Slip Op. 04-128

UNITED STATES COURT OF I NTERNATIONAL

TRADE

________________________________________ : 

### A N 

### G IANG 

### A GRICULT URE AND 

### F OOD 

### I MPORT 

### E XPORT 

### C OMPANY , ET AL 

### . , :

Plaintiffs , :

v. : 

### U NITED 

### S TATES , : Court No. 03-00563

Defendant , : and : 

### C ATFIS H 

### F ARMERS OF 

### A MERICA , :

Defendant-Intervenor

. :

________________________________________ [Plaintiffs’ motion for stay of action pending issuance of decision in another action is granted.] Dated: October 8, 2004 White & Ca se LLP ( Walter J. Spak , Edmun d W. Sim , Alb ert Lo , Adams C. Lee , Robert G. Gosselink and Emily L awson ), for Pla intiffs. Pet er D. Keisler , Assistan

t Attorne y G eneral ; David M. Cohen , Dire ctor, Jeanne E. Davidson , Deputy Director, Commercial Litiga tion Branch, Civil Division, U.S. Department of Justice ( David S. Silverbrand ); David Richardson , Offic e of the Chief

Counsel fo

r Imp ort Admini stration, U.S. Departm ent of Comm erce, O f Counsel; for Def endant. Akin Gum p S tra uss Hau er & Fel d LLP ( Valerie A. Slater , Karen Bland Toliver , Thea D.R. Kendler and Jason A. Park ), for Defendant-I ntervenor.Court No. 03- 00563 Pag e 2

1 Plaintiffs in this act

ion includ

e An Gian

g Agr ic ult ur e a nd Fo od Imp or t E xp or t C om pa ny, An Giang F isheries

Impor t Export Joint Sto ck Compan y, C an Tho Ag

ricultur al and An imal Produ

cts Import Export Company, Can

Tho Animal Fishery

Products Processing Export Enterprise, Da Nang Seaprod ucts Imp or t- Ex po rt Co rp or at io n, Me ko ng fi sh Co mp an y, N am Vi et Co mp an y Limited, QVD Food Company

Limite d, Viet Ha

i Seafood Company

Limite d, Vinh Ho an Co mp any L imited, and Vinh Long I

mport-Export Company.

2 The resulting

antidumpin

g orde r was pub lished as Notice of Antidumping Duty Order: Certain Frozen Fish Fillets from the Socialist Republic of Vietnam , 68 Fed. Reg. 47,909 (Aug. 12, 2003). OPINION RIDGWAY, Judge: In this action, plaintiffs An Gi an g A gr ic ul tu re an d F oo d Im po rt Co mp an y et al

. 1 (collec tively “An Giang” ) challe

nge the Final De terminat i on of the U.S. Departm

ent of Commerce (“Commerce”) in Certain Frozen Fish Fillets from the Socialist Republic of Vietnam , publishe d as Notice of Final Antidumping Duty Determination of Sale s at Less Than Fair V alue and Affirmative Critical Circumsta

nces: Certain Froz en Fi sh Fill ets from the Socialist Republic of Vietnam , 68 Fed . Reg. 37,116 (June 23, 2 003). 2 Now before the Court is An Giang’s Motion for Stay of Further Proceed ings, which se eks to hold

this matt er in ab eyance pend ing a determination in another action before the Court, Anshan Iron & Steel Co. v. United States , Consolidated Court No. 02-00088. An Giang’ s primary

argume nt in this ca se raises an issue of Commerce’s authority under the antidumping statu te. Ac cordi ng to An Giang, Commerce lacks the statutory authority , in calculating normal value in antidumping investigations involving non-market economies (“NMEs” ), to deviat e (as it did in this case) from its standard practice of valuing the actual, original fac tors of production that a foreign producer uses to produc e its self-produ ced interm ediate in puts, by instead d irectlyCourt No. 03- 00563 Pag e 3

valuing those intermediate inputs themselves. See Tape of Oral Argument on Motion for Stay (“Tape”) at 10:19-11:28. An Giang argues that Anshan raises “the same main issue” of Commerce’s statutory authority. See Motion for S tay at 2. As An Giang notes, last y ear the Anshan

Court remanded that matter

to Commerce, instructing the agency to “reconsider its factors of production analysis by

either providing an adequate explanation for its deviation from [its] previous practice,

or . . . [by valuing the] factors of production . . . [that Anshan used to produ ce] its self-p roduced intermed iate inputs.” Anshan , 27 CIT ____, ____, 2003 WL 22018898, at *16 (July 16, 2003); Ta pe at 10:39-11:13. Emphasizing the rela

tively advan ced st age of the Anshan proceedings, the Motion for Stay asserts that, if the Anshan

Court were to affirm the remand results that Commerce filed in that action, “that [affirmance] would have a significant impact on the instant proceeding, possibly obviating the need for fur ther ac tion in th is pro ceedin g.” An G iang t herefore conc ludes that, “because a final decision . . . in [ Anshan ] will have a direct bearing on thi s pr oceeding, the interest of conserving judicial resources as well as the parties’ re sources warrants a stay of this proceeding.” See gen erally Motion for Stay at 2-3. Both the Gove rnment a nd Defe ndant-I nterven or, th e Catfish Farmers of A merica ( “Domesti c Catfish Farmers”), oppose the re qu ested stay. See generally Defend ant’s Res ponse to Pla

intiffs’ Motion for Stay

of Furth er Proce edings; Defend ant-I nterven or’s Resp onse to Pla

intiffs’ Motion for Stay of Furth er Proce edings. As di sc us se d m or e f

ul ly b el ow , a st ay pendente lite of limited duration may result in the voluntary dismissal of this action. At the very lea st, it can be expected to clarify the issues here, andCourt No. 03- 00563 Pag e 4

to streamline these proceedings. Moreove r, the record is devo id of evide nce that such a sta

y w ill work any real ha rdship on C ommerce

or the Do mestic Ca

tfish Fa rmers, or on any

other pa rty with

a cognizable interest. An Giang’s motion is therefore granted, and

further proceedings in this action

are stayed until 15 days following the issuance of the public version of the Anshan Court’s po stremand opinion.

I. Analysis The Governm ent and th e Domesti c Catfish Farmers argue

that a sta y is justified only where the movant “m ake[s] a str ong show ing” of necessi ty – a sh owing tha t they contend An Gia ng has here failed to make. See Defendant’s Response at 3 ( quoting Tak Fat Trading Co. v. United States , 24 CIT 1376, 1 377 (2000)); Defendant-I ntervenor’s Response at 2-3 ( quoting Neenah Foundry v. United States , 24 CIT 202, 203 (2000)). See also Tape at 2 1:10, 32:32 . But, in f act, Land is – the seminal case on s tay s pend ente lit e , relied on in Tak Fat

and Neenah Foundry , and invo ked by all parties here – makes it clear that “the suppliant for a stay must make out a c lear case of hardship or inequity in being required to go forwa rd” with litigation ( i.e. , a

“s tr on g s ho wi ng ” o f n ee d f or a s ta y) only wh ere “there is . . . a fair possibility that the stay . . . will work damag e to some one else. ” Landis v. North American Co. , 299 U.S. 248, 255 (1936) (Cardozo, J.). See Tape at 15:02. As An Giang correctly

observes, neither the Governm ent nor th e Domesti c Catfish Farmers has adduced evidence to make out a case that

there is even “a fair possibility ” that they (or

anyone else with a cog

nizable int

erest) wi ll su ff

er ha rm as a r es ul t o f t he re qu es te d s ta y. See Tape at 15:33, 13:52. Inde ed, the G overnme nt’s resp onse is en

tirely silent on th e subjec t; and the Domestic Catfish Farmers’ response asserts simply that “ some harm is inherent

in any denial of the r

ight to proceed.”Court No. 03- 00563 Pag e 5

3 None of the cases cited by

the parties here expressly holds that the party status of the movant ( i.e. , plaintiff

or de fe nd an t) ma y be a r el ev an t f ac to r i n e va lu at in g a re qu es t f or a s ta y pendente

lite

. Ho wever, underpinning much of the case law – implicitly , if not explicitly – is a concern for the rights o f asser

tedly aggr ieved pla intiffs to seek re dress in th e courts

. Thus, for example, in Land is (analyzed

in grea ter deta il below), the Court was motivated by the effect of delay

on the Land

is plaintiffs : “Alrea dy t

h e proceedings in [the other case] have continue d more tha

n a y ear. With t

he possibi lity

of an inte

rmediate appeal t o the Circ uit Court of Appeals , a second ye ar or even more may go by be fore this court will be able to [finally re solve the case].” 299 U.S. at 256. So, too, in Klein v. Ad ams & Peck (d iscussed in greater detail below), where the trial court’s stay pe rmanently and unc onditionally barred the plainti ff from proceeding with many of his cou

rt a ctions, the Cou rt was dr iven by a convic tion that th e plaintif f’s “rig ht to proceed in court s hould not be

denied e xcept unde

r the most e

xtreme circumst ances.” Klein v. Adams & Peck , 4 36 F. 2d 33 7, 33 9 ( 2d Ci r. 19 71 ). Th e r ig ht of as se rt ed ly a ggrieved pl aintiffs to seek redress through access to the cour ts is perhaps most evident in CFTC , where ( as explain ed in greater detail below) the Court struck down a stay entered in that case that enjoined the prosecution of other actions brought by

individual plaintiffs who were not parties to CFTC

. Commodity Futures Trading Comm’n v. Chilcott Portfolio Mgmt., Inc. , 713 F.2d 1477 (10 th Cir. 1983). The Court there noted, for exam ple, t hat th e plai ntiff s “inc luded seven perso ns ove r seven ty years of age and several other pers ons who had retired before age sixty-five due to serious medical problems, such a s coronary bypass surg ery.” 713 F .2d at 1486 n.8. Equally compelling is Cherokee Nation – on which

the Gove rnment he re relie s – where the Court of Appea

ls for the Feder al Circui t condemned a stay

entered by

the trial court that precluded the N ative Ame

rican pl aintiffs

from pur suing the ir case agains t the Unite d States pe ndin g th e outcome of other litigation ye

t to be instituted by the federa l government. Cherokee Nation of Oklahoma

v. United States , 124 F.3d 1413 (Fed. Cir. 1997) ( quoted in Defen dant’s Re sponse at 2). The Court of Appeals emphasized that the stay e ntered by the tr

ial court effectively

sounded t h e death knell for the plaintiffs’ case: [T] he trial court ’s stay se riously impairs the

Tribes’ ac cess to c ourt . For alm ost 100 ye ars, the United States has been trustee for the Tribes, but the United States has y et to take any le gal action to preserve the Tribes’ lands. Since 1970, the United States allege dly has been in various stages of preparing to file quiet title suits on behalf of the Tribes. Yet, it has filed none. Even now, eight ye ars afte r the Tri bes filed this su it , t he Un it ed St at es ha s ye t t o t ak e s uc h a ct io n o n b eh al f o f i ts be ne fi ci ar y. Even when filed, the quiet title actions will take y ears to co mplete. To s tay the Tribes’ suit pending

these spe culative

and protr acted e vents is to pla c e the Tribes Defendant-Inte

rvenor’s Response at 3 ( quoting Neenah Foundry , 24 CIT at 205). 3Court No. 03- 00563 Pag e 6

effectiv ely out of cour

t

. See Hi nes v. D’Artois , 531 F.2d 726, 730 (5 th Cir. 1976) (“Eff ect ive death [of a suit] should be understood to comprehend any state of suspended

animation. ” ). . . . The Tribes, therefor e, have a significa nt interes t in avoiding t

he stay topreserv

e their ac cess to th e court

. 124 F.3d at 1 418 (emph asis added). The Court of Appeals therefore concluded that “ the Tribes [had] a compelling interest in proceeding with their suit without delay .” Id

. See also Wedgeworth v. Fibreboard Corp. , 706 F.2d 541, 545 (5 th Cir. 1983) ( cited with approval in Cherokee Nation , 124 F.3d at 1416) (vac at in g s ta y that trial court had entered in favor of defe ndants in asbestos-related litigation, and noting that “[t]he realities of the hardship of a stay on the pla

intiffs, many of whom allege that they are

dying from asb estosis, [are] substantial and, in some instances, permanent. The grim reaper has called while judgment waits. Just as obviously, the bankr uptcy proce edings are not likely to conclude in the immediate future. A stay hinged on the completion of thos e proce edings is manifestly ‘indefinite.’” ). Research has disclosed no cases where the court’s ana lysis evinces compar

able concern for the rights of defendants. This is not to suggest that defe nda nts hav e no cognizable interest in the speedy disposition of litigation (whether that litigati on is likely

to result i n their vin

dication , or not)

– al th ou gh it is wo rt h n ot in g t ha t i t i s t ypi ca ll y defenda nts who seek t o use delay to their ta ctical advantage. Nonethe less, the common la

w historic ally

has rec ognized t

he uniq ue st atus of the plaintiff in litigation. Thus, as the Co urt noted in Neenah Foundry and Tak Fat , it is “a long- and still-standing principle of Anglo-American jurisprudenc e . . . tha t a party plaintiff is the ma ster of its complaint.” Neenah Foundry , 24 CIT at 203 ( citing , inter alia , City of C hicago v. Int’l Coll ege of Surgeons , 522 U.S. 156, 164 (1997) and The Fai r v. Kohle r Die & Sp ecialty

Co. , 228 U.S. 22, 25 (1913) ( Holmes, J.) ); Tak Fat , 24 CIT at 1376-77 (citations omitted). See also , e.g. , McDonald v. Piedmont Aviation, Inc. , 625 F . Supp. 762, 767 (S.D.N.Y. 1986) (denying defendant’s motion to stay actionpending

outcome o f anothe

r case, court “u

pholds plaintiff’s

right to ch art the co urse of his own litigation and to prosecute his claims in the manner of his choice”) (e mphasis added). It is therefore arguably

an omalous that, in this case, it is the defendant-intervenor – the Domestic Catfish Farmers – that has asserted that it is inherently harmed by

“any de nial of the right to proceed.” See Defendant-Inte rvenor’s Respo nse at 3. In any event, it does not suffice for any party – plaintiff, defendant, or otherwise – to assert such an inherent right and rest its case on that bald, abstrac t propositi on, withou t articul ating in

concrete terms the practical, rea l-life effects of

the potential deprivation of that right under the circumstance s of the particular case at bar. Fi na ll y, as to the e

xistence a nd extent of

any “inhere nt harm” associa ted with a s ta y pendente lite , it is worth noting that, with some regularity , the Government consents to – and sometimes even itself seeks – such stays. See , e.g. , Georgetown Steel Co. v. United States , 27 CIT ___ _ , 25 9 F. Supp. 2d 1344 (2 003) (de nyi ng Gove rnment’s m oti on for stay of a

ction challenging antidumpingCourt No. 03- 00563 Pag e 7

determination

pe nd in g d ec is io n b y C ourt of Appeals for Federal Circuit in relate d case); Order of March 4, 2003, Wilton Indus. v. United States , No. 00-00528 (CIT filed Nov. 21, 2000) (granting Government’s motion for stay of ac tion pending decision by Court of A

ppeals f or Fede ral Circ uit in unrelated case).

4 The Government also seemed to suggest that it would be har med by uncer

tainty as to the amount of revenue, if any , that might be forthcoming for the feder al coff ers as a result of the antidumping order at

issue. However, when pressed, it was unable to spell out the precise nature of that harm. See Tape at 2 2:50. I n any event, a s explaine d above, such unc ertainty is an unavo idable side-effect

of this ty pe of litig ation, st ay reque s t or no. It is entirely unclear that the Government suffers any harm

even if t he ty pical pe riod of un certain ty is extended (

to some deg ree ) by a st ay. It is particu larly difficul t to under stand the

Governm ent’s c laim of harm in light of the fac ts of this case, where – to date – liquidation has not been enjoined. In the cour se of ora

l argum ent on the

Motion for

Stay , the Gove

rnment a nd the Dom estic Catfish Farmer s were p ressed t

o articu late any potentia l harm th ey might suff

er, giving them “a second bite at the apple.” Still, their

claims of potential damage were vag ue and gener alized, a t best. The Governm ent first

asserte d gene

rally that a sta y w ould leave Co mmerce “ in limbo” a s to liquidation and futur

e administ

rative r eviews vis-a-v is frozen c atfish fillets from Vietnam. See Tape at 22:00

. 4 Howeve

r, those e ffects a

re atten dant to liti gation g eneral ly. At most, a s tay would (to

some extent) prolong them. Even more importantly , as An Giang emphasize s, it has no t sought t o enjoin liquidation in this case to date. See Tape at 33:50, 34:13. There is thus very little substance to those c laims of po tential ha rm. The Gove rnment a lso complain

ed that th e reque sted stay

would per

mitAn Giang to take a “wait and see” approach to litigation, asserting with some indignation that An Giang can be expected to attempt to

distingu is h Ansha n if it finds the Court’s decision in that case to be unhelpful. See Tape at 19:50, 27:06. See also Tape at 32:16 (Domestic Catfish Farmers harbor sa me concern). The Government

seemed t o imply that such a course of action would be somehow unfair, but faile d toCourt No. 03- 00563 Pag e 8

5 The Government cannot paint this as a case where the effect of the requested stay would be to “compel[ ] [it] to stand aside while a litigant in anot her [case] set

tles the r ule of la w that will define the rights of both,” because it is a party to both Anshan

and this case. See Neenah Foundry , 24 CIT at 205 ( quoting Land

is , 299 U.S. at 255)

. See CMAX, Inc. v. Hall , 300 F.2d 265, 269 n.8 (9 th Cir. 1962) (flatly re

jecting a plaintiff’s attempt to invoke the above-quoted statement fr om Land is in opposition to a request for a stay of litigation pen ding the outcome of administrative procee dings, stating

“[T]hat obs ervatio n [from Land is ] is not applicable in the case [at bar] . . . because [the plaintiff] is a litigant in the [admini s trative] proceedings and will have its say before administrative findings and conclusions are entered.” ). Moreover, like the Government, the Domestic Catfi sh F armers a re arg uing tha t Anshan bears no relation ship to the instant case. They would thus be logically e stopped frominvoking the abovequoted observa tion from Land

is and arguing that their absenc e as a party to Anshan should preclude entry of the s tay. See a lso Tape at 15:45-16:17 (An Giang addresse s relevance of Land is observation).

6 In CMAX , the Court of Appeals upheld the decision of the district cou rt stay ing its procee dings – over the

objectio ns of plai

ntiff – pe nding a determin ation in

a proceeding before the Civil Aeronautics Board (“CAB”). Rejecting the line of reasoning that the Government seemingly advances here, the Court of Appeals a ckno wledged in CMAX that “[i]t may be that [plaintiff, who opposed the stay ] will be prejudic ed by the delay [associated with the stay ] in the sense that evidence will be obtained, or rulin gs made, as

a result o f the [CAB ] procee dings, w hic h will adver sely affe ct the claims which [plaintiff] asserts i

n the distr

ict cour t. But this

is not t he kind of prejud ice which should move a court to deny a [stay ]. If [p laintiff

] is prejudi ced by

such an e ventuali ty it will be because the [ CAB] procee dings demonstrate a weakness in its case. And if its case is wea k, justice will be served by having that fact revealed prior to the district court trial.” 300 F.2d at 269. explain pr ec is el y wh y. 5 To the extent that the Government’s point is that the effect of a stay might be to narrow and sharpen the issues in this action by permit ting all parties to more carefully tailor their arguments in light of the outcome in A n shan , that point counsels entry – not denial – of the stay. See generally CMAX, I nc. v. Ha ll , 300 F.2d at 265, 269 (9 th Cir. 1962). 6 The Domestic Catfish Farmers’ presentation in oral arg ument added

l ittle to the Government’s case on harm. Inde ed, they ca ndidly concede d

that th ey could poin

t to no spec ificCourt No. 03- 00563 Pag e 9

7 Any conceivable potential for harm to other parties was further diminished by An Gia ng’s cl ar if ic at io n, in th e c ou rs e o f o ra l a rg um en t, of th e d ur at io n o f t he re qu es te d s ta y. Ini ti al ly, An Giang sought to st ay this action “pending the resolution of an appeal in a separa te mat ter by

the Co urt of International Tra de . . . in Consolidated Court No. 02-00088 [ i.e. , Anshan ].” See Motion for St ay a t 2. In a letter sent to all parties bef ore oral argument, the Court noted the possib ilit

y that the A nshan Court’s post-remand decision conceivably might result in a second remand t o Commerce , and that

– in any event – the Anshan

Court’s ul

timate de cision co

uld be appealed to the Court of Appeals for the F ederal

Circuit. Accord

ingly , An Giang

was aske d to be prepar ed in the c ourse of oral a

rgumen t to propos e more precise languag e for the duration of the requested st ay, to elimina

te any potential ambig

uity (or, if it was not possible to propose more p r ecise language, to be prepa

red to explain the precise meaning of the lang uage proposed in the Motion for Stay). During oral ar

gument, A n Giang

narrow ed its req

uest for relief, seeking

a stay only until issuance of the Anshan

Court’s post-remand decision. See Tape at 13:12. An Giang further advised that it would not oppose a stay fr

amed to expire on a date certain, if there wer e concer ns that a p ostharm (partic ularly if the stay were of relative ly s hort dura

tion), exc ept to the extent t hat a sta y w ould constitute a “cloud” over the antidumping or der at i ssue. The Domestic Catfish Farmers asserted broadly that unnecessary

delays may

result in legal and financial complications for the domesti c in du st ry. Tape at 32:43. Again, however , the insta nt litiga tion itself constitute s a

“cloud” over the antidumping order at issue; and the Domestic Catfish Farmers have failed to iden tify – m

uch less attempt to quantify – any

s pecific legal and financial c omplications that might flow from the requested stay

in particular. In sum, even given a

“second bite at the

apple,” the Gove rnment a nd the Dom estic Cat fish Farmers advanced

only vague and gener

alized claims of potential harm to support their opposition to the requ

ested sta y. M oreover , they

failed to quantify or substa ntiate tho se claims in any fashion. The extent of any potential harm they may suffer

is thus entirely unclear

– if, indeed, th ere is any potentia l for har m at all. 7Court No. 03- 00563 Pag e 10

remand decision in Anshan

might be delayed. See Tape at 14:07. In fac t, a confidential version of the Anshan

Court’s post-remand decision has just issued. See Anshan Iron & Steel Co. v. United States , Slip Op. 04-121 (September 22, 2004) (Confidential).

8 Citing Tak Fat

and Neena

h Foundry , the Government and the Domestic Catfish Farmers assert that, in e valuatin g an ap plication for a sta y, a court “m ust weig h [the] compe

ting inte rests and maintain an even balance,” taking into ac count the interests of all parties, the public, and even the Court itself. Tak Fat , 24 CIT at 1377 ( quoting Land is , 299 U.S. a

t 254-55) ; Neenah Foundry , 24 CIT at 203 (same). See Defendant’s Response at 2-3; Defendant-I ntervenor’s Response at

2. See also Tape at 15:20-15:32 (An Giang endorses “balanc ing” of competing interests). It is less than clear, however, that An Giang’s request for a

stay of rela

tively limited duration is gover ned by the “bal ancing

test” to w

hich the G overnme

nt and the

Dome sti c Catfish Farmers point. See generally Cherokee Na tion , 124 F. 3d at 1 416 (d iscus sing Land is , and suggesting that “balancing

test” governs cas es wher e st ay soug ht is “of indefinite duration”). In a ny event, eve

n assuming that the “balancing test” is applicable here , it does not tip in favor of the Government and the Domestic Catfish Farmers. As detailed above, they have not demonstrated that they w ill suffer any real harm as a result of the requested stay . There

is thus little , if any

thing, to “balanc e” ag ainst the considerations weighing in favor of the stay, which ar

e discussed more fully be low. Absent a showing

that ther e is at lea st

“a fair possibility that the stay . . . will work

damage to some one else,” there is no requirement that An Giang “make a strong showing of necessity”

or establish a “clear case of har

dship or inequity” to warr ant the granting of the reque sted stay. See CFTC , 713 F.2d at 1484 (articulating standard of “strong showing of

necessi ty” ); Land

is , 299 U.S. at 255 (articulating

standard of “clear case of hardship or inequity”) . Nevertheless, An Giang has made out the re quisite ca se, explai ning tha t the time and reso urces of all parties ( including

the Court) could be wasted if a stay

were not granted. See Tape at 12:41, 14:55; Motion for Stay at 2, 3. 8 An Giang emphasizes that the central issues in both Anshan and the instant proceeding are “very inter-related,” and that the Anshan Court’s post-remand decision “could have a major impact

on whether or not [An Giang] chooses to pursue” this litigation. See Tape at 12:29. Indeed, A n Giang states that – if the Court’s post-remand opinion in Anshan holds that Commerce in fact hasCourt No. 03- 00563 Pag e 11

9 As the Government correct l y pointed out, the opinion of one judge of this Court does not bind the other judges of the Court. Thus, the Court’s post-remand decision in Anshan could not – in the stric t, lega

l sense of the word – have tr uly “prece dential”

effec t in this action. Se e Tape at 18:38-19:04, 19:37-19: 44; American Silicon Techs. v. United States , 261 F.3d 1371, 1381 (Fed. Cir. 2001). Neverth eless, a case may proper

ly be stay ed pending the outcome of another case (the “lea d” case) even where the “lead” case ma y no t be poten

tially dispositive of the case sought to be stay ed

– i.e. , even wh ere the

“lead” case ma y, a t most, stre amline the

issues in the case sought to be stayed. See , e.g. , Land

is , 299 U.S. at 256 (noting that, even though “every question of fact and law” in the case sought to be staye d might not be decided

in the “lead” case, “in all likelihood [the “lead” case ] will settle ma

ny a nd simplify

them all” ); CMAX , 300 F.2d at 268 (in eval ua ti ng re qu es t f or st ay, court is to weig

h the pote

ntial eff ect o n “the orderly c ourse of justice measured in terms of the simplifying

or complicating of issues , proof, a nd questio ns of law w

hich coul d be expec ted to re sult froma stay”) ; Ley

va v. Certified Grocers of California, L td. , 593 F.2d 857, 863-64 (9 th Cir. 1979) (sta y pend ing outcome of another case is appropr iate even where the other proce edings are not “necessarily

controlling of the action” that is stay ed). The Government has also emphasized that, al thou gh both Anshan and the case at bar “concern Commerce’s valuation of self-produced fac tors of production,” the two cases “concern two complete ly

dif ferent p roducts, steel and catfish,” as well as “two differ ent nations, the Peoples Republic of China and the Socialist Republic of Vietnam.” Defendant’s Response at 3-4; Ta pe at 24:48-26:05. However, those factual differences are not releva nt to An Giang’s request for a st ay, which is predic ate d on th e exi stence of a common legal issue – i.e. , whether Commerce has the statutory authority to deviate fr

om its standard practice in NME cases of valuing foreig n produc ers’ actual factors of production, by instead va luing intermediate inputs that were self-produced by the foreign producers. See Tape at 14:18-14:45.

10 An Giang notes that, alth ough this action r aises issu es other than Comme

rce’s a uthority under the statute to deviate from its standard practice, those ot he r issues “relate mostly to . . . whether certain companies might be excluded from the antidumping order if Commerce’s normal value calculation methodology is deemed

invalid. T

hus, if Comm erce’ s valuation of inter mediate inputs is, in fac

t, in acc ordance

with law, then the r

emaining issues ar e not quite

as important.” See Tape at 12:52-13:11. the statutory

authority to deviat e from its standard practic e in NME c ases, by valuing intermed iate inputs that were self-produced by the foreign producer

– that decision will have “critical precedential value” in this pr oceedi ng, 9 and An Giang may voluntarily dismiss this case. 10 See Tape at 11:28, 12:18.Court No. 03- 00563 Pag e 12

The Government and the Domestic Catfish Farmers maintain that the Anshan Court’s f irst opinion (remanding the matter to Commerce) alre ady has held that Commerc e has the discretion under the statute to d eviate f

rom th e standard practice at issue, and that the re maining issues are simply whether – under the circumstances of that c ase – Commerce properly exercised its discretion and adequately

explained the reasons for its deviation. See Tape at 19:05-19:37, 29:35-30:44, 30:58- 31:42. Thus, in the words of the Do mestic Ca tfish Fa rmers, not only is it impossible for the Anshan Court’s post-re

mand dec ision to est

ablish pr eceden t that con trols this case, in fact

that opinio

n could “have no bearing” whatsoe ver here. See Tape at 29:19, 30:44-30:58. On this sco re, it suf

fices to s tate the o

bvious. Th e partie s to this action have two critica lly different interpretations of the Anshan Court’s initial opinion, remanding that matter to Commerce. See Anshan , 27 CIT ____, 2003 WL 22018898, at *1. That opinion can reasonably be read (as the Government

and the Domestic Catfish Farmers read it) as implicitly ruling that Commerce has the discretionunder the statute – in an appropriate case, and w ith adequate justification

– to deviate from the standard practice at issue. On the other han d, it is also possible to construe the opinion as an exercise in judicial restraint (as An Giang apparently

does) – that is, as an attempt to divine whether Comm erce i n that case had an adequate basis for de viating from its standard practice, assuming (withoutdeciding) that the statute accords Commerce the discretion to d eviate f rom that standard practice in an appropriate case. I t is undisputed that at least one of the parties to Anshan – t h e pl aintiffs – share An Giang’s reading of the Anshan

Court’s f irst opinio n, and an

ticipate that t h e issue of Commerce’s statutory authority may

be clarified by

the Court’s post-remand decision in that

case. See Tape at 10:42 (counsel to An Giang is also co uns el to Anshan); 35:04 (counsel to AnCourt No. 03- 00563 Pag e 13

Giang anticipates that post-remand decision of Anshan Court may definitively

resolve the issue of Commerce’s authority under the statute). In short, contrary to the claims of

the Government and the Domestic Catfish F armers, the initial opinion in Anshan remanding that action to Commerce does not squarel

y ho ld that Comme

rce has the a uthority under the statute to deviate from its standard practice in NME cases of valuing a forei gn producer’s actual factors of produc tion, by instead valuing intermediate inputs that were self-produce d by the fore ign producer. The Governm ent and th e Domesti c Catfish Farmers also highlight the fact that An Giang has made no f

irm commitm ent to dismi ss this action if the post-remand decision in Anshan holds that Commerce has the statutory authority to deviate from standard practice, as it did in this case. See T ape at 21:14, 26:54, 31:57. See also Defend ant-I nterven or’s Resp onse at 2- 3 (arg uing tha t A n Giang “offer [s] no facts

or arg ument indic ating th at a stay will nece ssarily

preclude further action if a particular result is reached, only that it may ‘possibly ’ obviate further act ion”). How ever, as discussed in note 9 above, a stay may be warranted even where

the other litigation would only cla rify

or simplify the issues in the action sought to be stay ed. The outcome of the other case need not be potentia lly dispositive . Accor

dingly , An Giang ’s reluctance to give the unequivocal, ironclad

assuran ces that the Gove rnment a nd the Dom estic Cat fish Far mers see k is of no g

reat mome

nt. In their oppositions, the Government and the Domes tic Catfish Farmers rely heavily on two

cases fromthis Court, denying re quests for stays pending the outcome of other

litigation – Tak Fat , 24 CIT 1376, and Neenah Foundry , 24 CI T 202. How ever, a s An Giang has obser ved, those

cases can be readily

distinguished from the case at bar.Court No. 03- 00563 Pag e 14

Tak Fat involved a challeng e to a det ermi nation by Commerce a s to the scope of an antidumping order

covering preserved mushrooms from China. The plaintiffs there sought to stay that action pending the outcome of a separate action challeng ing Customs’ tariff

classification of the subject mercha ndise. Ho wever, as the Cou rt n oted in Tak Fat , it is well settled that tariff classifi cati ons do not govern an antidumping determination reg arding class or kind: “I t is the responsi bility of [Commerc e] to interpre t the term class or kind in such a way

as to comply with the mandates of

the antidumping laws, not the classification statutes. A product’s tariff classification is merely of p eripher

al in terest to suggest the gene ral nature of a good.” Tak Fat , 24 CIT at 1379 ( quoting Torrington Co. v. United States , 14 CIT 507, 512-13, 745 F. Supp. 718, 722 (1990), aff’d , 938 F.2d 1276 (Fed. Cir. 1991)). I n short, a stay was not

justified in Tak Fat , because – unlike the situation here –

there was, as a matter of law, no prospec t whatsoever that

the outcome of the other case (there, the classification case ) could have any real effect on the case soug ht to be stayed. See generally Tape at 7:58-8:42. Neenah Foun dr y is similarly inapposite. The plaintiffs there we re contesting the final determination

of the International Tra

de Commission (“ITC”) in a sunset review of a countervailing duty order, in which the ITC found tha t revoca tion of the

order a t issue wou

ld not likel

y r esult in material injury to the domestic i ndustry. The plaintiffs soug ht to stay that action pending the outcome of another action they

had previously filed

challen ging Co mmerce’ s final de terminat ion in the same suns et revie

w. The pla

intiffs a rgued that – if th ey

prevail ed in thei

r challe nge to Commerce’s determin ation – the counte rvailing duty rate s calculated by Commerce on remand could be significantly hig

her, which in turn could cause a change of one

commissione r’s vote fromCourt No. 03- 00563 Pag e 15

negative to affirmative, and thus could

result in a

continua tion of the counter vailing duty order, and could essentia

lly m oot their c ase ag ainst the I TC. Neenah Foundry , 24 CIT at 204. I n short, a stay

was not justified in Neenah Foundry , because there – in contrast to the situation here – the potential effect of the secon d case ( that i s, th e plai ntiff s’ case aga inst Commerce) o n the case sought to be stayed was much too speculative and attenuated. Neenah Foundry , 24 CIT at 204-05. See gen erally Tape at 8:44-9:59. Moreover, althoug

h the Gove

rnment po intedly

obse rve s that the three primary cases that underpin Tak

Fat and Neenah

Foundry – Land is , Klein and CFTC – ruled against stay s ( see Tape at 20:50), those cases do not require the same result here. See Land is , 299 U.S. 2 48; Klein , 436 F.2d 337; CFTC , 713 F.2d 1477. Indeed, Land

is did not even rule out the entry of a st ay in that

case. I nstead, t he Supre me Cour t there held only that the stay entered by

the trial court was “immoderate” in its duration, because it would hold the trial court’s proceedi ngs in abeyanc e (at the request of the federa l defenda nts) “until the validity of [certain leg islation, the enforcement of which the Land is plaintiffs sought to enjoin] ha[d] been determined by the Sup reme Cour t of the U

nited States ” through a separa te action brought by

the federal government in another jurisdiction involving other parties (not the Land is plaintiffs). Land

is , 2 99 U. S. at 25 1 ( em ph as is ad de d) . S pe ci fi ca ll y, the Court held that the trial court abused its discretion by entering a stay

which wou

ld “continu

e in eff ect after the decision by

the D istri ct Cou

rt in [ t he action br ought by the f ederal government in another jurisdiction], and until

the determination by [the Supreme Court] of any appeal therefrom.” Id . at 256 (emphasis added). The Supreme Court expre ssly left o pen the possibility of a stay of shorterCourt No. 03- 00563 Pag e 16

duration – i.e. , “a stay [of the trial c ourt’s proceedings in Land is ] to continue until the decision by the District Judge [in the act ion broug ht by the fede ral gov ernment

in the othe

r ju risdic tion], and then ending automatically .” Id

. at 258 (emphasis added). An Giang here seeks a stay

that is even less extensive in scope than that which the Supreme Court left open in Land is

. The st ay at issue i n Klein wasn’t even a stay

pending the outcome of other litigation. Moreover, like Land

is , Klein too involved a stay which wa s deemed to be too extreme and which is clearly distingu ishable f rom this ca se. Spec ifically , the stay entere d by

the tr ial court in Klein enjoined the litigious plaintiff from proceeding further with the cases in which the stay was sought until the plain

tiff had p osted a bo nd for se cur ity and attorney s’ fees. In addition, the stay unconditi onally

and permanently

barred the plaintiff from prosecuting any of his many other ac

tions pending in the court (with the exception of a single cas e). Kl ein , 436 F.2d at 338-39. No such sweeping terms are at issue in the case here at bar. CFTC is similarly distinguishable. CFTC was an action brought by the fe deral re gulatory agency against certain commodities brokers alleged to be running a “Ponzi” scheme. The CFTC trial court grante d the equi

ty r eceive r’s appl ication to

st ay other actions brought by investors ag ainst the brokers in other state and federal courts, on the grounds ( inter alia ) that the investors’ prosecution of those other suits would interfere with the prosecution of a separa te, ancillary a

ction brought

by the receiv er, and t

hat a sta y w ould serv e the inte

rests of judicia

l economy

and cons erve al l litigan

ts’

resourc es. Reversin

g the sta y, t he appe llate court in CFTC found that any potential for inter

ference could be minimized. In addition, the appellate court emphasized that – give n the differences in the nature of the claims and the relief sought in CFTC and t he ot her actions – there was no chanceCourt No. 03- 00563 Pag e 17

11 As discussed in no te 3 above , the par ty s tatus of th e movant ( i.e. , plaintif f or def endant) may be a f ac to r i n e va lu at in g a re qu es t f or a s ta y pendente

lite

. See also American Life I ns. Co. v. Stewart , 300 U.S. 203, 215 (1937) (case for stay is clearest “where the parties and the issues are the same” in the two cases). CFTC highlights some of the other potentially significa

nt factors, which are glossed over or ignor

ed in much of the relevant case law. For example, CFTC notes the significance of the action that th e m ov an t s ee ks to st ay, distinguishing betwee

n those cases where the relief soug ht is the stay

of another proceeding ver sus those cases w

here “t he relie f sough

t is only a stay of the c ase in which the motion is made.” CFTC , 713 F.2d at 1484. Similarly, CFTC emphasizes the relevance of the identity of the courts po tentially affected by the requested stay . Specifically, CFTC recognizes that special considerations (such as co mi ty) are implicated where the ac tion so ught to be stay ed is pend

ing in an other co urt – and, in particular, that the power of a federal court to stay ac tions in the stat

e courts is specif ically constrained by f

ederal statute. 713 F.2d at 1484 & n.5. whatsoever that the receiver’s action wo

uld prec lude the n eed for

the inves tors to go forw ard with their actions. See gen erally CFTC , 713 F.2d 1477. As the appellate court put it, “[The investors’] suits are thus merely

being delay

ed, but not obviated. Hence the conservation of judicial efforts by delaying the investors’ suits will likely be neg ligible.” Id . at 1485. 11 In contrast, in the instant case, An Giang – the plaintiff – has represented tha t voluntary dismissal of this ac tion is l ikely if the Anshan Court’s post-remand opinion holds that Commerce in fact ha s the statu

tory authority to deviat e from its standard practice in NME cases, as it did in the

case at bar. Grant ing th e reque sted s tay thus m ay result in su bstan tial savin gs for An Giang and the opposing parties alike, as well as the Court. Even if An Giang does not seek to dismiss this action

as a result of the Court’s pos t-re mand decision in Anshan , that opinion will likely streamline and clarify the issues in this ca se. And staying this action pending the Anshan opinion will spare the parties here the time and

expense of

suppleme

ntal brie fing to address the opinion. The bottom line i s that, a s An Giang puts it, no party will be harmed by r

eading the Anshan

opinion. See Tape atCourt No. 03- 00563 Pag e 18

13:47, 16:19. Particularly in light of the a bsence of any

showing of real harm ass ociated

with it, entry of the re quested s tay

will serv e both the

interest s of judicial economy a nd the interests of the parties a s well.

II. Conclusion “[T]he power to

stay proce edings 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.” Land

is , 299 U.S. at 254. For the reasons set forth above, the re latively modest stay requested by A n G ia ng he re wi ll pr om ot e j ud ic ia l e co no my, conserve the resources of the part ies, and ultimately

advanc e the inte

rests of justice. Indeed, the reque sted stay may dispose of this action

en ti re ly. An Giang’ s motion is th erefor e gran ted, and f urther p roceed

ings in th is action a re stay ed until 15 days following

the issuance of the public version of the Anshan Court’s post-remand opinion. A s ep ar at e o rd er wi ll en te r a cc or di ng ly.

/s / D el is sa A. Ri dg wa y

Judge Dated: October 8, 2004 New York, New York