An Giang Ag. and Food Import Export v. U.S.

• Decision Date: 08 October 2004
• Docket Number: Slip Op. 04-128.,No. 03-00563.,03-00563.
• Citation: 350 F.Supp.2d 1162
• Parties: AN GIANG AGRICULTURE AND FOOD IMPORT EXPORT COMPANY, et al., Plaintiffs, v. UNITED STATES, Defendant, and Catfish Farmers of America, Defendant-Intervenor.
• Court: U.S. Court of International Trade

350 F.Supp.2d 1162

AN GIANG AGRICULTURE AND FOOD IMPORT EXPORT COMPANY, et al., Plaintiffs, v. UNITED STATES, Defendant, and Catfish Farmers of America, Defendant-Intervenor.

Slip Op. 04-128.

No. 03-00563.

United States Court of International Trade.

October 8, 2004.

White & Case LLP, Washington, DC (Walter J. Spak, Edmund W. Sim, Albert Lo, Adams C. Lee, Robert G. Gosselink and Emily Lawson), for Plaintiffs.

Peter D. Keisler, Assistant Attorney General; David M. Cohen, Director, Jeanne E. Davidson, Deputy Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice (David S. Silverbrand); David Richardson, Office of the Chief Counsel for Import Administration, U.S. Department of Commerce, for Defendant, of counsel.

Akin Gump Strauss Hauer & Feld LLP, Washington, DC (Valerie A. Slater, Karen Bland Toliver, Thea D.R. Kendler and Jason A. Park), for Defendant-Intervenor.

OPINION

RIDGWAY, Judge.

In this action, plaintiffs An Giang Agriculture and Food Import Company et al.¹ (collectively "An Giang") challenge the Final Determination of the U.S. Department of Commerce ("Commerce") in Certain Frozen Fish Fillets from the Socialist Republic of Vietnam, published as Notice of Final Antidumping Duty Determination of Sales at Less Than Fair Value and Affirmative Critical Circumstances; Certain Frozen Fish Fillets from the Socialist Republic of Vietnam, 68 Fed.Reg. 37,116 (June 23, 2003).² Now before the Court is An Giang's Motion for Stay of Further Proceedings, which seeks to hold this matter in abeyance pending a determination in another action before the Court, Anshan Iron & Steel Co. v. United States, Consolidated Court No. 02-00088.

An Giang's primary argument in this case raises an issue of Commerce's authority under the antidumping statute. According to An Giang, Commerce lacks the statutory authority, in calculating normal value in antidumping investigations involving non-market economies ("NMEs"), to deviate (as it did in this case) from its standard practice of valuing the actual, original factors of production that a foreign producer uses to produce its self-produced intermediate inputs, by instead directly valuing those intermediate inputs themselves. See Tape of Oral Argument on Motion for Stay ("Tape") at 10:19-11:28. An Giang argues that Anshan raises "the same main issue" of Commerce's statutory authority. See Motion for Stay at 2. As An Giang notes, last year the Anshan Court remanded that matter to Commerce, instructing the agency to "reconsider its factors of production analysis by either providing an adequate explanation for its deviation from [its] previous practice, or ... [by valuing the] factors of production... [that Anshan used to produce] its self-produced intermediate inputs." Anshan, 27 CIT ___, ___, 2003 WL 22018898, at *16 (July 16, 2003); Tape at 10:39-11:13.

Emphasizing the relatively advanced stage of the Anshan proceedings, the Motion for Stay asserts that, if the Anshan Court were to affirm the remand results that Commerce filed in that action, "that [affirmance] would have a significant impact on the instant proceeding, possibly obviating the need for further action in this proceeding." An Giang therefore concludes that, "because a final decision ... in [Anshan] will have a direct bearing on this proceeding, the interest of conserving judicial resources as well as the parties' resources warrants a stay of this proceeding." See generally Motion for Stay at 2-3.

Both the Government and Defendant-Intervenor, the Catfish Farmers of America ("Domestic Catfish Farmers"), oppose the requested stay. See generally Defendant's Response to Plaintiffs' Motion for Stay of Further Proceedings; Defendant-Intervenor's Response to Plaintiffs' Motion for Stay of Further Proceedings.

As discussed more fully below, a stay pendente lite of limited duration may result in the voluntary dismissal of this action. At the very least, it can be expected to clarify the issues here, and to streamline these proceedings. Moreover, the record is devoid of evidence that such a stay will work any real hardship on Commerce or the Domestic Catfish Farmers, or on any other party with a cognizable interest. An Giang's motion is therefore granted, and further proceedings in this action are stayed until 15 days following the issuance of the public version of the Anshan Court's post-remand opinion.

I. Analysis

The Government and the Domestic Catfish Farmers argue that a stay is justified only where the movant "make[s] a strong showing" of necessity — a showing that they contend An Giang has here failed to make. See Defendant's Response at 3 (quoting Tak Fat Trading Co. v. United States, 24 CIT 1376, 1377 (2000)); Defendant-Intervenor's Response at 2-3 (quoting Neenah Foundry v. United States, 24 CIT 202, 203 (2000)). See also Tape at 21:10, 32:32. But, in fact, Landis — the seminal case on stays pendente lite, relied on in Tak Fat and Neenah Foundry, and invoked by all parties here — makes it clear that "the suppliant for a stay must make out a clear case of hardship or inequity in being required to go forward" with litigation (i.e., a "strong showing" of need for a stay) only where "there is ... a fair possibility that the stay ... will work damage to some one else." Landis v. North American Co., 299 U.S. 248, 255, 57 S.Ct. 163, 81 L.Ed. 153 (1936) (Cardozo, J.). See Tape at 15:02.

As An Giang correctly observes, neither the Government nor the Domestic Catfish Farmers has adduced evidence to make out a case that there is even "a fair possibility" that they (or anyone else with a cognizable interest) will suffer harm as a result of the requested stay. See Tape at 15:33, 13:52. Indeed, the Government's response is entirely silent on the subject; and the Domestic Catfish Farmers' response asserts simply that "some harm is inherent in any denial of the right to proceed." Defendant-Intervenor's Response at 3 (quoting Neenah Foundry, 24 CIT at 205).³

In the course of oral argument on the Motion for Stay, the Government and the Domestic Catfish Farmers were pressed to articulate any potential harm they might suffer, giving them "a second bite at the apple." Still, their claims of potential damage were vague and generalized, at best.

The Government first asserted generally that a stay would leave Commerce "in limbo" as to liquidation and future administrative reviews vis-a-vis frozen catfish fillets from Vietnam. See Tape at 22:00.⁴ However, those effects are attendant to litigation generally. At most, a stay would (to some extent) prolong them. Even more importantly, as An Giang emphasizes, it has not sought to enjoin liquidation in this case to date. See Tape at 33:50, 34:13. There is thus very little substance to those claims of potential harm.

The Government also complained that the requested stay would permit An Giang to take a "wait and see" approach to litigation, asserting with some indignation that An Giang can be expected to attempt to distinguish Anshan if it finds the Court's decision in that case to be unhelpful. See Tape at 19:50, 27:06. See also Tape at 32:16 (Domestic Catfish Farmers harbor same concern). The Government seemed to imply that such a course of action would be somehow unfair, but failed to explain precisely why.⁵ To the extent that the Government's point is that the effect of a stay might be to narrow and sharpen the issues in this action by permitting all parties to more carefully tailor their arguments in light of the outcome in Anshan, that point counsels entry — not denial — of the stay. See generally CMAX, Inc. v. Hall, 300 F.2d at 265, 269 (9th Cir.1962).⁶

The Domestic Catfish Farmers' presentation in oral argument added little to the Government's case on harm. Indeed, they candidly conceded that they could point to no specific harm (particularly if the stay were of relatively short duration), except to the extent that a stay would constitute a "cloud" over the antidumping order at issue. The Domestic Catfish Farmers asserted broadly that unnecessary delays may result in legal and financial complications for the domestic industry. Tape at 32:43. Again, however, the instant litigation itself constitutes a "cloud" over the antidumping order at issue; and the Domestic Catfish Farmers have failed to identify — much less attempt to quantify — any specific legal and financial complications that might flow from the requested stay in particular.

In sum, even given a "second bite at the apple," the Government and the Domestic Catfish Farmers advanced only vague and generalized claims of potential harm to support their opposition to the requested stay. Moreover, they failed to quantify or substantiate those claims in any fashion. The extent of any potential harm they may suffer is thus entirely unclear — if, indeed, there is any potential for harm at all.⁷

Absent a showing that there is at least "a fair possibility that the stay ... will work damage to some one else," there is no requirement that An Giang "make a strong showing of necessity" or establish a "clear case of hardship or inequity" to warrant the granting of the requested stay. See CFTC, 713 F.2d at 1484 (articulating standard of "strong showing of necessity"); Landis, 299 U.S. at 255, 57 S.Ct. 163 (articulating standard of "clear case of hardship or inequity"). Nevertheless, An Giang has made out the requisite case, explaining that the time and resources of all parties (including the Court) could be wasted if a stay were not granted. See Tape at 12:41, 14:55; Motion for Stay at 2, 3.⁸

An Giang emphasizes that the central issues in both Anshan and the instant proceeding are "very inter-related," and that the Anshan Court's post-remand decision "could have a major impact on whether or not [An Giang] chooses to pursue" this litigation. See Tape at 12:29. Indeed, An Giang states that — if the Court's post-remand opinion in Anshan holds that Commerce in fact has the statutory authority to deviate from...