Transpacific Steel LLC v. United States
| Decision Date | 10 December 2020 |
| Docket Number | 2020-2157 |
| Parties | TRANSPACIFIC STEEL LLC, BORUSAN MANNESMANN BORU SANAYI VE TICARET A.S., BORUSAN MANNESMANN PIPE U.S. INC., THE JORDAN INTERNATIONAL COMPANY, Plaintiffs-Appellees v. UNITED STATES, DONALD J. TRUMP, in his official capacity as President of the United States, UNITED STATES CUSTOMS AND BORDER PROTECTION, MARK A. MORGAN, in his official capacity as Senior Official Performing the Duties of the Commissioner of the United States Customs and Border Protection, DEPARTMENT OF COMMERCE, WILBUR L. ROSS, in his official capacity as Secretary of Commerce, Defendants-Appellants |
| Court | U.S. Court of Appeals — Federal Circuit |
NOTE: This order is nonprecedential.
Appeal from the United States Court of International Trade in No. 1:19-cv-00009-CRK-GSK-JAR, Senior Judge Jane A. Restani, Judge Claire R. Kelly, and Judge Gary S. Katzmann.
ON MOTION
Before REYNA, TARANTO, and CHEN, Circuit Judges.
ORDER
The appellants move to stay the underlying judgment pending appeal.
Rule 8(a)(2) of the Federal Rules of Appellate Procedure authorizes this court to grant a stay pending appeal. Our determination is governed by four factors: (1) whether the movant has made a strong showing of likelihood of success on the merits; (2) whether the movant 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. See Nken v. Holder, 556 U.S. 418, 434 (2009).
Based on the papers submitted, we conclude that the appellants have not established that a stay of the final judgment pending appeal is warranted here.1
The motion is denied.
FOR THE COURT
Date
/s/ Peter R. Marksteiner
Peter R. Marksteiner
Clerk of Court
s31 NOTE: This order is nonprecedential.
Appeal from the United States Court of International Trade in No. 1:19-cv-00009-CRK-GSK-JAR, Senior Judge Jane A. Restani, Judge Claire R. Kelly, and Judge Gary S. Katzmann.
Defendants (collectively, the United States or the government) request, under Federal Circuit Rule 8, that we stay the judgment of the Court of International Trade (Trade Court) pending the appeal in this case. I read the request as seeking a stay of only the non-declaratory portion of the judgment, which orders "that United States Customs and Border Protection refund Plaintiff and Plaintiff-Intervenors the difference between any tariffs collected on its imports of steel products pursuant to Proclamation No. 9772 and the 25% ad valorem tariff that would otherwise apply on these imports together with such costs and interest as provided by law." S.A. 3-4. Plaintiff Transpacific Steel LLC and Plaintiff-Intervenors Borusan Mannesmann Boru Sanayi Ve Ticaret A.S., Borusan Mannesmann Pipe U.S. Inc., and the Jordan International Company (collectively, plaintiffs)—who are importers (in some cases also producers or exporters) of Turkish steel—oppose the stay. I would grant the stay, without weighing the equities or assessing the likelihood of success on appeal, because the refund order at issue comes within a well-recognized "automatic stay" principle for monetary judgments that we should hold applicable to the Trade Court.
Plaintiffs challenged the lawfulness of Proclamation 9772, which the President issued under 19 U.S.C. § 1862 on August 10, 2018, 83 Fed. Reg. 40,429 (Aug. 15, 2018) (Proclamation 9772), and requested a refund of tariffs paid on their steel imports from Turkey. Proclamation 9722 raised the ad valorem tariff on Turkish steel from 25% to 50%. The Trade Court concluded that Proclamation 9722 violated 19 U.S.C. § 1862 as well as a right to equal protection guaranteed by the Fifth Amendment. See Transpacific Steel LLC v. United States, 466 F. Supp. 3d 1246 (Ct. Int'l Trade 2020). The Trade Court entered a final judgment having just two parts—a declaratory part, stating that Proclamation 9722 is "declared unlawful and void," and a refund part, ordering the government to "refund" plaintiffs "the difference between any tariffs collected" under the 50% rate of Proclamation No. 9772 and the otherwise-applicable 25% rate, plus costs and interest. S.A. 3-4; see also Transpacific Steel LLC v. United States, No. 19-00009, 2020 WL 5530091, at *1 (Ct. Int'l Trade Sept. 15, 2020) (Stay Opinion) (). The United States appealed.
On August 13, 2020, the United States filed with the Trade Court, under U.S. Court of International Trade (CIT) Rule 62, a motion to stay the judgment—whose only non-declaratory portion is an order to refund an amount that plaintiffs do not dispute is a matter of easy, objective calculation. About a month later, the Trade Court denied the motion. Stay Opinion, 2020 WL 5530091, at *3. The court first rejected the government's contention that, because the refund order is purely monetary in character and easily calculable in amount, the government is entitled to an automatic stay pending appeal without posting a bond or other security. Id. The Trade Court also rejected the government's argument for a stay under the four-part standard that considers the merits, the potential for irreparable injury to the stay applicant, the other parties' interests, and the public interest—though the Trade Court enjoined liquidation of the subject steel entries pending appeal. Id. at *2-4 ().
The United States now seeks a stay from this court. I would grant it.
Plaintiffs do not dispute the proposition that if the relevant part of the judgment is monetary, the United States is entitled to an "automatic stay" pending appeal (with no consideration of the merits or equities) without posting a supersedeas bond or other security. That proposition, arrived at in two steps, is supported by ample precedent applying language, notably from Federal Rule of Civil Procedure 62, materially the same as the language of CIT Rule 62. I would apply this proposition in exercising our stay authority under Federal Circuit Rule 8.
The first step is the automatic-stay principle that applies to appellants generally. CIT Rule 62(d) states: "When an appeal is taken, the appellant, by giving a supersedeas bond, may obtain a stay subject to the exception contained in subdivision (a) of this rule."2 The only condition is the giving of a supersedeas bond, which must be "approved by the court." CIT Rule 62(d) (). These provisions mirror Fed. R. Civ. P. 62(d) as it stood before 2018, in which year its language was moved, with slight modifications, to Fed. R. Civ. P. 62(b).3
The materially identical "may" language in the Federal Rules counterpart has long been held—as its language can readily be understood—to be an entitlement in cases of monetary relief. "With respect to a case arising in the federal system it seems to be accepted that a party taking an appeal from the District Court is entitled to a stay of a money judgment as a matter of right if he posts a bond in accordance with Fed. R. Civ. P. 62(d) and 73(d) . . . ." American Manufacturers Mut. Ins. Co. v. American Broad.-Paramount Theatres, Inc., 87 S. Ct. 1, 3 (1966) (Harlan, J., as Circuit Justice) (citations omitted); see Becker v. United States, 451 U.S. 1306, 1308 (1981) (Rehnquist, J., as Circuit Justice) (recognizing "the automatic stay provisions of Rule 62(d)"); see also, e.g., ActiveVideo Networks, Inc. v. Verizon Commc'ns, Inc., No. 2011-1538, 2012 WL 10716768, at *1 (Fed. Cir. Apr. 2, 2012); Acevedo-Garcia v. Vera-Monroig, 296 F.3d 13, 17 (1st Cir. 2002); Cohen v. Metro. Life Ins. Co., 334 F. App'x 375, 378 (2d Cir. 2009); In re Tribune Media Co., 799 F.3d 272, 281 (3d Cir. 2015); Fidelity & Deposit Co. of Maryland v. Davis, 127 F.2d 780, 782 (4th Cir. 1942); Hebert v. Exxon Corp., 953 F.2d 936, 938 (5th Cir. 1992); Arban v. West Pub. Corp., 345 F.3d 390, 409 (6th Cir. 2003); Dillon v. City of Chicago, 866 F.2d 902, 904 (7th Cir. 1988); Knutson v. AG Processing, Inc., 302 F. Supp. 2d 1023, 1032 (N.D. Iowa 2004); In re Combined Metals Reduction Co., 557 F.2d 179, 193 (9th Cir. 1977); Shaw v. United States, 213 F.3d 545, 550 n.8 (10th Cir. 2000); United States v. Wylie, 730 F.2d 1401, 1402 n.2 (11th Cir. 1984); Fed. Prescription Serv., Inc. v. American Pharm. Ass'n, 636 F.2d 755, 759 (D.C. Cir. 1980); 11 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 2905 (3d ed. 2020); 20 James W. Moore, Moore's Federal Practice § 308App.100 (2020); 12 Moore's Federal Practice § 62.03 (2020).
The second step in the reasoning that leads to the proposition that I believe supports the stay request here is the premise that the security that other appellants must generally post to get an automatic stay of a monetary judgment pending appeal may not be demanded from the United States. Congress has provided: "Security for damages or costs shall not be required of the United States, any department or agency thereof or any party acting under the direction of any such department or agency on the issuance of process or the institution or prosecution of any proceeding." 28 U.S.C. § 2408. That principle is reflected in CIT Rule 62(e), which immediately follows the automatic-stay provision of Rule 62(d). CIT Rule 62(e) states: "When an appeal is taken by the United States or an officer or agency thereof or by direction of any department of the Government of the United States and the operation or enforcement of the...
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