Philipp Bros., Inc. v. United States

• Decision Date: 27 June 1986
• Docket Number: No. 84-4-00528.,84-4-00528.
• Citation: 640 F. Supp. 261,10 CIT 448
• Parties: PHILIPP BROTHERS, INC., Plaintiff, v. The UNITED STATES, Defendant.
• Court: U.S. Court of International Trade

640 F. Supp. 261

10 CIT 448

PHILIPP BROTHERS, INC., Plaintiff, v. The UNITED STATES, Defendant.

No. 84-4-00528.

United States Court of International Trade.

June 27, 1986.

Donohue and Donohue (James A. Geraghty), New York City, for plaintiff.

Richard K. Willard, Asst. Atty. Gen., David M. Cohen, Director, Commercial Litigation Branch, and Elizabeth C. Seastrum, Civil Div., U.S. Dept. of Justice, Washington, D.C., for defendant.

Opinion and Order

RESTANI, Judge:

On February 14, 1986, this court remanded to the International Trade Administration (ITA) a final determination in a section 751 annual review of a countervailing duty (CVD) order, Tariff Act of 1930, § 751, as amended, 19 U.S.C. § 1675 (1982 & Supp. II 1984), as not supported by substantial evidence. Philipp Brothers, Inc. v. United States, 10 CIT ___, 630 F.Supp. 1317 (1986), appeal docketed, No. 86-1122 (Apr. 14, 1986). The court ordered ITA to further consider and explain certain aspects of its determination. ITA has appealed that decision on the ground that plaintiff allegedly failed to exhaust its administrative remedies and requests that the court stay its remand order pending disposition of the appeal. The grant of a stay pending appeal of a remand order is discretionary. American Grape Growers Alliance for Fair Trade v. United States, 9 CIT ___, Slip Op. 85-104 at 4 (Oct. 7, 1985). As noted by the parties, the factors to be considered in the exercise of this discretion, like those considered in determining whether to grant a preliminary injunction, are as follows:

(1) whether the petitioner is likely to prevail on the merits of his appeal, (2) whether, without a stay, the petitioner will be irreparably injured, (3) whether issuance of a stay will substantially harm other parties interested in the proceeding, and (4) wherein lies the public interest.

McSurely v. McClellan, 697 F.2d 309, 317 (D.C.Cir.1982), cert. denied, ___ U.S. ___, 106 S.Ct. 525, 88 L.Ed.2d 457 (1985); see American Grape Growers, 9 CIT at ___, Slip Op. 85-104 at 4 (citing Timken Co. v. United States, 4 CIT 263, 264 n. 2, 553 F.Supp. 1060, 1062 n. 2 (1982)).

Not listed among these standard factors, but of importance nonetheless, is whether the movant's appeal is subject to dismissal on procedural grounds. There is no justification for a stay pending appeal if the appeal itself cannot be heard. In opposition to the motion for a stay, plaintiff raises a legitimate challenge to defendant's ability to be heard on the merits at this time by the appellate court. The court deems it appropriate to consider this issue before an analysis of movant's four-part burden.

Appeals may be taken from final decisions of this court, 28 U.S.C. § 1295(a)(5) (1982), and from decisions, which although not final, have been certified by this court for interlocutory appeal. 28 U.S.C. § 1292(a)(1)(1982). Defendant did not seek to have the exhaustion issue certified for interlocutory appeal. Instead, defendant appealed directly to the Court of Appeals for the Federal Circuit, where it apparently intends to argue that this court's decision on the exhaustion issue is appealable as of right under the collateral order exception.

As recently noted by the Federal Circuit,

the "collateral order" exception covers orders which "finally determine claims of right separable from, and collateral to, rights asserted 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." Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546 69 S.Ct. 1221, 1225, 93 L.Ed. 1528 (1949). To come within the exception, an order must at a minimum "conclusively determine the disputed question," "resolve an important issue completely separate from the merits of the action," and "be effectively unreviewable on appeal from a final judgment." Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2458, 57 L.Ed.2d 351 (1978).

Cabot Corp. v. United States, 788 F.2d 1539, 1543 (emphasis added), reh'g denied, No. 86-729 (Fed.Cir. May 22, 1986). It is very difficult to view a decision failing to preclude review, based on lack of exhaustion of administrative remedies, as "finally determining" anything. Certainly, the issue of exhaustion of administrative remedies arises often enough, and neither party has cited a case finding resolution of such an issue to be the type of separable claim which may give rise to a "collateral order." Even if we assume that the exhaustion issue has been "conclusively" determined and is "completely separate from the merits of the action," the court seriously questions whether this issue would be "effectively unreviewable on appeal from a final judgment."

Defendant argues that if this court affirms ITA's remand determination and plaintiff fails to appeal that decision, the exhaustion issue would escape appellate review.¹ The mere possibility that an issue may not be subject to review, however, does not necessarily satisfy the Supreme Court's mandate that a decision be "effectively unreviewable" as a prerequisite to application of the collateral order doctrine. To the contrary, the Supreme Court has interpreted the exception narrowly and has held it inapplicable in instances where there is only the possibility that a decision will be unreviewable. For example, in Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 101 S.Ct. 669, 66 L.Ed.2d 571 (1981), the trial court's refusal to disqualify an attorney from the case was held not to be appealable as a final collateral order. In deciding whether the trial court's decision would be rendered "effectively unreviewable" absent an immediate appeal, the court stated that to meet this condition requires that "`denial of immediate review would render impossible any review whatsoever.'" Id. at 376, 101 S.Ct. at 675 (emphasis added) (quoting United States v. Ryan, 402 U.S. 530, 533, 91 S.Ct. 1580, 1582, 29 L.Ed.2d 85 (1971)). Obviously, if the party that had unsuccessfully argued for disqualification subsequently won on the merits, the disqualification decision would not be subject to review. Yet, the Supreme Court held that there had been "no showing that the opportunity for meaningful review would perish unless immediate appeal were permitted." Firestone, 449 U.S. at 377-78, 101 S.Ct. at 675. Compare with Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 8-12, 103 S.Ct. 927, 932-35, 74 L.Ed.2d 765 (1983) (failure to allow immediate review of district court's stay pending state court resolution of arbitrability of claim would render the stay "entirely unreviewable" because once state court decided arbitrability issue, federal court would be bound by res judicata); Stack v. Boyle, 342 U.S. 1, 12, 72 S.Ct. 1, 7, 96 L.Ed. 1 (1951) (Jackson, J., concurring) (unless appeal of district court's failure to hold amount of bail excessive is heard before sentencing, district court's decision "never can be reviewed at all"); Cohen, 337 U.S. at 545-47, 69 S.Ct. at 1225-26 (failure to resolve through appeal before trial the right to have bond posted as security in stockholder derivative action would result in loss of the right, "probably irreparably").

During the course of any litigation in which the court decides against a party on issues separable from the merits, that party could generally argue that there is the possibility that it will prevail on the merits and thus that the separable issues may become "effectively unreviewable." That the Supreme Court did not intend such a broad interpretation of the "effectively unreviewable" requirement is reflected in the Court's finding in Firestone that the collateral order doctrine was inapplicable in that case. See also Richardson-Merrell, Inc. v. Koller, ___ U.S. ___, 105 S.Ct. 2757, 2765, 86 L.Ed.2d 340 (1985) (trial court's disqualification of an attorney is not "effectively unreviewable" if denial of right to counsel of choice can be established without show of prejudice); Coopers & Lybrand, 437 U.S. at 469, 98 S.Ct. at 2458 (denial of certification to file class action is reviewable after final judgment); United States v. MacDonald, 435 U.S. 850, 861, 98 S.Ct. 1547, 1553, 56 L.Ed.2d 18 (1978) (right to speedy trial need not "be upheld prior to trial if it is to be enjoyed at all").

At oral argument, defendant cited two cases that arguably support a somewhat flexible interpretation of the "effectively unreviewable" requirement. In Huie v. Bowen, 788 F.2d 698 (11th Cir.1986) and Cohen v. Perales, 412 F.2d 44 (5th Cir. 1969), rev'd sub nom. on other grounds, Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971), the collateral order exception was applied following court ordered remand to an administrative agency where each appellate court concluded that the respective issues brought up on appeal might otherwise escape review. To the extent that these decisions stand for the proposition that the collateral order exception is applicable where there is only a theoretical possibility that the issue in question will be unreviewable, this court believes they exceed the narrow exception intended by the Supreme Court. If, on the other hand, these cases stand for the proposition that the "effectively unreviewable" requirement can be satisfied where subsequent review of the issue in question is unlikely due to special circumstances, then this interpretation may be consistent with the Supreme Court's intent. That is, when remand to an administrative agency occurs, additional factors may intervene to decrease the likelihood of review on appeal of particular types of issues.² Although this court does not necessarily adopt the approach to the "effectively unreviewable" requirement employed in Bowen and Perales, defendant's argument that the exhaustion issue is reviewable under the collateral order exception has enough merit that the court must consider whether plainti...