Slip Op. 11 - 30



## UNI TED STATES COURT OF INTERNATIO NAL T RADE

: BO RUSAN MANNESMANN B ORU SANAYI : ve TI CARET A. a ., : : Plaintiff, :

: v. : Be fore : R. Kenton Musgr ave, Senior J udg e : UNI TED STATES, : Court No. 10-00312 : Def endant, :

: and : : WHEATL AND TU BE COMPANY, a nd : UNI TED STATES STEEL CORP., : : Def endant- I nterve nors. : :

OP INION [Granting pla intiff’s motion to st ay and holding defe ndant’s motion to dism iss in abey ance .]
Dated: Ma

rch 22, 2011 Lafave Associates (

Arthur J. Lafave II

I ) for the plaintiff. Tony W est , Assistant Attorney

Gene ral; Jeanne E. Davidson , Direc tor, Franklin E. W hite, Jr. , Assistant Direc tor, Commercial L itigation Branc h, Civil Division, U.S. Depa rtment of J ustice ( Melissa M. Dev ine ); Offic e of the Chief Couns el fo r I m port Administrative, U.S. Depa rtment of Commerce ( Sapna Sharma ), of c ounsel, for the defe ndant. King & Spaulding, LLP ( Gilbert B. Ka p l a n , B r ian E. McG ill , Daniel L. Schneide rman , and Prentiss L. Smith ), for the def endant- intervenor

Wheatland Tube Company

. Skadden Arps Slate Meag her & Flom, L L P ( Jeffrey D. Gerrish , Robert E. Lighthi zer , and Soo-Mi Rhe e ), for

the def endant- intervenor

United States Steel Corporation.Court No. 10-00312 Pag e 2
Musgr ave, Se n io r Ju d g e : Pl a in ti f f B o r u s a n M a nnesmann Bor

u Sanay i ve Ticar et A. a

. (“B MB” ) initiated this action to contest three aspec ts of Certain W elded Carbon Steel Pipe and Tube from Turkey: Notice of

Final Antidumping Duty Administrati ve Rev iew , 75 Fe d. Reg

. 64250 (De p’t
Comm. Oct. 19, 2010) (“

Final Result

s ” ) , as compiled by the Depa rtment of Commerce, I nterna tional
Trade Administration ( “Commerce ”). BMB has now moved for stay to a bide the final dispositi on of two decisions of this Court curr ently befor e the C o u rt o f Appea ls for the Fe dera l Circuit (“CAF C”) that BMB arg ues aff ect the firs t and third counts of its complaint, respe ctively : the
inclusi o n o f “u n p aid and uncollecte d” import duties from a Turkish duty draw back prog ram in
BMB ’s cost of production (“Count One” ) and inconsistent statutory interpre tation in the application of “zeroing ” in the deter

mination of BMB ’s weig hted ave rag e dumping marg in (“Count Three ”). 1
Rece nt aff

irmance of Saha Thai Steel Pipe ( Public) Co. v. United States , Slip Op. 10-
1 (Jan. 4, 2010) __ F .3d ___, 2011 WL 553585 (F ed. Cir. Fe b. 14, 2011), by the C AFC undercuts

ar gu m ent for stay with respe ct t o Count One. Whether further appeal of that matter will be taken
is doubtful but r emains to be seen. See Saha Thai Steel Pipe ( Public) Co. v. United States , 35 CI T ___, Slip Op. 11-29 (Mar. 22, 2011) ; see also 28 U.S.C. § 2101(c).

Reg arding Don g b u S t eel Co. v. United States , 34 CI T ___, 677 F. Supp. 2d 1353 (F eb. 4, 2010), appeal dock eted , No. 2010-1271 (F ed. Cir. Ma r 29, 2010), BMB arg ues a decision

Fa m i l iarity is here presumed on Commerce’ s zeroing prac tice g ener ally and its 2006 1 announce ment that zeroing would be d i s continued in investiga tions. See , e.g. , Corus Staal BV v. United States , 502 F.3d 1370 ( Fe d. Cir. 2007); see also Antidumping Proc eedings: Calculation of the W eighted-Av erage Dumping Margin During an Antidumping Inve stigati on; Final Modification , 71 Fe d. Reg

. 7772 2 , 7 7 7 2 4 (D ep’t Com m. Dec

. 27, 2006) (“the Department’s denial of offsets in c e r ta in in v e s ti g a ti o n s , w h e n u s in g th e a

v e r a g e-to-a

vera g e compar ison methodology , was inc o n s is te n t with the Antidumping Ag ree ment”).Court No. 10-00312 Pag e 3

by the CAFC is expected that will addre ss the same c laim that BMB raises as Count Three of t his
action , namely the alleg edly inconsistent and unlawful ag ency interpre tation of the statutory term
“we ighte d aver ag e dumpi ng marg in” a ft er abandoning zeroing in investiga tions. See 19 U.S.C. § 1677(35)( A)-( B)

. BMB arg ues a stay will conser

ve resour ces on adjudication of Count Three until the pre cise issue is settled in Dongbu

.

The g overnme nt opposes a stay and moves to dismiss Count Three for failure to state

a claim for which relief is available

. See USCI T Rule 12(b)( 5). The parties thus move for entry of conflicting scheduling order s, and BMB has also submitt ed a further motion for leave to f ile a surreply to the motion to dismiss

. The g overnme nt’s response to t h at m o tion is one of partial opposition, in that it takes no position with respe ct to the discussion of a particula r case there in, SKF
USA Inc. v. United States , 630 F.3d 1365 (F ed. C ir. 2011), but ar g ues t hat t he portions of t he surreply that do not discuss SKF should be st ruck beca use t hey are simply reiter ation of poi nts BMB
p re v i o u s ly raised on other issues. The g overnme nt also arg ues that since it is the movant on the
motion to di smiss, i t ought to be permitted the final word and the opportunity to file a sur- rebuttal
in the event the sur -re ply

is permitted filing.
Unl i k e BMB ’s motion, the g overnme nt has not actua lly attempted filing of its proposed sur-rebuttal. But it s points are well-take n: the R u l es o f t his Court “should be construed

to secur e the just, speedy , and inexpensive deter mination of ever

y action and proce eding .” USCI T
R. 1. Fur ther, a “cour

t cannot allow the pre- trial

. . . proce ss to become need l es s l y p rot rac ted by endless sur-reply briefs.” Saha Thai S t ee l P i p e C o
. v. United States , 11 CI T 257, 259 n.5, 661 F. Supp. 1198, 1201 n.5 (1987). On the other hand, it is also “in the interest of the court to hear all theCourt No. 10-00312 Pag e 4

parties’ arg uments expressed as thoroug hly and clea rl y as possible” when dealing with complex
issues or i ssues of st atutory interpre tation of p o ssibly prec edential import. Borden, Inc. v. United
States , 22 CI T 233, 248 n.11, F. Supp. 2d. 1221, 1234 n.11 (1998). See , e.g. , Diamond Sawblades Mfrs. Coalit ion v. United States , 31 CI T 1249, 1252 (2007). On that note, BMB ’s motion to file a

sur-re ply will be g rante d, but those p ar t s o f i t t hat do not conce rn discussion of SKF will be disreg arde d. Turning to th e m otion to stay , such a motion is an appea l to a court’s discretion,
which is “not to its inclination, but to its judgme nt; and its judgme nt is to be g uided by sound leg al principles.” United St ates v. Burr , 25 F. Cas. 30, 35 (No. 14692D) (CC Va. 1807). The stay
ap p l i cant bear s the burden of demonstrating the circ umstances entitling it to a stay , e.g. , N ke n v. Ho l d er , __ U.S. ___, ___, 129 S.Ct

. 1749, 1761 (2009), and consideration is ty pically o n (1 )
whether the applicant has made a strong showing t h at h e is likely to succe ed on the merits, (2)
whether the applicant will be irrepa rably injured absent a stay , (3) whether issuance of the stay will substantially

injure the other

parties inter ested in the proc eeding , and (4) wher e the public inter est lies. Id . And as a

prac tical matter, the standard f or both a stay and a preliminary injunction is t he same, in that both preve nt

some action befor e the leg ality of that action has been conclusively deter mined. But a stay achie ves this result by temporar ily suspending the source of authority to act

-- the order or judgme nt in question -- not by direc ting an actor ’s conduct. A stay “simply suspend[s] judicial altera tion of the status quo,” while injunctive re l i ef “g rants judicial interve ntion that has been w ithheld by lower c ourts.”
Id

. at 1758 (quoti n g Oh i o C i t izens for Responsible Energy, Inc. v. NRC , 479 U.S. 1312, 1313 (1986))

. As on a motion for preliminary injunction, no sing le fac tor is dispositive on a motion forCourt No. 10-00312 Pag e 5

stay , and “the wea

kness of the showing reg arding one fac tor may be overbor ne by the streng th of the
others.” Diamond Sawblades Mfrs. Coalit ion v. United States , 33 CI T ___, Slip Op. 09-128 (Nov. 9, 2009) (quoting FMC Corp. v. United States , 3 F.3d 424, 427 ( Fe d. Cir. 1993)).

Wit h respe ct to Count Three , the g overnme nt arg ues BMB has not sug g ested it will
suffe r economic or any other harm or any leg al prejudice by proce eding with litigation, n or has it
arg ued or demonstrated that there is a “strong likelihood o f succe ss on the merits,” or addre ssed
whether a stay will be nefit the public intere st, or arg ued that the ba lance of har dships favor a stay , apar t from its arg ument reg arding conser vation of parties’ and the court’s resou rce s. Fur ther, the
g overnme nt contends, BMB does not addre ss the likelihood of depar ture by the CAFC from its line of cases uphol ding zeroing in administrative reviews; in the most rec ent case t he C AFC observed
that the continued prac tice of zeroing in administrative revi ew s was “not inconsistent with the
statute” discontinuation of the prac tice in investiga tions. SKF USA Inc. v. United States , 630 F.3d 1365, 1375 (F ed. Cir. 2011) (“[e]ven afte r Commerce changed its policy with respe ct to orig inal investiga tions, we have held that Commerce’ s application of zeroing to administrative revie ws is not inconsistent w ith the statute”) (re fer encing Corus Staal BV v. United States , 502 F.3d 1370, 1375 2 (F ed. Cir. 2007)). R at h er , the g overnme nt arg ues, case law counsels dismiss al of Count Three entirely

. BMB ’s sur-re ply contends that the prec ise issue addre ssed in SK F , i n the
administrative revie w cover ed there by , was the arg ument that zeroing was improper beca use zeroing

But cf

. Antidumping Procee dings: Calculation of the W eighted Ave rage Dumping Margin 2 and Assessment Rate in Certain Antidumping Duty Procee dings , 75 Fe d. Re g
. 81533 (De c. 28, 2010) (re quest for comments on proposed eliminat i o n of z eroing in most antidumping duty revie ws due to inconsistency

with “interna tional obligations”)

.Court No. 10-00312 Pag e 6

is “prohibited” by the World Trade Org anization, wher eas the claim in this matter “is that Commerce
has acte d inconsistently with U.S. law by interpre ting the same provision of the statute in a rbitrar y and inconsist ent way s under its g ap-f illing authority .” P l.’s Sur-Reply to Def .’s R eply in Support
of its Motion to D ismiss in Par t at 4 (italics added)

. BMB implies SKF ’s ref ere nce to Corus Staal
should be discounted b ec au s e Corus Staal considere d an administrative revie w that had been
comp l eted befor e Commerce announce d the chang e in its zeroing policy with respe ct to investiga tions (and there fore might be said to involve conce ptually “uniform” application of policy ),
wher eas Dongbu involves an administrative revie w co mp le te d a f te r Co mm e r c e a

nn o u n c e d it s chang e in policy and is expected to address t he is sue BMB raises i n this matter by way of Count Three of its complaint.
The court is persua ded the Fe dera l Circuit has not prec isely addre ssed the issue here

. After considering the arg uments for and ag ainst the motion for stay , the motion will be g rante d and the gover nment’s m otion to dismiss will be held in abey anc e p en d i n g the ex haustion of appeal i n both Dongbu and Saha Thai

. Although rec ent decisions continue t o s u s t ain zeroing in various contexts ( see , e.g ., SKF

, supra ; Calgon Carbon Corp. v. United States , Slip Op. 11-21 at 28 (Fe b. 17, 2011); MCC Eurochem v. United State s , S l i p Op

. 11-13 at 4 (F eb. 4, 2011)), the issue of
consistent statutory interpre tation is of sufficie nt import to war rant a stay of this matter. Cf note 2,

supra . Neither the g overnme nt nor the domestic industry have alleg ed they would be injured in any
way by maintenanc e of the status quo and the Final Results are otherwise uncontested. A separ ate order implementing the f

oreg oing w ill is sue.

Dated: Ma

rch 22, 2011 / s / R

. Ke n t o n Musgr ave New Y ork, Ne w York R. KENTON MUSGRAVE, Senior J udg e