Icdas Celik Enerji Tersane ve Ulasim Sanayi, A.S. v. United States , 113 F. Supp. 3d 1316 ( 2015 )

Slip Op 15-121
UNITED STATES COURT OF INTERNATIONAL TRADE
ICDAS CELIK ENERJI TERSANE VE
ULASIM SANAYI, A.S.,
Plaintiff,
Before: Leo M. Gordon, Judge
v.
Court No. 14-00267
UNITED STATES,
Defendant.
MEMORANDUM and ORDER
[Defendant-Intervenor’s motion for certification denied.]
Dated: October 30, 2015
Matthew M. Nolan, Diana D. Quaia, and Nancy A. Noonan, Arent Fox LLP of
Washington, DC for Plaintiff Icdas Celik Enerji Tersane ve Ulasim Sanayi, A.S.
Richard P. Schroeder, Trial Attorney, Commercial Litigation Branch, Civil Division,
U.S. Department of Justice of Washington, DC, for Defendant, United States. With him
on the briefs were Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Jeanne E.
Davidson, Director, and Reginald T. Blades, Jr., Assistant Director. Of counsel on the briefs
were Scott McBride, Senior Attorney, U.S. Department of Commerce, Office of the Chief
Counsel for Trade Enforcement and Compliance of Washington, DC.
Alan H. Price, John R. Shane, and Maureen E. Thorson, Wiley Rein LLP of
Washington, DC for Defendant-Intervenors Rebar Trade Action Coalition, Nucor
Corporation, Gerdau Ameristeel U.S. Inc., Commercial Metals Company, and Byer Steel
Corporation.
Gordon, Judge: Before the Court is Defendant-Intervenor Rebar Trade Action
Coalition’s (“RTAC”) motion for certification. See RTAC’s Mot. for Order Certifying
Questions for Interlocutory Appeal 1 (Sept. 29, 2015), ECF No. 41 (“RTAC’s Mot.”).
Defendant opposes RTAC’s motion. See Def.’s Resp. to Def.-Intervenors’ Mot. for an
Court No. 14-00267 Page 2
Order Certifying Questions for Interlocutory Appeal (Oct. 22, 2015), ECF No. 45 (“Def.’s
Resp.”). Plaintiff takes no position on the motion.
RTAC seeks certification of questions arising from the court’s recent opinion and
order granting Plaintiff’s motion to amend the caption of its complaint and denying
Defendant’s and RTAC’s cross-motions to dismiss for lack of subject matter jurisdiction.
RTAC’s Mot. at 1-5; see Icdas Celik Energji Tersane ve Ulasim Sanayi, A.S. v. United
States, 39 CIT ___, Slip Op. 15-109, at 4-16 (Sep. 24, 2015). Under 28 U.S.C. § 1292(d),
the court may certify questions for interlocutory appeal when there exists “a controlling
question of law is involved with respect to which there is a substantial ground for
difference of opinion” such that “an immediate appeal from that order may materially
advance the ultimate termination of the litigation.” 28 U.S.C. § 1292(d)(1) (2012). RTAC
and Defendant agree that the court’s opinion in Icdas presents a controlling question of
law to which there is a substantial ground for disagreement. RTAC’s Mot. at 1, 4-5; Def.’s
Resp. at 1-3. RTAC and the Government dispute whether interlocutory appeal may
materially advance the ultimate termination of this action.
RTAC argues that a favorable decision on appeal would relieve the court and the
parties of the need to litigate the merits of Icdas’ action. RTAC’s Mot. at 5. The court does
not agree. “Denial of a motion to dismiss a complaint is not sufficient, in itself, to warrant
certification of an interlocutory appeal.” Nat'l Corn Growers Ass'n v. Baker, 9 CIT 571,
583, 623 F. Supp. 1262, 1273 (1985) rev'd on other grounds, 840 F.2d 1547 (Fed. Cir.
1988). And as Defendant correctly points out, litigating an interlocutory appeal may well
delay the ultimate disposition of this action. Def.’s Resp. at 4-5. Certifying RTAC’s
Court No. 14-00267 Page 3
questions for interlocutory appeal creates the potential for multiple rounds of briefing and
argument at the U.S. Court of Appeals for the Federal Circuit. Even if the Court of Appeals
accepts the interlocutory appeal and reverses this Court’s decision, “many months, and
perhaps more than a year . . . would pass” before the ultimate termination of the litigation.
Id. The court can envision a scenario where resolution on the substance of Plaintiff’s
complaint actually precedes the appellate decision on jurisdiction. The court is also
concerned that granting RTAC’s motion would result in piecemeal litigation because the
interlocutory appeal would place Icdas’ action on a different track than RTAC’s companion
action challenging the same administrative determination. Given these considerations,
the court concludes that granting RTAC’s motion for certification for an interlocutory
appeal will not materially advance the ultimate termination of this litigation.
Accordingly, it is hereby
ORDERED that Defendant-Intervenor’s motion for certification is denied.
/s/ Leo M. Gordon
Judge Leo M. Gordon
Dated: October 30, 2015
New York, New York