Slip Op. 19-42

UNITED STATES COURT OF INTERNATIONAL TRADE

Before Claire R. Kelly, Judge

Consol. Court No. 18-00169

OPINION AND ORDER

[Granting Defendant’s motion for partial dismissal and partially dismissing consolidated 

plaintiff SeAH Steel Corporation’s complaint.]

Dated: April 5, 2019

Jeffrey M. Winton, Amrietha Nellan, Law Office of Jeffrey M. Winton PLLC, of 

Washington, DC, for consolidated plaintiff SeAH Steel Corporation.

Joshua E. Kurland, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S.

Department of Justice, of Washington, DC, for defendant. With him on the briefs were 

Joseph H. Hunt, Assistant Attorney General, Jeanne E. Davidson, Director, L. Misha 

Preheim, Assistant Director. Of Counsel on the brief was Reza Karamloo, Attorney, 

Office of the Chief Counsel for Trade Enforcement & Compliance, U.S. Department of 

Commerce, of Washington, DC.

HUSTEEL CO., LTD., HYUNDAI STEEL 

COMPANY, SEAH STEEL CORPORATION, 

and NEXTEEL CO., LTD.,

Plaintiff and Consolidated 

Plaintiffs,

v.

UNITED STATES,

Defendant,

and

CALIFORNIA STEEL INDUSTRIES, TMK 

IPSCO, WELSPUN TUBULAR LLC USA, and 

MAVERICK TUBE CORPORATION,

Defendant-Intervenors and 

Consolidated DefendantIntervenors.
Consol. Court No. 18-00169 Page 2

Kelly, Judge: Before the court is Defendant’s motion for partial dismissal of 

Consolidated Plaintiff SeAH Steel Corporation’s (“SeAH”) complaint contesting the U.S. 

Department of Commerce’s (“Commerce”) final determination in the 2015–2016 

administrative review of the antidumping order on welded line pipe (“WLP”) from the 

Republic of Korea (“Korea”). Def.’s Mot. for Partial Dismissal, Dec. 3, 2018, ECF No. 32;

SeAH’s Compl., Aug. 13, 2018, ECF No. 7, SeAH Steel Corp. v. United States, Ct. No. 

18-00177 (USCIT filed Aug. 13, 2018); [WLP] from [Korea]: Final Results of Antidumping 

Duty Admin. Review, 2015–2016, 83 Fed. Reg. 33,919 (Dep’t Commerce July 18, 2018)

and accompanying Issues and Decision Mem. for the Final Results of the 2015-2016 

Admin. Review of the Antidumping Duty Order on [WLP] from Korea, A-580-876 (July 11, 

2018), available at https://enforcement.trade.gov/frn/summary/korea-south/2018-15327-

1.pdf (last visited Apr. 1, 2019); [WLP] from [Korea]: Amended Final Results of 

Antidumping Duty Admin. Review, 2015–2016, 83 Fed. Reg. 39682 (Dep’t Commerce, 

Aug. 10, 2018) (issuing notice of correction of ministerial error). 

BACKGROUND

SeAH filed its complaint on August 13, 2018. See SeAH’s Compl. The

proceedings initiated by SeAH were later consolidated into the present action. Order,

Sept. 28, 2018, ECF No. 28 (consolidating cases Husteel Co. v. United States, Ct. No. 

18-00169 (USCIT filed Aug. 2, 2018); Hyundai Steel Co. v. United States, Ct. No. 18-

00173 (USCIT filed Aug. 9, 2018); SeAH Steel Corp. v. United States, Ct. No. 18-00177

(USCIT filed Aug. 13, 2018); and, NEXTEEL Co. v. United States, Ct. No. 18-00178

(USCIT filed Aug. 14, 2018), into the present proceeding). 
Consol. Court No. 18-00169 Page 3

On December 3, 2018, Defendant filed a motion for partial dismissal. Def.’s Mot.

for Partial Dismissal. Defendant seeks dismissal of paragraph ten of SeAH’s complaint 

under USCIT R. 12(b)(6) for failure to state a claim upon which relief can be granted. 

Paragraph ten of SeAH’s complaint states:

Finally, Plaintiff believes that Commerce’s determination may have 

contained other errors of law and fact that will become more apparent after 

a full review of the administrative record.

SeAH’s Compl. ¶ 10. SeAH filed a response on January 7, 2019. Pl.’s Resp. to Def.’s 

Mot. for Partial Dismissal, Jan. 7, 2019, ECF No. 33 (“SeAH’s Resp.”). Defendant 

subsequently filed a reply to SeAH’s response on February 21, 2019. Def.’s Reply in 

Supp. of Its Mot. for Partial Dismissal, Feb. 21, 2019, ECF No. 45 (“Def.’s Reply”).1

On September 11, 2018, Commerce filed the index of the administrative record in 

accordance with USCIT R. 73.2(b). See Admin. Record for U.S. Department of 

Commerce, Sept. 11, 2018, ECF No. 25. SeAH filed its motion for judgement on the 

agency record and supporting brief (“SeAH’s Brief”) on February 1, 2019. Mot. of Pl.

SeAH Steel Corp. for J. on Agency R., Feb. 1, 2019, ECF No. 38; Br. of SeAH Steel Corp.

in Supp. of Its Rule 56.2 Mot. for J. on the Agency R., Feb. 1, 2019, ECF No. 38-1. Since 

receiving the administrative record, SeAH has not sought to amend paragraph ten of its 

1 Defendant previously filed a motion seeking a more definite statement of paragraph ten of 

SeAH’s complaint. See Def.’s Mot. for a More Definite Statement, Aug. 30, 2018, ECF No. 20,

SeAH Steel Corp. v. United States, Ct. No. 18-00177 (USCIT filed Aug. 13, 2018). The court 

denied this motion on the basis that a party may not file an answer to a complaint in an action 

described in 28 U.S.C. § 1581(c) (such as the present case), and that a party may only move for 

a more definite statement of a pleading to which a responsive pleading is allowed. See Order, 

Oct. 30, 2018, ECF No. 31; see also USCIT R. 7(a)(2), 12(e). Defendant argues that the Court’s 

dismissal of the motion for a more definite statement was solely on procedural grounds which do 

not affect the merits of the subsequent motion for partial dismissal. See Def.’s Mot. for Partial 

Dismissal at 5. The court agrees with Defendant.
Consol. Court No. 18-00169 Page 4

complaint. SeAH’s Brief did not include any claim which relied on paragraph ten of its 

complaint.

JURISDICTION

The Court has jurisdiction pursuant to section 516A(a)(2)(B)(iii) of the Tariff Act of 

1930, as amended, 19 U.S.C. § 1516a(a)(2)(B)(iii) (2012),2 and 28 U.S.C. § 1581(c). For 

the reasons below, the court grants Defendant’s motion for partial dismissal.

DISCUSSION

Defendant argues that paragraph ten of SeAH’s complaint “makes no allegation 

and provides no information regarding its claims” and thus fails to meet the requirement 

in USCIT R. 8(a)(2) that a claim for relief contain a “short and plain statement of the claim 

showing that the pleader is entitled to relief.” See Def.’s Mot. for Partial Dismissal at 2–

3. Defendant argues that this failure denies it fair notice of the claims at issue in the 

action. Id. at 4–5; Def.’s Reply at 3–4. SeAH responds that paragraph ten did not deny 

Defendant fair notice. See SeAH’s Resp. at 2–3. SeAH also argues that paragraph ten 

was justified because, at the time of filing the complaint, SeAH was not aware of what 

information would be included in the record. See id. at 2. For the reasons that follow, 

paragraph ten of SeAH’s complaint fails to meet the requirements of USCIT R. 8(a)(2).

USCIT R. 8(a)(2) requires that a claim for relief contain a “short and plain statement 

of the claim showing that the pleader is entitled to relief.” As explained by Ashcroft v 

Iqbal, this rule:

does not require “detailed factual allegations,” but it demands more than an 

unadorned, the defendant-unlawfully-harmed-me accusation. . . . A

pleading that offers “labels and conclusions” or “a formulaic recitation of the 

2 Further references to statutes are to the 2012 edition of the U.S. Code, and all references to 

regulations are to the 2017 edition of the Code of Federal Regulations.
Consol. Court No. 18-00169 Page 5

elements of a cause of action will not do.” . . . Nor does a complaint suffice 

if it tenders “naked assertion[s]” devoid of “further factual enhancement.”

Ashcroft v. Iqbal, 556 U.S. 662, at 678 (2009) (quoting Bell Atlantic Corp. v. Twombly,

550 U.S. 544, 555, 557 (2007)) (discussing Fed. R. of Civ. P. 8(a)(2)).3 “The ‘[f]actual 

allegations must be enough to raise a right to relief above the speculative level.’” Sioux 

Honey Ass’n v. Hartford Fire Ins. Co., 672 F.3d 1041, 1062 (Fed. Cir. 2012) (quoting 

Twombly, 550 U.S. at 555). To comply with Rule 8(a)(2), pleadings must also “‘give the 

defendant fair notice of what the ... claim is and the grounds upon which it rests.’”

Twombly, 550 U.S. at 555 (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). To survive 

a motion to dismiss, a claim in a complaint must contain sufficient factual material to “state 

a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570.4

Paragraph ten of SeAH’s complaint states no specific errors of law or fact. SeAH 

simply claims there may be “other errors of law and fact” that “will become more apparent 

after a full review of the administrative record.” SeAH’s Compl. ¶ 10. Paragraph ten does 

3 Fed. R. of Civ. P. 8(a)(2) also requires that a claim for relief contain a “short and plain statement 

of the claim showing that the pleader is entitled to relief.” As Fed. R. of Civ. P. 8(a)(2) is identical 

to USCIT R. 8(a)(2), Iqbal and Twombly are applicable to USCIT R. 8(a)(2).

4 Actions described under 28 U.S.C. § 1581(c) have a special procedural structure defined by the 

USCIT Rules which could impact the interpretation of USCIT R. 8(a)(2) with respect to pleadings 

in such proceedings. See USCIT R. 7(a)(2); USCIT R. 56.2; 2 James WM. Moore, Moore’s 

Federal Practice, § 8.02[2] (3rd ed. 2017) (stating, in relation to Fed. R. of Civ. P. 8, that “Rule 8 

interrelates, and is construed together with, the other federal rules of civil procedure.”). However, 

the parties have not argued that this special procedure affects the Iqbal and Twombly standard 

as applied to pleadings made in an action described under 28 U.S.C. § 1581(c). This court has 

applied the standard for USCIT R. 8(a)(2) as described in Iqbal and Twombly to a complaint in 

actions described under 28 U.S.C. § 1581(c) and regulated by USCIT R. 56.2. See Nantong 

Uniphos Chemicals Co. v. United States, 41 CIT __, Slip Op. 17–131 (Sept. 26, 2017) (granting 

a motion for a more definite statement on the basis of a failure to meet the requirements of USCIT 

R. 8(a)(2)); see also Order, Sep. 24, 2018, ECF No. 30, Hyundai Steel Co. v. United States, Ct.

No. 18-00154 (USCIT filed June 28, 2018) (order granting motion for a more definite statement 

following motion alleging that plaintiff’s pleading failed to meet requirements of USCIT R. 8(a)(2)). 

The court sees no grounds in the present case to treat actions described under 28 U.S.C. 

§ 1581(c) as exempt from the standard described in Iqbal and Twombly.
Consol. Court No. 18-00169 Page 6

not state a claim to relief that is plausible of its face because it contains no statement of 

factual or legal error whatsoever. 

The vague and open-ended nature of paragraph ten of SeAH’s complaint denies 

the other parties fair notice of the scope of SeAH’s claims. Paragraph ten is not limited 

to matters arising from record information of which for some reason SeAH may not have 

been aware. Rather, it purports to capture any “errors of law or fact” which, at some later 

point in time, may become “more apparent” to SeAH following a full review of the 

administrative record. See SeAH’s Compl. ¶ 10. As Defendant describes, paragraph ten

has the “capacity to work mischief that is contrary to the interests of judicial efficiency and 

economy.” Def.’s Reply at 3. Paragraph ten potentially allows for procedural 

complications by providing scope for SeAH to assert unexhausted or frivolous claims, 

claims outside of the Court’s jurisdiction or those otherwise subject to early dismissal. 

Vague pleadings, such as paragraph ten, can also affect the ability of the parties to file a 

Joint Status Report under USCIT R. 56.2(a) and prevent a response to claims that may 

be appropriately dealt with by a defendant’s request for remand or other corrective action.

Furthermore, allowing claims such as paragraph ten of SeAH’s complaint can encourage 

withholding of claims at the early stages of proceedings and work against the court’s 

interest in administering the “just, speedy, and inexpensive determination of every action 

and proceeding.” USCIT R. 1.

SeAH argues that paragraph ten did not deny Defendant fair notice because the 

claims SeAH can raise are limited by the requirement of administrative exhaustion. See

SeAH’s Resp. at 3; see also 28 U.S.C. § 2637(d) (requiring that “the Court of International 

Trade shall, where appropriate, require the exhaustion of administrative remedies”); 19 
Consol. Court No. 18-00169 Page 7

C.F.R. § 351.309(c)(2) (requiring that a party’s administrative case brief “present all 

arguments that continue in the submitter’s view to be relevant to the Secretary’s final 

determination”). However, the requirement that claims be exhausted at the administrative 

level does not diminish the importance of fair notice for pleadings in judicial review of 

administrative determinations. In some instances, a court can waive administrative

exhaustion requirements. Corus Staal BV v. United States, 30 CIT 1040, 1048–50 & n.11

(2006) (laying out the exceptions: pure legal question, denial of access to the confidential 

record, intervening judicial interpretation, and futility in raising the argument on the 

administrative level), aff’d, 502 F.3d 1370 (Fed. Cir. 2007). Further, granting plaintiffs 

complete freedom to initiate claims during the proceedings after a further review of the 

record would unduly prejudice the government’s attempt to allocate resources. The U.S. 

Department of Justice, and other parties, should be allowed to prepare their own briefs 

on the basis of the specific matters challenged by a party to the administrative proceeding.

SeAH further argues that paragraph ten of its complaint was necessary because

at the time it filed its complaint, the full record index had not yet been filed. SeAH’s Resp.

at 2. SeAH acknowledges that, as a respondent in the administrative proceedings, it was 

aware of documents served on it by other parties, as well as its own submissions. Id.

Nonetheless, SeAH argues that prior to the filing of the full record index, “it had no way 

of knowing whether there were other documents that Commerce considered part of the 

record that had not been disclosed to it.” Id. Defendant responds that SeAH’s argument 

is merely speculative as SeAH had access to all relevant record information during the 

administrative proceeding and, regardless, has had access to the complete record since 
Consol. Court No. 18-00169 Page 8

it was filed on September 11, 2018. See Def.’s Mot. for Partial Dismissal at 5; Def.’s 

Reply at 2–3.

The relevant statutory provisions and regulations make clear that SeAH, as a 

respondent in the administrative proceedings, was in a position to be aware of all relevant 

information in the record at the time it filed its complaint.5 Commerce was required to 

state the “facts and conclusions” supporting its final determination, and during the 

proceedings SeAH had access to the record as it developed. See 19 U.S.C. § 1677f(i)(1).

SeAH has not complained that there are confidential documents to which it has not had 

access. Were Commerce to surprise SeAH by including documents on the record to 

which SeAH had not previously had access and which materially impacted Commerce’s 

determination, SeAH could seek to amend its pleadings. See USCIT R. 15(1) (allowing 

for amendment as a matter of course in certain circumstances), 15(2) (allowing for 

amendments in all other cases with leave of the court or consent from the opposing 

parties, and specifying that the court “should freely give leave when justice so requires”). 

5 For an action described under 28 U.S.C. § 1581(c), “[t]he court shall hold unlawful any 

determination, finding or conclusion found . . . to be unsupported by substantial evidence on the 

record, or otherwise not in accordance with law.” 19 U.S.C. § 1516a(b)(1)(B)(i). The statute 

describes that the record (unless otherwise stipulated by the parties) is comprised of copies of 

“all information presented to or obtained by the Secretary, the administering authority, or the 

Commission during the course of the administrative proceeding, including all governmental 

memoranda pertaining to the case and the record of ex parte meetings,” as well as “a copy of the 

determination, all transcripts or records of conferences or hearings, and all notices published in 

the Federal Register.” 19 U.S.C. § 1516a(b)(2)(A)(i)–(ii). Commerce is required to maintain an 

official record of each antidumping and countervailing duty proceeding. See 19 C.F.R.

351.104(a)(1). In making a determination, Commerce must “publish the facts and conclusions 

supporting that determination, and shall publish notice of that determination in the Federal 

Register.” 19 U.S.C. § 1677f(i)(1). Access to confidential record information can be restricted, 

but any written information submitted by a party and subject to a protective order must be served 

on all interested parties who are parties to the proceeding. See 19 U.S.C. § 1677f(d). Business 

proprietary information is served upon interested parties who are covered by a protective order, 

and a non-confidential summary is served upon all other interested parties in the proceeding. See

id.
Consol. Court No. 18-00169 Page 9

The possibility of Commerce failing to comply with its obligation to maintain the record or 

state all the “facts and conclusions” supporting its final determination does not, in these 

proceedings, justify an open-ended claim in the manner of paragraph ten of SeAH’s 

complaint.

SeAH’s argument that it did not have access to the record at the time of filing its 

complaint is also undermined by the fact that it has subsequently been given access to 

the record index. The record index was filed by Commerce on September 11, 2018, and 

lists all documents which compose the administrative record for these proceedings. See

Admin. Record for U.S. Department of Commerce, Sept. 11, 2018, ECF No. 25. Since 

having access to the record index SeAH has not sought to amend its complaint. See

Def.’s Reply at 2. As such, SeAH’s argument that paragraph ten of its complaint is 

justified because SeAH did not have access to relevant record information has no 

foundation at this stage of the proceedings.

Finally, SeAH argues in its response to Defendant’s motion for partial dismissal 

(filed prior to SeAH’s Brief) that the court should either deny Defendant’s motion as moot 

or, if SeAH introduces any claims in its motion for judgment on the administrative record 

reliant on paragraph ten of its complaint, require further justification from SeAH as to why 

such arguments were not properly detailed in the complaint. See SeAH’s Resp. at 3–4. 

As SeAH’s Brief did not introduce any argument reliant on paragraph ten of its complaint, 

the question remains whether Defendant’s motion to partially dismiss is moot. Defendant 

argues the motion to partially dismiss is not moot because paragraph ten of SeAH’s 

complaint allows for the possibility that SeAH may later assert, whether in its reply brief 

or at oral argument, that a claim not specifically articulated elsewhere in its complaint was 
Consol. Court No. 18-00169 Page 10

always intended under paragraph ten. See Def.’s Reply at 4 (citing e.g., Apex Frozen 

Foods Private Ltd. v. United States, 38 CIT __, __, 37 F. Supp. 3d 1286, 1298 (2014), 

aff’d, 862 F.3d 1322 (Fed. Cir. 2017)). Defendant further argues that, in consolidated 

proceedings such as these, SeAH could rely on paragraph ten of its complaint to seek 

relief awarded to another party, even if not specifically sought by SeAH in its pleadings. 

See Def.’s Reply at 4. The court agrees with the Defendant that the motion to dismiss is 

not moot because paragraph ten of SeAH’s complaint still provides SeAH the opportunity 

to assert new claims.

CONCLUSION

For the reasons set forth above, the Defendant’s Motion for Partial Dismissal is 

granted. Accordingly, it is

ORDERED that paragraph ten of the complaint filed by Consolidated Plaintiff 

SeAH Steel Corporation in Ct. No. 18-00177 is dismissed.

/s/ Claire R. Kelly

Claire R. Kelly, Judge

Dated:April 5, 2019

New York, New York