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WT/DS162/R/Add.1 Page 56


The United States points out that, under US law, neither the Geneva Steel decision nor the WheelingPittsburgh decision is considered "final" or "conclusive."  Both cases are currently in the discovery stage which means that no trial has taken place.206  A district court decision on a motion to dismiss is "final" only once all of the claims in the case have been tried or otherwise adjudicated and the district court has entered judgment.207  At that point, the district court decision becomes "appealable," meaning that a party to the case may take an appeal to a circuit court of appeals.  If no party appeals the case, the district court's decision becomes "conclusive" and therefore binding on the parties.  However, even a final district court decision is not binding on other district courts or appellate courts; it does not even have persuasive value unless it has been soundly reasoned.208  If a party does appeal the case, the appellate court, in turn, will conduct a review and either affirm, modify or reverse the district court's decision.  The appellate court's decision then is the "conclusive" decision in the case (assuming that it is not subsequently reviewed by the US Supreme Court).209


The United States argues, moreover, that Japan's discussion of the holdings in Geneva Steel and Wheeling-Pittsburgh are in any event irrelevant to the present Panel's analysis.  Japan seems to take

206 In response to a question of the Panel regarding the current status of the Geneva Steel case and the Wheeling-Pittsburgh case as far as the nonsettled cases are concerned, the United States notes that the cases are still pending in the discovery stage and no final decisions have been issued, although an appeal of the decision in WheelingPittsburgh that the 1916 Act does not allow for injunctive relief was taken.  WheelingPittsburgh's appeal of that decision is pending in the Court of Appeals for the Sixth Circuit.  It should be noted that, after the second substantive meeting of the Panel with the parties, there have, according to the United States, been further developments in the Wheeling-Pittsburgh case.  According to the United States, the plaintiff in Wheeling-Pittsburgh has voluntarily dismissed its claims against the remaining defendants at the trial court level so that all that remains is the above-mentioned appeal of an interlocutory opinion regarding injunctive relief currently pending before the US Court of Appeals for the Sixth Circuit.

207 The United States refers to Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, pp. 54547 (1949) which interprets 28 U.S.C. § 1291; also International Society for Krishna Consciousness, Inc. v. Air Canada, 727 F.2d 253, pp. 25455 (2d Cir. 1984) which states, according to the United States, that a motion to dismiss for failure to state a claim is not a final decision.

208 The United States refers to Threadgill v. Armstrong World Industries Inc., 928 F.2d 1366, p. 1371 (3d Cir. 1991).

209 The United States refers to Metropolitan Water Co. v. Kaw Valley Drainage District, 223 U.S. 519, p. 524 (1912) where, having failed to seek review from a higher court, the judgment was "conclusive" and binding on the parties.  In this context, Japan asks the United States to respond to the following observation: Since the Zenith III case - which the United States claims is the authoritative interpretation of the 1916 Act - involved the 3d and 9th circuits, it does not appear to be a binding precedent in other circuits.  Since the State of Utah belongs to the 10th circuit and the State of Ohio belongs to the 6th circuit, there is no reason to believe that courts in Geneva Steel and Wheeling-Pittsburgh will be guided by the Zenith III precedent.  The United States responds that this observation is irrelevant because the question is whether the 1916 Act is susceptible to a WTOconsistent interpretation.    

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