Case: 20-2157 Document: 32 Page: 1 Filed: 12/10/2020

NOTE: This order is nonprecedential.

United States Court of Appeals for the Federal Circuit ______________________ TRANSPACIFIC STEEL LLC, BORUSAN MANNESMANN BORU SANAYI VE TICARET A.S., BORUSAN MANNESMANN PIPE U.S. INC., THE JORDAN INTERNATIONAL COMPANY, Plaintiffs-Appellees v. UNITED STATES, DONALD J. TRUMP, in his offi- cial capacity as President of the United States, UNITED STATES CUSTOMS AND BORDER PROTECTION, MARK A. MORGAN, in his official capacity as Senior Official Performing the Duties of the Commissioner of the United States Customs and Border Protection, DEPARTMENT OF COMMERCE, WILBUR L. ROSS, in his official ca- pacity as Secretary of Commerce, Defendants-Appellants ______________________ 2020-2157 ______________________ Appeal from the United States Court of International Trade in No. 1:19-cv-00009-CRK-GSK-JAR, Senior Judge Jane A. Restani, Judge Claire R. Kelly, and Judge Gary S.

Katzmann. ______________________ ON MOTION Case: 20-2157 Document: 32 Page: 2 Filed: 12/10/2020

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______________________ Before REYNA, TARANTO, and CHEN, Circuit Judges.

Order of the court filed by Circuit Judge REYNA.

Dissenting opinion filed by Circuit Judge TARANTO.

REYNA, Circuit Judge.

ORDER The appellants move to stay the underlying judgment pending appeal.

Rule 8(a)(2) of the Federal Rules of Appellate Proce- dure authorizes this court to grant a stay pending appeal.

Our determination is governed by four factors: (1) whether the movant has made a strong showing of likelihood of suc- cess on the merits; (2) whether the movant will be irrepa- rably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies. See Nken v. Holder, 556 U.S. 418, 434 (2009).

Based on the papers submitted, we conclude that the appellants have not established that a stay of the final judgment pending appeal is warranted here. 1

TRANSPACIFIC STEEL LLC v. US 3

Accordingly, IT IS ORDERED THAT: The motion is denied.

FOR THE COURT December 10, 2020 /s/ Peter R. Marksteiner Date Peter R. Marksteiner Clerk of Court s31

is not entirely uniform; commentators have noted that at least “[o]ne court has cautioned that subdivisions (d) and (e) of Rule 62 should not be read to together so as to allow the United States a stay upon appeal as a matter of right,” Wright & Miller § 2905 n.9 (citing In re Westwood Plaza Apts., Ltd., 150 B.R. 163, 166–67 (Bankr. E.D. Tex. 1993)), and many other circuits have yet to consider the question.

As neither rule’s text explicitly provides for the application of an automatic stay here, we apply the traditional four fac- tor test to determine if a stay is warranted.

Case: 20-2157 Document: 32 Page: 4 Filed: 12/10/2020

NOTE: This order is nonprecedential.

United States Court of Appeals for the Federal Circuit ______________________ TRANSPACIFIC STEEL LLC, BORUSAN MANNESMANN BORU SANAYI VE TICARET A.S., BORUSAN MANNESMANN PIPE U.S. INC., THE JORDAN INTERNATIONAL COMPANY, Plaintiffs-Appellees v. UNITED STATES, DONALD J. TRUMP, in his offi- cial capacity as President of the United States, UNITED STATES CUSTOMS AND BORDER PROTECTION, MARK A. MORGAN, in his official capacity as Senior Official Performing the Duties of the Commissioner of the United States Customs and Border Protection, DEPARTMENT OF COMMERCE, WILBUR L. ROSS, in his official ca- pacity as Secretary of Commerce, Defendants-Appellants ______________________ 2020-2157 ______________________ Appeal from the United States Court of International Trade in No. 1:19-cv-00009-CRK-GSK-JAR, Senior Judge Jane A. Restani, Judge Claire R. Kelly, and Judge Gary S.

Katzmann. ______________________ TARANTO, Circuit Judge, dissenting.

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Defendants (collectively, the United States or the gov- ernment) request, under Federal Circuit Rule 8, that we stay the judgment of the Court of International Trade (Trade Court) pending the appeal in this case. I read the request as seeking a stay of only the non-declaratory por- tion of the judgment, which orders “that United States Cus- toms and Border Protection refund Plaintiff and Plaintiff- Intervenors the difference between any tariffs collected on its imports of steel products pursuant to Proclamation No. 9772 and the 25% ad valorem tariff that would other- wise apply on these imports together with such costs and interest as provided by law.” S.A. 3–4. Plaintiff Transpa- cific Steel LLC and Plaintiff-Intervenors Borusan Mannes- mann Boru Sanayi Ve Ticaret A.S., Borusan Mannesmann Pipe U.S. Inc., and the Jordan International Company (col- lectively, plaintiffs)—who are importers (in some cases also producers or exporters) of Turkish steel—oppose the stay.

I would grant the stay, without weighing the equities or assessing the likelihood of success on appeal, because the refund order at issue comes within a well-recognized “au- tomatic stay” principle for monetary judgments that we should hold applicable to the Trade Court.

I Plaintiffs challenged the lawfulness of Proclamation 9772, which the President issued under 19 U.S.C. § 1862 on August 10, 2018, 83 Fed. Reg. 40,429 (Aug. 15, 2018) (Proclamation 9772), and requested a refund of tariffs paid on their steel imports from Turkey. Proclamation 9722 raised the ad valorem tariff on Turkish steel from 25% to 50%. The Trade Court concluded that Proclamation 9722 violated 19 U.S.C. § 1862 as well as a right to equal protec- tion guaranteed by the Fifth Amendment. See Transpacific Steel LLC v. United States, 466 F. Supp. 3d 1246 (Ct. Int’l Trade 2020). The Trade Court entered a final judgment having just two parts—a declaratory part, stating that Proclamation 9722 is “declared unlawful and void,” and a Case: 20-2157 Document: 32 Page: 6 Filed: 12/10/2020

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refund part, ordering the government to “refund” plaintiffs “the difference between any tariffs collected” under the 50% rate of Proclamation No. 9772 and the otherwise-ap- plicable 25% rate, plus costs and interest. S.A. 3–4; see also Transpacific Steel LLC v. United States, No. 19-00009, 2020 WL 5530091, at *1 (Ct. Int’l Trade Sept. 15, 2020) (Stay Opinion) (“The court thus granted Plaintiffs’ re- quested relief and instructed U.S. Customs and Border Protection to issue to Plaintiffs[] a refund of the difference between any tariffs collected on imports of steel articles pursuant Proclamation 9772 and the 25 percent ad val- orem tariff that would otherwise apply.”). The United States appealed.

On August 13, 2020, the United States filed with the Trade Court, under U.S. Court of International Trade (CIT) Rule 62, a motion to stay the judgment—whose only non- declaratory portion is an order to refund an amount that plaintiffs do not dispute is a matter of easy, objective cal- culation. About a month later, the Trade Court denied the motion. Stay Opinion, 2020 WL 5530091, at *3. The court first rejected the government’s contention that, because the refund order is purely monetary in character and easily cal- culable in amount, the government is entitled to an auto- matic stay pending appeal without posting a bond or other security. Id. The Trade Court also rejected the govern- ment’s argument for a stay under the four-part standard that considers the merits, the potential for irreparable in- jury to the stay applicant, the other parties’ interests, and the public interest—though the Trade Court enjoined liq- uidation of the subject steel entries pending appeal. Id. at *2–4 (applying standard from Hilton v. Braunskill, 481 U.S. 770, 776 (1987)).

The United States now seeks a stay from this court. I would grant it.

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II A Plaintiffs do not dispute the proposition that if the rel- evant part of the judgment is monetary, the United States is entitled to an “automatic stay” pending appeal (with no consideration of the merits or equities) without posting a supersedeas bond or other security. That proposition, ar- rived at in two steps, is supported by ample precedent ap- plying language, notably from Federal Rule of Civil Procedure 62, materially the same as the language of CIT Rule 62. I would apply this proposition in exercising our stay authority under Federal Circuit Rule 8.

The first step is the automatic-stay principle that ap- plies to appellants generally. CIT Rule 62(d) states: “When an appeal is taken, the appellant, by giving a supersedeas bond, may obtain a stay subject to the exception contained in subdivision (a) of this rule.” 1 The only condition is the giving of a supersedeas bond, which must be “approved by the court.” CIT Rule 62(d) (“The stay is effective when the supersedeas bond is approved by the court.”). These provi- sions mirror Fed. R. Civ. P. 62(d) as it stood before 2018, in which year its language was moved, with slight modifica- tions, to Fed. R. Civ. P. 62(b). 2

1 The referred-to “exception” is the exception for “in- junction[s]” stated in CIT Rule 62(a): “Unless otherwise or- dered by the court, an interlocutory or final judgment in an action for an injunction shall not be stayed during the pe- riod after its entry and until an appeal is taken or during the pendency of any appeal.”

It also provided that “[t]he stay takes effect when the court approves the bond.” Id. Fed. R. Civ. P. 62(a) (2017) stated Case: 20-2157 Document: 32 Page: 8 Filed: 12/10/2020

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The materially identical “may” language in the Federal Rules counterpart has long been held—as its language can readily be understood—to be an entitlement in cases of monetary relief. “With respect to a case arising in the fed- eral system it seems to be accepted that a party taking an appeal from the District Court is entitled to a stay of a money judgment as a matter of right if he posts a bond in accordance with Fed. R. Civ. P. 62(d) and 73(d) . . . .” Amer- ican Manufacturers Mut. Ins. Co. v. American Broad.-Par- amount Theatres, Inc., 87 S. Ct. 1, 3 (1966) (Harlan, J., as

the referred-to exceptions: “But unless the court orders oth- erwise, the following are not stayed after being entered, even if an appeal is taken: (1) an interlocutory or final judg- ment in an action for an injunction or a receivership; or (2) a judgment or order that directs an accounting in an action for patent infringement.”

Since 2018, Fed. R. Civ. P. 62(b) has stated: “At any time after judgment is entered, a party may obtain a stay by providing a bond or other security. The stay takes effect when the court approves the bond or other security and re- mains in effect for the time specified in the bond or other security.” Rule 62(c) now states the exceptions: “Unless the court orders otherwise, the following are not stayed after being entered, even if an appeal is taken: (1) an interlocu- tory or final judgment in an action for an injunction or a receivership; or (2) a judgment or order that directs an ac- counting in an action for patent infringement.” The 2018 Advisory Committee Notes identify the replacement of “su- persedeas bond” with “bond or other security” as simply broadening the kinds of security that will suffice for the stay. There is no evident intent to change the effect of bar- ring execution that is part of the meaning of “supersedeas.”

See supersedeas, Black’s Law Dictionary (11th ed. 2019); Hovey v. McDonald, 109 U.S. 150, 159–60 (1883). The Ad- visory Committee Notes identify no substantive change of meaning relevant to the present issue.

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Circuit Justice) (citations omitted); see Becker v. United States, 451 U.S. 1306, 1308 (1981) (Rehnquist, J., as Cir- cuit Justice) (recognizing “the automatic stay provisions of Rule 62(d)”); see also, e.g., ActiveVideo Networks, Inc. v. Verizon Commc’ns, Inc., No. 2011-1538, 2012 WL 10716768, at *1 (Fed. Cir. Apr. 2, 2012); Acevedo-Garcia v. Vera-Monroig, 296 F.3d 13, 17 (1st Cir. 2002); Cohen v. Metro. Life Ins. Co., 334 F. App’x 375, 378 (2d Cir. 2009); In re Tribune Media Co., 799 F.3d 272, 281 (3d Cir. 2015); Fidelity & Deposit Co. of Maryland v. Davis, 127 F.2d 780, 782 (4th Cir. 1942); Hebert v. Exxon Corp., 953 F.2d 936, 938 (5th Cir. 1992); Arban v. West Pub. Corp., 345 F.3d 390, 409 (6th Cir. 2003); Dillon v. City of Chicago, 866 F.2d 902, 904 (7th Cir. 1988); Knutson v. AG Processing, Inc., 302 F. Supp. 2d 1023, 1032 (N.D. Iowa 2004); In re Combined Met- als Reduction Co., 557 F.2d 179, 193 (9th Cir. 1977); Shaw v. United States, 213 F.3d 545, 550 n.8 (10th Cir. 2000); United States v. Wylie, 730 F.2d 1401, 1402 n.2 (11th Cir. 1984); Fed. Prescription Serv., Inc. v. American Pharm.

Ass’n, 636 F.2d 755, 759 (D.C. Cir. 1980); 11 Charles A.

Wright & Arthur R. Miller, Federal Practice and Procedure § 2905 (3d ed. 2020); 20 James W. Moore, Moore’s Federal Practice § 308App.100 (2020); 12 Moore’s Federal Practice § 62.03 (2020).

The second step in the reasoning that leads to the prop- osition that I believe supports the stay request here is the premise that the security that other appellants must gen- erally post to get an automatic stay of a monetary judgment pending appeal may not be demanded from the United States. Congress has provided: “Security for damages or costs shall not be required of the United States, any depart- ment or agency thereof or any party acting under the direc- tion of any such department or agency on the issuance of process or the institution or prosecution of any proceeding.” 28 U.S.C. § 2408. That principle is reflected in CIT Rule 62(e), which immediately follows the automatic-stay provi- sion of Rule 62(d). CIT Rule 62(e) states: “When an appeal Case: 20-2157 Document: 32 Page: 10 Filed: 12/10/2020

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is taken by the United States or an officer or agency thereof or by direction of any department of the Government of the United States and the operation or enforcement of the judg- ment is stayed, no bond, obligation, or other security shall be required from the appellant.” That language matches the language of Fed. R. Civ. P. 62(e) as it stood in 2006.

The current language of Fed. R. Civ. P. 62(e)—adopted in 2007 as part of the Rules-wide language changes that, ac- cording to the 2007 Advisory Committee Notes, were “in- tended to be stylistic only”—reads: “The court must not require a bond, obligation, or other security from the appel- lant when granting a stay on an appeal by the United States, its officers, or its agencies or on an appeal directed by a department of the federal government.”

The no-required-security language of CIT Rule 62(e), and of its pre-2007 Federal Rules counterpart, is readily understood, as a textual matter, to bear a simple relation- ship to the automatic-stay language of the preceding sub- section on automatic stays. The bond required of appellants generally, as the sole condition of obtaining the stay as of right, must not be required of the federal govern- ment to obtain that automatic stay—which is available to the federal government as of right for monetary judgments without a bond. That straightforward relationship be- tween Rule 62(d) and 62(e) reflects the recognized lack of need for security against the government. Rule 62(e) can- not sensibly be read as depriving the federal government, alone among all appellants facing monetary judgments, of the entitlement to an automatic stay of a monetary judg- ment without further inquiry into the merits and equities unless it posts security that the Rule and 28 U.S.C. § 2804 forbid the court to require. This understanding of the lan- guage of CIT Rule 62(e), and of the identical pre-2007 Fed. R. Civ. P. 62(e), is reinforced by the current language of Fed. R. Civ. P. 62(e), which is even clearer in its implica- tion. The new language was included among the revisions that the Rules revisers said made no substantive change of Case: 20-2157 Document: 32 Page: 11 Filed: 12/10/2020

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meaning, but were “stylistic only,” thereby confirming how the earlier version should be understood.

The availability to the federal government of an auto- matic stay pending appeal of a monetary judgment against it, without the posting of security, has often and consist- ently (if not quite uniformly) been recognized. That conclu- sion appears to have been reached, in various contexts, by the several circuit courts that have addressed the matter. 3 And the same conclusion has been reached by numerous district courts. 4 See Wright & Miller § 2905. As the major- ity notes, a bankruptcy court reached a different conclusion in 1993, In re Westwood Plaza Apts., Ltd., 150 B.R. 163, 165–67 (Bankr. E.D. Tex. 1993). But that decision is an outlier, and it was not tested on appeal, perhaps because the bankruptcy court in that case granted the government

Area Transit Auth., 841 F.2d 1157, 1159 (D.C. Cir. 1988) (per curiam) (applying D.C. Superior Court Rule 62(d), (e)).

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a stay pending appeal without bond anyway, though sub- ject to certain conditions, under the usual four-part stay analysis. Id. at 167–68. 5 I think that the above considerations suffice to support the conclusion that, in a Trade Court case, if the relevant part of the judgment at issue is monetary, the United States is entitled to a stay pending appeal without posting a supersedeas bond or other security and without consider- ation of the merits or equities. That conclusion is well- grounded in the text of CIT Rule 62, for the reasons indi- cated. It is also supported in a substantial, highly lopsided body of judicial decisions going back many years under the Federal Rules counterpart to the CIT Rule. Plaintiffs themselves have not contested this legal proposition.

B Plaintiffs dispute only the application of the proposi- tion to this case. In doing so, they do not dispute that the amount ordered to be paid—the difference between the tar- iffs they paid and a 25% tariff (plus costs and interest)—is easily and objectively calculated. Their argument, instead, is simply that the portion of the judgment ordering the United States to refund plaintiffs that difference (plus costs and interests) is not a monetary judgment subject to the automatic-stay principle. I disagree. When a judgment contains a provision requiring payment of money, in an

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amount that is easily and objectively calculated, to compen- sate for past harms, the part of the judgment requiring the payment is a money judgment subject to the automatic- stay principle—and therefore, when the appellant is the federal government, to an automatic stay without the post- ing of security.

As the Supreme Court has explained outside the stay context, “[t]he ‘substance’ of a money judgment is a com- pelled transfer of money.” Great-W. Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204, 216 (2002); see also Bowen v. Massachusetts, 487 U.S. 879, 915–16 (1988) (Scalia, J., dis- senting) (“[T]he line between damages and specific relief must surely be drawn on the basis of the substance of the claim, and not its mere form.”). Our court and other circuit courts have similarly focused on a judgment’s substance ra- ther than its form when determining whether the judg- ment is monetary. See, e.g., ActiveVideo Networks, 2012 WL 10716768, at *1 (“The form of the order to pay money does not matter; what matters is ‘whether the judgment involved is monetary or nonmonetary.’” (quoting Hebert, 953 F.2d at 938)); see also Titan Tire Corp. of Bryan v. United Steel Workers of America, Local 890L, No. 09-4460, 2010 WL 815557, at *1 (6th Cir. Mar. 10, 2010) (“In other words, the applicability of Rule 62(d) turns on whether the judgment involved is monetary or non-monetary. Here, the district court’s judgment binds Titan to pay a specific sum of money, i.e., back wages.”). The refund order here in sub- stance compels the United States to transfer money after performing a straightforward calculation to determine the amount. 6

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Plaintiffs rely on two Trade Court decisions to support their contention that the refund order is outside the auto- matic-stay principle. Plaintiffs’ Opp. to Stay Motion at 8.

But even aside from the fact that those decisions are not binding precedent for us, neither decision justifies a con- clusion that the refund order here is outside the automatic- stay principle.

Plaintiffs first rely on Badger-Powhatan, A Division of Figgie International, Inc. v. United States, in which the Trade Court’s judgment on the merits of the case ordered a “remand[] to the Department of Commerce International Trade Administration for issuance of an amended final de- termination” with the “estimated antidumping duties be[ing] as closely tailored to actual antidumping duties as is reasonable given data available to [the Department of Commerce] at the time the antidumping order is issued.” 633 F. Supp. 1364, 1373 (Ct. Int’l Trade 1986). When the United States sought a stay pending appeal, the Trade Court denied the request, concluding that the judgment was not a monetary one subject to the automatic-stay prin- ciple. Badger-Powhatan, Div. of Figgie Int’l, Inc. v. United States, 638 F. Supp. 344, 348 (Ct. Int’l Trade 1986). Unlike the judgment at issue in the present matter, however, the relevant part of the judgment in Badger-Powhatan did not simply order the government to pay an amount easily and objectively calculated, without further proceedings. In- deed, the Trade Court explained that “the final determina- tion and antidumping duty order will not result in the actual assessment of antidumping duties, rather importers will be required to deposit estimated antidumping duties.

The permanent exchange of money will occur only after a

Turkey on and after August 13, 2018 and to date has paid . . . $2,874,828.65 as a result of the 50% tariff.” Transpa- cific Steel, No. 19-00009, ECF No. 19, Exhibit 3 (Ct. Int’l Trade Apr. 2, 2019).

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periodic review of the duty.” Id. (citation omitted). The simple refund order at issue here is quite different.

Second, in National Association of Manufacturers v. United States Department of the Treasury, the Trade Court had before it a trade-association challenge to an agency rule, not individual importers’ claims for a refund. 427 F.

Supp. 3d 1362, 1366 (Ct. Int’l Trade 2020). The Trade Court judgment declared the illegality of the agency’s rule and then “[d]eclare[d] that Defendants must process and pay substitution drawback claims that comply with the governing statutory and regulatory requirements.” Nat’l Ass’n of Manufacturers v. U.S. Dep’t of the Treasury, 432 F.

Supp. 3d 1381, 1382 (Ct. Int’l Trade 2020). The Trade Court denied the government’s request for a stay pending appeal, but all the court decided was that, under the tradi- tional four-factor analysis, the United States should not be granted a stay beyond a suspension of liquidations pending the appeal. See Nat’l Ass’n of Manufacturers v. U.S. Dep’t of the Treasury, No. 19-00053, 2020 WL 2519484, at *1–2 (Ct. Int’l Trade May 15, 2020). The Trade Court in Na- tional Association of Manufacturers simply never ad- dressed the automatic-stay principle—and it was never asked to: In seeking a stay, the United States did not argue for a stay under the automatic-stay principle for money judgments. See No. 19-cv-00053, ECF No. 50 (Ct. Int’l Trade Apr. 17, 2020). The denial of a stay in that case therefore has nothing to say about an automatic stay here.

In sum, I would conclude that the Trade Court’s refund order in this case is a monetary judgment for purposes of the automatic-stay principle, thus rejecting the only basis on which plaintiffs challenge the government’s request for an automatic stay without a bond. I would therefore grant that request. I respectfully dissent.