Georgetown Steel Co. v. U.S.

• Decision Date: 01 April 2003
• Docket Number: Slip Op. 03-38. Court No. 02-00739.
• Citation: 259 F.Supp.2d 1344
• Parties: GEORGETOWN STEEL COMPANY, LLC, Gerdau Ameristeel Corp., Keystone Consolidated Industries, Inc., and North Star Steel Texas, Inc., Plaintiffs, v. UNITED STATES, Defendant, and Saarstahl AG, Ispat Hamburger Stahl-Werke Gmbh and Ispat Walzdraht Hochfeld Gmbh, Intervenor-Defendants.
• Court: U.S. Court of International Trade

259 F.Supp.2d 1344

GEORGETOWN STEEL COMPANY, LLC, Gerdau Ameristeel Corp., Keystone Consolidated Industries, Inc., and North Star Steel Texas, Inc., Plaintiffs, v. UNITED STATES, Defendant, and Saarstahl AG, Ispat Hamburger Stahl-Werke Gmbh and Ispat Walzdraht Hochfeld Gmbh, Intervenor-Defendants.

Slip Op. 03-38. Court No. 02-00739.

United States Court of International Trade.

April 1, 2003.

Collier Shannon Scott, PLLC (Paul C. Rosenthal, Kathleen W. Cannon, R. Alan Luberda, John M. Herrmann and Grace W. Kim), Washington, DC, for Plaintiffs.

Lyn M. Schlitt, General Counsel, James M. Lyons, Deputy General Counsel, and Karen Veninga Driscoll, Attorney Advisor, United States International Trade Commission, Washington, DC, for Defendant.

DeKieffer & Horgan (J. Kevin Horgan, Marc E. Montabine, Merritt R. Blakeslee and Wakako O. Takatori), Washington DC, for Intervenor-Defendant Saarstahl AG.

Barnes, Richardson & Colburn (Matthew T. McGrath, Gunter von Conrad and Stephen W. Brophy), Washington, DC, for Intervenor-Defendants Ispat Hamburger Stahlwerke GmbH and Ispat Walzdraht Hochfeld GmbH.

Memorandum & Order

AQUILINO, Judge.

Having disregarded this court's final judgment, affirming its own determination after remand in another 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 regard 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, 26 CIT ___, 244 F.Supp.2d 1349 (CIT 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.

The ITC did not reciprocate. At first, it interposed a motion for enlargement of the time for filing its remand determinations. It next filed a motion for reconsideration of the court's order of remand and for a stay of that order pending such reconsideration. 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 effect 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 eliminate the need for future litigation arising out of that determination", 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, 2002 WL 31052739, 26 CIT ____, ___ ( CIT Sept. 13, 2002). Separate appeals from that final judgment have been noticed by the Egyptian and Venezuelan 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 intervenordefendants "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 submission 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.

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 injure the other parties interested in the proceeding; and (4) where the public interest lies,¹

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 standardless exercise thereof. To be sure, as pointed out in Neenah Foundry Co. v. United States, slip op. 00-33, pp. 4-5, 2000 WL 364171, 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 (E.D.Pa.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, 57 S.Ct. 163, 81 L.Ed. 153 (1936). In other words, a movant must "make a strong showing" that a stay is necessary and that "the disadvantageous effect on others would be clearly outweighed." Commodity Futures Trading Comm'n v. Chilcott Portfolio Management, Inc., 713 F.2d 1477, 1484 (10th Cir.1983).

Here, the defendant recognizes this law as controlling,⁴ 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 Commission's termination of the antidumping investigations of Egypt, South Africa, and Venezuela (and upholds the Commission's remand determination reinstating the investigations of those countries' imports), that decision will not be determinative of the issues in the instant appeal. This is true for three reasons.

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 determination finding subject imports from Egypt, South Africa, and Venezuela to be nonnegligible, 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 imports from a countervailing duty...