United States Court of International Trade

Slip Op. 22-05

            Before the Court in NEXTEEL Co., et. al., v. United States, et. al., Consol. Court No. 20-03898, Slip Op. 22-05 (January 21, 2022) was Defendant-Intervenors California Steel Industries, Inc.’s (“CSI”) and Welspun Tubular LLC USA’s (“Welspun”) partial consent motion to stay proceedings pending the final disposition of Hyundai Steel Co. v. United States, Fed. Cir. Appeal No. 21-1748. Id. at 2. CSI and Welspun submitted that granting the stay would promote judicial economy because Hyundai concerns Commerce’s statutory authority to make a PMS adjustment when conducting the sales-below-cost test, an issue virtually identical to an issue before this court, and the Court of Appeals’ decision in Hyundai will “dictate the outcome of this appeal.” Id. at 5. Furthermore, CSI and Welspun argued that “a stay will not cause undue harm or prejudice.” Id. Plaintiffs argued that “CSI and Welspun failed to show any hardship or inequity that would follow if the case proceeded in the normal course, however a stay would materially injure Plaintiffs.” Id. Plaintiffs also argued that granting a stay did not serve the public interest of “just, speedy, and inexpensive determination of every action and proceeding,” the Court’s paramount obligation. Id. at 6. For the following reasons, the court denied CSI’s and Welspun’s motion to stay. Id. at 2.

The court has jurisdiction according to 19 U.S.C. § 1516a(a)(2)(B)(iii) and 28 U.S.C. § 1581(c). Id. at 5. The power to stay proceedings “is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel and for litigants.” Landis v. North American Co., 299 U.S. 248, 254 (1936). Id. “On a motion to stay, the court considers whether the proposed stay promotes judicial economy. See, e.g., Diamond Sawblades Mfrs’ Coal. v. United States, 34 CIT 404, 406–08 (2010).” Id. at 6. “Generally, speculative claims regarding the possible impact of a future decision on the disposition of the case at bar do not suffice to warrant a stay. See e.g., Georgetown Steel Co. v. United States, 27 CIT 550, 552–56 (2003).” Id. Here, the court found that “CSI’s and Welspun’s suggestion that a stay will promote judicial economy is speculative.” Id. As of yet, the court explained, “the Court of Appeals has not granted rehearing” [in Hyundai]. Id. at 6-7. “Thus far, Welspun has only requested additional time to petition for rehearing.” Id. at 7. Therefore, the court could not be certain that granting a stay at this time would serve any purpose other than to delay the resolution of this case in contravention of the Court’s objective to ensure the “just, speedy, and inexpensive determination of every action and proceeding.” U.S. Ct. of Int’l Trade R. 1. Id. “Nor do CSI and Welspun point to any harm they will endure if the court denies the motion to stay.” Id. “If rehearing is granted and the Court of Appeals reverses course on the issue at hand, the movants would be able to take advantage of that change either before this Court or the Court of Appeals.” Id. “No party suggests otherwise.” Id. “Without more, the court lacks a compelling reason to stay the case. See Giorgio Foods, Inc. v. United States, 37 CIT 152, 155 (2013).” Id. As such, the court denied CSI’s and Welspun’s motion to stay. Id. at 8.

Slip Op. 22-07

            Before the Court in NLMK PENNSYLVANIA, LLC v. United States, Court No. 21-000507, Slip Op. 22-07 (February 1, 2022) was Defendant’s motion for partial appeal, where Defendant asked the court to remand 15 of the 54 final determinations not to exclude imports of semi-finished stainless steel slab from Russia to Commerce. Id. at 1-2. Plaintiff did not oppose Defendant’s request for a partial remand but argued that any remand should be conducted with certain parameters in place. Id. at 2. Plaintiff asked the court to “limit the information that will constitute the record because it believes no new information is needed beyond the exclusion requests, objections, rebuttals, and sur-rebuttals.” Id. at 7. Plaintiff raised “concerns that the new proceedings may be tainted by prior ex parte communications.” Id. at 8. The parties disagreed as to the amount of time the court should allow for a remand, as the Defendant sought 150 days in light of the need to conduct “a new and independent review of the record” while Plaintiff contended that typically the court orders remands to be conducted within 90 days. Id. at 10. For the following reasons, the court granted in part and denied in part Defendant’s motion for partial remand. Id. at 2.

When an “agency recognizes deficiencies in its decisions, explanations, or procedures . . . it may ask the court to remand the case back to the agency so that it may correct the deficiency.” 3 Charles H. Koch, Jr., Administrative Law and Practice § 8:31(d) (3d ed. 2010); see also SKF USA Inc. v. United States, 254 F.3d 1022, 1028 (Fed. Cir. 2001). Id. at 4. The court has discretion in granting agency requests for remand, however, an agency’s request for remand is usually appropriate if its request is “substantial and legitimate.” Id. at 1029. Id. Commerce “enjoys a presumption of regularity as to the record it prepares, because the agency, as the decision-maker, is generally in the best position to identify and compile those materials it considered.” JSW Steel (USA) Inc. v. United States, 466 F. Supp. 3d 1320, 1328 (Ct. Int’l Trade 2020) (citations omitted). Id. at 7. Here, Plaintiff failed to “persuade the court that it should preemptively dictate Commerce’s procedure on remand.” Id. at 8. The court explained that Commerce seemed to acknowledge Plaintiff’s concern, that the new proceedings may be tainted by prior ex parte communications, by committing to a new decision-maker for this remand. Id. Here, Plaintiff failed to “make a showing of bias or an irrevocably closed mind with respect to particular officials such that they should be purged from the determination.” Id. at 9. Nor did Plaintiff cite any law in support of its request for additional limitations. Id. “Commerce is aware of the concerns identified by its own inspector general, OIG Management Alert, concerns that might detract from a determination.” Id. “It will be up to Commerce to explain its determination in light of these concerns.” Id. “Thus, the court will not preemptively dictate to Commerce the contours of its proceeding other than to ensure that it follows the contours set by Congress.” Id. at 10. “Both parties agree that the redetermination should be a new and independent review, and the regulations normally allow 106 days for review.” Id. Therefore, the court held that “Commerce will issue its remand redeterminations within 106 days.” Id. As such, the court granted in part and denied in part Defendant’s motion for partial remand. Id. 10-11.