SAARSTAHL AG v. US, Slip Op. 96-154. Consol. Court No. 93-04-00219.

• Decision Date: 03 September 1996
• Docket Number: Slip Op. 96-154. Consol. Court No. 93-04-00219.
• Citation: 939 F. Supp. 898
• Parties: SAARSTAHL AG, Plaintiff, v. UNITED STATES, Defendant, and Inland Steel Bar Co., Defendant-Intervenor.
• Court: U.S. Court of International Trade

939 F. Supp. 898

SAARSTAHL AG, Plaintiff, v. UNITED STATES, Defendant and Inland Steel Bar Co., Defendant-Intervenor.

Slip Op. 96-154. Consol. Court No. 93-04-00219.

United States Court of International Trade.

September 3, 1996.

deKieffer & Horgan (J. Kevin Horgan, Marc E. Montalbine), Washington, DC, for plaintiff.

Frank W. Hunger, Assistant Attorney General of the United States; David M. Cohen, Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, (Jeffrey M. Telep); Marguerite E. Trossevin, Attorney-Advisor, Office of Chief Counsel for Import Administration, United States Department of Commerce, Washington, DC, for defendant.

Wiley, Rein & Fielding (Charles O. Verrill), Washington, DC, for defendant-intervenor.

OPINION

CARMAN, Judge:

In Saarstahl AG v. United States, 78 F.3d 1539 (Fed.Cir.1996), the Court of Appeals for the Federal Circuit (Federal Circuit) reversed and remanded this Court's decision in Saarstahl, AG v. United States, 858 F.Supp. 187 (CIT1994). This Court subsequently remanded the action to the Department of Commerce ("Commerce" or "Department") in Saarstahl AG v. United States, 933 F.Supp. 1106 (CIT1996).

APPLICATION OF U.S. CIT R. 54(B)

U.S. CIT R. 54(b) provides in part:

When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.

As explained by the Court,

Underlying rule 54(b) is the recognition that with the liberal joinder of claims now permitted by the federal rules, the policy against piecemeal appellate review implicit in the "single judicial unit" rule must be weighed against the prejudice caused by unjustified delay which can occur when decisions final as to some claims cannot be entered until the litigation is final as to all claims. In other words, a claim may be certified for appeal under rule 54(b) if a decision on that claim represents a "final decision" in the sense of an ultimate disposition of an individual claim entered in the course of a multiple claim action and if there is no just reason for delay.

Timken Co. v. Regan, 5 CIT 4, 6, 1983 WL 4993 (1983) (citation omitted).

This consolidated action raises certain issues related to privatization and certain issues not related to privatization. The present opinion will result in the final resolution of all privatization issues discussed in the Saarstahl Remand.

The Court will enter final judgment using Rule 54(b) for purposes of rendering claims related to privatization immediately appealable.¹ Specifically, the Court will enter final judgment pursuant to Rule 54(b) in Saarstahl AG v. United States, Consol.Court No. 93-04-00219, consisting of Saarstahl AG v. United States, Court No. 93-04-00219 and Inland Steel Bar Co. v. United States, Court No. 93-04-00233, as to: (1) Count I in the complaint of Saarstahl AG filed in Saarstahl AG v. United States, Court No. 93-04-00219; and (2) the First Cause of Action in the complaint of Inland Steel Bar Company filed in Inland Steel Bar Co. v. United States, Court No. 93-04-00233. The Court's decision resolving these privatization issues is a decision upon cognizable claims for relief. Having determined this Court is dealing with a "final judgment" on specific claims, the Court now determines the final judgment on the above-specified count in the Saarstahl complaint, and the above-specified count in the Inland Steel Bar Company complaint is immediately appealable under Rule 54(b). See Timken, 5 CIT at 6. There is no just reason for delay. This Court's decision in British Steel plc v. United States, 924 F.Supp. 139 (CIT1996) (British Steel II), appeals docketed, Nos. 96-1401 to -06 (Fed. Cir. June 21, 1996), which ruled upon privatization issues affecting other cases, is currently on appeal before the Federal Circuit. The parties and this Court have spent a great deal of time and other resources sifting through the privatization issues in this and other cases. In the interest of conserving judicial and party resources, the Court finds it more desirable that, if further issues of privatization are to be appealed, they are appealed by as many affected parties as possible, and as concurrently as possible with this Court's prior decisions on these issues.

BACKGROUND

Because the transaction at issue in the current proceeding is the same transaction at issue in the German aspect of British Steel plc v. United States, 879 F.Supp. 1254 (CIT1995) (British Steel I), appeals docketed, Nos. 96-1401 to -06 (Fed.Cir. June 21, 1996), British Steel II, and British Steel plc v. United States, 936 F.Supp. 1053 (CIT 1996) (British Steel III), this Court, in its remand order in the present case, ordered Commerce to

follow this Court's opinion in British Steel plc v. United States, 936 F.Supp. 1053 (CIT 1996) in performing its remand determination. Given that the relevant facts appear to be the same as those discussed in that opinion, Commerce may submit a remand determination virtually identical to the remand determination discussed in that opinion....

Saarstahl, at 1107.

REMAND DETERMINATION

On August 19, 1996, Commerce filed its Final Results of Redetermination Pursuant to Court Remand on Certain Factual Issues Regarding the Privatization in Germany (dated Aug. 19, 1996) (Saarstahl Remand). In the remand, Commerce refers to this Court's order of April 30, 1996, wherein the Court instructed Commerce to address and make findings regarding seven issues concerning the privatization at issue in Certain Steel Products from Germany, 58 Fed.Reg. 37,315 (Dep't Comm.1993) (final determ.), in light of the Court's decisions in British Steel I and British Steel II. See British Steel plc. v. United States, Consol. Court No. 93-09-00550-CVD (CIT April 30, 1996) (order). Commerce subsequently filed the Final Results of Redetermination Pursuant to Court Remand on Certain Factual Issues Regarding the Privatization in Germany (dated May 22, 1996) (German Steel Remand), which the Court affirmed in British Steel III.

In the Saarstahl Remand, Commerce explains it "reprinted the Court's seven questions without alteration as contained in its order of April 30, 1996. The Department's responses are virtually identical as well." Saarstahl Remand at 3. Commerce continues:

The Department's responses vary slightly from those contained in the German Steel Remand. Whereas the German Steel Remand cites to the relevant documents contained in the record of that proceeding, the current remand determination cites to the German Steel Remand itself, as affirmed by the Court in British Steel III. As the Court noted in its Order of August 13, 1996, the facts in the two proceedings are virtually identical. Additionally, the relevant source documents contained in that record are contained in this record as well.

Id. at 3 n. 1.

COMMENTS ON SAARSTAHL REMAND

Plaintiff Saarstahl AG argues the Saarstahl Remand was unlawful. Saarstahl contends "Commerce must decide this matter based upon the administrative record submitted in this case" and "may not simply import the administrative determination made in a separate case with a separate administrative record." (Saarstahl AG Comments on Remand Determination at 1 (footnote omitted).) Saarstahl also argues "Commerce's failure to allocate a portion of the purchase price paid during the privatization of Saarstahl Völklingen GmbH to the repayment of previously bestowed subsidies violates Saarstahl AG v. United States, 78 F.3d 1539, 1544-45 (Fed. Cir.1996)." (Id. at 5.) Finally, Saarstahl insists "DHS Dillinger Hütte Saarstahl AG did not remain `for all intents and purposes' the same entity as Saarstahl Völklingen GmbH." (Id.) The balance of Saarstahl's comments relates to non-privatization issues and will be addressed in a future, separate opinion.²

DISCUSSION

Saarstahl's argument concerning the administrative record has no merit. The fact that the analysis and discussion in the Saarstahl Remand is virtually identical to that contained in a previous remand determination does not mean Commerce has reached beyond the administrative record in this case. It simply underscores the factual similarity between the transactions at issue in both the Saarstahl Remand and the German Steel Remand.

In accordance with this Court's opinions in British Steel I, British Steel II, and British Steel III, and upon consideration of the comments of Saarstahl relating to privatization, this Court affirms those aspects of the Saarstahl Remand pertaining to the issue of privatization for the reasons set forth in British Steel III (affirming the remand determination concerning Saarstahl AG's sister company, AG der Dillinger...