US Opposes Stay in CVD Case Over Decision Not to Countervail Provision of Electricity

The Court of International Trade should not grant Nucor Corporation's stay motion in a countervailing duty case because Nucor has not shown that a stay would facilitate an efficient resolution of the case or conserve the court's resources or that "any duplication of efforts outweighs the detrimental effects of its requested indefinite stay," the U.S. argued in a June 24 reply brief (Nucor Corporation v. United States, CIT #22-00070).

Nucor filed its case to contest the 2019 administrative review of the countervailing duty order on carbon and alloy steel cut-to-length plate from South Korea. The manufacturer in particular challenged as illegal Commerce's decision that found that the South Korean government provided electricity below cost for certain tariff classes but still said that electricity provision conferred a non-measurable benefit (see 2203250064). Nucor filed a very similar case a few months prior contesting the same thing (see 2203180054).

It is that case that serves as the basis of Nucor's stay order. The plaintiff argued that a stay would preserve resources since only the one matter needs to be litigated. The U.S. voiced its opposition June 24, arguing that while there is overlap in the two cases, each administrative review is separate with its own facts. "A trial court is not bound by another trial court’s or its own decisions ... and it is not an efficient use of resources to stay every case in this Court simply because it presents a challenge to Commerce’s determination regarding the alleged provision of electricity for less-than-adequate remuneration in Korea without knowing when (if ever) the Court of Appeals for the Federal Circuit will issue a dispositive precedential opinion," the brief said.

DOJ further argued that the proposed stay has a fair shot at harming the U.S. through delayed litigation. DOJ said that the memories of agency officials will fade and that new personnel could replace these employees and the "stagnant case" will remain on the docket. "Although a similar argument was found unpersuasive in Jiaxing Brother Fastener Co. v. United States ... that decision does not bind this Court," the U.S. argued. "Experienced and competent personnel are critical -- and indeed the most important -- resources of the agency."