Carpenter Technology Corp. v. United States , 30 Ct. Int'l Trade 856 ( 2006 )

Slip Op. 06 - 102
UNITED STATES COURT OF INTERNATIONAL TRADE
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CARPENTER TECHNOLOGY CORPORATION, :
Plaintiff, :
v. :
UNITED STATES, : Court No. 02-00448
Defendant, :
-and-
:
VIRAJ GROUP,
:
Intervenor-Defendant.
:
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Memorandum
[Final results of ITA redetermination
pursuant to court remand affirmed.]
Dated: July 7, 2006
Collier Shannon Scott, PLLC (Robin H. Gilbert) for the
plaintiff.
Peter D. Keisler, Assistant Attorney General; David M. Cohen,
Director, and Patricia M. McCarthy, Assistant Director, Commercial
Litigation Branch, Civil Division, U.S. Department of Justice
(Michael Panzera); and Office of Chief Counsel for Import
Administration, U.S. Department of Commerce (Ada E. Bosque), of
counsel, for the defendant.
AQUILINO, Senior Judge: As pointed out in this court’s
slip opinion 04-103, 28 CIT __, __, 344 F.Supp.2d 750, 751 (2004),
filed herein, this is another case contesting a determination of
the International Trade Administration, U.S. Department of Commerce
Court No. 02-00448 Page 2
(“ITA”) to group or not to group (“collapse”) together Indian
enterprises for purposes of enforcement of its Antidumping Duty
Order: Certain Stainless Steel Wire Rods from India, 58 Fed.Reg.
63,335 (Dec. 1, 1993). That opinion resulted in an order of remand
to the ITA
for calculation and imposition of individual antidumping-
duty margins upon Viraj Impoexpo, Ltd. and Viraj
Forgings, Ltd. in the manner of the approach taken by the
agency, and affirmed by the court, in Viraj Group, Ltd.
v. United States, 25 CIT 1017, 162 F.Supp.2d 656 (2001).
28 CIT at __, 344 F.Supp.2d at 755.
In response, the defendant has filed the agency’s Final
Results of Redetermination Pursuant to Court Remand (Feb. 18,
200[5]), to wit, weighted-average margins of 3.77 percent for Viraj
Impoexpo, Ltd. (“VIL”) and 1.29 percent for Viraj Forgings, Ltd.
(“VFL”). Those Final Results report ITA receipt of a submission
from the petitioner/plaintiff Carpenter that
it does not believe the Court meant to separate VIL and
VFL but that it meant to only separate VAL [Viraj Alloys,
Ltd.] from those two companies. . . . We disagree.
Final Results, p. 4 (citation omitted). Suffice it to confirm that
the plaintiff, not the defendant, read slip opinion 04-103
correctly.
Nonetheless, counsel have since filed Plaintiff’s
Comments in Support of Agency’s Final Results of Redetermination
Pursuant to Court Remand, the bottom line of which is a request
Court No. 02-00448 Page 3
that the court “affirm” those results. But they also request that
the court
reject Commerce’s attempts to re-argue the issues in this
case. Commerce has not only continued to disagree with
the Court on the collapsing issue, but has not been fully
forthcoming in its presentation of the issue. In
particular, on page five of its Remand Results, Commerce
argues that collapsing was appropriate in this case
because “the Department has continued to find it proper
to collapse the companies of Viraj after the issue was
remanded to us for reconsideration.” Id., citing Slater
Steels Corp. v. United States, 316 F.Supp.2d 1368 (Ct.
Int’l Trade 2004). Given Commerce’s citation of the
Slater Steels case as support for its argument that
collapsing is still appropriate, it was incumbent on
Commerce to update the Court as to the status of the
Slater Steels litigation, and report that the agency’s
decision to continue to collapse the Viraj Group
companies had been found unlawful . . .. In Slip Op. 05-
23, the Slater Steels Court “remanded to Commerce for
calculation and imposition of individual antidumping
margins upon VAL, VIL, and VFL.” Slater Steels Corp. v.
United States, Slip Op. 05-23 at 15 (Ct. Int’l Trade Feb.
17, 2005). Thus, contrary to Commerce’s argument in the
Remand Results that it was justified in its position in
favor of collapsing the Viraj Group companies, the
findings in Slater Steels lend yet further support to
this Court’s findings in the present case.
Plaintiff’s Comments in Support of Agency’s Final Results, pp. 1-2
(footnote omitted). This has engendered a retort by the defendant
that the Court of Appeals for the Federal Circuit (“CAFC”)
has expressly indicated that it is entirely appropriate
for Commerce to note its disagreement with a Court’s
conclusion notwithstanding its compliance with an order
directing certain actions pursuant to remand1
1
Defendant’s Response to Plaintiff’s Comments in Support of
Agency’s Final Results of Redetermination Pursuant to Court Re-
mand, second page, citing Viraj Group, Ltd. v. United States, 343
F.3d 1371, 1376 (Fed.Cir. 2003).
Court No. 02-00448 Page 4
and that,
contrary to Carpenter’s insinuation, litigation in Slater
Steels has not concluded. The agency simply referred to
Slater Steels in the context of preserving our objections
to th[is] Court’s opinion and order.2
Indeed, the defendant subsequently docketed an appeal
from the final judgment entered in Slater Steels, No. 06-1159
(Fed.Cir. Dec. 29, 2005), although it recently apparently moved
voluntarily to dismiss that appeal, which motion was granted by the
CAFC on May 17, 2006.
Whatever the precise significance of that dismissal may
be given the Viraj Group’s own, continuing appeal in Slater Steels,
No. 06-1158 (Fed.Cir.), in this case the intervenor-defendant Viraj
Group has taken no position on the Final Results at bar. Since the
plaintiff and the defendant are now in agreement thereon and the
CAFC tends to “[w]eigh[] heavily” consent among otherwise-adverse
parties in a case like this3, judgment affirming those Final
Results will now be entered.
Dated: New York, New York
July 7, 2006
Thomas J. Aquilino, Jr.
Senior Judge
2
Id., third page (emphasis in original).
3
See, e.g., Ugine and ALZ Belgium v. United States, __ F.3d
__, 2006 WL 1642648, at *7 (Fed.Cir. June 15, 2006).