Universal Steel Products, Inc. et al v. United States et al

Slip Op. 21-25
UNITED STATES COURT OF INTERNATIONAL TRADE
Before: Gary S. Katzmann, M. Miller
Baker, Leo M. Gordon, Judges
Court No. 19-00209
MEMORANDUM and ORDER
Dated: February 26, 2021
Lewis E. Leibowitz, of Washington, DC, for Plaintiffs Universal Steel Products, Inc.,
PSK Steel Corporation, Dayton Parts, LLC, The Jordan International Company, and
Borusan Mannesmann Pipe U.S. Inc.
Meen Geu Oh, Trial Attorney, and Ann C. Motto, Trial Attorney, Commercial
Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, DC, for
Defendants. With them on the brief were Brian M. Boynton, Acting Assistant Attorney
General, 	Jeanne 	E. 	Davidson, 	Director, 	Tara 	K. 	Hogan, 	Assistant 	Director, 	and
Stephen C. Tosini, Senior Trial Attorney.
Per Curiam: 	Recently we issued an opinion granting Defendants’ motion for
judgment on the pleadings and denying Plaintiffs’ cross-motion for summary judgment
challenging Presidential Proclamation 9705, and its subsequent modifications, issued
pursuant to Section 232 of the Trade Expansion Act of 1962, as amended, 19 U.S.C.
§ 1862 (“Section 232”). 	See Slip Op. 21-12, 2021 WL 401283 (CIT Feb. 4, 2021)
(“Opinion”).
In the Opinion, we rejected the amended complaint’s claims (1) that the challenged
proclamations were invalid because the Secretary violated Section 232’s procedural
UNIVERSAL STEEL PRODUCTS, et al.,
Plaintiffs,
v.
UNITED STATES, et al.,
Defendants.
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requirements 	(Count 	One); 	(2) 	that 	the 	President 	“fundamentally 	misinterpreted
Section 232 by failing to base his determination upon a finding of an impending threat to
impair the national security of the United States” (Count Three); (3) that the “duration” set
forth in Proclamation 9705 violated the requirements of Section 232 (Count Two); and
(4) that the proclamation of tariffs on imports from Mexico, Canada, and the European
Union countries pursuant to Proclamation 	9759 violated certain mandatory timing
provisions of Section 232 (Count Four, ¶ 70). See Am. Compl., ECF No. 11.
However, we noted that we would continue to stay consideration of the amended
complaint’s allegations that Proclamation 9772, which increased tariffs on steel imports
from Turkey to 50 percent, violated other mandatory timing provisions of Section 232
(“Count Four ¶ 71 claim”). 	See Opinion at nn. 4, 18 & 21; see also Am. Compl. ¶ 71;
Scheduling Order, Mar. 10, 2020, ECF No. 26 (“Ordered that consideration of Plaintiffs’
challenge to Presidential Proclamation 9772, as pleaded in Count Four of the Amended
Complaint, Am. Compl. ¶ 71, is stayed pending the final disposition of Transpacific Steel,
LLC v. United States, Ct. Int’l Trade No. 19-0009”).
Plaintiffs now move the court to enter partial judgment pursuant to USCIT
Rule 54(b). 	See Pls.’ Mot. for Entry of R. 54(b) Judgment in Part, Feb. 17, 2021, ECF
No. 59. Defendants do not oppose Plaintiffs’ motion. Id. at 4. For the reasons set forth
below, we grant Plaintiffs’ unopposed motion and enter a Rule 54(b) partial judgment.
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Rule 54(b) provides in part that:
[w]hen an action presents more than one claim for relief—
whether as a claim, counterclaim, cross-claim, or third-party
claim—or when multiple parties are involved, the court may
direct entry of a final judgment as to one or more, but fewer
than 	all, 	claims 	or 	parties 	only 	if 	the 	court 	expressly
determines that there is no just reason for delay.
USCIT R. 54(b).
Rule 54(b)’s “requirements are threefold: (1) partial finality; (2) separateness; and
(3) an express finding that there is ‘no just reason for delay.’” Federal Appellate Practice
§ 2.3 D(1) (3d ed. 2018). Rule 54(b) requires we “make an express statement” as to the
requirements of the Rule. Spraytex, Inc. v. DJS&T, 96 F.3d 1377, 1379 (Fed. Cir. 1996)
(citing W.L. Gore & Assocs., Inc. v. Int’l Med. Prosthetics Rsch. Assocs., Inc., 975 F.2d
858 (Fed. Cir. 1992)). We consider each of these elements in turn.
Rule 54(b)’s first requirement, partial finality, refers to “an ultimate disposition of
an individual claim entered in the course of a multiple claims action.” Sears, Roebuck &
Co. v. Mackey, 351 U.S. 427, 436 (1956). 	Here, the court has reached a final decision
with respect to all of Plaintiffs’ claims other than the Count Four ¶ 71 claim relating to
Proclamation 9772, thereby providing “an ultimate disposition” as to those claims—
meaning that the litigation is at an end for those claims and there is “nothing left for the
court to do but execute the judgment.” Weed v. Soc. Sec. Admin., 571 F.3d 1359, 1361
(Fed. Cir. 2009) (quoting Allen v. Principi, 237 F.3d 1368, 1372 (Fed. Cir. 2001)).
Rule 54(b)’s second requirement, separateness, is not satisfied by the mere fact
that a party’s pleading nominally denominates claims as separate counts or claims for
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relief. 	See, e.g., Lloyd Noland Found., Inc. v. Tenet Health Care Corp., 483 F.3d 773,
780 (11th Cir. 2007) (“[E]ven if a district court has adjudicated one count of a complaint,
but another count seeks substantially similar relief, the adjudication of the first count does
not represent a ‘final judgment’ because both counts are functionally part of the same
claim under Rule 54(b)”).
Conversely, a nominally denominated single count or claim for relief might (or
might not) represent two or more claims for Rule 54(b) purposes. 	For example, in this
case, Count Four asserts two challenges—one that contends that the President issued
Proclamation 9759 too early because he failed to negotiate with other countries for a full
180 days before issuing it, and another that contends that the President issued
Proclamation 9772 too late because he issued it after the expiry of Section 232’s
deadlines. 	See Am. Compl. ¶¶ 70, 71. 	Our Opinion decided the former of these
challenges and, as noted above, left the latter subject to the stay.
Regardless of how a pleading denominates claims for relief, for Rule 54(b)
purposes the key questions are whether the relevant claims “involve at least some
different questions of fact and law and could be separately enforced.” 	Advanced
Magnetics, Inc. v. Bayfront Partners, Inc., 106 F.3d 11, 21 (2d Cir. 1997). Here, Plaintiffs
seeks a Rule 54(b) partial judgment as to their challenges to Proclamation 9705 and
various of its modifications, including Proclamation 9772, that we rejected in the Opinion.
Plaintiffs’ unresolved challenge to Proclamation 9772, though related to challenges
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adjudicated in our Opinion, involves different questions of fact and law. 1 Because those
challenges resolved in our Opinion are factually and legally distinct from Plaintiffs’ stayed
challenge to Proclamation 9772, we hold that the former satisfy the separateness
requirement of Rule 54(b).
Rule 54(b)’s third and final requirement for issuance of a partial judgment is that
we must “expressly determine[] that there is no just reason for delay.” 	USCIT R. 54(b).
As previously noted, the court stayed consideration of the Count Four ¶ 71 claim as it is
substantially identical to the claims in Transpacific, which is currently before the Federal
Circuit (Fed. Cir. No. 20-2157). 	Therefore, there is nothing for this court to do with the
Count Four ¶ 71 claim until the Federal Circuit disposes of Transpacific.
The entry of a Rule 54(b) partial judgment would serve the interests of the parties
and the administration of justice by bringing these adjudicated claims to a conclusion
before this court and providing Plaintiffs an opportunity to immediately appeal all issues
other than the Count Four ¶ 71 claim. Delaying Plaintiffs’ appeal of their challenges that
we adjudicated in the Opinion until the Federal Circuit resolves the Transpacific appeal
would serve no rational purpose. 	There is no threat of piecemeal judicial review as
resolution of the Transpacific appeal will not resolve any of the issues adjudicated in our
Opinion or moot Plaintiffs’ challenges to the various Proclamations other than (possibly)
1 Plaintiffs’ stayed challenge to Proclamation 9772 in Count Four ¶ 71 turns on the fact
that the President imposed duties on Turkish steel imports allegedly in violation of the
relevant statutory deadline. 	That fact is not relevant to Plaintiffs’ challenges that we
adjudicated in the Opinion. Likewise, the legal question at issue in Plaintiffs’ challenge to
Proclamation 9772 is whether the statute permits the President to take such action. That
question is not implicated by the challenges we adjudicated in the Opinion.
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Proclamation 9772. 	Therefore, the court has no just reason to delay issuance of a
Rule 54(b) partial judgment.
Accordingly, it is hereby
ORDERED 	that 	Plaintiffs’ 	unopposed 	motion 	for 	the 	issuance 	of 	a 	USCIT
Rule 54(b) partial judgment is granted.
/s/ Gary S. Katzmann
Judge Gary S. Katzmann
/s/ M. Miller Baker
Judge M. Miller Baker
/s/ Leo M. Gordon
Judge Leo M. Gordon
Dated: February 26, 2021
New York, New York
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