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Slip Op. 99-143

UNITED STATES COURT OF INTERNATIONAL TRADE

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FERRO UNION, INC. AND
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     ASOMA CORPORATION,
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  Plaintiffs,
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v.
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THE UNITED STATES,
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Court No. 97-11-01973
  Defendant,
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and
 
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WHEATLAND TUBE COMPANY,
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  Defendant-Intervenors.
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[Application for attorney’s fees and expenses denied.]
    Dated: December 30, 1999

     Mayer, Brown & Platt (Simeon M. Kriesberg, Carol J. Bilzi, Peter C. Choharis, and Andrew A. Nicely) for plaintiffs.

     David W. Ogden, Acting Assistant Attorney General, David M. Cohen, Director, Commercial Litigation Branch, Civil Division, United States Department of Justice (Michele D. Lynch), Brian Peck, Office of Chief Counsel for Import Administration, United States Department of Commerce, of counsel, for defendant.

OPINION

     RESTANI, Judge: This matter concerns plaintiffs’ application for attorney’s fees and expenses pursuant to USCIT R. 68 and the Equal Access to Justice Act (“EAJA”), 28 U.S.C.A. § 2412 (West Supp. 1999).1 Plaintiffs, Ferro Union and Asoma Corporation, Inc. (“Asoma”), allege that the position of defendant, the Department of Commerce (“Commerce”) in Ferro Union, Inc. v. United States, 44 F. Supp.2d 1310 (Ct. Int’l Trade 1999), and in Certain Welded Carbon Steel Pipes and Tubes from Thailand, 62 Fed. Reg. 53,808 (Dep’t Commerce 1997) (final results of antidumping duty admin. rev.) [hereinafter “Final Results”], was not “substantially justified” within the meaning of the EAJA. Asoma seeks an award of $250,633.78, which is one half of the Thailand attorneys fees and expenses incurred by plaintiffs. Plaintiffs admit that Ferro Union is not entitled to an EAJA fee award because it had a total net worth of more than $7,000,000. Pls.’ Br. at 2 n.1; see also 28 U.S.C.A. § 2412(d)(2)(B)(ii) (defining “party” for purposes of
EAJA as a business whose net worth does not exceed $7,000,000 at the time of the civil action). Thus, fees are requested for Asoma only. For purposes of this opinion, the court will briefly review the facts of this case, but the court assumes familiarity with its earlier opinions, both Ferro Union, 44 F. Supp.2d 1310 and the opinion pursuant to remand, Ferro Union, Inc. v. United States, No. 97-11-01973, 1999 WL 825584 (Ct. Int’l Trade Oct. 6, 1999).

Background

     On April 1, 1996, Ferro Union and Asoma, along with Saha Thai Steep Pipe Co., Ltd. (“Saha Thai”),2 requested a review of the 1986 antidumping duty order on welded carbon steel pipes and tubes from Thailand. Ferro Union, 44 F. Supp.2d at 1313. Commerce initiated the review on April 25, 1996, for the period March 1, 1995 through February 29, 1996. Initiation of Antidumping and Countervailing Duty Administrative Reviews, 61 Fed. Reg. 18,378, 18,378-79 (Dep’t Commerce 1996). In both its preliminary results and final results, Commerce determined that an application of total adverse facts available, pursuant to 19 U.S.C. § 1677e (1994), was warranted because of Saha Thai’s failure to provide complete information on affiliates. See Certain Welded Carbon Steel Pipes and Tubes from Thailand, 62 Fed. Reg. 17,590, 17,592 (Dep’t Commerce 1997) (preliminary results of antidumping duty admin. rev.); Final Results, 62 Fed. Reg. at 53,809-10. Ferro Union and Asoma challenged the Final Results in this court. In Ferro Union the court upheld Commerce’s determination to continue with the review, despite Saha Thai’s request for termination. Ferro Union, 44 F. Supp.2d at 1317. The court also upheld Commerce’s interpretation of the terms “family” and “control” listed in the definition of “affiliated persons” in 19 U.S.C. § 1677(33) (1994). Id. at 1324-26. The court remanded several other issues. Specifically, the court found that although Commerce’s interpretation of “family” was permissible, it was improperly applied because Commerce failed to provide the respondent with complete notice of the agency’s interpretation of the term. Id. at 1325-26. The court therefore instructed Commerce to ignore any possible affiliation Saha Thai may have had with two particular Registered Thai companies, and to substantiate its conclusion that Saha Thai should have disclosed affiliations with five other companies. Id. at 1331. The court also required Commerce to revisit its procedure for applying total adverse facts available. Id. at 1330-32. After remand, Commerce chose a smaller margin based on partial adverse facts, and the court upheld the remand results. Ferro Union, 1999 WL 825584, at *6-7.

Discussion

     The EAJA is a statute which authorizes the recovery of attorney’s fees and expenses from an agency of the United States. It constitutes a waiver of sovereign immunity which must be strictly construed. United States v. Modes, Inc., 18 CIT 153, 154 (1994) (citation omitted). The EAJA provides in relevant part:

[A] court shall award to a prevailing party other than the United States fees and other expenses . . . incurred by that party in any civil action . . . including proceedings for judicial review of agency action, brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.

28 U.S.C.A. § 2412(d)(1)(A). The court must therefore determine whether the party seeking the award is a “prevailing party” and whether the government’s position was “substantially justified” at both the administrative level and litigation stage. See Urbano v. United States, 15 CIT 639, 641, 779 F. Supp. 1398, 1401 (1991) (“government’s position must be substantially justified at both the agency level and litigation stage.”) (citation omitted).

     A prevailing party is one who “‘succeed[s] on any significant issue in litigation which achieves some of the benefit the part[y] sought in bringing suit.’” Modes, 18 CIT at 155 (quotation omitted). The government does not challenge Asoma’s assertion that it was the prevailing party in this action. Although not all of plaintiffs’ challenges were successful,3 in the light of the fact that plaintiffs ultimately were successful as to at least one major issue and in having the 29.89 percent dumping margin from the Final Results reduced substantially to 9.52 percent, the court agrees that Asoma is a prevailing party for purposes of the EAJA.

Part 2


1. The EAJA applies to actions in this court. Consolidated Int’l Automotive, Inc. v. United States, 16 CIT 692, 692 n.1, 797 F. Supp. 1007, 1008 n.1 (1992) (citation omitted).

2. Ferro Union and Asoma are U.S. importers of Saha Thai pipe.

3. For example, plaintiffs had asserted that Commerce improperly continued its review of Saha Thai after Saha Thai’s request for termination. The court held that Commerce had discretion to continue the review, and that no violation of Commerce’s regulations had occurred. Ferro Union, 44 F. Supp.2d at 1317.


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