                                         Slip Op. 18-96

                 UNITED STATES COURT OF INTERNATIONAL TRADE

ALUMINUM EXTRUSIONS FAIR
TRADE COMMITTEE,

                      Plaintiff,

           v.

UNITED STATES,
                                                     Before: Timothy C. Stanceu, Chief Judge
                       Defendant,
                                                     Court No. 17-00179
           and

INNOVATIVE OUTDOOR
SOLUTIONS, INC.,

                      Defendant-Intervenor.


                                    OPINION AND ORDER

[Denying plaintiff’s motion for a stay of proceedings and enlarging the time period for the filing
of plaintiff’s motion for judgment on the agency record]

                                                                    Dated: August 8, 2018

       Robert E. DeFrancesco, III, Wiley Rein LLP, of Washington, D.C., for plaintiff
Aluminum Extrusions Fair Trade Committee. With him on the motion were Alan H. Price and
Derick G. Holt.

       Aimee Lee, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, U.S.
Department of Justice, of Washington, D.C., for defendant. With her on the memorandum in
opposition were Chad A. Readler, Acting Assistant Attorney General, Jeanne E. Davidson,
Director, and Reginald T. Blades, Jr., Assistant Director. Of counsel on the memorandum in
opposition was Jessica R. DiPietro, Office of the Chief Counsel for Trade Enforcement and
Compliance, U.S. Department of Commerce.

       Richard P. Ferrin, Drinker Biddle & Reath LLP, of Washington, D.C., for Defendant-
Intervenor Innovative Outdoor Solutions, Inc. With him on the memorandum in opposition was
Douglas J. Heffner.
Court No. 17-00179                                                                           Page 2


       Stanceu, Chief Judge: Plaintiff Aluminum Extrusions Fair Trade Committee (the

“Committee”),1 requests that the court stay proceedings in this action until thirty days following

the final resolution of two cases that, at the time of the motion, were pending before the Court of

Appeals for the Federal Circuit (“Court of Appeals”). Mot. to Stay Proceedings Pending Final

Resolution of Ct. of Appeals for the Fed. Cir. Case Nos. 16-2657 and 17-1117 and Consent Mot.

for an Extension of Time to File Pl.’s Rule 56.2 Mot. and Supp. Brief 1, 8 (Feb. 13, 2018), ECF

No. 24 (“Mot. to Stay”). Specifically, plaintiff requests a stay of further proceedings in this

action pending final resolution of the litigation in Meridian Prods., LLC v. United States (Ct.

No. 13-00246) (“Meridian”), and Whirlpool Corp. v. United States (Ct. No. 14-00199)

(“Whirlpool”). See Mot. to Stay 1-2.

       Plaintiff requests, should the court deny the motion to stay, an extension of ten days from

the date of the court’s decision to file a Rule 56.2 motion for judgment on the agency record and

supporting brief. Mot. to Stay 2. Defendant and defendant-intervenor Innovative Outdoor

Solutions, Inc. (“IOS”) oppose the Committee’s motion to stay but do not oppose a ten-day

extension. Def.’s Opp’n to Pl.’s Mot. to Stay Proceedings (Mar. 5, 2018), ECF No. 25 (“Def.’s

Opp’n”); Def.-Int.’s Opp’n to Pl.’s Mot. to Stay Proceedings (Mar. 5, 2018), ECF No. 26; Mot.

to Stay 9. For the reasons set forth below, the court denies plaintiff’s motion for a stay. The

court will grant plaintiff an extension of ten days from the date of this Opinion and Order to file

its Rule 56.2 motion for judgment on the agency record.



       1
        The Aluminum Extrusions Fair Trade Committee participated in the administrative
proceeding that is subject to the challenge before the court. Amended Compl. ¶ 3 (Oct. 17,
2017), ECF No. 21. Plaintiff was also a petitioner in the underlying antidumping duty (“AD”)
and countervailing duty (“CVD”) investigations. Id. ¶ 5.
Court No. 17-00179                                                                           Page 3


                                         I. BACKGROUND

       In this action, plaintiff contests a scope ruling issued by the International Trade

Administration, U.S. Department of Commerce (“Commerce” or the “Department”) concluding

that certain “kayak stabilizer kits” produced by IOS are not within the scope of the antidumping

duty (“AD”) and countervailing duty (“CVD”) orders (together, the “Orders”) on aluminum

extrusions from the People’s Republic of China.2 See Antidumping and Countervailing Duty

Orders on Aluminum Extrusions from the People’s Republic of China: Final Scope Ruling on

IOS Certain Products at 1-2 (Int’l Trade Admin. June 9, 2017) (P.R. Doc. 58), available at

https://enforcement.trade.gov/download/prc-ae/scope/106-certain-ios-products-20jun17.pdf (last

visited August 7, 2018) (“Final Scope Ruling”).

       IOS’s kayak stabilizer kits include “an extruded aluminum adjustable center section,

extruded aluminum tubes, an aluminum bar custom-machined end piece, and an adjustable

extruded aluminum tube.” Final Scope Ruling at 27 (footnote omitted). In its complaint,

plaintiff claims that Commerce improperly determined that the kayak stabilizer kits were

excluded from the Orders and, specifically, argues that Commerce wrongly concluded that the

goods qualified for the “finished goods kit” exclusion specified in the scope language of the

Orders. Amended Compl. ¶¶ 14, 17, 19 (Oct. 17, 2017), ECF No. 21 (“Compl.”). Plaintiff also

claims that the Department’s finding that certain steel brackets in IOS’s kayak stabilizer kits

were not “fasteners” within the meaning of the finished goods kit exclusion was unlawful

because it was inconsistent with previous findings in which brackets have been considered

       2
         The AD and CVD orders relevant to this case are published as Aluminum Extrusions
from the People’s Republic of China: Antidumping Duty Order, 76 Fed. Reg. 30,650 (Int’l Trade
Admin. May 26, 2011) and Aluminum Extrusions from the People’s Republic of China:
Countervailing Duty Order, 76 Fed. Reg. 30,653 (Int’l Trade Admin. May 26, 2011) (together,
the “Orders”). The scope language of the Orders is identical in relevant part.
Court No. 17-00179                                                                              Page 4


fasteners. Id. ¶ 17. Furthermore, plaintiff claims that the kayak stabilizer kits do not qualify as a

“final finished good” and instead should be treated as a “subassembly” for purposes of the

Orders. Id. ¶¶ 19-21. Plaintiff alleges that Commerce’s decision is inconsistent with the

Department’s prior scope rulings on aluminum extrusions from China, including rulings on

“towel racks, flag pole sets, patio door kits, and event décor parts and kits.” Id. ¶ 23.

                                          II. DISCUSSION

       “The power to stay proceedings is incidental to the power inherent in every court to

control the disposition of the causes on its docket with economy of time and effort for itself, for

counsel, and for litigants.” Landis v. North American Co., 299 U.S. 248, 254 (1936). A decision

as to “[w]hen and how to stay proceedings is within the sound discretion of the trial court.”

Cherokee Nation of Oklahoma v. United States, 124 F.3d 1413, 1416 (Fed. Cir. 1997) (internal

citations omitted).

       Plaintiff contends that a stay is warranted because the final and conclusive outcome of the

litigation in Meridian and Whirlpool (including all future appeals and remands) could

“streamline the issues” or be “potentially dispositive” of this action. See Mot. to Stay 6. Both of

these cases were on appeal at the time plaintiff filed its motion to stay but since have been

addressed in decisions by the Court of Appeals. See Meridian Prods., LLC v. United States,

890 F.3d 1272 (Fed. Cir. 2018); Whirlpool Corp. v. United States, 890 F.3d 1302 (Fed. Cir.

2018). Neither decision is final and conclusive; both necessitate that this Court issue remands to

Commerce for further proceedings.

       The court disagrees with plaintiff’s argument that the final dispositions in Meridian and

Whirlpool will be directly relevant to its case. Meridian and Whirlpool involve products (oven

door and refrigerator door handles, respectively) that are dissimilar from the kayak stabilizers at
Court No. 17-00179                                                                            Page 5


issue in this case. Moreover, the opinions of the Court of Appeals do not provide a reason to

conclude that the final resolution of those disputes will be instructive on any issue in this case,

including in particular the issue of the meaning of the “finished goods kit” exclusion.

       In Meridian, the Court of Appeals stated that “[g]iven Commerce’s finding that the end

caps are fasteners, the Type B handles are not excluded under the ‘finished goods kit’ provision.”

890 F.3d at 1279. The Court of Appeals further concluded “that Commerce’s original scope

ruling that the Type B handles are not excluded from the scope of the order under the ‘finished

goods kit’ exclusion provision is reasonable and supported by substantial evidence.” Id.,

890F.3d at 1281. The Court of Appeals directed that “[i]f Commerce determines that the

Type B handles are imported unassembled, then its original scope ruling controls and the inquiry

ends,” but “[i]f Commerce determines the Type B handles are imported fully and permanently

assembled, then we direct Commerce to address the question of whether the Type B handles are

excluded from the scope of the antidumping and countervailing duty order as ‘finished

merchandise.’” Id. In short, nothing in the opinion issued by the Court of Appeals suggests that

the “finished goods kit” exclusion could apply to the goods at issue in that case.

       In Whirlpool, the Court of Appeals observed that “because the finished goods kit

exclusion is inapplicable to Whirlpool’s assembled handles, so too is the fasteners exception to

the finished goods kit exclusion.” 890 F.3d at 1311 (emphasis added). The issue remaining in

Whirlpool is whether the “assembled handles meet the requirements for the finished merchandise

exclusion,” id., 890 F.3d at 1312, not the finished goods kit exclusion.

                                   III. CONCLUSION AND ORDER

       Upon consideration of the Committee’s Motion to Stay Proceedings Pending Final

Resolution of Court of Appeals for the Federal Circuit Case Nos. 16-2657 and 17-1117 and
Court No. 17-00179                                                                         Page 6


Consent Motion for an Extension of Time to File Plaintiff’s Rule 56.2 Motion and Supporting

Brief (Feb. 13, 2018), ECF No. 24, upon all papers and proceedings had herein, and upon due

deliberation, it is hereby

        ORDERED that plaintiff’s motion be, and hereby is, denied to the extent that it seeks a
stay of proceedings in this action; it is further

        ORDERED that plaintiff’s motion is granted to the extent that it seeks an extension of
ten (10) days from the date of this Opinion and Order for the filing of the Rule 56.2 motion for
judgment on the agency record and brief in support thereof; and it is further

        ORDERED that plaintiff’s motion for judgment on the agency record and supporting
brief shall be filed no later than August 20, 2018.

                                                    /s/ Timothy C. Stanceu
                                                  Timothy C. Stanceu, Chief Judge

Dated: August 8, 2018
       New York, New York
