Save Domestic Oil, Inc. v. United States

Slip Op. 00 - 158

UNITED STATES COURT OF INTERNATIONAL TRADE

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SAVE DOMESTIC OIL, INC., :

Plaintiff, :

v. : Court No. 99-09-00558

:
UNITED STATES,
:
Defendant.
:
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Memorandum & Order

[Defendant's motion(s) for leave to appeal
from interlocutory order of remand to
the International Trade Administration
denied.]

Dated: November 27, 2000

Wiley, Rein & Fielding (Charles Owen Verrill, Jr. and Tim-
othy C. Brightbill) for the plaintiff.

David W. Ogden, Assistant Attorney General; David M. Cohen,
Director, Commercial Litigation Branch, Civil Division, U.S.
Department of Justice (A. David Lafer and Lucius B. Lau); and
Office of Chief Counsel for Import Administration, U.S. Depart-
ment of Commerce (Robert J. Heilferty), of counsel, for the de-
fendant.

White & Case (Carolyn B. Lamm and Adams C. Lee) for inter-
venor-defendant Saudi Arabian Oil Company.

Shearman & Sterling (Thomas B. Wilner and Jeffrey M. Winton)
for intervenor-defendants Petroleos de Venezuela, S.A. and CITGO
Petroleum Corporation.

O'Melveny & Myers LLP (Gary Horlick) for intervenor-defend-
ants Petróleos Mexicanos, P.M.I. Comercio Internacional S.A. de
C.V., and PEMEX Exploración y Producción.

AQUILINO, Judge: The plaintiff commenced this case for

judicial review of Dismissal of Antidumping and Countervailing
Court No. 99-09-00558 Page 2

Duty Petitions: Certain Crude Petroleum Oil Products From Iraq,
Mexico, Saudi Arabia, and Venezuela, 64 Fed.Reg. 44,480 (Aug. 16,

1999), and thereafter interposed a motion for judgment on the

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

Department of Commerce ("ITA") in regard thereto. A hearing was

held in open court in August 2000, whereafter plaintiff's motion

was granted in slip op. 00-1201 to the extent of

remand[] to Commerce for contemplation of commence-
ment of a preliminary investigation by its ITA (and
referral for such an investigation by the ITC) in
accordance with law . . .. The defendant may have
60 days . . . for this purpose. . . .

If the result of this remand is not initiation
of preliminary investigation(s) by the ITA (and the
ITC), the written reasons therefor are to be filed
with the court on or before the close of the afore-
said 60-day period . . ..2

What the defendant filed with the court as that period

ended was not any such report, rather a notice of appeal to the

U.S. Court of Appeals for the Federal Circuit, accompanied by

motions styled as one "to stay the Court's order of September

19, 2000 pending appeal" and also "for extension of time in

which the Department of Commerce may respond to the court's

order of September 19, 2000". The intervenor-defendants from

Saudi Arabia, Venezuela and México have followed defendant's

lead with their own notices of appeal and a joint Memorandum

1
24 CIT , 116 F.Supp.2d 1324 (2000). Familiarity with
this decision is presumed herein.
2
24 CIT at , 116 F.Supp.2d at . ITC is an acronym
used in reference to the U.S. International Trade Commission.
Court No. 99-09-00558 Page 3

in Support of Motion of the United States for Stay Pending

Appeal.3

I

Section 1295(a)(5) of Title 28, U.S.C. provides that

the Federal Circuit shall have exclusive jurisdiction of an ap-

peal from a final decision of the Court of International Trade.

This provision comports, of course, with the bedrock principle

of federal jurisprudence that the right to appeal be limited to

final decisions which end litigation on the merits. See, e.g.,

Richardson-Merrell, Inc. v. Koller, 472 U.S. 424, 429-30 (1985);

Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 373-74

(1981); Coopers & Lybrand v. Livesay, 437 U.S. 463, 467 (1978);

Catlin v. United States, 324 U.S. 229, 233 (1945). But see,

e.g., Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546

(1949), referring to a

small class [of orders] which finally determine claims
of right separable from, and collateral to, rights as-
serted in the action, too important to be denied review
and too independent of the cause itself to require that
appellate consideration be deferred until the whole
case is adjudicated.

Certainly, this court's September 19 opinion and or-

der, on its face, is not such a final decision or within that

"small class", nor was it intended to be. And in such a case,

3
Notices of appeal have also been filed at the last minute
by intervenor-defendants Texaco, Inc. and API Ad Hoc Free Trade
Committee as well as by BP Amoco, which intervenor-defendant ap-
parently now intends to be known as BP America, Inc.
Court No. 99-09-00558 Page 4

remanding an ITA (or ITC) determination under the Trade Agree-

ments Act of 1979, as amended, for reconsideration by the partic-

ular agency, the court of appeals has enforced the principle that

an order remanding a matter to an administrative agency for fur-

ther findings and proceedings is not final and immediately

appealable. Cabot Corp. v. United States, 788 F.2d 1539, 1542

(Fed.Cir. 1986). See, e.g., Koyo Seiko Co. v. United States, 95

F.3d 1094, 1096 (Fed.Cir. 1996); NTN Bearing Corp. v. United

States, 74 F.3d 1204, 1206 (Fed.Cir. 1995); Floral Trade Council

v. United States, 74 F.3d 1200, 1201 (Fed.Cir. 1995); Camargo

Correa Metais, S.A. v. United States, 52 F.3d 1040, 1042 (Fed.

Cir. 1995); Badger-Powhatan, Div. of Figgie Int'l, Inc. v. United

States, 808 F.2d 823, 825 (Fed.Cir. 1986); Jeannette Sheet Glass

Corp. v. United States, 803 F.2d 1576, 1581 (Fed.Cir. 1986).

See also Mall Properties, Inc. v. Marsh, 841 F.2d 440 (1st Cir.),

cert. denied sub nom. New Haven v. Marsh, 448 U.S. 848 (1988);

Perales v. Sullivan, 948 F.2d 1348, 1353 (2d Cir. 1991); Kreider

Dairy Farms, Inc. v. Glickman, 190 F.3d 113 (3d Cir. 1999); Han-

auer v. Reich, 82 F.3d 1304, 1306-07 (4th Cir. 1996); Memorial

Hosp. Sys. v. Heckler, 769 F.2d 1043 (5th Cir. 1985); Canada Coal

Co. v. Stiltner, 866 F.2d 153 (6th Cir. 1989); Travis v. Sulli-

van, 985 F.2d 919, 921 (7th Cir. 1993); McCoy v. Schweiker, 683

F.2d 1138, 1141 n. 2 (8th Cir. 1982); Collord v. United States

Dep't of Interior, 154 F.3d 933, 935 (9th Cir. 1998); Baca-Prie-

to v. Guigni, 95 F.3d 1006, 1008-09 (10th Cir. 1996); Howell v.
Court No. 99-09-00558 Page 5

Schweiker, 699 F.2d 524 (11th Cir. 1983); Bergerco Canada v.

United States Treasury Dep't, 129 F.3d 189, 191-92 (D.C. Cir.

1997). Indeed, in Brother Indus. (USA), Inc. v. United States,

16 CIT 789, 801 F.Supp. 751 (1992), the court reversed and re-

manded an ITA determination that the named plaintiff did not

have standing to file a petition with the agency on behalf of the

particular domestic industry, whereupon the defendant government

sought to appeal immediately therefrom. The court of appeals

dismissed that attempt, Brother Indus. (USA), Inc. v. United

States, 1 F.3d 1253 (Fed.Cir. 1993). Its order was based, in

part, upon reasoning that

the United States may appear again before the trial
court and would also be able to challenge the remand
as an appellee in the event that the Court of Inter-
national Trade affirms the post-remand determination
and one of the private parties appeals.

1993 U.S. App. LEXIS 15463, at *12. That is, final dispositions

by the Court of International Trade of the results of remands to

the ITA and the ITC can be, and often are, appealed to the Feder-

al Circuit. See, e.g., Aimcor v. United States, 154 F.3d 1375,

1378 (Fed.Cir. 1998); Sears Roebuck & Co. v. United States, 22

F.3d 1082, 1085 (Fed.Cir. 1994). Cf. Defendant's Memorandum in

Support of its Motion to Stay the Court's Order of September 19,

2000 Pending Appeal [hereinafter "Defendant's Stay Memorandum"],

p. 14 ("the Government unquestionably has a right to challenge

an adverse final decision rendered by this Court").
Court No. 99-09-00558 Page 6

II

Notwithstanding the continuing, general disfavor of

appeals from interlocutory federal-court orders, the so-called

Interlocutory Appeals Act, as amended, has provided for a cer-

tain few, including to the Federal Circuit, currently in part

as follows:

(1) When . . . any judge of the Court of Interna-
tional Trade, in issuing any . . . interlocutory order,
includes in the order a statement that a controlling
question of law is involved with respect to which there
is a substantial ground for difference of opinion and
that an immediate appeal from that order may materially
advance the ultimate termination of the litigation, the
United States Court of Appeals for the Federal Circuit
may, in its discretion, permit an appeal to be taken
from such order, if application is made to that Court
within ten days after the entry of such order.

* * *

(3) Neither the application for nor the granting
of an appeal under this subsection shall stay proceed-
ings in the Court of International Trade . . . unless a
stay is ordered by a judge of the Court of Internation-
al Trade . . . or by the United States Court of Appeals
for the Federal Circuit or a judge of that court.

28 U.S.C. §1292(d). As intended by Congress, these and the other

provisions of section 1292 have been strictly enforced. In fact,

failure to formally petition for leave thereunder, even by the

government, has been held to preclude jurisdiction over such an

attempted appeal. E.g., Stone v. Heckler, 722 F.2d 464 (9th Cir.

1983). Moreover, according to the statute, to be appealable an

interlocutory order by this court should contain a "statement

that a controlling question of law is involved with respect to

which there is a substantial ground for difference of opinion
Court No. 99-09-00558 Page 7

and that an immediate appeal . . . may materially advance the

ultimate termination of the litigation".

No party requested (or has requested) that the court

consider inclusion of such a statement in its order at or since

the time it was handed down. Perhaps, this has been due to the

inability of counsel to discern any more of a lawful basis there-

for than this court was or is able to conjure. Be this circum-

stance as it may, the defendant and the intervenor-defendants

which appeared at the August 2000 hearing have now filed notices

of appeal.

A

Defendant's Motion for Extension of Time was received

on the eve of the expiration of the 60-day remand period estab-

lished by the September 19th order. The motion purports to be

made pursuant to CIT Rule 6(b), which provides in part:

(2) The motion for extension of time must set forth
the . . . reason or reasons upon which the motion
is based. The motion shall be filed prior to the
expiration of the period allowed for the perform-
ance of the act to which the motion relates . . .;
except, when for good cause shown, the delay in
filing was the result of excusable neglect or cir-
cumstances beyond the control of the party.

(3) No disposition shall be made until the court acts
upon the motion for extension of time.

The sole reason given for the motion is

so that this Court and, if need be, the United States
Court of Appeals for the Federal Circuit may consider
the defendant's motion to stay the Court's order of
September 19, 2000 pending appeal.
Court No. 99-09-00558 Page 8

In accordance with the foregoing rule, this court has

long warned counsel, including those representing the Department

and Secretary of Commerce, that the rule's dictate is

that motions for extension of time, which require
prompt attention, be made far enough in advance of
deadlines so as to afford the court at least some
time within the litigants' periods to perform to de-
cide them. Otherwise, parties like the defendants
herein could automatically extend the time mandates
of Congress and this Court of International Trade.

Internor Trade Inc. v. United States, 10 CIT 472, 473 (1986)

(footnote omitted). In again not complying correctly with this

rule, while attempting at the same time to divest this court of

jurisdiction via the filing of a notice of appeal, the defend-

ant hardly leaves the undersigned now in a position to amend a

material element of the September 19th order from which appeal

has been sought.

B

When final judgments and orders are properly appealed,

CIT Rule 62 provides jurisdiction limited to stay of any related

enforcement proceedings. Defendant's motion for a stay purports

to be made pursuant to Rule 62(d), but that subsection and the

other parts of that rule are predicated upon a final judgment

or appealable order, granting or denying, for example, a preli-

minary injunction.

Since this is not the case here, defendant's attempted

reliance on the rule cited is inapposite, making its motion in
Court No. 99-09-00558 Page 9

essence one for leave to appeal now to the Federal Circuit, if

not simply for greater delay in resolving plaintiff's petition

for relief in accordance with law. Given the strict standards

for perfection of such interlocutory appeals, as established by

Congress in 28 U.S.C. §1292 and enforced by the federal courts

of appeals nationwide, supra, this court is not in a position

to grant defendant's motion. See, e.g., Philipp Bros., Inc. v.

United States, 10 CIT 448, 449, 640 F.Supp. 261, 262 (1986)

("There is no justification for a stay pending appeal if the

appeal itself cannot be heard").

(1)

Assuming arguendo that the defendant has commenced

a lawful appeal from the September 19th order, its motion for

a stay recites the standards that must be satisfied before such

related equitable relief can attach, to wit:

. . . (1) [W]hether 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 injure the other parties interested
in the proceeding; and (4) where the public interest
lies.

Hilton v. Braunskill, 481 U.S. 770, 776 (1987). See, e.g., Stand-

ard Havens Prods., Inc. v. Gencor Indus., Inc., 897 F.2d 511, 512

(Fed.Cir. 1990). But the motion fails to provide facts that

might support the requested extraordinary interim relief. It

is almost exclusively an adumbration of "substantial legal ques-
Court No. 99-09-00558 Page 10

tions"4 which the facts and circumstances of this case arguably
have given rise to, but which were known to the parties origin-

ally at the ITA, before they came to court, and before slip op.

00-120 issued, discussing them in further detail. There is no

showing that the agency has taken5, or will take, any steps to

lend its expert assistance to the court in reaching the just,

speedy, and inexpensive final determination of this case required

by CIT Rule 1. Engendering this perception, the defendant, at a

minimum, should have announced its current stance sooner. Now,

it is clearly not in compliance with either the letter or the

spirit of the September 19th order. Hence, there do not appear

to be any proceedings, actual or imminent, the stay of which

might somehow better preserve the defendant's right to articu-

late on appeal its view of the underlying law.

With regard to the established procedure for consid-

eration of a motion for a stay pending appeal, supra, this and

other courts have required that all four elements favor an

applicant for such relief to be granted but also that

[w]hen harm to [the] applicant is great enough, a
court will not require "a strong showing" that [the]

4
Defendant's Stay Memorandum, pp. 6, 7, 9, 11, 12, 13, 20.
5
See, e.g., id. at 14 ("if Commerce responds to the Court's
order by initiating antidumping or countervailing duty investi-
gations") and at 15 ("if Commerce responds . . .") and at 17
("Commerce may respond to the remand order by commencing anti-
dumping and/or countervailing duty investigations (a result
specifically contemplated by slip opinion 00-120)").
Court No. 99-09-00558 Page 11

applicant is "likely to succeed on the merits" . . .
provided the other factors militate in [it]s favor.

Earth Island Inst. v. Christopher, 20 CIT 1389, 1397, 948 F.Supp.

1062, 1069 (1996), quoting Standard Havens Prods., Inc. v. Gen-

cor Indus., Inc., 897 F.2d at 513 (emphasis in original), in turn

citing Hilton v. Braunskill, supra.

Here, the government reaffirms that, in a case such

as this, the public interest "is best served by ensuring that

Commerce complies with the law and interprets and applies laws

and regulations correctly." Defendant's Stay Memorandum, p. 19,

citing Neenah Foundry Co. v. United States, 24 CIT ___, ___, 86

F.Supp.2d 1308, 1317 (2000). Accord: Plaintiff's Response Memo-

randum, p. 4. With regard to the third prong of the controlling

test quoted above, the court can also concur with the defendant,

at least to the extent that it cannot foresee at the moment how

a stay would exacerbate whatever injury the plaintiff consortium

of independent domestic crude petroleum oil producers may have

been suffering at the time of the filing of its petition for

relief with the ITA (and ITC) given the world-crude-oil-market

trend since then.

Indeed, this trend, and the underlying global dynamics

of that market, make the representation at bar by the intervenor-

defendants from México, Venezuela and Saudi Arabia barely believ-

able, to wit:
Court No. 99-09-00558 Page 12

If not stayed, according to the leading expert,
th[e court's] order will significantly threaten the
ability of the subject countries to continue supplying
crude oil to the United States which, in turn, will
seriously disrupt supply to the U.S. market and "cause
havoc in the market place and immediate substantial
harm to U.S. interests."

Intervenor-Defendants' Memorandum in Support of Motion of the

United States for Stay Pending Appeal, p. 2, referring to and

quoting PIRA Energy Group, The "Dumping" Case and Oil Market

Risks, p. 6 (Nov. 2000). On its part, the government, whatever

its current position vis-à-vis the Organization of Petroleum

Exporting Countries and those other national and multinational

crude-oil producers that seemingly follow in the cartel's wake,

makes no such reference to the state of the market in its claim

of irreparable injury absent an immediate stay. Rather, the

defendant simply states:

. . . Specifically, in the absence of a stay, the
Government may lose its statutory right to obtain
judicial review of slip opinion 00-120.

Defendant's Stay Memorandum, p. 13. But of course, given the

traditional, lawful process for appellate review referred to

above, this alleged concern is all but baseless, nor could it or

should it be otherwise.

Finally, while the defendant claims to be of the view

that this court's remand to the ITA for contemplation of com-

mencement of a preliminary investigation, or report thereon in
Court No. 99-09-00558 Page 13

the absence thereof, gives rise to "substantial legal questions",

the court is definitely unable to conclude, as Hilton v. Braun-

skill, supra, requires, that the defendant "has made a strong

showing that [it] is likely to succeed on the merits". On the

contrary, as set forth in slip op. 00-120, the intent of Con-

gress in enacting and amending the Trade Agreements Act of 1979,

the statute resulting from continuing legislative refinement,

and the ITA's consistent preliminary investigative approach in

more than one thousand administrative proceedings initiated

thereunder are surely much more compelling in this regard.

III

In light of the foregoing, defendant's motions for an

extension of time and for a stay pending appeal must be, and each

hereby is, denied. Furthermore, given the facts and circumstances

of this case, the court is unable to conclude that the defendant

is attempting to proceed in good faith as opposed to in further

delay of final determination of plaintiff's prayer for relief if

not in contempt.

So ordered.

Dated: New York, New York
November 27, 2000

_____________________________
Judge