American Signature, Inc. v. United States

United States Court of Appeals for the Federal Circuit
2010-1023

AMERICAN SIGNATURE, INC.,

Plaintiff-Appellant,

v.

UNITED STATES,

Defendant-Appellee,

and

AMERICAN FURNITURE MANUFACTURERS COMMITTEE FOR
LEGAL TRADE and VAUGHAN-BASSETT FURNITURE COMPANY, INC.,

Defendants-Appellees.

R. Will Planert, Troutman Sanders LLP, of Washington, DC, argued for plaintiff-
appellant. With him on the brief were Jeffrey S. Grimson, Donald B. Cameron, Julie C.
Mendoza, Brady W. Mills and Mary S. Hodgins.

Stephen C. Tosini, Trial Attorney, Commercial Litigation Branch, Civil Division, United
States Department of Justice, of Washington, DC, argued for defendant-appellee United
States. With him on the brief were Tony West, Assistant Attorney General, Jeanne E.
Davidson, Director, and Patricia M. McCarthy, Assistant Director. Of counsel on the brief was
Edward N. Maurer, Deputy Assistant Chief Counsel, International Trade Litigation, United
States Customs and Border Protection, of New York, New York.

Joseph W. Dorn, King & Spalding LLP, of Washington, DC, argued for defendants-
appellees American Furniture Manufacturers Committee for Legal Trade, et al. With him on
the brief were Ashley C. Parrish, J. Michael Taylor, Eric M. Wachter and Steven R. Keener.

Appealed from: United States Court of International Trade

Judge Leo M. Gordon
United States Court of Appeals for the Federal Circuit
2010-1023

AMERICAN SIGNATURE, INC.,

Plaintiff-Appellant,

v.

UNITED STATES,

Defendant-Appellee,

and

AMERICAN FURNITURE MANUFACTURERS COMMITTEE FOR
LEGAL TRADE and VAUGHAN-BASSETT FURNITURE COMPANY, INC.,

Defendants-Appellees.

Appeal from the United States Court of International Trade in case no.
09-CV-0400, Judge Leo M. Gordon.

___________________________

DECIDED: March 10, 2010
___________________________

Before RADER, CLEVENGER, and DYK, Circuit Judges.

DYK, Circuit Judge.

American Signature, Inc. (“ASI”) appeals from a decision of the Court of

International Trade denying ASI’s motion for a preliminary injunction. See Am.

Signature, Inc. v. United States, No. 09-00400 (Ct. Int’l Trade Oct. 13, 2009) (“ASI I”).

Because we conclude that ASI has satisfied the conditions for the issuance of a

preliminary injunction, we reverse.
 BACKGROUND

The antidumping law imposes special duties upon imports of merchandise sold at

less than normal value to the detriment of a domestic industry. 19 U.S.C. § 1673. ASI

is an importer of furniture that is subject to a January 4, 2005, antidumping duty order

on certain entries of wooden bedroom furniture from China. 1 The second administrative

review of this order was initiated on March 7, 2007. Such administrative reviews are

designed to revisit the original antidumping duty order in order to determine whether

dumping has occurred and, if so, the amount of antidumping duties that are owed, and

the amount of future cash deposit rates (in effect, dumping duties imposed on future

entries). See generally Ugine & ALZ Belg. v. United States, 551 F.3d 1339, 1341 (Fed.

Cir. 2009) (“Ugine II”). ASI imported subject merchandise exported by the Chinese

exporter Dare Group during the second period of review, that is, January 1, 2006 –

December 31, 2006, and participated as a party to that review. The Department of

Commerce (“Commerce”) published its final results of that administrative review on

August 20, 2008 (“Final Results”). 2

For the purpose of calculating antidumping duties in its administrative reviews,

Commerce calculates a dumping margin for each exporter, which is calculated based

1
See Notice of Amended Final Determination of Sales at Less Than Fair
Value and Antidumping Duty Order: Wooden Bedroom Furniture From the People's
Republic of China, 70 Fed. Reg. 329 (Dep’t Commerce Jan. 4, 2005).
2
See Wooden Bedroom Furniture from the People’s Republic of China:
Final Results of Antidumping Duty Administrative Review and New Shipper Review, 73
Fed. Reg. 49,162-01 (Aug. 20, 2008) (“Final Results”).

2010-1023 2
on all of the subject merchandise it exports to the United States. 3 The dumping margin

is a dollar figure and is defined as “the amount by which the normal value exceeds the

export price . . . of the subject merchandise.” 19 U.S.C. § 1677(35)(A); see also

§ 1675(a)(2)(A) (Commerce shall calculate “the normal value and export price (or

constructed export price) of each entry of the subject merchandise” and “the dumping

margin for each such entry.”). Overall weighted average dumping margin rates for each

exporter (percentage figures) are calculated and published in the Federal Register. 4

See id. § 1675(a)(1). Section 1675(a)(2)(C) provides that “[t]he determination under this

paragraph shall be the basis for the assessment of countervailing or antidumping duties

on entries of merchandise covered by the determination and for deposits of estimated

duties.”

Using the dumping margins for each exporter’s goods, Commerce then

calculates importer-specific ad valorem assessment rates for each such importer. See

19 U.S.C. § 1675(a)(2)(A)(ii); 19 C.F.R. § 351.212(b). 5 These importer-specific rates

3
“The term ‘subject merchandise’ means the class or kind of merchandise
that is within the scope of an investigation, a review, a suspension agreement, [or] an
order . . . .” 19 U.S.C. § 1677(25).
4
“The term ‘weighted average dumping margin’ is the percentage
determined by dividing the aggregate dumping margins determined for a specific
exporter or producer by the aggregate export prices and constructed export prices of
such exporter or producer.” 19 U.S.C § 1677(35)(B).
5
Commerce’s implementing regulation, 19 C.F.R. § 351.212(b)(1), provides
for the calculation of assessment rates. It provides:

(b) Assessment of antidumping and countervailing duties as the result of a
review―

(1) Antidumping duties. If the Secretary has conducted a review of an
antidumping order under § 351.213 (administrative review), § 351.214
(new shipper review), or § 351.215 (expedited antidumping review), the

2010-1023 3
are treated as confidential and are not published in the Federal Register. Normally,

after publication of Final Results, Commerce issues liquidation instructions to Customs

and Border Protection (“Customs”) with respect to the entries of subject merchandise.

Liquidation of entries represents the “final computation or ascertainment of the duties

. . . accruing on an entry.” 19 C.F.R. § 159.1. Liquidation instructions include importer-

specific assessment rates. Customs then liquidates the goods at the importer-specific

rates determined by Commerce.

Here, after Commerce published the Final Results of its administrative review on

August 20, 2008, the American Furniture Manufacturers Committee for Legal Trade and

Vaughan-Basset Furniture Company, Inc. (the “domestic producers”), ASI, and other

parties filed actions in the Court of International Trade challenging various aspects of

the Final Results. While those appeals were pending, Commerce twice sought and

received leave of the Court of International Trade to amend the Final Results to correct

ministerial errors. 6 There was no dispute among the parties that correction of these

errors was appropriate. These corrections eventually led to the issuance of the Second

Secretary normally will calculate an assessment rate for each importer of
subject merchandise covered by the review. The Secretary normally will
calculate the assessment rate by dividing the dumping margin found on
the subject merchandise examined by the entered value of such
merchandise for normal customs duty purposes. The Secretary then will
instruct the Customs Service to assess antidumping duties by applying the
assessment rate to the entered value of the merchandise.
6
A ministerial error is defined in 19 C.F.R. § 351.224(f) as “an error in
addition, subtraction, or other arithmetic function, clerical error resulting from inaccurate
copying, duplication, or the like, and any other similar type of unintentional error which
the Secretary considers ministerial.”

2010-1023 4
Amended Final Results. 7 In its Second Amended Final Results, Commerce calculated

and published in the Federal Register overall weighted average dumping margin rates

for each exporter. See 19 U.S.C. § 1675(a)(1); id. § 1677(35)(B). The overall exporter

dumping margin ultimately calculated for exporter Dare Group was 39.46 percent.

There is no dispute about this rate. In connection with the preparation of its final results,

Commerce calculated importer-specific ad valorem assessment rates using the foreign

exporters’ dumping margins. Due to a computer programming error in Commerce’s

antidumping margin calculation computer program, the assessment rate pertaining to

ASI was much lower than the rate ASI would have received in the absence of the error. 8

The calculations reflecting this error were apparently disclosed by Commerce to the

domestic producers after the release of the Second Amended Final Results in

accordance with the regulations discussed below, but the error was not then noted by

7
See Second Amended Final Results of Antidumping Duty Administrative
Review: Wooden Bedroom Furniture from the People’s Republic of China, 74 Fed. Reg.
13,417-01 (Mar. 27, 2009) (“Second Amended Final Results”).
8
The Court of International Trade misunderstood the issue when it stated
that “Commerce erred by incorrectly calculating the denominator of Dare Group’s
dumping margin by multiplying per-unit entered value by quantity twice, instead of only
once.” Am. Signature, Inc. v. United States, No. 09-00400, slip op. at 2 (Ct. Int’l Trade
Oct. 26, 2009) (“ASI II”). In fact, the denominator does not reflect the Dare Group’s
dumping margin but rather the entered value of the subject merchandise. The Dare
Group’s dumping margin had already been calculated and was published in the Federal
Register. All parties agree that there was no error in the dumping margin. Here,
Commerce’s SAS margin calculation program, which it uses to calculate importer-
specific assessment rates, erroneously multiplied the “entered value” by quantity twice,
thereby substantially increasing the amount of the denominator. When the program
calculated the importer-specific assessment rate by dividing the dumping margin found
on the subject merchandise examined (the numerator) by the entered value (the
denominator), the resulting number was much lower than it should have been, because
the denominator was incorrectly inflated. See 19 U.S.C. § 1675(a)(2)(A); 19 C.F.R. §
351.212(b)(1).

2010-1023 5
the domestic producers. After Commerce issued the Second Amended Final Results, all

parties by mutual agreement, on May 15, 2008, dismissed their pending appeals before

the Court of International Trade. 9

On July 10, 2009, Commerce transmitted liquidation instructions to Customs,

which reflected the error in the assessment rate as to ASI for entries during the period

covered by the review. On July 31, 2009, the domestic producers requested a copy of

the July 10 liquidation instructions. Commerce released the liquidation instructions on

August 24, 2009. On August 25, 2009, the domestic producers’ counsel alerted

Commerce to the existence of the error. Commerce confirmed the existence of the

error and then on August 26, 2009, at Commerce’s request, the domestic producers

filed and served on all parties a written submission, alleging that the liquidation

instructions contained errors resulting in a significant error in the assessment rates for

ASI and other importers.

Later that day, Commerce contacted Customs and informed Customs that it

planned to issue instructions suspending liquidation of the Dare Group’s 2006 entries

while Commerce decided how to correct the error in the margin calculation program. 10

For the unliquidated entries, Customs said that it could liquidate pursuant to corrected

instructions as soon as it received such instructions. However, Customs replied that it

had already liquidated the majority of ASI’s entries in accordance with the incorrect July

10, 2009, liquidation instructions. Customs also indicated that it would be able to

9
Am. Signature, Inc. v. United States, No. 08-00316 (Ct. Int’l Trade May 15,
2008) (joint stipulation of dismissal).
10
Commerce issued such instructions to suspend liquidation on August 28,
2009.

2010-1023 6
reliquidate those entries within the ninety-day statutory window specified in 19 U.S.C. §

1501 at the correct rate if it promptly received corrected instructions. The statutory

ninety-day window in which Customs could reliquidate entries was set to expire on

October 29, 2009. See 19 U.S.C. § 1501 (providing Customs with discretionary

authority to reliquidate within ninety days).

Upon review of interested party comments, on September 17, 2009, Commerce

issued its final decision regarding the liquidation instructions. This decision took the

form of a memorandum to file in the second administrative review. In its memorandum,

Commerce noted that

in order to ensure that the liquidation instructions are consistent with the
Final Results, [Commerce] must correct the programming language . . . .
Further, the Department notes that none of the parties have argued that
the Department did not generate incorrect assessment rates as a result of
the programming error . . . . Accordingly . . . [Commerce] has corrected
the programming language to comport with the Final Results and is
issuing to [Customs] corrected liquidation instructions containing the
assessment rates resulting from the corrected margin program.

ASI I, slip op. at 4. Commerce further explained that it “has not determined that the

Final Results were in error and, accordingly is not amending the Final Results. Instead

the Department is correcting the margin program language in order to ensure that the

liquidation instructions are consistent with the Final Results . . . .” Id.

The same day that it issued this memorandum, Commerce attempted to transmit

corrected liquidation instructions, which were rejected by Customs because they

contained language errors. The next day, September 18, 2009, ASI filed suit in the

Court of International Trade pursuant to 28 U.S.C. § 1581(i), alleging that Commerce

had no authority to correct the error, and, inter alia, requesting the court to order

Commerce to instruct Customs to resume liquidation in accordance with the original

2010-1023 7
liquidation instructions.

That same day, the Court of International Trade entered a temporary restraining

order (“TRO”) preventing Customs or Commerce from taking any action to liquidate or

reliquidate ASI’s entries of merchandise exported by the Dare Group. However, on

October 13, 2009, the Court of International Trade denied ASI’s motion for a preliminary

injunction and dissolved the TRO. ASI I, slip op. at 11. The court found that ASI had

established a likelihood of success on the merits of its claim that the liquidation

instructions were unlawful, concluding that Commerce’s purported correction of the

liquidation instructions “made a substantive change to the Second Amended Final

Results” and “arbitrarily avoids express statutory and regulatory provisions governing

the correction of ministerial errors.” Id. at 7, 8. The court noted that it “will be inclined to

remand the matter to the agency to address the calculation error against 19 U.S.C. §

1675(h) and 19 C.F.R. § 351.224.” Id. at 8. Nevertheless, the court found that ASI had

not established that it would suffer irreparable harm from having its entries liquidated

because it has an adequate remedy under our decision in Shinyei Corp. of America v.

United States, 355 F.3d 1297, 1311-12 (Fed. Cir. 2004). Id. at 8-9. The court also held

that the balance of hardships weighed in favor of the government because the

government might be harmed by being statutorily foreclosed from reliquidation. Id. at

10.

On October 22, 2009, ASI learned that Customs was beginning the process of

liquidating ASI’s entries at the higher rate. The Court of International Trade denied

ASI’s motion for injunction pending appeal on October 26, 2009. See Am. Signature,

Inc. v. United States, No. 09-00400 (Ct. Int’l Trade Oct. 26, 2009) (“ASI II”). On October

2010-1023 8
27, 2009, ASI filed an emergency motion for an injunction pending appeal with this

court, which we granted on October 28, 2009, on the condition that ASI file a waiver of

the time period requirement of 19 U.S.C. § 1501. The next day, ASI delivered the

waiver.

We heard oral argument on November 19, 2009. We thereafter requested and

received supplemental briefs as to the scope of Commerce’s authority to correct

ministerial errors. We have jurisdiction over the Court of International Trade’s denial of

ASI’s motion for a preliminary injunction under 28 U.S.C. § 1292 (c)(1).

DISCUSSION

In determining whether a preliminary injunction should issue, we apply the four

factor test set forth by the Supreme Court. In general, “[a] plaintiff seeking a preliminary

injunction must establish [1] that he is likely to succeed on the merits, [2] that he is likely

to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of

equities tips in his favor, and [4] that an injunction is in the public interest.” Winter v.

Natural Res. Def. Council, Inc., 129 S. Ct. 365, 374 (2008); see Titan Tire Corp. v. Case

New Holland, Inc., 566 F.3d 1372, 1375-76 (Fed. Cir. 2009). The governing standard of

review on appeal of a grant or denial of a preliminary injunction is abuse of discretion.

Titan Tire, 566 F.3d at 1365. “An abuse of discretion may be established under Federal

Circuit law by showing that the court made a clear error of judgment in weighing the

relevant factors or exercised its discretion based on an error of law or clearly erroneous

fact finding.” Quingdao Taifa Group Co., Ltd. v. United States, 581 F.3d 1375, 1379

(Fed. Cir. 2009) (internal citation and quotation marks omitted).

We address these factors in turn.

2010-1023 9
 I Likelihood of Success on the Merits

We first consider ASI’s likelihood of success on the merits. The government and

the domestic producers contend that the error in ASI’s assessment rate is an error in

the July 10, 2009, liquidation instructions, and that under our decision in Ugine II, the

error could thereafter be corrected at any time before liquidation occurred. ASI on the

other hand contends that the error was an error “in” the Second Amended Final Results

and can only be corrected in accordance with the procedures set forth in 19 U.S.C. §

1675(h) and Commerce’s implementing ministerial error regulation, 19 C.F.R. §

351.224. 19 U.S.C. § 1675(h) authorizes the correction of ministerial errors “in final

determinations within a reasonable time,” and authorizes Commerce to promulgate

regulations providing for such corrections. 11 Commerce has promulgated such

regulations. See 19 C.F.R. § 351.224.

The Court of International Trade agreed with ASI that the errors were “in” the

final results, stating that “Commerce[] [is attempting] to correct a routine ministerial error

contained in the Second Amended Final Results through a purported correction to

liquidation instructions,” ASI II, slip op. at 8, and that “ASI’s calculated assessment rate

11
19 U.S.C. § 1675(h) provides:

The administering authority shall establish procedures for the correction of
ministerial errors in final determinations within a reasonable time after the
determinations are issued under this section. Such procedures shall
ensure opportunity for interested parties to present their views regarding
any such errors. As used in this subsection, the term “ministerial error”
includes errors in addition, subtraction, or other arithmetic function, clerical
errors resulting from inaccurate copying, duplication, or the like, and any
other type of unintentional error which the administering authority
considers ministerial.

2010-1023 10
[is] in the Second Amended Final Results” and “is an integral part of Commerce’s

administrative review determination.” ASI I, slip op. at 7.

We agree with the Court of International Trade and ASI that the corrections to

the assessment rates were corrections of errors “in” the Second Amended Final

Results, i.e., that the calculations performed using Commerce’s antidumping margin

calculation program formed a part of Commerce’s administrative review determination

under 19 U.S.C. § 1675(a)(2)(A). See ASI I, slip op. at 7. This is so for several

reasons.

First, Commerce’s regulations implementing section 1675(h) (subsections (b)

and (c) of section 351.224) treat errors in data prepared “in connection with” the final

results as being subject to the section 1675(h) procedure, i.e., the regulations equate

“in” with “in connection with.” We give Chevron deference to this regulatory construction.

See Chevron, U.S.A., Inc., v. Natural Res. Def. Council, 467 U.S. 837, 842-43

(1984).

Second, as Commerce conceded at oral argument, the calculations at issue here

were prepared “at the same time as” and “in connection with” preparation of

Commerce’s final determination. See Oral Arg. at 22:53-55, 24:00-09; see also Def.-

Appellee’s Br. 5 (“In practice, the calculation of importer specific assessment rates

under section 351.212(b)(1) occurs concurrently with the determination of exporter

specific dumping margins within the same computer program.”). This conclusion is

supported by the record. On August 20, 2008, Commerce published the Final Results

in the Federal Register. The Final Results themselves noted that “we [Commerce] have

calculated customer/importer-specific antidumping duty assessment amounts.” Final

2010-1023 11
Results, 73 Fed. Reg. at 49,167 (emphasis added). The record reflects that Commerce

ran its margin calculation program on August 11, 2008 (before the publication of the

Final Results) and at that time calculated an importer-specific percent ad valorem

assessment rate for ASI. Though the margin calculation program was run again several

days after the publication of the Second Amended Final Results to produce the

assessment rate at issue here, it is clear that the preparation of such assessment rates

using the margin calculation program is a part of Commerce’s administrative review

procedures.

Third, though the importer-specific assessment rates themselves were not

disclosed in the Federal Register, Commerce agrees that this is not dispositive as to the

question of whether they are a part of the final results of the administrative review.

Indeed, Commerce conceded at oral argument that many calculations are not published

in the Federal Register, but Commerce still regards them as being a part of their final

results. See Oral Arg. at 24:44-25:09 (“[A] number of things also don’t get published in

the Federal Register or in the decision memo and . . . those things still would be

subsumed within the final results.”).

Fourth, we have recognized that challenges to dumping margins and other

aspects of final results are properly brought in the Court of International Trade under 28

U.S.C. § 1581(c). See Consol. Bearings Co. v. United States, 348 F.3d 997, 1002 (Fed.

Cir. 2003). The Court of International Trade has routinely exercised jurisdiction in those

proceedings to consider challenges to assessment rate methodology and requests to

correct ministerial errors in assessment rates. See, e.g., Fujian Lianfu Forestry Co.,

Ltd. v. United States, 638 F. Supp. 2d 1325, 1333 (Ct. Int’l Trade 2009) (exercising

2010-1023 12
jurisdiction under section 1581(c) in a challenge to Commerce’s method of calculating

assessment rates); Hyundai Elec. Indus. Co. v. United States, 395 F. Supp. 2d. 1231,

1234, 1242-43 (Ct. Int’l Trade 2005) (exercising jurisdiction under section 1581(c) and

permitting Commerce to correct a ministerial error in the program that calculates

assessment rates); Koyo Seiko Co., Ltd. v. United States, 110 F. Supp. 2d 934, 935 (Ct.

Int’l Trade 2000) (exercising jurisdiction under section 1581(c) in a challenge to

Commerce’s method of calculating assessment rates), aff’d, 258 F.3d 1340 (Fed. Cir.

2001). Commerce has apparently never before challenged jurisdiction under section

1581(c) to consider such assessment rate issues. If we were to adopt the view that

errors in the calculations of assessment rates do not form a part of final determinations,

a party seeking to challenge the manner in which Commerce calculated assessment

rates would need to wait until liquidation instructions were issued, and then bring a

separate action under 28 U.S.C. § 1581(i). It is only logical for the Court of International

Trade to consider any alleged errors in the assessment rates when challenges to the

dumping margins are also being considered because assessment rates are affected by

dumping margin calculations.

While the domestic producers argue that we owe Chevron deference to

Commerce’s determination in its September 18, 2009, memorandum to file that the

error was not “in” the final results, 12 we think no such deference is owed because

Commerce’s construction is not a reasonable construction of the statute, for the reasons

we have described immediately above. Even now, Commerce is unable to articulate a

12
See ASI I, slip op. at 5 (“[Commerce] does not consider that it is correcting
an error in the Final Results. Instead, it is correcting the margin program to ensure that
the liquidation instructions are consistent with the Final Results.”).

2010-1023 13
coherent theory as to why we should adopt its approach. For the same reason, we see

no need to remand this proceeding for further consideration by Commerce as to the

scope of Commerce’s authority under 1675(h).

We conclude that the errors in question were “in” the Second Amended Final

Results.

In light of our conclusion that the error here was an error in the final results of the

administrative review, we consider whether Commerce had the authority to correct the

error sua sponte. 13 This turns on whether Commerce acted within a “reasonable time”

under section 1675(h). The statute does not define what constitutes a “reasonable

time,” but leaves it to Commerce to define what constitutes a “reasonable time.” Under

Chevron, Commerce has considerable discretion in defining a “reasonable time.” See

Chevron, 467 U.S. at 842-43; United States v. Eurodif S.A., 129 S. Ct. 878, 886-87

(2009). The question is whether it has in fact defined a “reasonable time” in the

regulations.

Commerce’s implementing ministerial error regulation provides for ministerial

error correction at the request of interested parties. The regulations set forth various

time limits for the correction of errors at the request of a party to the proceeding, but do

not deal explicitly with sua sponte error correction by Commerce. However, Commerce

has long claimed the authority to correct ministerial errors during judicial review of final

results even when no request to correct the error has been made by an interested party

13
The domestic producers do not argue that Commerce was compelled to
correct the errors upon the domestic producers’ request; no timely request was made
for a correction by the domestic producers after the disclosures mandated by section
351.224(b) of the regulations.

2010-1023 14
pursuant to the regulations. See, e.g., Hyundai Elec. Indus. Co. v. United States, 395 F.

Supp. 2d 1231, 1243 (Ct. Int’l Trade 2005) (citing Shandong Huarong Gen. Corp. v.

United States, 159 F. Supp. 2d 714, 727 (Ct. Int’l Trade 2001); Aramide Maatschappij

V.o.F. v. United States, 901 F. Supp. 353, 361 (Ct. Int’l Trade 1995)), aff’d sub nom.

Shandong Huarong Gen. Group Corp. v. United States, 60 F. App’x 797 (Fed. Cir.

2003). The statute and the regulation clearly permit the sua sponte correction of a

ministerial error by Commerce whether or not a party has requested correction within

the period specified in the regulation.

The question is then whether the regulation establishes a time limit for such sua

sponte corrections. On its face the preamble to the regulation contemplates that

corrections will be made before Commerce’s final determination becomes final, i.e.,

before the time for judicial review has expired. See Antidumping Duties; Countervailing

Duties; Proposed Rules, 61 Fed. Reg. 7308, 7320 (Feb. 27, 1996).

The principal goal of these changes is to provide for the issuance of a
correction notice normally within 30 days after the date of public
announcement of the preliminary or final determination or final results of
review. The date of public announcement is the date on which the signed
determination or results of review is first made available to interested
parties. This goal is consistent with the proposal from a number of
commentators that the Department should respond to ministerial error
allegations prior to the date when a summons must be filed with the Court
of International Trade or when a notice of intent to commence panel
review must be filed with the NAFTA Secretariat. This 30-day framework
is intended to avert needless litigation by allowing parties sufficient time to
review the correction notice before the litigation deadline arrives.

Id. (emphases added). The regulation itself also provides that

[w]here practicable, the Secretary will announce publicly the issuance of a
correction notice, and normally will do so within 30 days after the date of
public announcement, or, if there is no public announcement, within 30
days after the date of publication, of the preliminary determination, final
determination, or final results of review (whichever is applicable). In

2010-1023 15
 addition, the Secretary will publish notice of such corrections in the
Federal Register.

19 C.F.R. § 351.224(e) (emphasis added).

While the regulation is perhaps not a model of clarity, Commerce in its

supplemental brief has interpreted the regulation to impose such a time limit. 14 See

Def.-Appellee’s Supplemental Br. 2-3. Commerce’s brief states that “Commerce may

not correct ministerial errors in final results of administrative reviews . . . if those errors

are discovered after the expiration of the 30-day deadline for seeking judicial review of

those results. Id. Similarly, “Commerce promulgated its regulation and explained that it

must normally correct ministerial errors within 30 days because 19 U.S.C. § 1516a

requires that an interested party commence an action within 30 days of the publication

in the Federal Register of final results.” Id. at 4.

In general, “[t]he agency’s construction of its own regulations is ‘of controlling

weight unless it is plainly erroneous or inconsistent with the regulation.’” Reizenstein v.

Shinseki, 583 F.3d 1331, 1335 (Fed. Cir. 2009) (citing Cathedral Candle Co. v. U.S. Int'l

Trade Comm’n, 400 F.3d 1352, 1364 (Fed. Cir. 2005)) (quoting Bowles v. Seminole

Rock & Sand Co., 325 U.S. 410, 414 (1945)); Christensen v. Harris County, 529 U.S.

576, 588 (2000); Auer v. Robbins, 519 U.S. 452, 461 (1997); Gose v. U.S. Postal Serv.,

451 F.3d 831, 836 (Fed. Cir. 2006) (“As a general rule, we must defer to an agency’s

interpretations of the regulations it promulgates, as long as the regulation is ambiguous

and the agency’s interpretation is neither plainly erroneous nor inconsistent with the

14
Commerce indicated at oral argument that it does not have the authority to
correct ministerial errors pursuant to its regulations after the time for judicial review of
final results has expired. See Oral Arg. at 35:12-36:00. After oral argument, this court
requested supplemental briefs on the issue in order to provide the opportunity for
Commerce to more formally present its position.

2010-1023 16
regulation.” (citing Gonzalez v. Oregon, 126 S. Ct. 904, 914; Christensen, 529 U.S. at

588; and Seminole Rock, 325 U.S. at 413-14)).

However, the question whether an agency’s interpretation of its regulations

announced for the first time in a brief is entitled to deference has generated

considerable authority both in the Supreme Court and our own court. See Auer, 519

U.S. at 462-63; Reizenstein, 583 F.3d at 1335; Abbott Labs. v. United States, 573 F.3d

1327, 1332-33 (Fed. Cir. 2009); Caribbean Ispat Ltd. v. United States, 450 F.3d 1336,

1340 (Fed. Cir. 2006). Where the agency’s interpretation seeks to advance its litigating

position, deference is typically not afforded to the agency’s position announced in a

brief. See Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 213 (1988) (“Deference to

what appears to be nothing more than an agency’s convenient litigating position would

be entirely inappropriate.”). But where the agency is not advancing its litigating position,

deference may be afforded an agency’s position articulated in its brief. For example, in

Auer, the Supreme Court deferred to an agency’s position, advanced in an amicus brief.

519 U.S. at 461. Distinguishing that circumstance from the situation where the agency’s

position is a “post hoc rationalizatio[n] advanced by an agency seeking to defend past

agency action from attack,” the Supreme Court noted that “[t]here is simply no reason to

suspect that the interpretation does not reflect the agency’s fair and considered

judgment on the matter in question.” Id. at 462 (citation and internal quotation omitted).

While here the agency’s position is not contained in an amicus brief, it is also not a

situation in which the agency interpretation advances the agency’s litigating position.

Quite the contrary. The agency’s interpretation of the regulations is in fact contrary to

the agency’s litigating position—that it had the authority to correct the error. Under such

2010-1023 17
circumstances we conclude that deference under Auer is owed to Commerce’s

interpretation of its regulation, and that Commerce’s sua sponte corrections must be

made before the final determination is no longer subject to judicial review.

Here, as Commerce concedes, the error was not corrected within this timeframe;

indeed it was not discovered until ninety-nine days after the dismissal by the domestic

petitioners of their lawsuit before the Court of International Trade. Because Commerce

did not correct the error before the time for judicial review had expired, we conclude that

the error cannot now be corrected and that ASI has demonstrated a likelihood of

success, indeed a certainty of success, on the merits. 15

II Irreparable Harm

We next consider the question of irreparable injury. The Court of International

Trade concluded that ASI failed to demonstrate irreparable harm. ASI II, slip op. at 13;

ASI I, slip op. at 9. Citing Shinyei Corp. of America v. United States, 355 F.3d 1297,

1311-12 (Fed. Cir. 2004)), the Court of International Trade concluded that ASI has an

15
The government argues that ASI is judicially estopped from challenging
Commerce’s authority to make the correction at issue here. Def.-Appellee’s Br. 14-17.
This argument is premised on the government’s assertion that ASI raised the opposite
argument from the one they raise here, and prevailed, in a previous case concerning
earlier furniture imports. See Am. Signature, Inc., v. United States, 477 F. Supp. 2d
1281 (Ct. Int’l Trade Feb. 14, 2007), rev’d, No. 2007-1216 (Fed. Cir. Nov. 30, 2007).
We agree with ASI that ASI’s legal position in the previous case and this case are
entirely consistent. In the previous case, ASI challenged the lawfulness of liquidation
instructions, which were issued pursuant to 19 C.F.R. § 351.212(c), because they did
not reflect corrections Commerce had already made to cash deposit rates in the
administrative review. Thus, in that case, unlike here, Commerce had made timely
determinations to correct ministerial errors during the investigation. ASI argued that
those corrections must be reflected in the liquidation instructions issued by Commerce.
ASI did not argue that Commerce was authorized to correct an error in assessment
rates by issuing liquidation instructions whose assessment rates differed from those
calculated during the administrative review proceeding.

2010-1023 18
available and adequate remedy to correct the erroneous liquidation of entries caused by

incorrect liquidation instructions, even if liquidation is permitted to go forward. ASI I, slip

op. at 9.

In Zenith Radio Corp. v. United States, we held that absent a preliminary

injunction, a challenge to an administrative review proceeding became moot when

liquidation occurred. 710 F.2d 806, 810 (Fed. Cir. 1983). We explained that “[o]nce

liquidation occurs, a subsequent decision by the trial court on the merits . . . can have

no effect on the dumping duties assessed on entries.” Id.; see ASI II, slip op. at 14.

This court therefore concluded that Zenith would suffer irreparable harm if liquidation

was not enjoined, and reversed the trial court’s denial of a preliminary injunction on that

basis. Zenith, 710 F.2d at 810.

In Shinyei, the plaintiff challenged Commerce’s liquidation instructions as

inconsistent with rates set forth in the amended review results that allegedly covered its

entries. 355 F.3d at 1299, 1303. We held that in an action challenging liquidation

instructions under 28 U.S.C. § 1581(i), the Court of International Trade may, under

certain circumstances, use its equitable powers to compel reliquidation of entries if a

preliminary injunction has been sought and denied. Id. at 1312. 16

In Ugine & Alz Belgium v. United States, where the challenge was to liquidation

instructions, we held that, despite potential for Shinyei relief, irreparable injury may exist

from the denial of a preliminary injunction. 452 F.3d 1289, 1297 (Fed. Cir. 2006)

16
However, in Mukand International, Ltd. v. United States, 502 F.3d 1366
(Fed. Cir. 2007), we upheld a decision of the Court of International Trade to deny
Shinyei reliquidation because the plaintiff failed to seek an injunction against liquidation
from the Court of International Trade before its entries had liquidated.

2010-1023 19
(“Ugine I”). We noted that

the question of the scope of Shinyei is a difficult one, for which the
resolution is not obvious . . . . Rather than deciding the scope of Shinyei
in a preliminary injunction context . . . we conclude that the issue is
sufficiently complex that we should resolve it only in a setting in which it
has been litigated by the parties and decided by the trial court.

Id. As in Ugine I, we conclude that the possibility of Shinyei relief does not defeat ASI’s

claim of irreparable harm.

The domestic producers also argue that ASI has made no showing that it is

unable to protect its interests by protesting a reliquidation of entries under 19 U.S.C.

§ 1514. The domestic petitioners appear to argue that a protest would automatically bar

liquidation or reliquidation. This statute authorizes importers to protest “decisions of the

Customs Service, including the legality of all orders and findings entering into the same,

as to . . . (5) the liquidation or reliquidation of an entry, or reconciliation as to the issues

contained therein, or any modification thereof.” 19 U.S.C. § 1514(a). In Shinyei, we

addressed the scope of this section, concluding that the protest provisions only apply to

"decisions" of the “Customs Service.” Shinyei, 355 F.3d at 1311. Here, as in Shinyei,

the alleged agency error is on the part of Commerce, not Customs. Therefore, section

1514(a) is inapplicable.

In conclusion, in view of our determination that the availability of Shinyei relief to

ASI is uncertain and our determination that ASI may not have a remedy under section

1514(a), we conclude that ASI has made a sufficient showing of irreparable harm.

III Balance of Equities/Hardships

The Court of International Trade concluded that the balance of equities tips in

Commerce’s favor. ASI II, slip op. at 15. It based its conclusion on its perceived

2010-1023 20
inability to toll or permit waiver of the time limits of 19 U.S.C. § 1501 and remarked that

“Commerce faces a significant hardship if it loses its ability to request Customs to

reliquidate the entries pursuant to § 1501.” Id. at 14-15. We agree that if Commerce

were to be foreclosed from reliquidation by section 1501, this would indeed be a

significant hardship. However, we disagree with the Court of International Trade that

this outcome is likely.

Commerce argues that a preliminary injunction would foreclose Customs from

reliquidating entries pursuant to 19 U.S.C. § 1501 due to the expiration of the ninety-day

window in the statute. We cannot agree that Commerce is without a remedy if the

ninety-day period elapses without reliquidation, for two reasons. First, under Shinyei,

the deadline is inapplicable if reliquidation is ordered by a court. 17 As we noted in that

case,

the Court of International Trade’s relief statute provides for entry of a
money judgment “for or against the United States in any civil action
commenced under section 1581 or 1582 of this title,” [19 U.S.C.] §
2643(a)(1), and allows the court to “order any other form of relief that is
appropriate in a civil action . . . . ” Id. § 2643(c)(1) (emphasis added). The
absence of an express reliquidation provision should not be read as a
prohibition of such relief when the statute provides the Court of
International Trade with such broad remedial powers. Here, the requested
relief [reliquidation] is easily construed as “any other form of relief that is
appropriate in a civil action.”

Shinyei, 355 F.3d at 1312.

Second, and more importantly, waiver by ASI obviates any problem with the

ninety-day deadline. In view of the potential hardship, this court required in its October

17
Commerce agrees that this concern is inapplicable to entries that have yet
to be liquidated. As to such entries, the grant of a preliminary injunction suspends the
liquidation deadline.

2010-1023 21
28, 2009, order, and ASI submitted, a waiver of “any defense it might otherwise have

against reliquidation of [the applicable] entries pursuant to 19 U.S.C. § 1501 based on

the expiration of the 90-day period for reliquidation set forth therein, during the period in

which the injunction entered by this Court is in effect.” Waiver of Statute of Limitations

Defense at 1, Am. Signature v. United States, No. 2010-1023 (Fed. Cir. Oct. 29, 2009).

The Supreme Court has remarked that it has “‘in the context of a broad array of

constitutional and statutory provisions,’ articulated a general rule that presumes the

availability of waiver, United States v. Mezzanatto, 513 U.S. 196, 200-01 (1995).” New

York v. Hill, 528 U.S. 110, 114 (2000). Further, the Supreme Court has announced that

“absent some affirmative indication of Congress’ intent to preclude waiver, we have

presumed that statutory provisions are subject to waiver by voluntary agreement of the

parties.” Mezzanatto, 513 U.S. at 201. Therefore, we conclude this voluntary waiver

adequately protects Commerce’s interests in being able to reliquidate ASI’s entries and

prevents it from sustaining irreparable injury.

Thus, we conclude that the Court of International Trade erred in its analysis of

the potential harm to Commerce. In view of our assessment that Commerce will not be

foreclosed from reliquidation, if appropriate, and the uncertainty concerning the

remedies available to ASI, we find that the balance of equities favors ASI.

IV Public Interest

The public interest is served by ensuring that governmental bodies comply with

the law, and interpret and apply trade statutes uniformly and fairly. Both sides in this

dispute contend that they are seeking to effectuate these important goals. Therefore we

find that the public interest does not clearly favor either party in this dispute.

2010-1023 22
 CONCLUSION

We conclude that ASI has satisfied the requirements for a preliminary injunction.

We reverse the Court of International Trade and require that the court grant the

preliminary injunction prohibiting Customs or Commerce from taking any action to

liquidate or reliquidate ASI’s import entries that are the subject of this action, and for

further proceedings consistent with this opinion.

REVERSED

COSTS

No costs.

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