Steel Exporters Argue Against Stay of AD Case, Say PMS Question Irrelevant to Standard for Stay

Steel exporter SeAH Steel Corporation along with consolidated plaintiff Husteel Co., Nexteel Co., AJU Besteel and Iljin Steel Corporation, argued against a government motion in the Court of International Trade to stay proceedings in an antidumping duty case until the Federal Circuit rules on a similar question in a separate case. In a May 17 joint opposition brief, the plaintiffs said that the Department of Justice failed to make a strong showing that it is likely to succeed on the merits of the Federal Circuit case, doesn't argue that it would be "irreparably injured" without a stay, and doesn't consider that there is a fair chance the plaintiffs would be injured by the stay.

The Federal Circuit lawsuit, brought by Nexteel, involves a particular market situation (PMS) finding for certain oil country tubular goods from South Korea during the 2015-16 administrative review. The stays SeAH opposes would pause its challenges to Commerce's 2016-17 and 2017-18 administrative reviews, where Commerce made similar PMS findings (see 2105140028) (SeAH Steel Corp. v. United States, CIT # 19-00086 and # 20-00150).

To be granted a stay, plaintiffs argue, a party must prove: 1) whether the applicant has made a strong showing that they're likely to succeed on the merits, 2) whether the applicant will be irreparably injured without a stay, 3) whether the stay will substantially injure the other parties and 4) where the public interest lies. In their reply brief, plaintiffs say that DOJ failed to prove the first three requirements of the stay. For instance, SeAH argued that since the government did not appeal the Nexteel judgment, it has not proven it is likely to succeed on the merits. "The Government’s motion does not even offer an opinion on the likelihood of Defendant-Intervenors’ claims on appeal," the plaintiffs said. "Instead, the Government merely posits that the Federal Circuit’s review of NEXTEEL II 'will likely have an impact on this case.'"

Also, seeing as the only thing that would be required of the government in SeAH's case would be a remand redetermination of the antidumping case, this is not enough to constitute irreparable injury, the exporters said. If the question in the Nexteel case is answered, then it can be considered in this case, but until then, the case must continue as originally planned. "As the Government itself has argued in opposing a motion to stay, stopping ongoing proceedings before this Court is inappropriate 'because of the annual nature of Commerce’s administrative reviews, litigation routinely proceeds in this Court despite ongoing proceedings in related cases,'" the plaintiffs said.