In this case, NMGGC invoked § 1516a(a)(2)(B)(iii) to challenge the Final Results . That provision allows "an interested party who is a party to the proceeding in connection with which the matter arises " to "commence an action" to "contest[ ] any factual findings or legal conclusions upon which" a "final determination" in an administrative review under 19 U.S.C. § 1675 "is based." 19 U.S.C. § 1516a(a)(2)(A), (B)(iii) (emphasis added); Suntec Indus. Co., Ltd. v. United States , 857 F.3d 1363, 1367 (Fed. Cir. 2017). "The requirement that the plaintiff have been a party in the administrative review is reinforced by 28 U.S.C. § 2631(c)."
Because we find that substantial evidence does not support Commerce's determination as to the "value added" subfactor, we must consider the overall effect of this error and whether a remand is necessary. Suntec Indus. Co., Ltd. v. United States, 857 F.3d 1363, 1372 (Fed. Cir. 2017) (applying a harmless error analysis); Intercargo Ins. Co. v. United States, 83 F.3d 391, 394 (Fed. Cir. 1996) ("It is well settled that principles of harmless error apply to the review of agency proceedings.").
We thus affirm. See Suntec Indus. Co., Ltd. v. United States, 857 F.3d 1363, 1372 (Fed. Cir. 2017) (finding Commerce's error to be harmless and affirming the Trade Court); Intercargo Ins. Co. v. United States, 83 F.3d 391, 394 (Fed. Cir. 1996) ("It is well settled that principles of harmless error apply to the review of agency proceedings.").
In the antidumping context, a party challenging a purported error by Commerce must show that it was harmed as a result of the error. See Suntec Indus. Co. v. United States , 857 F.3d 1363, 1367 (Fed. Cir. 2017) (affirming judgment against foreign exporter because exporter failed to show prejudice caused by Commerce's purported error). The review in Suntec was under 28 U.S.C. § 2640(e).
Id. ("Moreover, the Supreme Court in SAS characterized the error at issue here as an error under 5 U.S.C. § 706, but errors under that provision are generally subject to a traditional harmless-error analysis, with challengers of the agency action having the burden of showing prejudice") (citing Shinseki v. Sanders, 556 U.S. 396, 406, 409 (2009) and Suntec Indus. Co. v. United States, 857 F.3d 1363, 1368 (Fed. Cir. 2017)). BASF has not argued prejudice at all; it does not request to have the Board address the non-instituted claims.
Moreover, the Supreme Court in SAS characterized the error at issue here as an error under 5 U.S.C. § 706, but errors under that provision are generally subject to a traditional harmless-error analysis, with challengers of the agency action having the burden of showing prejudice. See Shinseki v. Sanders , 556 U.S. 396, 406, 409, 129 S.Ct. 1696, 173 L.Ed.2d 532 (2009) ; Suntec Indus. Co. v. United States , 857 F.3d 1363, 1368 (Fed. Cir. 2017). That burden assignment further suggests that the SAS error is not one that must be recognized sua sponte.
Section 706 thus "requires application of a traditional harmless-error analysis and . . . the person seeking relief from the error has the burden of showing prejudice caused by the error." Suntec Indus. Co. v. United States, 857 F.3d 1363, 1368 (Fed. Cir. 2017) (citing Shinseki v. Sanders, 556 U.S. 396, 406, 409 (2009)). In this case brought under 28 U.S.C. § 1581(c), review "is under 28 U.S.C. § 2640(b), which does not expressly refer to section 706.