U.S. Steel Corp. v. United States

• Decision Date: 17 October 2018
• Docket Number: Slip Op. 18-139,Consol. Court No. 14-00263
• Citation: 348 F.Supp.3d 1248
• Parties: UNITED STATES STEEL CORPORATION et al., Plaintiff and Consolidated Plaintiffs, and Maverick Tube Corporation et al., Plaintiff-Intervenors, v. UNITED STATES, Defendant, and Maverick Tube Corporation et al., Consolidated Defendant-Intervenors.
• Court: U.S. Court of International Trade

348 F.Supp.3d 1248

UNITED STATES STEEL CORPORATION et al., Plaintiff and Consolidated Plaintiffs,andMaverick Tube Corporation et al., Plaintiff-Intervenors,

v. UNITED STATES, Defendant,andMaverick Tube Corporation et al., Consolidated Defendant-Intervenors.

Slip Op. 18-139

Consol. Court No. 14-00263

United States Court of International Trade.

October 17, 2018

Luke A. Meisner, Schagrin Associates, of Washington, DC, for Plaintiff and Consolidated Defendant-Intervenor United States Steel Corporation.

Lizbeth R. Levinson and Ronald M. Wisla, Fox Rothschild LLP, of Washington, DC, for Consolidated Plaintiffs GVN Fuels Limited, Maharashtra Seamless Limited, and Jindal Pipes Limited.

Alan Hayden Price, Adam Milan Teslik, Laura El-Sabaawi, and Robert Edward DeFrancesco, III, Wiley Rein, LLP, of Washington, DC, for Plaintiff-Intervenor and Consolidated Defendant-Intervenor Maverick Tube Corporation.

Roger Brian Schagrin, Christopher Todd Cloutier, John Winthrop Bohn, and Paul Wright Jameson, Schagrin Associates, of Washington, DC, for Plaintiff-Intervenors and Consolidated Defendant-Intervenors Boomerang Tube LLC, Energex Tube, Tejas Tubular Products, TMK IPSCO, Vallourec Star, L.P., and Welded Tube USA Inc.

Justin Reinhart Miller, Senior Trial Counsel, U.S. Department of Justice, Civil Division, International Trade Field Office of New York, NY, for Defendant. With him on the brief were Chad A. Readler, Acting Assistant Attorney General, Jeanne E. Davidson, Director, and Claudia Burke, Assistant Director, of Washington, DC. Of counsel on the brief was Reza Karamloo, Attorney, Office of the Chief Counsel for Trade Enforcement and Compliance, U.S. Department of Commerce, of Washington, DC.

OPINION AND ORDER

Kelly, Judge:

Before the court is United States Steel Corporation's ("U.S. Steel" or "Plaintiff") motion to enforce the judgment issued in United States Steel Corp. v. United States, 41 CIT ––––, 219 F.Supp.3d 1300 (2017) (" U.S. Steel II"). See Mot. to Enforce J., June 19, 2018, ECF No. 154. U.S. Steel contends that the U.S. Department of Commerce ("Department" or "Commerce") failed to recalculate the "all-others rate" pursuant to section 735(c)(5)(A) of the Tariff Act of 1930, as amended, 19 U.S.C. § 1673d(c)(5)(A) (2012), after Commerce altered the dumping margins for mandatory respondents in its Final Results of Redetermination Pursuant to Remand, Aug. 31, 2016, ECF No. 114 ("Remand Results"), and this court sustained Commerce's Remand Results.¹ See U.S. Steel II, 41 CIT ––––, ––––, 219 F.Supp.3d 1300, 1325 (2017). U.S. Steel requests that the court enforce the judgment in U.S. Steel II by requiring Commerce to recalculate the all-others rate based on the revised dumping margins. Mot. to Enforce J. at 2. The United States ("Defendant") opposes, arguing, inter alia, that Commerce fully effectuated the court's judgment in U.S. Steel II. Def.'s Resp. Opp. Pl.'s Mot. for Enforcement of the Court's J. at 6, July 27, 2018, ECF No. 158 ("Def.'s Br."). For the reasons that follow, U.S. Steel's motion is granted in part, and Commerce will issue a revised Timken notice either reconsidering or further explaining its determination.

BACKGROUND

Commerce initiated the underlying antidumping duty ("ADD") investigation of certain oil country tubular goods ("OCTG") from India on July 29, 2013. See Certain [OCTG] from India, the Republic of Korea, the Republic of the Philippines, Saudi Arabia, Taiwan, Thailand, the Republic of Turkey, Ukraine, and the Socialist Republic of Vietnam, 78 Fed. Reg. 45,505, 45,506 –12 (Dep't Commerce July 29, 2013) (initiation of [ADD] investigations). Commerce published a final affirmative determination in the investigation on July 18, 2014, see Certain [OCTG] From India, 79 Fed. Reg. 41,981 (Dep't Commerce July 18, 2014) (final determination of sales at less than fair value and final negative determination of critical circumstances) ("Final Results"), and issued the initial ADD order on September 10, 2014. See Certain [OCTG] from India, the Republic of Korea, Taiwan, the Republic of Turkey, and the Socialist Republic of Vietnam, 79 Fed. Reg. 53,691 (Dep't Commerce Sept. 10, 2014) ( [ADD] orders) ("ADD Order").

The rates set for respondents Jindal SAW Ltd. ("Jindal SAW") and GVN Fuels Limited ("GVN") were challenged before this court. See, e.g., Compl. ¶¶ 19, 25, Nov. 10, 2014, ECF No. 9; Summons, Oct. 10, 2014, ECF No. 1. No party challenged the all-others rate. The court remanded several issues for further consideration or explanation, see United States Steel Corp. v. United States, 40 CIT ––––, ––––, 179 F.Supp.3d 1114, 1156 (2016) (" U.S. Steel I"), and Commerce issued the results of its remand redetermination pursuant to the remand order in U.S. Steel I on August 31, 2016. See Remand Results. The court sustained Commerce's Remand Results in U.S. Steel II. See U.S. Steel II, 41 CIT at ––––, 219 F.Supp.3d at 1325.

To conform the Final Results with the court's decisions in U.S. Steel I and U.S. Steel II, Commerce published a notice in the Federal Register announcing a court decision not in harmony with a prior determination (also referred to as a "Timken Notice") and amended the Final Results.² See Certain [OCTG] From India, 82 Fed. Reg. 17,631 (Dep't Commerce Apr. 12, 2017) (notice of court decision not in harmony with final determination of sales at less than fair value and final negative determination of critical circumstances and notice of amended final determination) ("Amended Final Results"). Although the Amended Final Results lists new rates for the mandatory respondents, it makes no reference to the all-others rate. Subsequently, on June 20, 2017, Commerce published an amendment to the ADD Order, listing the estimated weighted-average dumping margins for Jindal SAW at 11.24% and for all others at 5.79%.³ See Certain [OCTG] From India, 82 Fed. Reg. 28,045, 28,046 (Dep't Commerce June 20, 2017) (amendment of [ADD] order) ("Amended ADD Order").

Following the publication of the Amended ADD Order, counsel for U.S. Steel contacted Commerce and requested that Commerce revise the all-others rate based on the revised dumping margins calculated for GVN and Jindal SAW that were sustained by this court. See United States Steel Corp. v. United States, 42 CIT ––––, ––––, 319 F.Supp.3d 1295, 1298–99 (2018) (" U.S. Steel III") (citing to U.S. Steel's submission); see also 19 U.S.C. § 1673d(c)(5)(A) ("the estimated all-others rate shall be an amount equal to the weighted average of the estimated weighted average dumping margins established for exporters and producers individually investigated, excluding any zero and de minimis margins ....") Commerce responded that the Amended ADD Order"fully effectuate[s] the court's affirmed remand." See id. (citing to Commerce's response).

On July 20, 2017, U.S. Steel commenced suit in this court challenging the all-others rate published in the Amended ADD Order. See U.S. Steel III, 42 CIT at ––––, 319 F.Supp.3d at 1295. The court granted the defendant's motion to dismiss, holding, inter alia, that U.S. Steel's claim was precluded because U.S. Steel could have challenged the all-others rate at the time it challenged the individual respondents' rates in U.S. Steel I. See id. at 9–10. The court explained that U.S. Steel had all of the facts it required to seek a change to the all-others rate in U.S. Steel I and U.S. Steel II, and therefore could have sought a change to the all-others rate in addition to challenging the mandatory respondents' rates. See id. at 9–10. As a result, U.S. Steel's challenge to the all-others rate was merged into the U.S. Steel II judgment. Id. at 10. The court explained that U.S. Steel, "in essence, contends that the judgment in U.S. Steel II required Commerce to recalculate the all-others rate," and that if U.S. Steel believes that the U.S. Steel II judgment requires such action by Commerce, U.S. Steel may seek to enforce the judgment issued in U.S. Steel II. Id. at 10–11,. U.S. Steel brought the present motion seeking to compel Commerce to recalculate the all-others rate. Mot. to Enforce J. at 2.

U.S. Steel makes several arguments in support of its assertion that enforcement of the U.S. Steel II judgment requires Commerce to recalculate the all-others rate. First, U.S. Steel argues that 19 U.S.C. § 1673d(c)(5)(A) requires that Commerce recalculate the all-others rate when the dumping margins for mandatory respondents change in the course of judicial review. Pl. [U.S. Steel's] Br. Supp. Mot. Enforce J. at 6, June 19, 2018, ECF No. 154 ("Pl.'s Br."). Second, U.S. Steel argues that Commerce's determination of the all-others rate contravenes the line of cases holding that Commerce may not rely on dumping margins that have been invalidated by the courts. Id. at 6. Third, U.S. Steel argues that Commerce's determination of the all-others rate in the Amended ADD Order departed from Commerce's established practice of revising the all-others rate after its final remand determination is sustained by the court. Id. at 6–7.

JURISDICTION AND STANDARD OF REVIEW

The court has inherent authority to enforce its own judgments. See B.F. Goodrich Co. v. United States, 18 CIT 35, 36, 843 F.Supp. 713, 714 (1994). This authority includes the "power to determine the effect of its judgments and issue injunctions to protect against attempts to attack or evade those judgments." United States v. Hanover Ins. Co., 82 F.3d 1052, 1054 (Fed. Cir. 1996). The court will grant a motion to enforce a judgment "when a prevailing plaintiff demonstrates that a defendant has not complied with a judgment entered against it, even if the noncompliance was due to misinterpretation of the judgment." Heartland Hosp. v. Thompson, 328 F.Supp.2d 8, 11 (D.D.C. 2004) ; GPX Int'l Tire Corp. v. United States, 39 CIT ––––, ––––, 70 F.Supp.3d 1266, 1272 (2015).

DISCUSSION

When Commerce conducts an ADD investigation and makes an affirmative determination, it calculates the "estimated weighted average...