DOJ Fights Stay Bid Pending Resolution of 'd' Test Question, Says Not Issue to AD Cases

The Court of International Trade should not grant a stay in a consolidated antidumping matter pending resolution of a case at the U.S. Court of Appeals for the Federal Circuit since the impact of this case is "speculative at best," DOJ said in an April 21 reply brief. Further, the stay should be denied since the Federal Circuit case, Stupp Corp. v. United States, may only affect two legal issues in the case led by exporter Koehler Paper, leaving six issues unaffected, DOJ argued (Matra Americas v. United States, CIT Consol. #21-00632).

Koehler's case was one of three filed against the Commerce Department's final determination in the antidumping duty investigation of thermal paper from Germany (see 2201210081. The petitioners, Appvion Operations and Domtar Corporation alleged in a second lawsuit that Koehler should be hit with partial adverse facts available for its failure to accurately report certain product information (see 2201210038), and another German producer, Matra Americas, filed a third complaint challenging Commerce's decision to include the Blue4est paper in the scope of the order.

Koehler moved for a stay in the consolidated action, arguing that the resolution of Stupp Corp. would affect its case. The Stupp case concerns the use of the Cohen's d statistical test by Commerce to detect "masked" dumping. Most recently, the appellate court remanded the use of the test, finding that Commerce failed to fulfill certain statistical assumptions required of running the test (see 2107150032). As Koehler raised similar claims, it said a stay would be appropriate pending the resolution of Stupp.

However, DOJ opposed this bid, arguing that any effect of Stupp is speculative. Koehler said that the issues in Stupp "substantially overlap" with the issue in its case. DOJ said that the substantial overlap argument does not clear the burden for granting a stay, which says that the stays may be granted pending ongoing litigation of matters "central" to a court's decision. In all, the U.S. pointed out that Cohen's d claims appear in only two of the eight total claims presented in the three consolidated cases. This is because the AD petitioners did not raise any issue with the statistical test.

"Indeed, granting a stay in this case may have the opposite effect of resulting in hardship or inequity to the other plaintiffs because resolution of their five pending claims (those claims not brought by Koehler and not pertaining to the Cohen’s d analysis) would be substantially delayed," the brief said. DOJ further argued against Koehler's position that Commerce will fail to defend its position, telling CIT that this is not necessarily true.