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Trade Court Bucks Bid for Stay in CVD Review, Cites Lack of 'Talismanic Formula' for Ruling on Stays

The Court of International Trade in a Sept. 22 opinion denied plaintiff Kaptan Demir Celik Endustrisi ve Ticaret's motion to stay its countervailing duty review challenge pending resolution of a case over the previous review of the same CVD order. Judge Gary Katzmann said the stay would not promote judicial economy since the pending cases are before CIT and not the U.S. Court of Appeals for the Federal Circuit, and that Kaptan has not put forth any "pressing need" for a stay. The judge commented on the lack of any "talismanic formula" for finding when a stay motion should be granted and the need to weigh the various conditions at play.

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Kaptan's case concerns the 2019 administrative review of the CVD order on steel concrete reinforcing bar from Turkey in which Kaptan and Colakoglu Metalurji served as mandatory respondents. In the review, Commerce said Turkish company Nur Gemicilik was a cross-owned input supplier of Kaptan's and entered into a lease and investment agreement with the local government, allowing it to use land rent-free in exchange for meeting various investment and employment criteria. The result of the review was a 1.75% CVD rate for Kaptan. The exporter took to the trade court to challenge these findings (see 2205130034).

The respondent requested a stay of proceedings pending resolution of its case at CIT over the previous year's review, arguing that its claims are "virtually identical," so that resolution of the prior case will promote judicial economy. Further, the stay will not harm the other parties, Kaptan argued. The respondent was denied on both grounds.

Katzmann first ruled that the stay would not promote judicial economy since the prior case is at the trade court and not the Federal Circuit, where the court could issue an opinion on a "common legal issue" that could decide the fate of Kaptan's case. While the stay may temporarily conserve resources, it would not "significantly conserve resources," the judge said.

"In the current action, as the Government points out, additional briefing would need to occur on Commerce’s specificity finding issue regardless of how the 2021 Case is decided, as that legal issue is not common to both actions," the opinion said. "Even if there are similar issues that are 'virtually identical' across both actions as Kaptan argues, the parties can easily raise the same arguments without significant effort, and the court can examine the arguments again without significantly expending resources, as both actions are ultimately pending before the court."

Kaptan also advanced the argument that there is no evidence that harm would befall the government or CVD petitioner if the stay is granted. The government countered that some harm is inherent to any stay since the parties have an interest to quickly settle the dispute. Katzmann agreed, adding that Kaptan has pointed to no "pressing need" for the stay. "Here, in light of the court’s overarching duty to timely resolve disputes, the interests of the litigants in resolving disputes quickly, as well as the general interest of the public in expeditiously resolving matters of great economic importance, the court finds that the extensive stay of proceedings requested by Kaptan does not meet the 'pressing need' required for such stays," the judge said.

(Kaptan Demir Celik Endustrisi ve Ticaret v. United States, Slip Op. 22-112, CIT #22-00149, dated 09/22/22, Judge Gary Katzmann. Attorneys: Andrew Schutz of Grunsfeld Desiderio for plaintiff Kaptan; Kelly Geddes for defendant U.S. government; Alan Price of Wiley Rein for defendant-intervenors led by Rebar Trade Action Coalition)