Georgetown Steel Co. v. United States , 29 Ct. Int'l Trade 373 ( 2005 )

Slip Op. 05 - 43
UNITED STATES COURT OF INTERNATIONAL TRADE
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GEORGETOWN STEEL COMPANY, LLC, GERDAU
AMERISTEEL CORP., KEYSTONE CONSOLIDATED :
INDUSTRIES, INC., and NORTH STAR STEEL
TEXAS, INC., :
Plaintiffs, :
v.
:
UNITED STATES, Court No. 02-00739
:
Defendant,
:
-and-
:
SAARSTAHL AG, ISPAT HAMBURGER STAHLWERKE
GMBH and ISPAT WALZDRAHT HOCHFELD GMBH, :
Intervenor-Defendants. :
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Memorandum & Order
[Plaintiffs' motion for judgment upon the
agency record denied; action dismissed.]
Decided: April 1, 2005
Collier Shannon Scott, PLLC (Paul C. Rosenthal, Kathleen W.
Cannon and R. Alan Luberda) for the plaintiffs.
Lyn M. Schlitt, General Counsel, James M. Lyons, Deputy
General Counsel, Andrea C. Casson, U.S. International Trade Com-
mission, for the defendant.
DeKieffer & Horgan (Marc E. Montalbine, Merritt R. Blakeslee
and Wakako O. Takatori) for intervenor-defendant Saarstahl AG.
Barnes, Richardson & Colburn (Matthew T. McGrath, Gunter von
Conrad and Stephen W. Brophy ) for intervenor-defendants Ispat
Hamburger Stahlwerke GmbH and Ispat Walzdraht Hochfeld GmbH.
AQUILINO, Senior Judge: In Co-Steel Raritan, Inc. v.
U.S. Int'l Trade Comm'n, 26 CIT 1131 (2002), this court affirmed
the results of its remand of that part of the (preliminary) deter-
Court No. 02-00739 Page 2
mination of the defendant Commission ("ITC") sub nom. Carbon and
Certain Alloy Steel Wire Rod From Brazil, Canada, Egypt, Germany,
Indonesia, Mexico, Moldova, South Africa, Trinidad and Tobago,
Turkey, Ukraine, and Venezuela, 66 Fed.Reg. 54,539 (Oct. 29, 2001),
which terminated investigations with regard to subject imports from
Egypt, South Africa and Venezuela. In response to that order, the
Views of the Commission on Remand (Aug. 16, 2002) were to the ef-
fect that
imports of wire rod from Egypt, South Africa and Vene-
zuela are not negligible, and that there is a reasonable
indication that an industry in the United States is
materially injured by reason of imports of wire rod from
Egypt, South Africa and Venezuela that are allegedly sold
in the United States at less than fair value.
26 CIT at 1131. The commissioners were of the view that an amend-
ment by the International Trade Administration, U.S. Department of
Commerce ("ITA") of the scope of its investigation reduced the
volume of subject imports from Germany to less than the statutory
maximum for negligibility and thereby caused their aggregation with
those from Egypt, South Africa and Venezuela in accordance with 19
U.S.C. §1677(24)(A)(ii). Whereupon Saarstahl AG and Saarsteel
Inc., interested parties in the underlying administrative proceed-
ings, moved for leave to intervene as parties defendant on the
ground that the
plaintiffs [we]re . . . attempting to use this litigation
regarding the Commission's preliminary determination to
influence [it]s final investigation . . .. The Com-
mission's rescission in its remand determination of its
earlier negligibility determination with respect to
Egypt, South Africa, and Venezuela raises the possibility
Court No. 02-00739 Page 3
that the seven-percent exception to the negligibility
statute will be triggered. If this occurs, German
imports will be rendered non-negligible, notwithstanding
that they fall below the three-percent negligibility
threshold. Saarstahl respectfully submits that this
substantial change in its posture in the Commission's
investigations constitutes good cause for its interven-
tion out of time.
Id. at 1133. That untimely motion could not be granted. See id.
at 1132-34.
Following the filing of the final judgment in Co-Steel
Raritan, supra, the above-encaptioned action was commenced, with
Saarstahl AG and the Ispat firms obtaining early leave to inter-
vene. Plaintiffs' complaint 1 contests the ITC's final determina-
tion sub nom. Carbon and Certain Alloy Steel Wire Rod From Brazil,
Canada, Germany, Indonesia, Mexico, Moldova, Trinidad and Tobago,
Ukraine, 67 Fed.Reg. 66,662, 66,663 (Nov. 1, 2002), that imports of
such subject merchandise from Germany were negligible and that the
investigation as to them therefore be terminated. The views of the
Commission majority in support of this determination took note of
the court's affirmance of the remand results in Co-Steel Raritan,
supra, but also of notice(s) of appeal from that final judgment in
declining to aggregate those German imports with subject imports
from Egypt, South Africa and Venezuela. See Plaintiffs' Non-
confidential Appendix 1, USITC Pub. 3546, p. 16 and n. 88 (Oct.
2002), to wit:
1
Among other changes pointed out therein is that Co-Steel
Raritan, Inc. had become plaintiff Gerdau Ameristeel Corp.
Court No. 02-00739 Page 4
. . . As with the antidumping duty investigations, there
are no other subject countries with negligible levels of
imports with which to aggregate subject imports from
Germany in these countervailing duty investigations.
* * *
We interpret 19 U.S.C. § 1516a(c)(3) to provide that
the Commission's original published decision remains
operative until final court disposition of the matter,
which has not yet occurred given the filing of an appeal
with the Federal Circuit Court of Appeals. In accordance
with its customary practice, the Commission has not iss-
ued any Federal Register notice with respect to its
Remand Views pending final judicial disposition of the
matter. Therefore, the Commission's investigations of
[Egypt, South Africa and Venezuela] remain terminated.
As these investigations are terminated they are not sub-
ject to the aggregate negligibility provisions. . . .
In other words, the linchpin of this ITC final determination of
teutonic negligibility is the ITA's amendment of the scope of the
investigation2, which, to repeat, was also the crux of the Commis-
sion's own prior remand views that were affirmed by the court in
Co-Steel Raritan, supra, yet the defendant decided to disregard
that orderly, timely administrative aggregation and judicial af-
firmance. Indeed, ITC counsel thereafter joined in support 3 of
the appeals taken on behalf of intervenor-defendants from Egypt and
Venezuela.
That circumstance apparently induced the three-judge
panel of the Federal Circuit to consider the jurisdiction of both
2
See Plaintiffs' Nonconfidential Appendix 1, USITC Pub. 3546,
p. 1 n. 2 (Oct. 2002).
3
See Co-Steel Raritan, Inc. v. Int'l Trade Comm'n , 357 F.3d
1294, 1297 (Fed.Cir. 2004).
Court No. 02-00739 Page 5
this and that court. A judge in dissent concluded that the under-
signed lacked jurisdiction to opine on the Commission's "affirma-
tive" but "preliminary" remand results.4 The panel majority held
that this court had such authority and that its court had appellate
jurisdiction over the resultant final CIT judgment.5 It thus pro-
ceeded to consider the merits thereof and came to conclude that
this court
erred . . . when it remanded the case to the Commission
for further consideration in light of Commerce's modifi-
cation of the scope of the investigation. . ..6
Whereas the judge in dissent would have vacated this court's final
judgment and dismissed the appeals therefrom for lack of jurisdic-
tion7, the majority remanded for further proceedings to
consider the contention in Co-Steel's original motion for
judgment on the administrative record that it did not
address in Co-Steel I. That is the contention that the
Commission erred in concluding in the preliminary deter-
mination that there was no reasonable indication that
wire rod imports from Egypt, South Africa, and Venezuela
would imminently exceed statutory negligibility levels,
whether considered individually or collectively.8
That matter is sub judice before this court.
4
See id. at 1317-19.
5
See id. at 1303-09.
6
Id. at 1317.
7
See id. at 1319.
8
Id. at 1317.
Court No. 02-00739 Page 6
I
Also to be decided of course herein is what remains of
this matter in light of the foregoing background. To date, no
party has intimated that the court might not be possessed of
subject-matter jurisdiction pursuant to 28 U.S.C. §§ 1581(c),
2631(c), 2636(c). Presuming that it is leads to the question of
whether or not plaintiffs' complaint states a claim upon which
affirmative relief can be granted. Alas, the court concludes that
it does not.
The sum and substance of plaintiffs' motion for judgment
upon the agency record is:
B. The Commission's Determination that Imports of
CASWR from Germany Could Not Be Aggregated
with Imports of CASWR from Egypt, South Africa
and Venezuela to Determine Negligibility
Because Those Investigations Had Been Termi-
nated Was Unlawful[.]
* * *
C. The Statutory Negligibility Provision Does Not
Permit Refusal to Aggregate Dumped With Subsi-
dized Imports in Assessing Aggregate Import
Levels[.]
D. In Assessing Negligibility, the Commission Is
Not Precluded from Aggregating Imports from
Germany with Imports from Egypt, South Africa
and Venezuela Merely Because Final Commerce
and Commission Decisions Have Not Yet Been
Issued as to Such Imports[.9]
9
Plaintiffs' Brief, page i. The acronym "CASWR" refers to
the subject merchandise.
Court No. 02-00739 Page 7
In fairness to plaintiffs' counsel, it should be pointed out that
this motion was filed before the decision of the court of appeals
-- and after this court had denied a motion by the defendant to
stay this action pending that decision. See Georgetown Steel Co.
v. United States, 27 CIT , , 259 F.Supp.2d 1344, 1348
(2003)("parties to judgments nisi prius are not automatically at
liberty to disregard them, in particular when they do not seek
appellate relief in their own right"). It must also be recognized,
however, that Co-Steel Raritan, supra, and this action both emanate
from the same antidumping and countervailing-duty administrative
investigations and have engendered notable "hypothesizing" by the
parties, including intervenor-defendant Saarstahl AG. See, e.g.,
id., 27 CIT at , 259 F.Supp.2d at 1347-48. Indeed, it was the
petitioners cum plaintiffs that precipitated those investigations
and which decided after their commencement to petition the ITA for
an amendment of their scope. And the potential impact of that
tactic was well-understood by their counsel, e.g.:
This amendment to the scope of the cases has direct
relevance to the Commission's negligibility analysis. As
set forth in the domestic industry's submission, Germany
was believed to be a significant producer of the excluded
tire cord and tire bead products. [] Excluding these
products from the scope of the cases, therefore, would
result in a decline in Germany's subject import share
over the 12-month period reviewed. Based on the domestic
industry's best information, as set forth on the record
of the Commission's case, the scope modification would
result in a reduction in imports from Germany to 2.9
percent in the August 2000-July 2001 period. . . .
Aggregation of these German imports with imports from
Court No. 02-00739 Page 8
Egypt, South Africa, and Venezuela in the August 2000-
July 2001 period would result in a 9.27 percent import
share, well above the seven percent threshold.10
Suffice it to state now that this maneuver has had its
day in two courts and also to confirm that this one does not
interpret the mandate of the Federal Circuit in the first case as
providing a basis for relief for the plaintiffs herein from the
predicament, the "extraordinary procedural posture"11, that they
instigated. Ergo, judgment should be entered, denying their
motion12 and dismissing this contingent action.
So ordered.
Decided: New York, New York
April 1, 2005
Thomas J. Aquilino, Jr.
Senior Judge
10
Plaintiffs' Brief in Support of Rule 56.2 Motion for
Judgment Upon the Agency Record [in Co-Steel Raritan, Inc. v.
United States, Court No. 01-00955], pp. 30-31 (Dec. 21,
2001)(citations omitted).
11
Plaintiffs' Nonconfidential Appendix 1, USITC Pub. 3546,
pp. 47, 49 (Oct. 2002)(Additional and Dissenting Views of Commis-
sioner Lynn M. Bragg).
12
Given the seemingly-intractable lie of this matter, the
parties' motions for oral argument can be, and they hereby are,
denied.