Slip Op. 03 - 38
UNITED STATES COURT OF INTERNATIONAL TRADE
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GEORGETOWN STEEL COMPANY, LLC, GERDAU
AMERISTEEL CORP., KEYSTONE CONSOLIDATED :
INDUSTRIES, INC., and NORTH STAR STEEL
TEXAS, INC., :
Plaintiffs, :
v.
:
UNITED STATES, Court No. 02-00739
:
Defendant,
:
-and-
:
SAARSTAHL AG, ISPAT HAMBURGER STAHL-
WERKE GMBH and ISPAT WALZDRAHT HOCH- :
FELD GMBH,
:
Intervenor-Defendants.
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Memorandum & Order
[Defendant's motion to stay this action pending
appeal from final judgment in another case denied.]
Dated: April 1, 2003
Collier Shannon Scott, PLLC (Paul C. Rosenthal, Kathleen W.
Cannon, R. Alan Luberda, John M. Herrmann and Grace W. Kim) for the
plaintiffs.
Lyn M. Schlitt, General Counsel, James M. Lyons, Deputy
General Counsel, and Karen Veninga Driscoll, Attorney Advisor,
United States International Trade Commission, for the defendant.
DeKieffer & Horgan (J. Kevin Horgan, Marc E. Montabine,
Merritt R. Blakeslee and Wakako O. Takatori) for intervenor-
defendant Saarstahl AG.
Barnes, Richardson & Colburn (Matthew T. McGrath, Gunter von
Conrad and Stephen W. Brophy) for intervenor-defendants Ispat
Hamburger Stahlwerke GmbH and Ispat Walzdraht Hochfeld GmbH.
AQUILINO, Judge: Having disregarded this court's final
judgment, affirming its own determination after remand in another
Court No. 02-00739 Page 2
case, comes now the defendant U.S. International Trade Commission
("ITC") with a motion to stay this action for judicial review based
upon its record compiled sub nom. Carbon and Certain Alloy Steel
Wire Rod From Brazil, Canada, Germany, Indonesia, Mexico, Moldova,
Trinidad and Tobago, and Ukraine, 67 Fed.Reg. 66,662 (Nov. 1,
2002), pending appeals taken from that judgment by exporters not
parties to this action. For the reasons stated hereinafter, this
motion for a stay cannot be granted.
I
In Carbon and Certain Alloy Steel Wire Rod From Brazil,
Canada, Egypt, Germany, Indonesia, Mexico, Moldova, South Africa,
Trinidad and Tobago, Turkey, Ukraine, and Venezuela, 66 Fed.Reg.
54,539 (Oct. 29, 2001), the ITC terminated investigations with re-
gard to subject imports from Egypt, South Africa and Venezuela.
Domestic petitioners appealed those terminations to this court,
which concluded in Co-Steel Raritan, Inc. v. U.S. Int'l Trade
Comm'n, slip op. 02-59, 26 CIT , F.Supp.2d (June 20,
2002), to remand the matter to the agency for reconsideration,
given the International Trade Administration, U.S. Department of
Commerce's Notice of Preliminary Determination of Sales at Less
Than Fair Value: Carbon and Certain Alloy Steel Wire Rod from
Germany, 67 Fed.Reg. 17,384 (April 10, 2002). The court's decision
was expedited since both agency determinations were preliminary --
within the strict timeframes mandated by the Trade Agreements Act
of 1979, as amended.
Court No. 02-00739 Page 3
The ITC did not reciprocate. At first, it interposed a
motion for enlargement of the time for filing its remand determina-
tions. It next filed a motion for reconsideration of the court's
order of remand and for a stay of that order pending such reconsid-
eration. Among other things, that motion failed to apprise the
court that, some three days earlier, the Commission had issued News
Release 02-062 in Inv. Nos. 731-TA-955, -960, and -963 to the ef-
fect that it had determined pursuant to the remand order that there
was a "reasonable indication that a U.S. industry is materially
injured by reason of imports of carbon and certain alloy steel wire
rod from Egypt, South Africa, and Venezuela that are allegedly sold
at less than fair value". In spite of the necessary, expeditious
denial of that motion, the Views of the Commission on Remand (Aug.
16, 2002) were not received and filed until twelve days thereafter
-- or a full month following issuance of News Release 02-062.
Those Views of the Commission on Remand were as revealed
on July 19, 2002, namely,
find[ing], pursuant to 19 U.S.C. §1677(24)(A)(ii), and
the Court's Order, that subject imports from Egypt, South
Africa, and Venezuela are not negligible for purposes of
our present material injury analysis.
Ibid., p. 11 (footnote omitted). The plaintiffs in that case moved
for expedited entry of final judgment, affirming this determination
upon remand, on the stated ground that it "could potentially elim-
inate the need for future litigation arising out of that determina-
Court No. 02-00739 Page 4
tion", given the ITC's "soon-to-be issued final determinations in
the underlying agency investigations", which motion was granted.
Co-Steel Raritan, Inc. v. U.S. Int'l Trade Comm'n, Slip Op. 02-113,
at 3, 26 CIT , (Sept. 13, 2002). Separate appeals from
that final judgment have been noticed by the Egyptian and Venezue-
lan intervenor-defendants therein, Nos. 03-1006, 03-1099 (Fed.Cir.
2002).
A
Neither of those two parties to that case is involved
herein. Yet, upon the filing of a joint status report and proposed
briefing schedule for this action, as required by USCIT Rule 56.2-
(a), to the effect that counsel for the plaintiffs and intervenor-
defendants "do not believe that [it] should be deferred pending
consideration of another case before this Court or any other
tribunal", the defendant states that it
cannot agree . . . because it will be submitting to the
Court a Motion to Stay this litigation pending the
Federal Circuit's decision in Co-Steel Raritan, Federal
Circuit Case Number[s] 03-1006, -1009 . . ..
Joint Status Report, p. 2 (Jan. 29, 2003). Subsequent to this sub-
mission and to that of defendant's proposed motion, counsel for the
intervenor-defendants have withdrawn their opposition to a stay.
Intervenor-defendant Saarstahl AG "does believe, however, that the
Commission's motion does not fully explain the issues pertinent to
whether a stay should be granted". Saarstahl Response to Defendant
United States' Motion for Stay, p. 1.
Court No. 02-00739 Page 5
Indeed. While the traditional factors that govern stay
of an order pending appeal, to wit,
(1) whether the stay applicant has made a strong showing
that he is likely to succeed on the merits; (2) whether
the applicant will be irreparably injured absent a stay;
(3) whether issuance of the stay will substantially in-
jure the other parties interested in the proceeding; and
(4) where the public interest lies1,
may not directly determine defendant's instant motion, the fact, to
quote therefrom, that the "law is well-settled that a Court has
discretion to stay its own proceedings"2 does not signify standard-
less exercise thereof. To be sure, as pointed out in Neenah Foun-
dry Co. v. United States, slip op. 00-33, pp. 4-5, 24 CIT ,
(2000), for example, in exercising this discretion, a court "must
weigh competing interests and maintain an even balance"3, taking
into account those of the plaintiff, the defendant, non-parties or
the public, and even itself. See, e.g., Hill v. Mitchell, 30 F.-
Supp.2d 997, 1000 (S.D.Ohio 1998); Schwartz v. Upper Deck Co., 967
F.Supp. 405, 416 (S.D.Cal. 1997); Koulouris v. Builders Fence Co.,
146 F.R.D. 193, 194 (W.D.Wash. 1991), citing Golden Quality Ice
Cream Co. v. Deerfield Specialty Papers, Inc., 87 F.R.D. 53, 56
1
Save Domestic Oil, Inc. v. United States, 24 CIT , ,
122 F.Supp.2d 1375, 1380 (2000), appeal dismissed, 18 Fed.Appx.
819, 2001 WL 929726 (Fed.Cir.), quoting Hilton v. Braunskill, 481
U.S. 770, 776 (1987), and citing Standard Havens Prods., Inc. v.
Gencor Indus., Inc., 897 F.2d 511, 512 (Fed.Cir. 1990).
2
Defendant's Motion for Stay Pending Related Federal Cir-
cuit Litigation, p. 6.
3
Landis v. North American Co., 299 U.S. 248, 254-55 (1936).
Court No. 02-00739 Page 6
(E.D.Penn. 1980); McDonald v. Piedmont Aviation Inc., 625 F.Supp.
762, 767 (S.D.N.Y. 1986). However,
the suppliant for a stay must make out a clear case of
hardship or inequity in being required to go forward, if
there is even a fair possibility that the stay for which
he prays will work damage to some one else.
Landis v. North American Co., 299 U.S. 248, 255 (1936). In other
words, a movant must "make a strong showing" that a stay is neces-
sary and that "the disadvantageous effect on others would be clear-
ly outweighed." Commodity Futures Trading Comm'n v. Chilcott Port-
folio Management, Inc., 713 F.2d 1477, 1484 (10th Cir. 1983).
Here, the defendant recognizes this law as controlling4,
but its motion fails to make the necessary "strong showing". For
example, the motion speculates that there are "essentially just two
likely alternate outcomes that could be reached by the Federal
Circuit"5; intervenor-defendant Saarstahl AG, although having
switched its position from opposition to support of the motion,
claims that, while defendant's first perceived scenario [reversal
of the ITC's remand determination] is true, its converse is not, to
wit:
. . . [I]n the event that the CAFC reverses the Commis-
sion's termination of the antidumping investigations of
Egypt, South Africa, and Venezuela (and upholds the
Commission's remand determination reinstating the in-
vestigations of those countries' imports), that decision
will not be determinative of the issues in the instant
appeal. This is true for three reasons.
4
See supra n. 2, pp. 6-7.
5
Supra n. 2, p. 7.
Court No. 02-00739 Page 7
First, there are not one but two "primary" issues in
the instant appeal: the propriety of the Commission's
negligibility determinations in 1) the antidumping and 2)
the countervailing duty investigation of subject imports
from Germany. But the only investigations that were
initiated against imports from Egypt, South Africa, and
Venezuela were antidumping investigations. With respect
to Germany, on the other hand, the Commission initiated
-- and later terminated -- both an antidumping and a
countervailing duty investigation. Hence, even if the
CAFC were to uphold the Commission's remand determina-
ation finding subject imports from Egypt, South Africa,
and Venezuela to be non-negligible, that decision would
have no bearing on the negligibility of Germany in the
countervailing duty investigation of subject merchandise
because the Commission may not aggregate subsidized im-
ports from a countervailing duty investigation with LTFV
imports from an antidumping investigation for purposes of
the Seven-Percent Rule.
Second, even if the CAFC were to uphold the Commis-
sion's remand determination holding subject imports from
Egypt, South Africa, and Venezuela to be non-negligible,
it is not certain that that holding would have any
bearing -- through operation of the Seven-Percent Rule --
on the Commission's termination of the antidumping
investigation of Germany. Before the Commission could
find that imports from Germany and some or all of Egypt,
South Africa, and Venezuela collectively exceeded the
seven-percent threshold, at a minimum the Department of
Commerce would have to make (1) a preliminary and (2) a
final affirmative determination of sales at LTFV with
respect to both South Africa and Venezuela and (3) the
Commission would have to make an affirmative determina-
tion of material injury or threat thereof as to each --
a total of six separate determinations. If any one of
these six determinations were decided in the negative,
the investigation of one of these two countries would be
terminated by operation of law, and the imports share of
the other country, when aggregated with those of Egypt
and Germany, would not exceed the seven-percent thres-
hold.
Third, even assuming 1) the CAFC's affirmance of the
Commission's remand determination, 2) affirmative prelim-
inary and final LTFV determinations by Commerce with
respect to imports from South Africa and Venezuela, and
3) affirmative final injury/threat determinations by the
Commission of these two countries, there remains a signi-
ficant legal question whether those decisions would have
Court No. 02-00739 Page 8
the power to alter the Commission's negligibility deter-
mination as to Germany.6
In the light of such hypothesizing, the court cannot conclude that
a stay would ultimately advance this particular action. Moreover,
this kind of complexity in cases under the Trade Agreements Act is
not conducive to quick judicial review in either the Court of In-
ternational Trade or the Court of Appeals for the Federal Circuit.
If, however, the contrary proves to be the case on appeal, it is
possible that the action at bar will not have reached final dis-
position and therefore that the appellate decision can be taken
into account.
B
The ITC was afforded speedy judicial review in Co-Steel
Raritan. It seemingly chose to delay and then to disregard the
timely results thereof. Indeed, the predicate to its instant mo-
tion is simply that two adverse parties have now appealed, both
months after the Commission first disclosed its determination of a
"reasonable indication that a U.S. industry is materially injured
by reason of imports of carbon and certain alloy steel wire rod
from Egypt, South Africa, and Venezuela that are allegedly sold at
less than fair value", supra. Furthermore, one of those appeals
was not even noticed until well after the commissioners had decided
6
Intervenor-defendant Saarstahl AG Response to Defendant
United States' Motion for Stay, second through fourth pages
(italics in original, footnote omitted).
Court No. 02-00739 Page 9
to vote in disregard of their own Views on remand7 and this court's
final affirmance thereof.
Certainly, this court's judgments are not necessarily the
last word under the Trade Agreements Act, given the prescribed
duality of judicial review pursuant thereto, but, on the other
hand, parties to judgments nisi prius are not automatically at
liberty to disregard them, in particular when they do not seek
appellate relief in their own right. See, e.g., Smith Corona Corp.
v. United States, 915 F.2d 683, 688 (Fed.Cir. 1990)("the decision
of the Court of International Trade . . . is of controlling effect
when rendered, and . . . such decision must be published within ten
days after its issuance"). See also Maness v. Meyers, 419 U.S.
449, 458 (1975):
We begin with the basic proposition that all orders
and judgments of courts must be complied with promptly.
If a person to whom a court directs an order believes
that order is incorrect the remedy is to appeal, but,
absent a stay, he must comply promptly with the order
pending appeal. Persons who make private determinations
of the law and refuse to obey an order generally risk
criminal contempt even if the order is ultimately ruled
incorrect.
7
See Carbon and Certain Alloy Steel Wire Rod From Brazil,
Canada, Germany, Indonesia, Mexico, Moldova, Trinidad and Tobago,
Turkey, and Ukraine, USITC Pub. 3546, p. 16, n. 88 (Oct. 2002)
("We interpret 19 U.S.C. §1516a(c)(3) to provide that the Com-
mission's original published decision remains operative until fi-
nal court disposition of the matter, which has not yet occurred
given the filing of an appeal with the Federal Circuit Court of
Appeals").
Court No. 02-00739 Page 10
II
In view of the foregoing, defendant's Motion for Stay
Pending Related Federal Circuit Litigation must be, and it hereby
is, denied.
The proposed briefing schedule submitted for this action
by counsel for the plaintiffs and initially for the intervenor-
defendants shall apply, namely, the plaintiffs shall have 60 days
from the date hereof to serve and file any dispositive motion,
whereupon parties in opposition may have 60 days thereafter to
respond thereto. Any reply will then be due within 25 days of re-
ceipt of any such response.
So ordered.
Dated: New York, New York
April 1, 2003
________________________________
Judge