Opinion
Court No. 10-00260, Slip Op. 11-80.
July 8, 2011.
Squire Sanders Dempsey, LLP (Peter J. Koenig and Christine J. Sohar Henter), Washington, DC, for Plaintiff MCC Eurochem.
Tony West, Assistant Attorney General, Jeanne E. Davidson, Director, Patricia M. McCarthy, Assistant Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, Washington, DC, (David D'Alessandris); and Office of Chief Counsel, Department of Commerce (Shana Hofstetter), of counsel, for Defendant United States.
Akin, Gump, Strauss, Hauer Feld, LLP (Valerie A. Slater, Margaret C. Marsh), Washington, DC, for DefendantIntervenor Ad Hoc Committee of Domestic Nitrogen Producers.
[Vacating opinion and order that dismissed "zeroing" claim of Plaintiff's complaint, and reinstating claim.]
MEMORANDUM and ORDER
The court previously granted Defendant's motion to dismiss Count 2 of Plaintiff's complaint (Compl. ¶ 11), which challenged the U.S. Department of Commerce's "zeroing" methodology. MCC Eurochem v. United States, 35 CIT ___, 753 F. Supp. 2d 1369 (2011) ("Opinion and Order"). The U.S. Court of Appeals for the Federal Circuit has subsequently issued two decisions, Dongbu Steel Co. v. United States, 635 F.3d 1363 (Fed. Cir. 2011) andJTEKT Corp. v. United States, ___ F.3d ___, 2011 WL 2557640 (Fed. Cir. June 29, 2011), which indicate that Plaintiff's zeroing claim has merit. The court is therefore sua sponte vacating its prior Opinion and Order, and reinstating Count 2 of Plaintiff's complaint.
Accordingly, it is hereby
ORDERED that this Court's Opinion and Order dismissing Count 2 of Plaintiff's complaint, MCC Eurochem v. United States, 35 CIT ___, 753 F. Supp. 2d 1369 (2011), is vacated; and it is further
ORDERED that Count 2 (¶ 11) of Eurochem's complaint is reinstated.