                                           Slip Op. 14-63

                UNITED STATES COURT OF INTERNATIONAL TRADE


__________________________________________
TIANJIN MAGNESIUM INTERNATIONAL           :
CO., LTD.,                                 :
                                           :
                  Plaintiff,               :
                                           :
       v.                                  :
                                           :                Before: Richard K. Eaton, Judge
UNITED STATES,                             :
                                           :                Consol. Court No. 11-00006
                  Defendant,               :
                                           :
                           and             :
                                           :
US MAGNESIUM, LLC,                         :
                                           :
                  Defendant-Intervenor.    :
__________________________________________:


                                     OPINION and ORDER

[Costs imposed; attorney’s fees denied.]

                                                            Dated: June 11, 2014

       David J. Craven, Riggle & Craven, of Chicago, IL, argued for plaintiff.   With him on the
brief was David A. Riggle.

        Claudia Burke, Trial Attorney, Civil Division, U.S. Department of Justice, of
Washington, D.C., argued for the defendant. With her on the brief were Stuart F. Delery,
Acting Assistant Attorney General, Jeanne E. Davidson, Director, Patricia McCarthy, Assistant
Director, Renee Gerber, Trial Attorney. Of counsel on the brief was Melissa Brewer, Senior
Attorney, Office of the Chief Counsel for Import Administration, United States Department of
Commerce, of Washington, D.C.

       Stephen A. Jones and Jeffrey B. Denning, King & Spalding, LLP, of Washington, D.C.,
argued for defendant-intervenor. With them on the brief was Jeffery M. Telep.
Court No. 11-00006                                                                            Page 2

                Eaton, Judge: On March 12, 2014 the court granted plaintiff Tianjin Magnesium

International Co., Ltd.’s (“Tianjin,” “TMI”, or “plaintiff”) Motion for Reconsideration of Slip

Op. 13-53. Order (ECF Dkt. No. 143); Tianjin Magnesium Int’l Co. v. United States, 37 CIT

__, __, 922 F. Supp. 2d 1345 (2013) (“Tianjin III”). Tianjin III followed the Tianjin Court’s

orders of November 21, 2012 and December 20, 2012 imposing costs and awarding attorney’s

fees, respectively.   Tianjin Magnesium Int’l Co. v. United States, 36 CIT __, __, 878 F. Supp. 2d

1351, 1352–53 (2012) (“Tianjin I”) (awarding costs); Tianjin Magnesium Int’l Co. v. United

States, 36 CIT __, __, 883 F. Supp. 2d 1330, 1332 (2012) (“Tianjin II”) (awarding attorney’s

fees). The court now addresses the questions of whether the imposition of costs and award of

attorney’s fees was warranted.

        For the reasons set forth below the court finds that the award of attorney’s fees is not

warranted, but affirms the imposition of costs.



I.      BACKGROUND

        On January 7, 2011 plaintiff commenced its action, challenging the final results of the

administrative review of the antidumping order on pure magnesium from the People’s Republic

of China (“PRC”).     Pure Magnesium From the PRC, 75 Fed. Reg. 80791 (Dep’t of Commerce

Dec. 23, 2010) (final results of the antidumping administrative review of the antidumping duty

drder). During the proceedings before the defendant United States Department of Commerce

(“Commerce” or “the Department”), plaintiff submitted certain “voucher books” that were found

to be unreliable during the previous administrative review. Tianjin Magnesium Int’l v. United

States, 36 CIT __, __, 844 F. Supp. 2d 1342, 1346 (2012) (“Remand Order”). Despite this
Court No. 11-00006                                                                            Page 3

submission, and although fully aware of its previous findings with respect to the reliability of the

voucher books, in the Final Results the Department did not use adverse inferences with regard to

any facts. Id.; 19 U.S.C. § 1677e(b) (“If the [Department] find[s] that an interested party has

failed to cooperate by not acting to the best of its ability to comply with a request for

information[, . . . the Department], in reaching the applicable determination[,] . . . may use an

inference that is adverse to the interest of that party in selecting from among the facts otherwise

available.”)

        On May 13, 2011, plaintiff moved to amend its original complaint, seeking to “include a

new claim that the Department of Commerce unlawfully applied zeroing in the calculation of”

plaintiff’s rate. Mem. of Law in Supp. of Pl.’s Mot. for Leave to Amend its Compl. 1 (ECF

Dkt. No. 29-1). In its motion, plaintiff argued that the Federal Circuit’s decision in Dongbu

Steel represented a change in the law applied by the Department during the review. Id. at 2

(citing Dongbu Steel Co. v. United States, 635 F.3d 1363 (Fed. Cir. 2011)).

        On May 18, 2011, the Tianjin Court granted the motion to amend. May 18, 2011 Order

(ECF Dkt. No. 30). The Department, however, moved for reconsideration of that order on June

17, 2011. There, it argued that Tianjin should not be permitted to amend its complaint because

it failed to raise the issue of zeroing before the Department.   Def.’s Mot. for Reconsideration of

the Ct. Order Granting Pl. Leave to Amend Compl. 2, 7–9 (ECF Dkt. No. 32). Five days later,

the Tianjin Court granted defendant’s motion for reconsideration, vacated the order permitting

amendment of the complaint, and ordered the Department to file a responsive pleading to

plaintiff’s May 13, 2011 motion.    June 22, 2011 Order (ECF Dkt. No. 33). On July 13, 2011,

after the Department and defendant-intervenor U.S. Magnesium, L.L.C. (“USM” or “defendant-
Court No. 11-00006                                                                          Page 4

intervenor”) had filed responses, the Tianjin Court denied plaintiff’s motion to amend because

Tianjin had failed to exhaust its administrative remedies.   July 13, 2011 Order (ECF Dkt. No.

38).

       In August, 2011, plaintiff moved for judgment on the agency record, briefing was

completed by December, 2011, and oral argument was held on May 2, 2012. On May 16, 2012,

based on plaintiff’s submission of the unreliable voucher books, the Final Results were remanded

upon the Tianjin Court’s finding that the Department’s decision was unsupported by substantial

evidence and contrary to law. Remand Order at __, 844 F. Supp. 2d at 1348.

       Commerce filed the remand results on August 30, 2012 which for the first time used

adverse inferences against plaintiff.   Remand Results (ECF Dkt. No. 88). Although given

additional time to do so, Tianjin filed no comments on the Remand Results.    Oct. 2, 2012 Order

(ECF Dkt. No. 93). On November 21, 2012, the Tianjin Court issued Tianjin I, in which it

sustained the remand results and awarded costs. Tianjin I, 36 CIT at __, 878 F. Supp. 2d at

1352–53.

       On December 20, 2012, plaintiff filed a motion for reconsideration of Tianjin I. Pl.’s

Mot. Dec. 20, 2012 at 3 (ECF Dkt. No. 103). The Tianjin Court denied that motion the

following day on the grounds that plaintiff failed to file comments within the time frame

permitted, and because Tianjin’s substantive arguments “fail[ed] to present any new factual or

legal authority that was unavailable at the time its objections were due.” Tianjin II, 36 CIT at

__, 883 F. Supp. 2d at 1332. In addition, attorney’s fees were awarded sua sponte. Id.

        On February 18, 2013, plaintiff’s Notice of Appeal of the Remand Order, Tianjin I and

Tianjin II was docketed. Notice of Appeal (ECF Dkt. No. 109). Thereafter, the appeal was
Court No. 11-00006                                                                                   Page 5

docketed by the Federal Circuit.      Notice of Docketing (ECF Dkt. No. 110). The Federal Circuit

affirmed the Remand Order, Tianjin I, and Tianjin II on February 5, 2014, in a judgment without

opinion.     Notice of Entry of Judgment Without Opinion 3 (ECF Dkt. No. 139).

           After the parties submitted their Bills of Costs and Attorney’s fees and plaintiff had the

opportunity to comment thereon, Tianjin III was issued.        Tianjin III found plaintiff and its

counsel jointly and severally liable to Commerce for $8,302.20 in combined fees and costs, and

jointly and severally liable to USM for fees and costs in the amount of $34,042.72. Tianjin III,

37 CIT at __, 922 F. Supp. 2d 13 1352–1353.

           On May 22, 2013, plaintiff filed its Motion for Reconsideration of Tianjin III. Motion

for Reconsideration (ECF Dkt. No. 119). The parties briefed their respective positions, and oral

argument was held on November 19, 2013. As noted, on March 12, 2014, the court ordered

reconsideration of Tianjin III.



II.    STANDARD OF REVIEW

       Federal courts have inherent authority “to award expenses, including attorney’s fees, to a

litigant whose opponent acts in bad faith in instituting or conducting litigation.”     Chambers v.

NASCO, Inc., 501 U.S. 32, 48 (1991). Nevertheless, the Federal Circuit has refused to uphold

sanctions, issued under a Court’s inherent authority, for raising an argument that “lacks merit”

where the Court did not also find that the sanctioned party was engaging in “‘vexatious or

unjustified litigation,’ ‘frivolous suit,’ or other type of ‘bad faith.’” Depuy Spine, Inc. v.

Medtronic Sofamor Danek, Inc., 567 F.3d 1314, 1339 (Fed. Cir. 2009) (discussing the improper

application of sanctions in a patent case (citations omitted)).
Court No. 11-00006                                                                                 Page 6

III.      DISCUSSION

       A. Attorney’s Fees

          Tianjin III gave four primary reasons which, taken cumulatively, justified the award of

attorney’s fees.

          First, the Tianjin Court found that “TMI frivolously attempted to amend its complaint to

include a challenge to Commerce’s use of ‘zeroing’ despite its failure to exhaust administrative

remedies.”     Def.’s Resp. to Pl.’s Mot. for Reconsideration of the Ct.’s Order Awarding Costs 3

(ECF Dkt. No. 124) (“Def.’s Br.”); Tianjin III, 37 CIT at __, 922 F. Supp. 2d at 1347.

          While somewhat out of the ordinary, it is evident that, at the time plaintiff made its

motion to amend, its behavior did not support an award of attorney’s fees. Prior to the issuance

of the Federal Circuit’s opinion in Dongbu Steel, it was widely assumed that the questions

concerning Commerce’s use of “zeroing”1 in administrative reviews had been settled by that

Court’s opinion in U.S. Steel Corp. v. United States, 621 F.3d 1351 (Fed. Cir. 2010) (finding that

Commerce was not required to use zeroing in investigations but affirming it as a permissible

interpretation of the statute).   There, the Federal Circuit remarked that “[w]e are bound by our

previous decisions . . . which held that § 1677(35)(A)[ 2] does not unambiguously preclude—or

require—Commerce to use zeroing methodology.”            Id. at 1361 (citation omitted).   Thus, U.S.



          1     Zeroing is a method for calculating an exporter’s weighted average dumping
margin “where negative dumping margins (i.e., margins of sales of merchandise sold at
nondumped prices) are given a value of zero and only positive dumping margins (i.e., margins
for sales of merchandise sold at dumped prices) are aggregated.” Union Steel v. United States,
713 F.3d 1101, 1104 (Fed. Cir. 2013).
          2   19 U.S.C. § 1677(35)(A) (2006) defines the term “dumping margin” as “the
amount by which the normal value exceeds the export price or constructed export price of the
subject merchandise.”
Court No. 11-00006                                                                               Page 7

Steel appeared to hold that the Department was permitted to use zeroing in administrative

reviews even though it had abandoned that practice in investigations.

        Dongbu Steel called this assumption into question.     Dongbu Steel, 635 F.3d at 1373

(“[O]ur prior case law does not address the situation at hand where Commerce has decided to

interpret 19 U.S.C. § 1677(35) differently based on the nature of the antidumping proceeding at

issue. . . . It may be that Commerce cannot justify using opposite interpretations of 19 U.S.C. §

1677(35) in investigations and in administrative reviews.”).    The issue was not finally decided

until the Federal Circuit issued Union Steel, where it held that the practice of using zeroing in

administrative reviews was permissible.    Union Steel v. United States, 713 F.3d 1101 (Fed. Cir.

2013). During the period that plaintiff sought to amend its complaint, however, Dongbu Steel

had put the issue of zeroing back into play. Union Steel v. United States, 36 CIT __, __, 823 F.

Supp. 2d 1346, 1348 (2012) (“Both Dongbu and JTKET came as a surprise to many because a

long-line of cases seemed to allow Commerce great discretion in making the calculation at

issue.”).

        During this time, judges of this Court considered the amendment of complaints to include

zeroing claims, reconsidered prior decisions affirming the use of zeroing in administrative

reviews, and excused parties’ failure to argue zeroing claims before the Department.      E.g. Union

Steel v. United States, 36 CIT __, __, 836 F. Supp. 2d 1382, 1395 (2012) (“The court concludes

that reconsideration of its prior decision affirming the use of zeroing is warranted.   In two

decisions issued in 2011, JTEKT Corp. v. United States, 642 F.3d 1378, 1383–85 (Fed. Cir.

2011) and Dongbu, the Court of Appeals held that the final results of administrative reviews in

which zeroing was used must be remanded.”); Home Meridian Int’l Inc. v. United States, 35 CIT
Court No. 11-00006                                                                            Page 8

__, __, 865 F. Supp. 2d 1311, 1330 (2011) (excusing a party’s failure to exhaust its

administrative remedies on a zeroing claim as a result of the issuance of Dongbu Steel); Fuwei

Films (Shandong) Co. v. United States, 35 CIT __, __, 791 F. Supp. 2d 1381, 1385 (2011)

(denying a plaintiff’s motion to amend its complaint to add a zeroing claim in the wake of

Dongbu Steel without sanctioning plaintiff for the attempt).   Thus, because the state of the law

was made uncertain by Dongbu Steel, plaintiff’s motion to amend its complaint was not frivolous

and could not reasonably provide support for the award of attorney’s fees.

       Second, Tianjin III held that plaintiff acted wrongfully “[i]n its motion for judgment on

the agency record, [because it] argued that Commerce erred in calculating the surrogate financial

ratio without being candid about its own failure to exhaust the claim below.” Def.’s Br. 3;

Tianjin III, 37 CIT at __, 922 F. Supp. 2d at 1347–48.

       Here, plaintiff was faulted for continuing to make the argument, in its Reply Brief, that

the Department erred in its selection of a surrogate for Tianjin’s financial ratio. Seemingly, the

Tianjin Court found persuasive the Department and USM’s arguments, in their responsive briefs,

that Tianjin had failed to raise the issue in the underlying administrative proceeding.

       As an initial matter, it is worth noting that the exhaustion of remedies is not required in

every case. See Blue Field (Sichuan) Food Indus. Co., Ltd. v. United States, 37 CIT __, __, 949

F. Supp. 2d 1311, 1321 (2013) (“This court has discretion to determine when it will require the

exhaustion of administrative remedies.”).   Moreover, a party is not prohibited from continuing

to make an argument in its reply brief merely because its opponents have made the claim in their

responses that the argument is barred by the exhaustion doctrine.    That is, a party need not

surrender merely because its opponent argues that the exhaustion doctrine will bar its claim.
Court No. 11-00006                                                                            Page 9

Therefore, while a plaintiff’s decision to persist with its argument might ultimately prove

unavailing, such persistence does not justify the award of attorney’s fees.

       Third, the Tianjin Court found that Tianjin “significantly misrepresent[ed] undisputed

portions of the record” when it argued, prior to remand, that it “cooperated fully in the review”

and that there was “no information of record showing that the primary information relied on in

calculating a margin was misleading or unverifiable in the review.” Tianjin III, 37 CIT at __,

922 F. Supp. 2d at 1348. The Tianjin Court based this conclusion on its finding that plaintiff’s

submission of “supporting documents during the underlying review knowing that [those

documents] had been falsified so as to obtain a lower dumping margin.”        Id. The documents

referred to by the Tianjin Court were the unreliable voucher books. In reaching its finding,

Tianjin III specifically cites to plaintiff’s response to USM’s motion for judgment on the agency

record as the source of the alleged misrepresentation.   Id. (“Nevertheless, in its response to

USM’s motion for judgment on the agency record, TMI insisted that it ‘cooperated fully in the

review by submitting responses to all questions . . . and being subject to a lengthy verification,’

and that ‘[t]here is no information of record showing that the primary information relied on in

calculating a margin was misleading or unverifiable in the review.’ Pl.’s Resp. USM’s Mot. J.

Agency R. at 2–6.” (alterations in original)).

       Here, in fact, in its Final Results Commerce described the voucher books as “unreliable.”

Issues and Decision Memorandum for the Final Results of the 2008–2009 Administrative

Review at 5, PD 132 (Dec. 15, 2010), ECF No. 46–3 (Sept. 6, 2011) (“Issues & Dec. Mem.”).

The Department, nonetheless, expressly determined that Tianjin “did cooperate to the best of its

ability” despite the submission of the discredited voucher books. Issues & Dec. Mem. at 5
Court No. 11-00006                                                                              Page 10

(emphasis added). Importantly, in the Final Results, the Department denied plaintiff the offset

that the discredited documents were submitted to support. Thus, Commerce did not rely on the

information contained in the voucher books when reaching its determinations in the Final

Results.     Issues & Dec. Mem. at 7.

           Thus, plaintiff’s arguments in its response brief in opposition to USM’s motion for

judgment on the agency record were similar to those that the Department was making at the time.

For plaintiff to argue, prior to remand, that Commerce did not err by failing to apply adverse

inferences for largely the same reasons expressed by Commerce itself was not improper.           Thus,

plaintiff’s claims with respect to its cooperation during the administrative proceeding do not

support the award of attorney’s fees.

           Finally, the Tianjin Court found that “TMI requested an extension to respond to the

remand results, but it did not file any comments within that time frame.       After the court issued

an order accepting the remand results, TMI filed a motion for reconsideration in which it argued,

incredibly, that it did not have an opportunity to respond.” Tianjin III, 37 CIT at __, 922 F.

Supp. 2d at 1347–48 (citation omitted).

           Although the Tianjin Court found otherwise, it is not clear that plaintiff seriously argued

that it had no opportunity to respond to the remand results.      The only mention in its brief of the

issue is contained in the “Legal Standard” section.      There, after pointing to USCIT R. 59 as the

basis for a motion for reconsideration, it added “[s]imilarly, Rule 46 of the Rules of the Ct. Int’l

Trade permits parties to object to a ruling or order, explaining that parties need not make formal

objections.     The rule specifically states that ‘[f]ailing to object does not prejudice a party who

had no opportunity to do so when the ruling or order was made.’” Pl.’s Mot. for
Court No. 11-00006                                                                          Page 11

Reconsideration of the Ct.’s Order in Slip Op. 12-143 at 2 (ECF Dkt. 103) (quoting USCIT R.

46). USCIT R. 46 governs the form and content of objections to judicial rulings or orders

during the course of a trial.   Neither any reference to USCIT R. 46 nor any argument that

plaintiff was denied an opportunity to respond can be found elsewhere in plaintiff’s brief in

support of its motion.

        Because antidumping proceedings do not involve trials, the reference and quotation of

USCIT R. 46 was both not pertinent and somewhat perplexing.        Nevertheless, it does not appear

that plaintiff ever actually argued that it did not have the opportunity to respond to the Remand

Results. While it may be that plaintiff passed up a valuable opportunity to comment on the

Remand Results, and its motion for reconsideration was without merit, it is difficult to see how

its reference to an inapplicable rule could provide a basis for awarding attorney’s fees.

        Here, no party moved for attorney’s fees and the Tianjin Court awarded attorney’s fees

sua sponte based on an assessment of plaintiff’s cumulative behavior.     The invocation of the

court’s inherent power to award attorney’s fees “must be done with ‘restraint and discretion.’”

Pickholtz v. Rainbow Tech., Inc., 284 F.3d 1365, 1378 (Fed. Cir. 2002) (quoting Chambers, 501

U.S. at 44)). On reconsideration, the court finds plaintiff’s behavior, taken as a whole, did not

warrant the imposition of attorney’s fees sua sponte.



    B. Costs

        Pursuant to USCIT Rule 54(d)(1), “[u]nless a federal statute, these rules, or a court order

provides otherwise, costs—other than attorney’s fees—should be allowed to the prevailing
Court No. 11-00006                                                                               Page 12

party.” This Court’s rule parallels Federal Rule of Civil Procedure 54(d)(1), under which “the

prevailing party is presumed to be entitled to costs.” Fox v. Good Samaritan Hosp. LP, 467

Fed. App’x 731, 735 (9th Cir. 2012); Neal & Co. v. United States, 121 F.3d 683, 686 (Fed. Cir.

1997) (“Courts following [Federal Rule of Civil Procedure] 54(d)(1) have acknowledged in its

language a presumption in favor of costs to the prevailing party.”).    Here, it is clear that

defendant and defendant-intervenor are the prevailing parties in this litigation and the court sees

no equitable reason to depart from the Tianjin Court’s award. Cf. Tung Mung Dev. Co. v.

United States, 354 F.3d 1371, 1382 (Fed. Cir. 2004). This being the case, the imposition of

costs is allowed.



IV.    CONCLUSION

       For the reasons previously stated, the court finds, in the exercise of its discretion, that the

awarding of attorney’s fees is not warranted in this case. Costs are allowed and a separate order

will issue with respect to the imposition of costs.



                                                                /s/ Richard K. Eaton
                                                                   Richard K. Eaton


Dated: June 11, 2014
New York, New York
