Saha Thai Steel Pipe (Public) Co. v. United States

2011 CIT 29

• Court: United States Court of International Trade
• Decided: March 22, 2011
• Docket: Consol. 08-00380
• Status: Published

Opinion

Slip Op. 11 - 29

UNITED STATES COURT OF INTERNATIONAL TRADE

: SAHA THAI STEEL PIPE (PUBLIC) : COMPANY LTD., : : Plaintiff, : : v. : Before: R. Kenton Musgrave, Senior Judge : UNITED STATES, : Consol. Court No. 08-00380 : Defendant, : : and : : ALLIED TUBE AND CONDUIT CORP., : and WHEATLAND TUBE COMPANY, : : Defendant-Intervenors. : :

OPINION AND ORDER

[Holding in abeyance defendant-intervenors’ consent motion to lift injunction.]

Dated: March 22, 2011

O’Melveny & Myers LLP (Greyson L. Bryan), for the plaintiff.

Tony West, Assistant Attorney General, Jeanne E. Davidson, Director, Patricia M. McCarthy, Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice (Jane C. Dempsey); Office of the Chief Counsel for Import Administration, United States Department of Commerce (Joanna V. Theiss), of counsel, for the defendant.

Schagrin Associates (Roger B. Schagrin, Jeffrey E. Farrah, John W. Bohn, and Michael J. Brown), for the defendant-intervenors.

Musgrave, Senior Judge: On February 14, 2011, the Court of Appeals for the Federal

Circuit (“Federal Circuit”) affirmed judgment on this case. Saha Thai Steel Pipe (Public) Co. v. Consol. Court No. 08-00380 Page 2

United States, ___ F.3d ___, 2011 WL 553585 (Fed. Cir. 2011). On March 1, 2011, the defendant

intervenors Allied Tube and Conduit Corporation and Wheatland Tube Company filed a consent

motion to lift the injunction currently suspending liquidation of entries of merchandise subject to

Circular Welded Carbon Steel Pipes and Tubes from Thailand: Final Results of Antidumping Duty

Administrative Review, 73 Fed. Reg. 61019 (Dep.’t Comm. Oct. 15, 2008) (“Final Results”).

See Order on Mot. for Injunction, Oct. 28, 2008, ECF No. 11. The subject merchandise for those

entries were produced and exported to the United States by the plaintiff Saha Thai Steel Pipe

(Public) Company Ltd. and were entered, or withdrawn from warehouse, for consumption, during

the period March 1, 2006 through February 28, 2007 inclusive, and remained unliquidated as of five

o’clock p.m. (Eastern Standard Time) on the fifth business day after a copy of this Court’s October

28, 2008 Preliminary Injunction Order was served upon officers of the U.S. Department of

Commerce and U.S. Customs and Border Protection. See id.

The motion to lift the injunction alleges that all parties to this case have been

contacted regarding the motion and that each indicated “they do not intend to appeal this matter to

the Supreme Court of the United States, or otherwise pursue any further appeals of this case.”

Consent Motion Requesting Order Lifting Injunction Suspending Liquidation ¶ 4. However, a

primary purpose of a writ of injunction is to aid jurisdiction. See 28 U.S.C. § 1651(a) (“[t]he

Supreme Court and all courts established by Act of Congress may issue all writs necessary or

appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law”).

The Federal Circuit currently maintains jurisdiction over this case (it has yet to issue its mandate),

and this Court has a duty to aid such appellate jurisdiction until it is relinquished. See id. “Issuance Consol. Court No. 08-00380 Page 3

of the mandate formally marks the end of appellate jurisdiction. Jurisdiction [is thereby] return[ed]

to the tribunal to which the mandate is directed, for such proceedings as may be appropriate[.]”

Johnson v. Bechtel Associates Professional Corp., 801 F.2d 412, 415 (D.C. Cir. 1986). See Federal

Rule of Appellate Procedure (“FRAP”) 41; see, e.g., United States v. DiLapi, 651 F.2d 140, 144 (2d

Cir.1981), cert. denied, 455 U.S. 938 (1982); Laclede Steel Co. v. United States, 24 CIT 1293, 125

F. Supp.2d 525 (2000).

While appeal is pending, the Court may only modify an injunction in a manner that

will preserve the status quo in aid of appellate jurisdiction.1 See, e.g., FRAP 8(a)(1) (“[a] party must

ordinarily move first in the district court for . . . (C) an order suspending, modifying, restoring, or

granting an injunction while an appeal is pending”); USCIT Rule 62(c) (“[w]hile an appeal is

pending from an interlocutory order or final judgment that grants, dissolves, or denies an injunction,

the court may suspend, modify, restore, or grant an injunction on terms for bond or other terms that

secure the opposing party’s rights”). The motion at bar, however, would amount to vacatur, not

merely modification, and vacation of the injunction prior to issuance of the appellate mandate would

amount to improper divestment of appellate jurisdiction over the case. “The date of the certified

order is the date of the mandate[,]” Federal Circuit Rule 41, but if immediate lifting of the injunction

is the parties’ desired course of action, they have the option to file a consent motion to dismiss at the

Federal Circuit in advance of issuance of the mandate.

1 This Court has “the power of a court of equity to modify an injunction in adaptation to changed conditions, though it was entered by consent.” United States v. Swift, 286 U.S. 106, 114 (1932). Consol. Court No. 08-00380 Page 4

The motion to lift the injunction will therefore be held in abeyance until receipt of

the appellate mandate on the case. If that occurs, the motion will be acted upon in due course

without further action from the parties unless it be withdrawn.

So ordered.

/s/ R. Kenton Musgrave R. KENTON MUSGRAVE, Senior Judge

Dated: March 22, 2011 New York, New York