Deacero v. United States

DEACERO S.A.P.I. DE C.V. AND DEACERO USA, INC., Plaintiffs, v. UNITED STATES, Defendant,andARCELORMITTAL USA LLC, EVRAZ PUEBLO, GERDAU AMERISTEEL U.S. INC.,KEYSTONE CONSOLIDATED INDUSTRIES, INC.,AND NUCOR CORPORATION Defendant-Intervenors.

Slip Op. 15-87 Court No. 14-00205

UNITED STATES COURT OF INTERNATIONAL TRADE

August 17, 2015

Before: Richard W. Goldberg, Senior Judge

OPINION AND ORDER

[The court stays the case.]

David E. Bond, White & Case LLP, of Washington, DC, argued for plaintiffs. With him on the brief was Jay C. Campbell.

Jane C. Dempsey, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, DC, argued for defendants. Present at argument was David W. Richardson, Attorney, Office of the Chief Counsel for Import Administration, U.S. Department of Commerce.

Paul C. Rosenthal, Kelley Drye & Warren LLP, of Washington, DC, argued for defendant-intervenors ArcelorMittal USA LLC, Evraz Pueblo, Gerdau Ameristeel U.S. Inc., and Keystone Consolidated Industries, Inc. With him on the brief were Kathleen W. Cannon, R. Alan Luberda, David C. Smith, Benjamin Blase Caryl.

Goldberg, Senior Judge:

Plaintiffs Deacero S.A. de C.V. and Deacero USA, Inc. (collectively, "Deacero") take issue with the U.S. Department of Commerce's ("Commerce") continuation of the antidumping duty order on carbon and certain alloy steel wire rod from Mexico following five-year review. Carbon and Certain Alloy Steel Wire Rod from Brazil, Indonesia, Mexico, Moldova, and Trinidad and Tobago, 79 Fed. Reg. 38,008 (Dep't Commerce July 3, 2014) (continuation of antidumping & countervailing duty orders) ("Continuation Notice"). Deacero claims that, in the Continuation Notice, Commerce was required by law to expressly confine the scope of the antidumping duty order to wire rod with an actual diameter above 5.00 mm. Complaint 7-8, ECF No. 4.

The court does not today reach the merits of Deacero's claim but instead addresses a Motion to Dismiss or, in The Alternative, Motion to Stay Proceedings, ECF No. 32 filed by Defendant-Intervenors Arcelormittal USA LLC, Evraz Pueblo, Gerdau Ameristeel U.S. Inc., and Keystone Consolidated Industries, Inc. (collectively "Arcelormittal"). In the main, Arcelormittal moves for dismissal under USCIT Rule 12(b)(1), arguing that the court lacks jurisdiction to hear Deacero's claim under 28 U.S.C. § 1581(c) (2012) and § 1581(i)(4), the two jurisdictional bases asserted by Deacero. Alternatively, Arcelormittal asks that the court stay this case pending the Federal Circuit's decision in the appeal of a related lawsuit. The court holds that it has jurisdiction under § 1581(c) but that a stay is proper.

BACKGROUND

Because the court opts to delay the merits of this case with a stay, a brief background will do for the time being. Both this case and the Federal Circuit appeal that justifies the stay arise from the same order imposing antidumping duties on carbon and certain alloy steel wire rod from Mexico. Carbon and Certain Alloy Steel Wire Rod from Brazil, Indonesia, Mexico,Moldova, Trinidad and Tobago, and Ukraine, 67 Fed. Reg. 65,945 (Dep't Commerce Oct. 29, 2002) (notice of antidumping duty orders) (the "Order"). Originally, the Order was bound in scope to cover wire rod "5.00 mm or more, but less than 19.00 mm, in solid cross-sectional diameter." Id. at 65,946. But Commerce later used its circumvention procedures to bring 4.75-to-5.00-mm wire rod within the Order's scope. Carbon and Certain Alloy Steel Wire Rod from Mexico, 77 Fed. Reg. 59,892, 59,893 (Dep't Commerce Oct. 1, 2012) (final affirm. circumvention determination) (the "Circumvention Determination") and accompanying I&D Mem. at Scope of the Circumvention Inquiry.

At that point, Deacero filed suit challenging Commerce's Circumvention Determination (the same suit whose eventual judgment Deacero has appealed, justifying a stay of the instant proceedings). Complaint, Deacero S.A. de C.V. v. United States (Deacero I), 37 CIT ___, 942 F. Supp. 2d 1321 (2012) (No. 12-345), ECF No. 5. In response, this court enjoined U.S. Customs and Border Protection ("Customs") from liquidating entries of wire rod exported by Deacero with a diameter between 4.75 and 5.00 mm. Order Granting Prelim. Inj. to Enjoin Liquidation of Certain Entries, Deacero I, 37 CIT ___, 942 F. Supp. 2d 1321 (2012) (No. 12-345), ECF No. 12 ("Order Enjoining Liquidation"). The court's preliminary injunction is still in place today.

Before the court had a chance to rule on Deacero's Circumvention Determination claim, Commerce and the U.S. International Trade Commission (the "ITC" or "Commission") began a five-year review of the Order. Initiation of Five-Year ("Sunset") Review, 78 Fed. Reg. 33,063 (Dep't Commerce June 3, 2013). The statute provides that every five years, "[Commerce] and the Commission shall conduct a review to determine . . . whether revocation of the . . . antidumping duty order . . . would be likely to lead to continuation or recurrence of dumping . . . and of material injury." 19 U.S.C. § 1675(c)(1). Commerce goes first,determining whether dumping is likely to recur, and the ITC follows by making the same determination only with respect to material injury. Id. §§ 1675(c)(5)(A), 1675a(a), (c). Upon completion of both agencies' review obligations, the law states that "[Commerce] shall revoke . . . an antidumping duty order . . . , unless (A) [Commerce] makes a determination that dumping . . . would be likely to continue or recur, and (B) the Commission makes a determination that material injury would be likely to continue or recur." Id. § 1675(d)(2).

After Commerce and the ITC had begun the five-year review, but before the agencies had reached their respective dumping and injury determinations, this court reached a decision on Deacero's appeal of Commerce's Circumvention Determination. On September 30, 2013, the court held that Commerce's decision to include 4.75 mm wire rod within the scope of the Order "was unsupported by substantial evidence and not in accordance with law" and remanded to Commerce with instructions to "reconsider its finding that 4.75 mm wire rod is circumventing the Order." Deacero I, 37 CIT at ___, 942 F. Supp. 2d at 1332.

On October 17, 2013, during the middle of the court's remand, Commerce completed its five-year dumping review. Carbon and Certain Alloy Steel Wire Rod from Brazil, Indonesia, Mexico, Moldova, Trinidad and Tobago, and Ukraine, 78 Fed. Reg. 63,450 (Dep't Commerce Oct. 24, 2013) (final five-year dumping results) ("Five-Year Dumping Review"). Commerce did so without the input of Deacero, because Deacero did not participate in Commerce's review proceedings. Id. Commerce decided that "revocation of [the Order] would be likely to lead to continuation or recurrence of dumping." Id. In so deciding, Commerce did not mention Deacero I or revisit the Order's proper scope in light of the opinion. See id. and accompanying I&D Mem. at Scope of the Orders.

Commerce did, however, address Deacero I's effect on the scope of the Order in the remand results dated January 29, 2014. Final Results of Redetermination Pursuant to Ct. Remand, Deacero I, 942 F. Supp. 2d 1321 (No. 12-345), ECF No. 87-1 ("First Remand Results"). In the results, Commerce recanted the position it had taken in the Circumvention Determination that 4.75 mm wire rod was within the Order's scope—but only "under respectful protest." Id. at 2.¹ The propriety of Commerce's initial Circumvention Determination is now before the Federal Circuit on appeal (hereinafter the "Federal Circuit appeal"). See Notice of Docketing, Deacero S.A. de C.V. v. United States, No. 15-1362 (Fed. Cir. Feb. 23, 2015).

After Commerce announced the First Remand Results in the Circumvention Determination litigation, the ITC completed its five-year injury review of the initial antidumping Order. This time, Deacero participated. Carbon and Certain Alloy Steel Wire Rod from Brazil, Indonesia, Mexico, Moldova, Trinidad and Tobago, and Ukraine, 79 Fed. Reg. 35,381 (Int'l Trade Comm'n June 20, 2014) (final five-year injury results) ("Five-Year Injury Review") and accompanying Views of the Comm'n at 4. On June 16, 2014, the ITC decided that "revocation of . . . [the Order] would be likely to lead to continuation or recurrence of material injury." Id. In so deciding, the ITC treated wire rod below 5.00 mm as nonsubject imports (i.e., merchandisenot subject to, or outside the scope of, the Order). Five-Year Injury Review and accompanying Views of the Comm'n at 17 n.91; see id. at 7-8. The ITC explained,

Domestic interested parties[, who are also Defendant-Intervenors in the instant case,] argue that the Commission should treat Deacero's shipments of 4.75 mm wire rod to the United States as subject imports. We are under no obligation to treat Deacero's 4.75 mm shipments of wire rod to the United States as subject imports because, as explained in section II of this opinion, 4.75 mm wire rod was not originally within the scope of these reviews and the latest Commerce decision does not include 4.75 mm wire rod within the scope. Notwithstanding that it is nonsubject merchandise, Deacero's shipments to the United States of 4.75 mm wire rod, which it acknowledges is largely substitutable for subject merchandise, shows a continued interest in the U.S. market.

Id. at 17 n.91 (citations omitted)

On June 27, 2014, because both Commerce and the ITC had reached affirmative five-year determinations, Commerce continued the Order as mandated by 19 U.S.C. § 1675(d)(2). Continuation Notice at 38,009. Commerce did not bind the continued Order's scope to wire rod above 5.00 mm in the Continuation Notice or revoke the Order as to wire rod below 5.00 mm. Id. at 38,008-09.²

Deacero responded to the Continuation Notice by filing this lawsuit on September 2, 2014. In the new filing Deacero claims that, in the Continuation Notice, Commerce was required by law to expressly confine the scope of the Order to wire rod above...