Slip Op. 05 - 28

 UNITED STATES COURT OF INTERNATIONAL TRADE

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AGRO DUTCH INDUSTRIES LIMITED, :

 Plaintiff, : v. : Court No. 02-00499 UNITED STATES, : Defendant. : 

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 Memorandum & Order 

[Upon plaintiff's motion for reconsideration, 

 judgment of dismissal affirmed.]

 Dated: February 28, 2005

Garvey Schubert Barer (Lizbeth R. Levinson and Ronald M.

Wisla) for the plaintiff.

Peter D. Keisler, Assistant Attorney General; David M. Cohen,

Director, and Patricia M. McCarthy, Assistant Director, Commercial

Litigation Branch, Civil Division, U.S. Department of Justice

(Stefan Shaibani); and Office of Chief Counsel for Import Administration, U.S. Department of Commerce (Matthew D. Walden), of counsel, for the defendant.

AQUILINO, Senior Judge: Final judgment has been entered,

dismissing this action per slip opinion 05-2, 29 CIT , F.

Supp.2d (Jan. 7, 2005), wherein the court was constrained to

conclude that it had no jurisdiction to decide substantive issues

raised in plaintiff's motion for judgment upon the administrative

record compiled by the International Trade Administration, U.S.

Department of Commerce ("ITA") sub nom. Certain Preserved Mushrooms

From India: Final Results of Antidumping Duty Administrative Re-
Court No. 02-00499 Page 2

view, 67 Fed.Reg. 46,172 (July 12, 2002). Familiarity with that

slip opinion is presumed. It reported that the court on December

1, 2004 had sought to ascertain from plaintiff's counsel whether

any implicated, specific entries of subject merchandise remained

unliquidated as of that date but also that there had not been a

response to that query by the time of the opinion's publication,

January 7, 2005.

I

Come now counsel with a motion for reconsideration dated

January 12, 2005 that confirms receipt of the court's December 1,

2004 letter two days later. It seeks to explain, among other

things, that they 

understood that the Court was requesting a full list, by

entry number and date of entry, of any unliquidated shipments.

Further:

At no time, did counsel understand that the Court

was asking simply for confirmation that there were still

unliquidated shipments, a request that would have been

answered in the affirmative immediately. Counsel would

have also responded to the Court's letter immediately had

there been no unliquidated shipments remaining. Quite to

[the] contrary, since receiving the Court's request,

counsel had been working with Agro Dutch customers to

compile the lists of unliquidated entries requested.

* * *

Counsel was reluctant to respond to the Court's

request in "piecemeal" fashion (by submitting some but

not all data). [T]he[y] verified several times that the

request from the Court did not specify any deadline by

which a response had to be submitted.
Court No. 02-00499 Page 3

With all due respect, Plaintiff believes that the

Court's decision to deny its Motion for Judgment is unwarranted in the light of the fact that the Court's

letter of December 1, 2004 did not specify any deadline

for a response. Had the Court designated a deadline,

either in the December 1, 2004 letter or subsequent

thereto, Plaintiff would have complied with that deadline

without question. Here, Plaintiff's counsel had no

notice that a deadline existed, nor that the consequences

of not responding to the Court's letter by a particular

date (which date was not known) would be so devastating.

Nor was the amount of time taken to respond to the

request, a little over 30 days, unreasonable given the

number of parties that had to be contacted, the detail

that had to be collected, and the fact that many company

officials are celebrating religious holidays during the

month of December.

. . . By denying Plaintiff's Motion for Judgment, this

Court is punishing Agro Dutch and its customers for

failing to meet a deadline that was never set, and was

never known to counsel or them.

Appended to this motion are lists of entries of subject merchandise

apparently still unliquidated. Indeed, defendant's response to the

motion is to 

agree with Agro Dutch's assertion that unliquidated

entries remain from the period of review. We defer to

the Court with respect to whether Agro Dutch's actions in

response to the Court's December 1, 2004 letter warrant

dismissal of this action.

A

Slip opinion 05-2 did not disclose the entire text of the

undersigned's December 1, 2004 letter to counsel, to wit:

In anticipation of issuance of a decision on

plaintiff's motion for judgment in the above matter, and

with regard to your letter to the Court dated November

23, 2004, please advise at your earliest convenience

which, if any, implicated, specific entries of subject

merchandise remain unliquidated at this time.
Court No. 02-00499 Page 4

1

 Thereafter, on January 5, 2005, the defendant interposed a

Motion for Leave to File a Response to Plaintiff's Letter-Notice of

Supplemental Authority that can be, and it hereby is, denied. 

That missive meant exactly what was indicated by the lie of this

action.

First, the court was near issuance of a decision on the

substantive issues raised by plaintiff's motion for judgment,

namely, (a) whether there was any basis for the ITA to use adverse

facts available to calculate plaintiff's margin of dumping; (b)

whether the agency wrongly added a profit rate to its cost of

production that was derived from sales made by it to customers in

a third country during the previous period of review; and (c)

whether the ITA should have deducted commissions prior to calculating its credit expenses. See generally Plaintiff's Brief, pp. 1-5.

Secondly, plaintiff's letter dated November 23, 2004 was

received at an inopportune moment1 by this court; it referred to

inapposite, other cases (as thereby necessarily discussed in slip

opinion 05-2) with regard to a plea for reliquidation of many or

almost all of plaintiff's entries that is not possible under longestablished rules of law.

Third, the request on December 1, 2004 for advice from

experienced counsel at their earliest convenience, precipitated as

it was by their importuning of the week before, certainly did not

contemplate lack of a response by or from them until their filing

of yet another motion on the twelfth of January of this new year.
Court No. 02-00499 Page 5

Cf. Precision Specialty Metals, Inc. v. United States, 24 CIT 1016,

1023, 116 F.Supp.2d 1350, 1358 (2000) (a delay of 17 days in

performing an act is outside the meaning of "forthwith"), subsequent reprimand of gov't att'y aff'd, 315 F.3d 1346 (Fed.Cir.

2003).

(1)

Whatever the precise circumstances of this matter, the

court considers a motion for reconsideration to be "a means to

correct a miscarriage of justice". Starkey Laboratories, Inc. v.

United States, 24 CIT 504, 510, 110 F.Supp.2d 945, 950 (2000),

quoting Nat'l Corn Growers Ass'n v. Baker, 9 CIT 571, 585, 623

F.Supp. 1262, 1274 (1985). Compare Bomont Industries v. United

States, 13 CIT 708, 711, 720 F.Supp. 186, 188 (1989) ("a rehearing

is a 'method of rectifying a significant flaw in the conduct o[f]

the original proceeding'"), quoting RSI (India) Pvt., Ltd. v.

United States, 12 CIT 594, 595, 688 F.Supp. 646, 647 (1988),

quoting the "exceptional circumstances for granting a motion for

rehearing" set forth in North American Foreign Trading Corp. v.

United States, 9 CIT 80, 607 F.Supp. 1471 (1985), aff'd, 783 F.2d

1031 (Fed.Cir. 1986), and in W.J. Byrnes & Co. v. United States, 68

Cust.Ct. 358, C.R.D. 72-5 (1972). Cf. USCIT Rule 61:

No error . . . or defect in any ruling or order or

in anything done or omitted by the court or by any of the

parties is ground for granting a new trial or for setting

aside a verdict or for vacating, modifying, or otherwise

disturbing a judgment or order, unless refusal to take

such action appears to the court inconsistent with

substantial justice. The court at every stage of the
Court No. 02-00499 Page 6

proceeding must disregard any error or defect in the

proceeding which does not affect the substantial rights

of the parties.

Or, stated another way, the 

purpose of a petition for rehearing [] under the Rules 

. . . is to direct the Court's attention to some material

matter of law or fact which it has overlooked in deciding

a case, and which, had it been given consideration, would

probably have brought about a different result.

NLRB v. Brown & Root, Inc., 206 F.2d 73, 74 (8th Cir. 1953). See

also Exxon Chemical Patents, Inc. v. Lubrizol Corp., 137 F.3d 1475,

1479 (Fed.Cir.), cert. denied, 525 U.S. 877 (1998); New York v.

Sokol, No. 94 Civ. 7392 (HB), 1996 WL 428381, at *4 (S.D.N.Y. July

31, 1996), aff’d sub nom. In re Sokol, 108 F.3d 1370 (2d Cir.

1997); In re Anderson, 308 B.R. 25, 27 (8th Cir. BAP 2004).

(2)

However the standard for deciding such a matter is

articulated, it does entail consideration of the underlying substantive issues to determine whether or not there has been a

miscarriage of justice. Here, those issues are as outlined above,

and, prior to having been sidetracked by plaintiff's jurisdictional

maneuvering, the court was poised to opine that none of them

warrant any judicial relief.

(a)

That is, there was (and is) a basis for the ITA to use

adverse facts available to calculate plaintiff's margin of dumping.

As it should well know, the Trade Agreements Act of 1979, as
Court No. 02-00499 Page 7

amended, provides that, if an interested party has failed to

cooperate by not acting to the best of its ability to comply with

an ITA request for information, the agency may use an inference

that is adverse to the interests of that party in selecting from

the facts otherwise available. 19 U.S.C. §1677e(b). See, e.g.,

Nippon Steel Corp. v. United States, 337 F.3d 1373, 1381-84

(Fed.Cir. 2003). That is what happened when the ITA came to

conclude that the plaintiff "failed to provide complete and timely

information with regard to a specific sales channel". Plaintiff's

Appendix, Tab 1, p. 10. And there is substantial evidence on the

agency record to support this conclusion. See, e.g., id. at 8-10.

(b)

Plaintiff's contention that the use of home-market, as

opposed to third-country, sales to calculate profit rates is

preferred when computing constructed value lacks merit. That is,

clause (iii) of 19 U.S.C. §1677b(e)(2)(B) permits the ITA to

compute profit based on sales data, provided "the amounts incurred

and realized for . . . profits [are] based on any other reasonable

method". See Statement of Administrative Action ("SAA"), H.R. Doc.

No. 103-316, vol. 1, p. 840 (1994)("section [1677b](e)(2)(B) does

not establish a hierarchy or preference among the[] alternative[s]"). Moreover, courts have not accepted plaintiff's argument that that "method" limits the derivation of profit rates to

home-market sales because of the language which follows, namely, 
Court No. 02-00499 Page 8

except that the amount allowed for profit may not exceed

the amount normally realized by exporters or producers

. . . in connection with the sale, for consumption in the

foreign country[.]

E.g., Geum Poong Corp. v. United States, 25 CIT 1089, 1093, 163 F.

Supp.2d 669, 675 (2001):

. . . The SAA clarifies that the homemarket limitation

does not apply generally to "any reasonable method"

provided for under [clause (iii)], but to the profit cap

ordinarily placed thereon[.] 

Citing ibid. And the ITA met that requirement here. See Plaintiff's Appendix, Tab 1, p. 6. Hence, it computed the profit rate

in accordance with law. See, e.g., IPSCO, Inc. v. United States,

965 F.2d 1056, 1061 (Fed.Cir. 1992), citing Chevron U.S.A., Inc. v.

Natural Res. Defense Council, 467 U.S. 837, 844 (1984); IPSCO, Inc.

v. United States, 899 F.2d 1192, 1194-95 (Fed.Cir. 1990); U.H.F.C.

Co. v. United States, 916 F.2d 689, 698 (Fed.Cir. 1990).

(c)

Plaintiff's contention that the ITA should have deducted,

presumably pursuant to 19 U.S.C. §1677b(a)(6)(C)(iii), commissions

paid to third parties prior to calculating credit expenses is also

of little moment. The calculation of imputed credit expenses includes all of the interest foregone between the sales and the

payment dates. See Mitsubishi Heavy Industries, Ltd. v. United

States, 23 CIT 326, 330, 54 F.Supp.2d 1183, 1188 (1999)("By allowing the purchaser to make payment after the shipment date, the

producer forgoes the opportunity to earn interest on an immediate
Court No. 02-00499 Page 9

payment"). See also Floral Trade Council v. United States, 23 CIT

20, 33, 41 F.Supp.2d 319, 332 (1999). Here, the plaintiff admits

that it only paid commissions to third parties after receiving

payment from its customers. See Plaintiff's Brief, pp. 5, 23. In

short, the ITA correctly concluded that commissions paid to third

parties were not to be deducted prior to the calculation of imputed

credit expenses. See Plaintiff's Appendix, Tab 1, p. 2.

II

In view of the foregoing, the court cannot conclude that

its judgment of dismissal pursuant to slip opinion 05-2 entailed a

miscarriage of justice. Ergo, that judgment must be, and it hereby

is, affirmed.

So ordered.

Dated: New York, New York

 February 28, 2005

 Thomas J. Aquilino, Jr. 

 Senior Judge