Turkish Exporter Skirting 'True Nature' of Case in Jurisdictional Argument, US Steelmakers Argue

The "true nature" of a case brought by Turkish exporter Eregli Demir ve Celik Fabrikalari (Erdemir) is to challenge the International Trade Commission's finding on non-negligiblity in the underlying antidumping duty investigation on hot-rolled steel from Turkey, despite Erdemir's insistance that the challenge is to the ITC's decision not to hold a reconsideration proceeding, a group of defendant-intervenors led by Cleveland-Cliffs said in their Nov. 3 reply at the Court of International Trade (Eregli Demir ve Celik Fabrikalari v. U.S. International Trade Commission, CIT # 22-00349).

Erdemir's filing under CIT's residual jurisdiction under 28 U.S.C. 1581(i) goes against jurisdictional provisions that prevent litigants from circumvening the trade court's other specific grants of jurisdiction, Cleveland-Cliffs said.

The nature of Erdemir's claims is evident from Erdemir’s allegations that the AD order should have been revoked at the start because the commission should have excluded Çolakoğlu’s merchandise as part of the negligibility analysis. "The reason that Erdemir seeks a reconsideration proceeding is to reverse the Commission’s finding that the volume of dumped imports from Turkey was not negligible and retroactively terminate the antidumping duty investigation," Cleveland-Cliffs said.

Erdemir's reading of the statute was "fundamentally flawed," Cleveland-Cliffs said. The exporter could have sought relief by timely appealing the Commission’s original injury determination under 28 U.S.C. § 1581(c), under which affirmative final determinations of material injury are reviewable, Cleveland-Cliffs said. Erdemir's argument was that remedy under 1581(c) was "not possible" without a stay (see 2310020057). Such an argument doesn't meet the burden that remedy under 1581(c) was "manifestly inadequate," Cleveland-Cliffs argued, because Erdemir can't say whether the court would have denied Erdemir’s request to stay in an appeal of the Commission’s injury determination.

The ITC was under no obligation to either grant Erdemir's request for a changed circumstances review or its request for reconsideration. The ITC can't be faulted for Erdemir's failure to proceed under 1581(c), Cleveland-Cliffs said. Cleveland-Cliffs also reiterated parts of its previously filed dismissal motion, saying that even if the court finds that Erdemir had jurisdiction under Section 1581(i), the exporter failed to state a claim on which relief can be granted because the law doesn't give the ITC authority to reconsider its original injury decision (see 2308010048).