‘Proper’ Appeal Shouldn't Be Stayed for Interlocutory Appeal, Steel Nail Exporter Says
While the U.S. remained neutral, a steel nail exporter on Feb. 8 called “moot” a petitioner’s motion to stay one antidumping duty appeal in the U.S. Court of Appeals for the Federal Circuit until the petitioner’s other interlocutory appeal had been heard (Oman Fasteners v. U.S., Fed. Cir. # 24-1350).
One of Mid Continent's two appeals challenges the Court of International Trade’s permanent injunction against the Commerce Department applying adverse facts available to steel nail exporter Oman Fastener in its sixth administrative review; the other contests Commerce’s upheld redetermination upon remand that gave Oman Fasteners a zero percent dumping margin.
Mid Continent asked CAFC on Jan. 29 to stay the proceedings on the remand redetermination until conclusion of the AFA appeal, which it had brought before overall litigation ended in Oman Fasteners' favor at CIT. Alternatively, it asked to consolidate its two appeals.
In its Feb. 8 filing, DOJ said it deferred to the appeals court to decide whether to stay the petitioner’s remand redetermination appeal, asking for the chance to reply only “if any other challenges to Commerce’s remand redetermination are raised” during the AFA appeal. The U.S. isn't participating in Mid Continent’s AFA appeal, it said.
Oman Fasteners opposed Mid Continent’s motion to stay proceedings in the remand redetermination appeal or consolidate the appeals, calling the petitioner’s interlocutory appeal moot. It said CAFC should accept its motion to dismiss the appeal because CIT’s injunction against AFA has “since been superseded and no longer affects Mid Continent (or any other party).”
During its sixth review of the exporter’s products, Commerce initially calculated an AFA 154.33% AD for Oman Fasteners because it filed a submission 16 minutes late. CIT quickly enjoined Commerce from using that rate, saying the department had abused its discretion, and ordered that Oman Fasteners’ future cash deposit would be made at the exporter’s former 1.65% rate instead (see 2302280040).
Mid Continent “explained (correctly)” in an earlier motion for expedition of its AFA appeal that once Commerce finished its seventh administrative review, the rate the department calculated would automatically replace the AFA rate, mooting any appeal, Oman Fasteners said. Commerce did conclude its seventh review and also found a zero dumping margin, it said.
Vacating CIT’s injunction against AFA wouldn't afford Mid Continent any relief, rendering any opinions the appeals court could offer advisory, the exporter argued.
And consolidating the two appeals would just “make things even messier,” the exporter said, because much of the earlier briefing in the AFA appeal “focused on the traditional equitable injunction factors that are no longer relevant in this appeal.”
“There is thus nothing to wait for in this appeal, which is Mid Continent’s only jurisdictionally proper appeal,” Oman Fasteners said.