Before Archer, Circuit Judge, Bennett, Senior Circuit Judge, and Plager, Circuit Judge.
The United States International Trade Commission (ITC) moves for a stay, pending appeal, of the United States Court of International Trade's March 15, 1993 order reversing the ITC's determination of threat of material injury and remanding for either further explanation of the ITC's findings or rescission of its determination. Suramerica de Aleaciones Laminadas, C.A. et al. (Suramerica) oppose.
This matter stems from Southwire's petition filed with the Department of Commerce (Commerce) in 1987 urging antidumping and countervailing duty investigations of certain imports of electrical conductor aluminum redraw rod (EC rod) from Venezuela. After an investigation, Commerce issued countervailing and antidumping duty orders. Suramerica commenced an action in the Court of International Trade, contesting, inter alia, Commerce's determination that Southwire filed the petition "on behalf of" the domestic industry.
The Court of International Trade held that the petition was not filed "on behalf of" the domestic industry and vacated the agency determination. The United States, the ITC, and Southwire appealed to this court. On June 11, 1992, this court reversed the Court of International Trade's judgment, stating that Commerce's interpretation of the phrase "on behalf of" was a permissible construction. Suramerica de Aleaciones Laminadas, C.A. v. United States, 966 F.2d 660, 667 (Fed. Cir. 1992). This court remanded for further proceedings.
On remand, Suramerica sought review of Commerce's determination resulting in the antidumping duties and the ITC's determination that a domestic industry was threatened by material injury by reason of the imports. The Court of International Trade found that the ITC's factual findings underlying its determination of a threat of material injury to a domestic industry were not based on substantial evidence. The Court of International Trade reversed and remanded to the ITC to give the ITC "a second opportunity to explain how its Conclusions with respect to certain findings were based on substantial evidence from the record" or, in the alternative, to rescind its threat of injury determination.*fn1
Forty-three days after the Court of International Trade's remand order, the ITC moved for a stay of the remand order and, apparently, for certification of the order for immediate appeal. On April 29, 1993, 45 days after the Court of International Trade's remand order, the ITC appealed. On May 4, 1993, the Court of International Trade denied the ITC's motion for a stay and motion for certification. The Court of International Trade disagreed with the ITC's assertion that the instructions on remand left the ITC no discretion but to rescind the "threat of material injury" determination. The Court of International Trade stated that "if the [ITC] can find support in the record for its determination, it may make whatever determination on remand its discretion allows."
As a threshold matter, we consider whether the Court of International Trade's March 15, 1993 order is appealable. Suramerica argues that the remand order is not appealable, relying primarily on Cabot Corp. v. United States, 788 F.2d 1539 (Fed. Cir. 1986) and Badger-Powhatan v. United States, 808 F.2d 823 (Fed. Cir. 1986). The ITC argues that the order is appealable, relying primarily on Sullivan v. Finkelstein, 496 U.S. 617 (1990) and Travelstead v. Derwinski, 978 F.2d 1244 (Fed. Cir. 1992). We discuss the cases seriatim.
In Cabot, we dismissed an appeal of a Court of International Trade order that reversed and remanded to Commerce for further findings, investigation, and a redetermination concerning a countervailable duty determination with instructions to use a different standard than that used by Commerce initially. We concluded that such an order was not appealable either as a final order or under the collateral order doctrine:
Where, as here, the trial court remands to the administrative agency for additional findings, determination, and redetermination, the remand order is not appealable even though the order resolves an important legal issue such as the applicable standard for countervailability. This result comports with the policies underlying the finality rule and in particular avoids unnecessary piecemeal appellate review without precluding ...