Slip Op. 03-170
United States Court of International Trade
USEC INC. and UNITED STATES Before: Pogue, Wallach, and
ENRICHMENT CORPORATION, Eaton, Judges
Plaintiffs, Court No. 02-00112; and Court
Nos. 02-00113, 02-00114 and
v. Consol. Court Nos. 02-00219; 02-
00221, 02-00227, 02-00229, and
UNITED STATES, 02-00233
Defendant.
[Motions for permission for interlocutory appeal pursuant to 28
U.S.C. § 1292(d) granted.]
Decided: December 22, 2003
Fried, Frank, Harris, Shriver & Jacobson (David E. Birenbaum, Jay
R. Kraemer, Mark Fajfar) for Plaintiffs and Defendant-Intervenors
Urenco Limited, Urenco Deutschland GmbH, Urenco Nederland B.V.,
Urenco (Capenhurst) Ltd., and Urenco, Inc.; Weil, Gotshal & Manges,
LLP (Stuart M. Rosen, Gregory Husisian, Jennifer J. Rhodes) for
Plaintiffs and Defendant-Intervenors Eurodif S.A., COGEMA, and
COGEMA, Inc.
Peter D. Keisler, Assistant Attorney General, David M. Cohen,
Director, Jeanne E. Davidson, Deputy Director, Stephen C. Tosini,
Trial Attorney, Commercial Litigation Branch, Civil Division, U.S.
Department of Justice, David R. Mason, Senior Attorney, Office of
Chief Counsel for Import Administration, U.S. Department of
Commerce, Of Counsel, for Defendant United States.
Steptoe & Johnson LLP (Sheldon E. Hochberg, Richard O. Cunningham,
Eric C. Emerson) for Defendant-Intervenors and Plaintiffs USEC Inc.
and United States Enrichment Corporation.
Shaw Pittman LLP (Stephan E. Becker, Nancy A. Fischer, Sanjay J.
Mullick, Joshua D. Fitzhugh) for Plaintiff-Intervenors Ad Hoc
Utilities Group.
Court No. 02-00112, 113, 114; Page 2
Consol. Court Nos. 02-00219, 221, 227, 229, and 233
Opinion and Order
Pogue, Judge: In two prior opinions, this Court decided four
issues that critically affect the future of this litigation. The
parties now seek permission for an immediate interlocutory appeal
of the Court’s decisions. See 28 U.S.C. § 1292(d) (2000). For the
following reasons, we will grant the parties’ requests.
Background
The Court’s two prior opinions in this matter arose from
fifteen actions, consolidated under nine1 court numbers, all
challenging aspects of the final affirmative antidumping and
countervailing duty determinations of the Department of Commerce
(“the Department” or “Commerce”) with regard to low enriched
uranium (“low enriched uranium” or “LEU”) from France, Germany, the
Netherlands, and the United Kingdom2 or the related final injury
1
Only eight of those court numbers are contained in the heading
of this order. Court Nos. 02-00220 and 02-00236, consolidated as
Court No. 02-00220, involve specific issues which await
resolution of the “general” issues presented here for
certification. See Scheduling Order (Aug. 2, 2002); see also
infra n.3.
2
The determinations challenged in the original actions were Low
Enriched Uranium from France, 67 Fed. Reg. 6,680 (Dep’t Commerce
Feb. 13, 2002) (notice of amended final determination of sales at
less than fair value and antidumping duty order); Low Enriched
Uranium from France, 66 Fed. Reg. 65,877 (Dep’t Commerce Dec. 21,
2001) (notice of final determination of sales at less than fair
value) (“LEU from France”); Low Enriched Uranium from France, 67
Fed. Reg. 6,689 (Dep’t Commerce Feb. 13, 2002) (notice of amended
Court No. 02-00112, 113, 114; Page 3
Consol. Court Nos. 02-00219, 221, 227, 229, and 233
determination of the International Trade Commission (“ITC”).3 This
Court remanded aspects of the Department’s determinations in USEC
Inc. v. United States, 27 CIT __, 259 F. Supp. 2d 1310 (2003)
(“USEC I”).4 In USEC Inc. v. United States, 27 CIT __, 281 F.
Supp. 2d 1334 (2003) (“USEC II”), the Court reviewed the remand
results, affirming-in-part and reversing-in-part the Department’s
remand determination.5
final determination and notice of countervailing duty order); Low
Enriched Uranium from France, 66 Fed. Reg. 65,901 (Dep’t Commerce
Dec. 21, 2001) (notice of final affirmative countervailing duty
determination); Low Enriched Uranium from Germany, the
Netherlands, and the United Kingdom, 67 Fed. Reg. 6,688 (Dep’t
Commerce Feb. 13, 2002) (notice of amended final determinations
and notice of countervailing duty orders); Low Enriched Uranium
from Germany, the Netherlands, and the United Kingdom, 66 Fed.
Reg. 65,903 (Dep’t Commerce Dec. 21, 2001) (notice of final
affirmative countervailing duty determinations).
3
Low Enriched Uranium From France, Germany, the Netherlands, and
the United Kingdom, 67 Fed. Reg. 6,050 (ITC Feb. 8, 2002). The
parties’ challenges to the ITC’s determinations are consolidated
as Court No. 02-00220.
4
In the Court’s original Scheduling Order for this matter, we
decided, and the parties agreed, to address initially “general
issues” affecting the Department’s threshold determinations, to
be followed later by issues which are not general, such as
“challenges to the Department of Commerce’s calculation results
and methods.” Scheduling Order at 5 (Aug. 2, 2002). The cases
in which these “general issues” were before the Court were
assigned to the current panel. See USCIT R. 77(e)(2) (“An action
may be assigned to a three-judge panel . . . when the chief judge
finds that the action raises an issue . . . [that] has broad or
significant implications in the administration or interpretation
of the law.”). Familiarity with the Court’s prior opinions is
presumed.
5
In reviewing the agency record in either an antidumping or
countervailing duty case, “the [C]ourt [of International Trade]
shall hold unlawful any determination, finding, or conclusion
Court No. 02-00112, 113, 114; Page 4
Consol. Court Nos. 02-00219, 221, 227, 229, and 233
No party requests a further remand of the general issues
decided by the Court in USEC I and USEC II. Rather, the parties
now seek a statement pursuant to 28 U.S.C. § 1292(d) permitting
immediate appeal.6
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) (emphasis added). See also 28 U.S.C. § 1585
(“The Court of International Trade shall possess all the powers
in law and equity of, or as conferred by statute upon, a district
court of the United States.”). Under these statutes, this Court
has both the authority and the duty to make this final
determination after remand. To hold otherwise would be both
inconsistent with the statute and destructive of the need for
finality in litigation before the Court. Cf. Nippon Steel Corp.
v. Int’l Trade Comm’n, 345 F.3d 1379 (Fed. Cir. 2003) (holding
that the CIT abused its discretion by "interposing its own
[factual] determinations" rather than remanding to the ITC for
further fact-finding, where fact-finding was committed to the
agency by statute).
6
In their motions, the parties do not entirely agree on the
proposed statement of the issues for appeal. The United States
states the issue as:
Whether the United States Department of Commerce’s
determination that the foreign enricher is the appropriate
respondent, in antidumping duty proceedings, for determining
export price and constructed export price of Low Enriched
Uranium imported pursuant to enrichment transactions is
supported by substantial evidence and otherwise in
accordance with law.
Def.’s Mot. Stat. Pursuant to 28 U.S.C. § 1292(d)(1) at 3.
Plaintiffs and Defendant-Intervenors EURODIF S.A.Compagnie
Generale Des Matieres Nucleaires and COGEMA, Inc. (collectively,
“COGEMA”), USEC Inc. and the United States Enrichment Corporation
(collectively, “USEC”), and Intervenor the Ad Hoc Utilities Group
(“AHUG”) state the issues as the Court’s decisions on the general
issues regarding:
Court No. 02-00112, 113, 114; Page 5
Consol. Court Nos. 02-00219, 221, 227, 229, and 233
Jurisdiction lies under 28 U.S.C. § 1581(c) (2000) and 19
U.S.C. § 1516a(a)(2)(B)(i) (2000).
The Issues
In USEC I and USEC II, the Court determined that the key
general issues decided by the Department in this matter involved
the initial applicability of the Department’s “tolling” regulation,
1. The Department of Commerce’s determination that the
antidumping duty petitions and the countervailing duty
petitions leading to the contested determinations were filed
on behalf of the U.S. low enriched uranium (“LEU”) industry;
2. The Department of Commerce’s determination that the
antidumping duty law is applicable to LEU delivered pursuant
to enrichment transactions; and
3. The Department of Commerce’s determination that the
countervailing duty law is applicable to LEU delivered
pursuant to enrichment transactions, and that a
countervailable subsidy determination can be based on
finding that prices paid pursuant to enrichment transactions
have been for more than adequate remuneration.
COGEMA’s, USEC’s, and AHUG’s Mot. Issuance Interlocutory Order at
2.
We attempt to resolve this disagreement by stating our view
of the issues decided by the Court. See infra pp. 5-6.
In addition, the government’s “Motion for a Statement
Pursuant to 28 U.S.C. § 1292(d)(1)” contains a proposed order
certifying a question for appeal. Def.’s Mot. Stat. Pursuant to
28 U.S.C. § 1292(d)(1). Conversely, the government, in replying
to COGEMA’s, USEC’s, and AHUG’s Motion also “request[s] that the
Court decline to certify any issues for interlocutory appeal.”
Def.’s Resp. to Pl.’s Mot. Issuance Interlocutory Order at 3.
The government’s filings do not explain this discrepancy.
Court No. 02-00112, 113, 114; Page 6
Consol. Court Nos. 02-00219, 221, 227, 229, and 233
19 C.F.R. § 351.401(h).7 Specifically, the Court decided the
following four issues:
1. On the record here, the Department’s decision that the
enrichment of uranium feedstock pursuant to “SWU”8 contracts
constitutes a sale, rather than a subcontracting (or “tolling”)
arrangement, is unsupported by substantial evidence;
2. On the record here, the Department’s decision not to apply
its tolling regulation to determine whether the Intervenors (the
“utilities,” also the “Ad Hoc Utilities Group” or “AHUG”), rather
than the “enrichers,” should be designated as producers of LEU is
not in accordance with law;
3. On the record here, the Department’s reasons for declining
to apply the tolling regulation in the context of its industry
support determination, and thus, its application of a different
definition of “producer” from that used in establishing export or
constructed export price are reasonable and therefore in accordance
7
Title 19 C.F.R. § 351.401(h) states that Commerce “will not
consider a toller or subcontractor to be a manufacturer or
producer where the toller or subcontractor does not acquire
ownership, and does not control the relevant sale, of the subject
merchandise or foreign like product.” 19 C.F.R. § 351.401(h).
8
A SWU contract is a contract for a “separative work unit,” a
measurement of the amount of energy or effort required to
separate a given quantity of feed uranium into LEU and depleted
uranium at specified assays. USEC I, 27 CIT at __, 259 F. Supp.
2d at 1314; LEU from France, 66 Fed. Reg. at 65,884. Under a
SWU contract, a utility purchases separative work units and
delivers a quantity of feed uranium to the enricher. USEC I, 27
CIT at __, 259 F. Supp. 2d 1310, 1314.
Court No. 02-00112, 113, 114; Page 7
Consol. Court Nos. 02-00219, 221, 227, 229, and 233
with law; and
4. On the record here, the Department’s interpretation that
the statutory countervailing duty provisions reach subsidies that
help to defray the costs of manufacturing imports of LEU is
reasonable, and accordingly, the Department’s determination that
the purchase of enrichment for more than adequate remuneration may
constitute a countervailable subsidy is in accordance with law.
We now consider the parties’ motions.
Discussion
Title 28 U.S.C. § 1292(d) permits interlocutory appeals, but
only where “a controlling question of law is involved with respect
to which there is a substantial ground for difference of opinion
and [where] an immediate appeal . . . may materially advance the
ultimate termination of the litigation.” Id. The instant case
meets each part of this statutory three-prong test.
First, general issues one and two involve controlling
questions of law because, absent further remand, these two issues
effectively terminate the country-specific antidumping cases at
issue here. Conversely, the decisions on general issues three and
four involve controlling questions of law because those decisions
permit cases to proceed that would otherwise have been remanded or
concluded. Moreover, further proceedings in this Court will not
moot these issues, and an incorrect disposition of these issues
Court No. 02-00112, 113, 114; Page 8
Consol. Court Nos. 02-00219, 221, 227, 229, and 233
will require reversal of a final judgment based thereon. See 16
Charles Alan Wright et al., Federal Practice and Procedure § 3930,
at 423-24 (2d ed. 1996) (“There is no doubt that a question is
‘controlling’ if its incorrect disposition would require reversal
of a final judgment . . . .”).
Second, this is a case of first impression, in an area where
the law is complex, and there is undeniably a substantial
difference of opinion on each question.
Third, an immediate appeal may materially advance the ultimate
termination of this litigation. The four issues decided by the
Court define the scope and effect of the remaining questions which
may be raised in the underlying fifteen actions, and which remain
to be considered. Consequently, the Court’s decision on these four
issues sets the course for any further proceedings. Absent an
immediate appeal, the parties and this Court will spend substantial
resources and time on the remaining proceedings before a final
appealable judgment can be made. On the other hand, an immediate
appeal will significantly expedite proceedings by clarifying the
course of the proceedings and enabling the parties and the Court to
allocate resources efficiently. Accordingly, the Court finds that
the three-prong test set forth in 28 U.S.C. § 1292(d) is satisfied
here.
Court No. 02-00112, 113, 114; Page 9
Consol. Court Nos. 02-00219, 221, 227, 229, and 233
Conclusion
In the circumstances present here, an immediate interlocutory
appeal will best serve the interests of all parties and of the
judiciary. Therefore, the Court will certify, for intermediate
interlocutory appeal, the Court’s decision on the four general
issues decided in USEC I and USEC II.
THEREFORE, this action having been duly submitted for
decision, and the Court, after due deliberation having rendered a
decision upon the issues identified, and no party having sought
further remand of the Court’s decision, and the Court having
determined that these issues involve controlling questions of law
with respect to which there is a substantial ground for
difference of opinion and that an immediate appeal from this
Court’s decision may materially advance the ultimate termination
of this litigation; now, in conformity with that decision, it is
hereby
ORDERED that
1. On the record here, the Department’s decision that the
enrichment of uranium feedstock pursuant to SWU contracts
constitutes a sale, rather than a subcontracting (or “tolling”)
arrangement, is unsupported by substantial evidence;
2. On the record here, the Department’s decision not to
apply its tolling regulation to determine whether the intervenors
(the “utilities,” also the “Ad Hoc Utilities Group” or “AHUG”),
rather than the “enrichers,” should be designated as producers of
LEU is not in accordance with law;
3. On the record here, the Department’s reasons for
declining to apply the tolling regulation in the context of its
industry support determination, and thus, its application of a
different definition of “producer” from that used in establishing
export or constructed export price are reasonable and therefore
in accordance with law; and
4. On the record here, the Department’s interpretation that
the statutory countervailing duty provisions reach subsidies that
help to defray the costs of manufacturing imports of LEU is
reasonable, and, accordingly, the Department’s determination that
the purchase of enrichment for more than adequate remuneration
may constitute a countervailable subsidy is in accordance with
law; and it is further
Court No. 02-00112, 113, 114; Page 10
Consol. Court Nos. 02-00219, 221, 227, 229, and 233
ORDERED that the Court finds, pursuant to 28 U.S.C. §
1292(d), that the Court’s decision on the four issues stated
above involve controlling questions of law with respect to which
there is a substantial ground for difference of opinion and that
an immediate appeal from the Court’s decision may materially
advance the ultimate termination of this litigation; and it is
further
ORDERED that 28 U.S.C. § 1292(d) hereby permits appeal of
these issues.
________________________
Donald C. Pogue
Judge
________________________
Evan J. Wallach
Judge
________________________
Richard K. Eaton
Judge
Dated: December 22, 2003
New York, New York