US Opposes Stay at CAFC Given No Overlapping Issues With Case Serving as Basis for Stay
The U.S. Court of Appeals for the Federal Circuit should not stay a case led by PrimeSource Building Products pending resolution of another action at the appellate court, the U.S. said in an Oct. 17 reply brief, arguing a stay is "based on nothing but pure speculation as to" PrimeSource's desired outcome of the separate matter. The "unjustifiable delay" that would stem from the stay would cause "inherent harm" to the government, so the stay should be denied, the U.S. said (PrimeSource Building Products Inc. v. United States, Fed. Cir. #22-2128).
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The case concerns an antidumping duty review on steel nails from Taiwan in which Bonuts Hardware Logistics and Create Trading were tapped as the mandatory respondents. However, Bonuts did not respond to Commerce's questionnaires and Create said it didn't have any U.S. sales, leading to Pro-Team Coil replacing it as a respondent. Pro-Team also did not reply. Bonuts and Pro-Team were assigned an adverse facts available rate from a previous review, and the non-selected respondents' rate was found by weight-averaging the AFA rates.
The appellants contested the use of the expected method. However, the Court of International Trade said the Commerce Department properly used the expected method to find the non-selected respondents' rate, leading to the appeal (see 2206170040).
At the Federal Circuit, PrimeSource requested a stay pending resolution of the Mid Continent Steel & Wire v. U.S. case -- an action contesting the underlying AD investigation. There is no overlap in the issues of these two cases since Mid Continent is contesting the use of the Cohen's d statistical test as part of Commerce's differential pricing analysis, but PrimeSource argued the Mid Continent matter could render the AD order moot since the respondents could get a de minimis margin.
The U.S. opposed the stay, telling the Federal Circuit that no need for a stay has been identified, "much less a pressing one," and that the claim that the court's and parties' resources will be conserved "is purely speculative." There is no overlap between the issues in Mid Continent and the present appeal, the U.S. said.
While the AD order could end up being revoked in the Mid Continent litigation, there is no guarantee that this would be the case, the government pointed out. "PrimeSource even concedes that Commerce has indicated in its draft remand redetermination that [it] has determined to further explain its methodology rather than change its calculation of the Cohen’s d coefficient," the brief said. Commerce can depart from its past decisions, but "this uncertainty only further underscores the purely speculative nature underlying the grounds for PrimeSource's motion for a stay."
A stay also would prejudice the government, as opposed to what the appellants argue, the U.S. said. "The investigation litigation may take months, if not years, to arrive at its final resolution," the brief said. "The timing of the resolution depends on various factors, such as whether the trial court orders further remands are ordered or parties lodge appeals to this Court. Without knowing with any reasonable certainty when the investigation litigation will conclude, the proposed stay would result in an extensive and unnecessary delay of the proceeding."