, Inc. v. United States, 31 CIT __, Slip
Op. 07-20 (Feb. 14, 2007)(“American Signature”).1 The only
difference between the two cases is that during the investigation,
Fairmont requested that Commerce issue instructions to Customs to
retroactively assess duties at the amended rate, and to return all
excess cash deposits and release all excess bonds immediately.2
1
Familiarity with the court’s opinion in American Signature
is presumed.
2
There also are slight, but not material, differences
between the calculation of the antidumping rates at issue here
and the rate at issue in American Signature. In determining
antidumping rates in its Wooden Bedroom Furniture investigation,
Commerce assigned individual rates to mandatory respondents, an
all-others separate rate to companies that demonstrated both de
facto and de jure independence from government control, and a
PRC-wide rate of 198.08% to companies that did not demonstrate
sufficient independence from the PRC government. Wooden Bedroom
Furniture from the People’s Republic of China, 69 Fed. Reg.
67,313(Dep’t Commerce Nov. 17, 2004)(final determination of sales
at less than fair value)(“Final Determination”); See also, Decca
Hospitality Furnishings LLC v. United States, 29 CIT __, __, 391
F. Supp. 2d 1298, 1300 (2005); Guangzhou Maria Yee Furnishings,
Ltd. v. United States, 29 CIT __, __, 412 F. Supp. 2d 1301, 1304
(2005).
In the case at bar, Commerce in its preliminary
determination, initially, mistakenly, applied the PRC-wide rate
to Fairmont Designs, Inc. et al. (collectively “Fairmont”).
Commerce partially corrected this ministerial error in its first
amended preliminary results Wooden Bedroom Furniture from the
People’s Republic of China, 69 Fed. Reg. 35,312, 35,327-28 (Dep’t
Commerce June 24, 2004)(notice of preliminary determination of
(continued...)
Court No. 06-00249 Page 3
See Final Determination, 69 Fed. Reg. at 67,317. American
Signature requested such a retroactive assessment after the
conclusion of the investigation. See American Signature, 31 CIT
__, __, Slip Op. 07-20 at 7, 12-13. The difference, however, is
not material.
In the “Issues and Decision Memorandum” for the Less-Than-
Fair-Value Investigation of Wooden Bedroom Furniture from the
People’s Republic of China that accompanied and was adopted by the
Final Determination, Commerce rejected Fairmont’s request that
Commerce instruct Customs to assess duties at the newly amended
2
(...continued)
sales at less than fair value and postponement of final
determination). In the first amended preliminary results,
Commerce applied a separate rate to Dongguan Sunrise Furniture
Co., but did not apply the separate rate to the other companies
in the Fairmont group. Wooden Bedroom Furniture from the
People’s Republic of China, 69 Fed. Reg. 47,417, 47,418 (Dep’t
Commerce Aug. 5, 2004)(notice of amended preliminary antidumping
duty determination of sales at less than fair value). On
September 9, 2004, Commerce published second amended preliminary
results specifying that other companies within the Fairmont group
also were entitled to the revised separate rate (of 12.91 %).
Wooden Bedroom Furniture from the People’s Republic of China, 69
Fed. Reg. 54,643, 54,645 (Dep’t Commerce Sept. 9, 2004)(notice of
amended preliminary antidumping duty determination of sales at
less than fair value and amendment to scope)(“Second Amended
Preliminary Determination”).
Therefore, Fairmont seeks refund of any cash deposit
overpayments resulting from Commerce’s ministerial errors in its
application of the PRC-wide rate rather than the separate rate.
Though the ministerial error that caused the variance between the
cash deposit rate and the antidumping duty rate determined by the
Second Amended Preliminary Determination for the Fairmont group
differed in type and pecuniary effect from the ministerial errors
that caused the variance in American Signature, the analysis of
the court’s jurisdiction remains the same.
Court No. 06-00249 Page 4
rate which had been corrected for ministerial errors, not only
prospectively but retrospectively (for the period of June 24, 2004
through September 9, 2004). Memorandum from James H. Jochum to
Jeffrey A. May, Issues and Decision Memorandum for the Less-Than-
Fair-Value Investigation of Wooden Bedroom Furniture from the
People’s Republic of China, at 231-233 (Cmt. 33), Dep’t of Commerce
(November 8, 2004), Amended Public Record Ex. 5, available at
http://ia.ita.doc.gov/frn/summary/prc/04-25507-1.pdf. Fairmont
could have challenged that determination pursuant to 28 U.S.C. §
1581(c)3, and as such, cannot properly bring this case under 28
U.S.C. § 1581(i). See Norcal/Crosetti Foods, Inc. v. United
States, 963 F. 2d 356, 359 (Fed. Cir. 1992)(jurisdiction is not
available under 28 U.S.C. 1581(i) when “jurisdiction under another
subsection of § 1581 is or could have been available, unless the
remedy provided under that other subsection would be manifestly
inadequate.”)(emphasis in original); see also Norsk Hydro Canada,
Inc. v. United States Appeal Nos. 06-1044, 06-1052, at 14-16 (Fed.
Cir. Dec. 14, 2006)(an analysis of jurisdiction requires
determination of the “true nature of the action in district
court.”). This case is therefore controlled by the court’s
decision in American Signature. Accordingly, the court grants
Defendant’s motion and dismisses Plaintiff’s claim, in accordance
3
All references to the United States Code (“U.S.C.”) are to
the 2000 edition.
Court No. 06-00249 Page 5
with USCIT R. 12(b)(1), and dissolves the preliminary injunction.
Judgment will be entered accordingly.
/s/ Donald C. Pogue
Donald C. Pogue
Judge
Dated: February 14, 2007
New York, New York
Slip Op. 07-21
UNITED STATES COURT OF INTERNATIONAL TRADE
------------------------------x
FAIRMONT DESIGNS, INC., :
DONGGUAN SUNRISE FURNITURE :
CO., TAICANG SUNRISE WOOD :
INDUSTRY CO., LTD. AND :
SHANGHAI SUNRISE FURNITURE :
CO., LTD. :
:
Plaintiffs, :
: Before: Pogue, Judge
v. : Court No. 06-00249
:
UNITED STATES, :
:
Defendant, :
:
AMERICAN FURNITURE MFRS. :
COMM. FOR LEGAL TRADE :
:
Defendant- :
Intervenors :
:
------------------------------x
JUDGMENT
Upon consideration of Plaintiff’s complaint, Defendant’s
motion to dismiss, and all other pertinent papers, and after due
deliberation, it is hereby
ORDERED that Defendant’s motion be granted; and further
ORDERED that this action is dismissed; and it is further
ORDERED that the preliminary injunction be dissolved.
/s/ Donald C. Pogue
Donald C. Pogue
Judge
Dated: February 14, 2007
New York, New York