Slip Op. 08-77
UNITED STATES COURT OF INTERNATIONAL TRADE
SSAB NORTH AMERICAN DIVISION and
NUCOR CORPORATION,
Plaintiffs,
Before: Leo M. Gordon, Judge
v.
Court No. 07-00057
UNITED STATES BUREAU OF CUSTOMS
and BORDER PROTECTION, W. RALPH
BASHAM, COMMISSIONER OF
CUSTOMS,
Defendants.
OPINION
[Premature liquidation of entries by Customs declared unlawful; injunctive relief denied.]
Dated: July 14, 2008
Schagrin Associates, (Roger B. Schagrin, Brian E. McGill, Michael J. Brown), for
Plaintiff SSAB North American Division.
Wiley Rein, LLP, (Alan H. Price, Maureen E. Thorson, Timothy C. Brightbill), for
Plaintiff Nucor Corporation.
Gregory G. Katsas, Acting Assistant Attorney General; Barbara S. Williams,
Attorney in Charge, International Trade Field Office, Commercial Litigation Branch, Civil
Division, Department of Justice (Amy M. Rubin), for Defendants.
Arent Fox Kintner Plotkin & Khan, PLLC, (John M. Gurley, Diana Dimitriuc-Quaia,
Nancy A. Noonan), for Defendant-Intervenors Mittal Steel Galati, S.A. and Sidex Trading
S.R.L. Galati.
Gordon, Judge: This case involves the premature liquidation of entries by U.S.
Customs and Border Protection (“Customs”) during an antidumping administrative review
Court No. 07-00057 Page 2
in violation of the statutory suspension of liquidation contained in Section 751(a)(2) of the
Tariff Act of 1930, as amended, 19 U.S.C.§ 1675(a)(2)(2000).1 Plaintiffs seek reliquidation
of the entries in accordance with the court’s judgment in Mittal Steel Galati, S.A. v. United
States, 31 CIT__, 491 F. Supp. 2d 1273 (2007) (“Mittal”). The Court has jurisdiction
pursuant to 28 U.S.C. § 1581(i)(2) & (4) (2000). For the reasons set forth below, the court
declares the liquidations unlawful, but declines to issue a mandatory injunction ordering
reliquidation in accordance with the judgment in Mittal.
I. Background
The United States Department of Commerce (“Commerce”) conducted an
administrative review of the antidumping duty order on cut-to-length carbon steel plate from
Romania for entries made between August 1, 2003 and July 31, 2004. Certain Cut-to-
Length Carbon Steel Plate from Romania, 71 Fed. Reg. 7008 (Dep’t Commerce Feb. 10,
2006) (final results admin. review) (“Final Results”). Unbeknownst to Commerce and
interested parties, Customs violated the statutory suspension of liquidation during the
administrative review by liquidating four entries on April 22, 2005, resulting in under-
collection of the applicable antidumping duties.
Commerce first learned of the incorrect liquidations shortly after the Final Results
were challenged in Mittal. Customs notified Commerce of the error in response to
Commerce’s March 10, 2006, instructions to continue suspension of liquidation pending
completion of judicial review. Commerce, in turn, asked Customs to restore the entries,
but Customs refused based on a lack of statutory authorization. The court, unaware of the
1
Further citations to the Tariff Act of 1930 are to the relevant provision in Title 19
of the U.S. Code, 2000 edition.
Court No. 07-00057 Page 3
liquidated entries, issued a preliminary injunction on March 7, 2006, continuing suspension
of liquidation. On May 14, 2007, the court sustained the Final Results. Mittal, 31 CIT __,
491 F. Supp. 2d 1273 (2007). Plaintiffs first learned about the incorrect liquidations on or
around May 14, 2006 and commenced this action on February 14, 2007. Defendants and
Defendant-Intervenors subsequently filed motions to dismiss, which the court denied.
Ipsco Steel Inc. v. United States, No. 07-00057 (USCIT Nov. 20, 2007) (order denying
motions to dismiss).
Together with their complaint, Plaintiffs filed a petition for a writ of mandamus. The
writ of mandamus is an extraordinary remedy with three requirements: (1) defendant must
owe plaintiff a clear, nondiscretionary duty; (2) plaintiff must have no adequate alternative
remedies; and (3) the issuing court must be satisfied that the writ is appropriate under the
circumstances. Cheney v. U.S. Dist. Court for D.C., 542 U.S. 367, 380 (2004).
Mandamus, though, is not applicable in this case because the requirement that plaintiff
have no adequate, alternative remedies is not satisfied.
Plaintiffs have a remedy under § 706(2) of the Administrative Procedure Act (APA)
to have the court set aside unlawful agency action, 5 U.S.C. § 706(2), and mandamus is
therefore technically not available. See generally 3 Charles H. Koch, Jr., Administrative
Law and Practice § 8.20[4] (2d ed. 2008) (“mandamus should be and generally has been
replaced in modern administrative law by more flexible and better designed forms [of
action] and remedies”). Importantly, this case does not involve the failure to perform a
non-discretionary duty (agency inaction); it involves unlawful agency action—Customs’
premature liquidation of subject entries. Properly framed, the relief Plaintiffs seek is not
mandamus, but a declaration that Customs’ action is unlawful, and a mandatory injunction
Court No. 07-00057 Page 4
directing Customs to reliquidate the entries in accordance with the judgment in Mittal. See
id. at § 8.20[3]. It is to those specific remedies that the court now turns.
II. Discussion
A. Declaratory Relief for Customs’ Violation of the
Statutory Suspension of Liquidation
“[T]he United States uses a ‘retrospective’ assessment system under which final
liability for antidumping . . . duties is determined after merchandise is imported.” 19 C.F.R.
§ 351.212(a) (2003); see 19 U.S.C. § 1675(a)(2). “While liability to pay dumping duties
accrues upon entry of subject merchandise, see 19 C.F.R. § 141.1(a), the actual duty is
not formally determined until after entry, and not paid until the [entries] are liquidated by
[Customs].” Parkdale Int’l v. United States, 475 F.3d 1375, 1376-77 (Fed. Cir. 2007).
“Generally, the amount of duties to be assessed is determined in a review of the order
covering a discrete period of time.” 19 C.F.R. § 351.212(a) (2003).
The most important element of this retrospective assessment system is the
statutorily implied suspension of liquidation contained in 19 U.S.C. § 1675(a)(2) that
applies to entries of subject merchandise covered by an administrative review of an
antidumping duty order. See American Permac, Inc. v. United States, 10 CIT 535, 539,
642 F. Supp. 1187, 1191 (1986) (“Because 19 U.S.C. § 1675(a)(2) expressly calls for the
retrospective application of antidumping review determinations . . ., suspension of
liquidation during the pendency of a periodic antidumping review is unquestionably
‘required by statute.’”); see also Ambassador Div. of Florsheim Shoe v. United States, 748
F.2d 1560 (Fed. Cir. 1984) (suspension of liquidation impliedly required by statute during
administrative review of countervailing duty order to effectuate retrospective system of duty
Court No. 07-00057 Page 5
assessment); Koyo Corp. v. United States, 497 F.3d 1231, 1241-42 (Fed. Cir. 2007).
This suspension of liquidation enables Commerce to calculate assessment rates for
the subject entries, see 19 U.S.C. § 1675(a)(2), which are then applied by Customs
pursuant to liquidation instructions received from Commerce after publication of the final
results of an administrative review. See 19 U.S.C. § 1675(a)(3)(B) (Customs must liquidate
“promptly and, to the greatest extent practicable, within 90 days after the instructions to
Customs are issued.”). Under this framework Commerce performs the substantive role of
determining correct assessment rates, and Customs performs a ministerial role in fulfilling
Commerce’s liquidation instructions. Mitsubishi Elec. Am., Inc. v. United States, 44 F.3d
973, 977 (Fed. Cir. 1994) (“Customs merely follows Commerce's instructions in assessing
and collecting duties.”); Koyo Corp., 497 F.3d at 1242 (“Our holding also comports with
Congress' intent to delegate to Commerce the authority to establish special duty rates,
leaving Customs only the ministerial capacity to liquidate antidumping duties according to
Commerce's directions as determined through the administrative and judicial review
process.”).
For the antidumping statutory scheme to work, Customs may not violate the
suspension of liquidation contained in 19 U.S.C. § 1675(a)(2) and render Commerce’s
administrative review and any subsequent judicial review a meaningless exercise for
subject entries, which is precisely what happened here. Accordingly, Customs’ premature
liquidation of entries in violation of the statutory suspension of liquidation is unlawful.
Court No. 07-00057 Page 6
B. Injunctive Relief to Reliquidate the Entries
in Accordance with Final Judgment in Mittal
Having declared the liquidations in issue unlawful, the next question is whether the
court should issue a mandatory injunction to direct Customs to reliquidate them in
accordance with the judgment in Mittal. See 3 Charles H. Koch, Jr., Administrative Law
and Practice § 8.31[4](c) (2d ed. 2008) (“injunctive relief under the APA is controlled by
principles of equity and a court is not required to set aside every unlawful agency action”).
The extraordinary remedy of injunction is governed by a four factor test in which plaintiff
must demonstrate: “(1) that it has suffered an irreparable injury; (2) that remedies available
at law, such as monetary damages, are inadequate to compensate for that injury; (3) that,
considering the balance of hardships between the plaintiff and defendant, a remedy in
equity is warranted; and (4) that the public interest would not be disserved by a permanent
injunction.” eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006) (citations
omitted). The “four-factor test” is a balancing test. See, e.g., Amoco Prod. Co. v. Gambell,
480 U.S. 531, 542 & 546 n.12 (1987).
(1) Irreparable Harm & Lack of Alternative Remedies2
The harm Plaintiffs have suffered is apparent. As domestic producers of cut-to-
length carbon steel plate, Plaintiffs derive a direct competitive benefit from the proper
2
When applying the four factor test in Canadian Lumber Trade Alliance v. U.S.,
30 CIT ___, ___, 441 F. Supp. 2d 1259, 1264 (2006) (“Canadian Lumber”), the court
noted:
Although stated as two separate prongs by the Court in eBay, whether
something is “irreparable” requires, to a certain extent, a lack of alternative
remedies.
Id. at 1264, n.4.
Court No. 07-00057 Page 7
administration and enforcement of the antidumping laws, and more specifically, the proper
assessment of antidumping duties on entries of cut-to-length carbon steel plate from
Romania. Customs’ liquidation of entries in contravention of the statutory suspension of
liquidation has denied Plaintiffs this benefit.
Moreover, unlike importers who have the potential to protest an erroneously
liquidated entry subject to an antidumping duty order, see 19 U.S.C. § 1514; Shinyei Corp.
v. United States, 355 F.3d 1297 (Fed. Cir. 2004) (explaining various remedies available to
importers), Plaintiffs, as domestic interested parties, do not have a comparable express
statutory means of remedying Customs’ premature liquidation of entries covered by the
statutory suspension of liquidation. See Cemex, S.A. v. United States, 384 F.3d 1314,
1322 (Fed. Cir. 2004) (explaining that domestic interested parties to antidumping
proceeding have no available remedy to rectify an erroneous Customs’ liquidation of
entries subject to an antidumping duty order). Plaintiffs therefore do not have an available,
adequate remedy at law.
Defendant-Intervenors contend that Plaintiffs do have a remedy under 19 U.S.C.
§ 1501 to correct an erroneous liquidation. Section 1501 authorizes Customs to voluntarily
reliquidate an entry within 90 days from the notice of the original liquidation. 19 U.S.C.
§ 1501. Defendant-Intervenors argue that had Plaintiffs been actively monitoring the
entries by reviewing Customs’ Bulletin Notices posted at ports of entry, other import
information available from various governmental and commercial data resources, and by
repeatedly asking Commerce to confirm the liquidation status of the subject entries during
the administrative review, Plaintiffs would have learned about the liquidations in April of
2005, at which point they could have requested Customs to voluntarily reliquidate them
Court No. 07-00057 Page 8
pursuant to § 1501, all within the statute’s 90-day window. The court is not persuaded that
this proposed alternative approach constitutes an adequate remedy for Plaintiffs.
First, § 1501 simply authorizes Customs, in its discretion, to revisit a liquidation
within 90 days of the notice. It does not confer any rights on Plaintiffs and therefore does
not constitute a “remedy” for Plaintiffs that would preclude injunctive relief. See Canadian
Lumber, 30 CIT at ___, 441 F. Supp. 2d at 1266 (“a cognizable alternative remedy must
rest on more than the whim or discretion of a defendant”).
Second, monitoring the liquidation of entries subject to an antidumping duty order
is a serious challenge even for importers who have access to complete information
regarding an entry. See, e.g., Juice Farms, Inc. v. U.S., 68 F.3d 1344 (Fed. Cir. 1995)
(holding Customs’ violation of statutory suspension of liquidation not actionable by importer
who discovered improper liquidations after protest period had expired). Defendant-
Intervenors were themselves apparently unaware that their entries had been prematurely
liquidated until notified by Commerce. Furthermore, Plaintiffs, as domestic interested
parties, have access to a respondent’s proprietary import information only to the extent
permitted by the terms of the Administrative Protective Order (APO) governing the
administrative review. See 19 C.F.R. § 351.306 (2003) (“An authorized applicant may use
business proprietary information for purposes of the segment of a proceeding in which the
information was submitted.”); see also 19 C.F.R. § 351.305(a) (2003); 19 U.S.C. §
1677f(c)(B). Although Plaintiffs through their attorneys and advisors may access and use
this proprietary data to comment upon Commerce’s antidumping calculation for the entries,
extending that use by judicial fiat to include comprehensive monitoring of all entries subject
to the review is not something the court considers either wise or necessary. Defendant-
Court No. 07-00057 Page 9
Intervenors’ proposal to impose constructive notice of the liquidation date on domestic
interested parties appears on the record to be both inconsistent with APO practice and
otherwise impractical.
Therefore, the court finds that in the absence of injunctive relief Plaintiffs will suffer
irreparable harm and that there are no available legal remedies for that harm.
(2) Balance of Hardships
The central hardship for Customs if an injunction issues is the administrative
inconvenience associated with reliquidating entries that were liquidated three years ago in
April of 2005. Customs, though, has some familiarity with such a task. In routine
classification cases under 28 U.S.C. § 1581(a), Customs frequently must reliquidate entries
several years after the original liquidations. For Plaintiffs, the obvious hardship if the
entries are not reliquidated is the lost competitive benefit of properly collected antidumping
duties, not to mention their now futile participation in the administrative and judicial review
process for the affected entries. For Defendant-Intervenors, an injunction means their
entries are reliquidated at correct rates, albeit more than three years after the original
liquidations, which undermines the finality of those original liquidations. Although the harm
to Plaintiffs in the absence of reliquidation certainly outweighs the administrative
inconvenience to Customs caused by reliquidation, Defendant-Intervenors’ interests in the
finality of liquidation, as the next section demonstrates, stand in equipoise with Plaintiffs’
interests in the proper administration of the antidumping laws. Compare Juice Farms, 68
F.3d 1344 (finality of liquidation trumps correct antidumping duty assessment rates) and
Cemex, S.A., 384 F.3d at 1322 (same) with Shinyei, 355 F.3d at 1297 (finality of liquidation
not a bar to correct assessment rates), and AK Steel Corp. v. U.S., 27 CIT 1382, 281 F.
Court No. 07-00057 Page 10
Supp. 2d 1318 (2003) (finality of liquidation void in violation of injunction against
liquidation); L.G. Elecs. U.S.A., Inc. v. U.S., 21 CIT 1421, 991 F. Supp. 668 (1997) (same).
(3) Public Interest
In balancing the public interest, courts have traditionally looked to the underlying
statutory purposes at issue. See, e.g., Amoco Prod. Co., 480 U.S. at 544-546; Tennessee
Valley Auth. v. Hill, 437 U.S. 153, 194 (1978); Hecht Co. v. Bowles, 321 U.S. 321, 331
(1944). It goes without saying that the public interest is served by the proper administration
and enforcement of the antidumping laws. As noted above, the suspension of liquidation
makes possible the U.S. retrospective antidumping regime in which the actual dumping
duty is calculated after entry. That regime involves a complex and time-consuming
administrative proceeding, and an equally involved judicial review process. In this case
Customs’ violation of the statutory suspension of liquidation entirely undermined the
administrative and judicial review process for the affected entries and also squandered the
productive efforts of interested parties, Commerce, and the Court.
With that said, there is another important statutory purpose in play. It involves the
principle of finality for the liquidation of entries codified in 19 U.S.C. § 1514 (Supp. III
2003). As noted above, Plaintiffs may not avail themselves of the protest procedures of
§ 1514, Cemex, 384 F.3d at 1325, but the statute’s principle of finality is nevertheless an
important factor that the court must consider in determining whether reliquidation is an
appropriate remedy. Id. As Cemex notes:
Court No. 07-00057 Page 11
While we recognize that section 1514(c)(2) does not grant protest rights to
domestic producers, we find no statutory basis for concluding that, in the
absence of express remedies under the statute, [domestic interested parties
have] greater rights than those persons authorized by statute to file protests
or that [domestic interested parties have] more time to do so than the 90
days allotted.
Id.
When applying the time periods of § 1514 by analogy to domestic interested parties,
as Cemex suggests, the key trigger is not necessarily the notice of liquidation. Charging
domestic interested parties with constructive notice of that date is inappropriate given APO
restrictions on the use of proprietary import information. The better measure is instead
when Plaintiffs actually knew, or should have known, about the liquidations. In this case
that date is on or around May 14, 2006, when Plaintiffs were notified by Commerce.
Unfortunately, Plaintiffs commenced this action eight months later, well beyond the 90-day
period of § 1514.3
Whatever the reason for the eight month lapse, it could not have been an
expectation that Customs would correct its own mistake. As the time period for voluntary
reliquidation had passed, there was no statutory authorization for Customs to reliquidate
the entries. See F. Vitelli & Sons v. United States, 250 U.S. 355, 358 (1919) (“the remedy
intended to be accomplished by [a prior provision similar to § 1514] was to prevent the right
to reliquidate, which had previously been exerted without limit, from being exercised except
in the particular conditions stated, and thus in the interest of the citizen to circumscribe the
power to the instances specified in order that uncertainty as to the finality of customs
3
The statute currently allots 180 days to file a protest, 19 U.S.C.A. § 1514 (West
2008); Plaintiffs’ entries were made under a prior version of the statute that allots 90 days.
19 U.S.C. § 1514 (Supp. III 2003).
Court No. 07-00057 Page 12
entries might be removed and the security of commercial transactions be safeguarded”).
The only way Customs could fix the problem was therefore pursuant to a court ordered
injunction.
(4) Balancing of Factors
And so the court has competing interests to weigh: the proper assessment and
collection of antidumping duties vs. the finality of liquidation. Under the circumstances the
court believes that an injunction should not issue because Plaintiffs commenced their
action well beyond the time period specified in § 1514. That well-known benchmark is a
useful guide for both the court and parties to help resolve the otherwise thorny question
of when equity may appropriately intervene to disturb liquidation.
Juice Farms also lends support to this outcome. In Juice Farms Customs
prematurely liquidated entries subject to an antidumping duty order in violation of the
statutory suspension of liquidation, but the court refused to entertain reliquidation of the
entries because plaintiff, an importer of orange juice subject to an antidumping duty order,
had failed to protest the liquidations within the time limits prescribed by § 1514. Juice
Farms, 68 F.3d at 1346. The plaintiff in Juice Farms would undoubtedly be disappointed
to learn that the court ordered reliquidation here, where Plaintiffs waited eight months to
commence their action, 22 months after the affected entries were liquidated. Such a result
would be, in a word, inequitable.
Court No. 07-00057 Page 13
III. Conclusion
Customs’ premature liquidation of entries in violation of the statutory suspension of
liquidation is unlawful, and the court grants Plaintiffs declaratory relief. Nevertheless, the
court concludes that under the circumstances presented an injunction should not issue.
The court will enter judgment accordingly.
/s/ Leo M. Gordon
Judge Leo M. Gordon
Dated: July 14, 2008
New York, New York