AD Petitioner Says Omani Exporter's Opposition to Stay Motion Is a Delay Tactic
Antidumping duty petitioner Mid Continent Steel & Wire told the U.S. Court of Appeals for the Federal Circuit that exporter Oman Fasteners' opposition to its bid to stay the appeal is a strategic delay tactic (Oman Fasteners v. U.S., Fed. Cir. # 24-1350).
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Mid Continent had moved for they stay pending resolution of the company's separate appeal at the Federal Circuit, which is an interlocutory appeal of an injunction from the Court of International Trade on the payment of AD cash deposits. Oman Fasteners claimed that the separate appeal is moot, saying the injunction is no longer active because the Commerce Department completed the next administrative review of the AD order on steel nails from Oman.
On that basis, Oman Fasteners moved to dismiss the interlocutory appeal (see 2401300069) and now seeks to oppose the stay bid in the case (see 2402120033). In response, Mid Continent disputes that the injunction isn't active, saying it wasn't vacated by a final CIT order in the underlying appeal of the AD review or by the final results of the next AD review.
The interlocutory appeal has seen full briefing on the "live issues, which go to the very heart of the terms, duration, and real-world effect of the Permanent Injunction, the [adverse facts available] AFA Issue and, indeed, any Article III issues," Mid Continent said.
The petitioner argued that what Oman Fasteners "really wants is the court to dismiss" the interlocutory appeal, "keep this appeal alive only to the extent that it can be briefed, after which" the company will move to dismiss it on the "same basis that it has done" in the interlocutory appeal, "thus adding many more months of timely and expensive motion practice.
"Delay is the name of the game," the brief said.
Oman Fasteners said it needs a chance to rely on the "full record to present this Court the clearest reasons to affirm the final judgment," without the "clutter" of issues on "now-moot concerns." The petitioner dubbed that position a "red herring," saying it ignores that where the AFA issue in the AD review was concerned, it had nothing to do with the permanent injunction and "all subsidiary issues" in the interlocutory appeal.
During the sixth review of the AD order on steel nails from Oman, Commerce hit Oman Fasteners with a 154.33% AFA rate because it filed a submission 16 minutes late. The trade court enjoined Commerce from using the rate as a cash deposit mark, dubbing the agency's actions the "very definition of abuse of discretion" (see 2302280040). Two appeals followed -- one initially challenging the permanent injunction against the use of AFA on Oman Fasteners and the other on Commerce's remand results that gave Oman Fasteners a zero percent dumping margin.
As an alternative form of relief, Mid Continent urged the appellate court to consolidate the two appeals. Oman Fasteners said consolidation was more of a "practical headache than anything," saying the interlocutory appeal was not on the use of AFA. The exporter relied on the Federal Circuit's ruling in Russell v. U.S. to oppose consolidation.
The petitioner said this reliance was "odd" because Russell is nonprecedential and deals with a completely different fact pattern. The Russell court didn't find that Oman Fasteners' statement that consolidation usually happens before the cases are briefed and not after, as the exporter claims, but instead found that because briefing was complete in the earlier-filed appeal, it was deemed better to treat the appeals as "companion cases."