Usec, Inc. v. U.S.

Decision Date29 March 2001
Docket NumberCourt No. 99-08-00547.,Slip Op. 01-34.
Citation138 F.Supp.2d 1335
PartiesUSEC, INC. and United States Enrichment Corporation, Plaintiffs, and Ad Hoc Committee of Domestic Uranium Producers, Plaintiff, v. The UNITED STATES, Defendant, and The Government of Kazakhstan, National Atomic Company Kazatomprom, and Nukem, Inc., Defendant-Intervenors.
CourtU.S. Court of International Trade

Steptoe & Johnson LLP, Richard O. Cunningham, (Sheldon E. Hochberg), Eric C. Emerson, Shannon P. MacMichael, for Plaintiffs USEC Inc., and United States Enrichment Corporation.

(Lyn M. Schlitt), General Counsel, Marc A. Bernstein, Acting Assistant General Counsel, Michael K. Haldenstein, Office of General Counsel, U.S. International Trade Commission, for Defendant United States.

Shearman & Sterling, (Thomas B. Wilner), for Defendant-Intervenors the Republic of Kazakhstan and the National Atomic Company Kazatomprom.

White & Case, LLP, (Carolyn B. Lamm), Adams C. Lee, Christina C. Benson, for Defendant-Intervenor NUKEM, Inc.




This matter is before the court pursuant to Plaintiffs' USEC Inc. and United States Enrichment Corporation (collectively, "USEC") Motion for Reconsideration brought under USCIT R. 59.1 Plaintiffs request that the court reconsider its decision in the above-captioned case denying USEC's Motion for Judgment on the Agency Record, reverse its decision in Slip Opinion 01-08, dated January 24, 2001 ("Opinion") and remand the matter to the International Trade Commission ("ITC" or "Commission") for further consideration of its analysis of material injury or threat thereof.2 In its previous Opinion, the court held that the ITC's final negative determination in Uranium from Kazakhstan, 64 Fed.Reg. 40897 (July 28, 1999), in which the Commission ascertained that uranium imported from Kazakhstan caused neither material injury nor threat of material injury to the domestic uranium industry, was supported by substantial evidence and in accordance with law. According to USEC, the court's determination that the Department of Commerce ("Department" or "Commerce") did not consider the inventory of uranium enriched in Russia but located in Kazakhstan ("Kazakh Stockpile" or "Stockpile") to be of Kazakh origin is "flatly contradicted" by recent statements from the Department. Mem. of P. & A. in Supp. of USEC's Mot. for Reh'g and Modification of this Court's Decision of January 24, 2001 ("Pls.' Mem.") at 4. As such, USEC contends, the court erred in determining that the Commission was correct in excluding the Stockpile from its injury determination. See id. For the reasons stated herein, the motion is denied and the original judgment is affirmed in all respects.


The grant or denial of a motion for rehearing and modification under USCIT R. 59 lies within the sound discretion of the court. Mita Copystar America, Inc. v. United States, 22 CIT ___, ___, 994 F.Supp. 393, 394 (1998); Asociacion Colombiana de Exportadores de Flores v. United States, 22 CIT ___, ___, 19 F.Supp.2d 1116, 1118 (1998). Several principles guide the court in determining whether reconsideration is warranted. A rehearing is not granted to allow a losing party to relitigate a case, but rather to address a fundamental or significant flaw in the original proceeding. See Asociacion, 22 CIT at ___, 19 F.Supp.2d at 1118 (citing St. Paul Fire & Marine Ins. Co. v. United States, 16 CIT 984, 984, 807 F.Supp. 792, 793 (1992)). Furthermore, a court's previous decision will not be disturbed unless it is "manifestly erroneous." Mita Copystar, 22 CIT at ___, 994 F.Supp. at 394 (citing United States v. Gold Mountain Coffee, Ltd., 8 CIT 336, 337, 601 F.Supp. 212, 214 (1984)(quoting Quigley & Manard, Inc. v. United States, 61 C.C.P.A. 65, 496 F.2d 1214, 1214 (1974))). The circumstances in which a "significant flaw" or "manifestly erroneous" decision is present are:

(1) an error or irregularity in the trial; (2) a serious evidentiary flaw; (3) a discovery of important new evidence which was not available even to the diligent party at the time of trial; or (4) an occurrence at trial in a nature of an accident or unpredictable surprise or unavoidable mistake which impaired a party's ability to adequately present its case.

Id. (citing Gold Mountain, 8 CIT at 336-337, 601 F.Supp. at 214). USEC has not persuaded the court that any of the established grounds for reconsideration of its decision are present in this case.

USEC bases its request for reconsideration of the Stockpile issue on a January 19, 2001, letter from Secretary of Commerce Norman Mineta to Senator Mitch McConnell ("Mineta letter") regarding Commerce's scope inquiry into the Stockpile. First, as Defendant correctly notes, USEC is asking the court to consider documents that were not part of the administrative record in this case. Under the appropriate standard of review of an injury determination, the court determines whether the Commission's decision is supported by substantial evidence on the record or is otherwise in accordance with law. See 19 U.S.C. § 1516a(b)(1)(B)(1994). Recognizing that the court may not consider the Mineta letter as part of the administrative record, Plaintiffs ask the court to take judicial notice of the letter pursuant to Rule 201(d) of the Federal Rules of Evidence, which provides: "[a] court shall take judicial notice if requested by a party and supplied with the necessary information."

Rule 201(b) of the Federal Rules of Evidence states: "a judicially noticed fact must be one not subject to reasonable dispute." The two facts that plaintiffs contend are presented by the Mineta letter are (1) that the Department approved shipments of uranium from the Stockpile while the Russian Suspension Agreement was still in effect, and thus treated the Stockpile "de facto... as Kazakh-origin uranium;" and (2) that the Department has not yet clarified its original scope determination regarding the Stockpile. See USEC Br. at 8; Mem. of P. & A. in Supp. of the Resp. of NUKEM to USEC's Mot. for Rehearing and Modification of this Court's decision of January 24, 2001 ("NUKEM Br.") at 5. The issue of the origin of the uranium from the Stockpile is a central legal issue in this case. The court agrees with Defendant-Intervenor NUKEM and Defendant that "the Mineta Letter and the inferences drawn therefrom are not...

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