Slip. Op. 09-138
UNITED STATES COURT OF INTERNATIONAL TRADE
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THYSSENKRUPP MEXINOX S.A. :
DE C.V. et al., :
:
Plaintiffs, :
:
v. : Before: Pogue, Judge
: Court No. 06-00236
UNITED STATES, et al., :
:
Defendant, :
:
AK STEEL CORPORATION, :
ALLEGHENY LUDLUM CORPORATION :
and NORTH AMERICAN STAINLESS, :
:
Defendant-Intervenors. :
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JUDGMENT
This action involves the distribution to affected domestic
producers, pursuant to the Continued Dumping and Subsidy Offset Act
of 2000 (“CDSOA” or “Byrd Amendment”), section 754 of the Tariff
Act, 19 U.S.C. § 1675c (2000), of antidumping (“AD”) duties
assessed and collected on imports of certain steel products from
Mexico. In their complaint, Plaintiffs claimed, correctly, that
the Byrd Amendment may not be applied to AD duties on goods from
Mexico. On the other hand, on May 13, 2009, the court denied
Plaintiffs’ motion to amend their complaint to add (1) a cause of
action for unjust enrichment, against the Defendant-Intervenors,
Plaintiffs’ domestic competitors, for receiving and retaining
distributions under the Byrd Amendment of AD duties collected upon
the entry into the U.S. of Plaintiffs’ goods, and (2) a claim for
injunctive relief requiring the Defendant-Intervenors to disgorge
those illegally-received distributions. Thyssenkrupp Mexinox S.A.
de C.V. v. United States, __ CIT __, __, 616 F. Supp. 2d 1376, 1378
(2009). The court’s decision resulted from its refusal to exercise
supplemental jurisdiction over the former claim, and its
recognition that the passage of the American Recovery and
Reinvestment Act of 2009, H.R. 1, Pub. L. No. 111-5, §§ 1-7002, 123
Stat. 115, 115-521 (2008) mooted the latter claim. Thyssenkrupp,
616 F. Supp. 2d at 1378.
On November 16, 2009, the court granted Plaintiffs’ request
for declaratory relief equivalent to that granted in Canadian
Lumber Trade Alliance v. United States, 30 CIT 391, 441-43, 425 F.
Supp. 2d 1321, 1372-73 (2006) (“Canadian Lumber I”), aff’d in part
& vacated in part on other grounds, 517 F.3d 1319 (Fed. Cir. 2008)
and Canadian Lumber Trade Alliance v. United States, 30 CIT 892,
894-95, 441 F. Supp. 2d 1259, 1262-63 (2006) (“Canadian Lumber
II”), aff’d as modified, 517 F.3d 1319. Thyssenkrupp Mexinox S.A.
de C.V. v. United States, No. 06-00236, 2009 WL 3809614, at *1-2
(CIT Nov. 16, 2009). The court found that some entries of
Plaintiff’s merchandise – entries which are the subject of
Plaintiff’s complaint – remained unliquidated and therefore are
subject to duty collection and disbursement under the CDSOA.
Accordingly, the court determined that the court’s prior opinions
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in Canadian Lumber I and Canadian Lumber II control this case, and
that the Plaintiffs are entitled to declaratory relief.
Plaintiff further requested permanent injunctive relief.
However, subsequent to the court’s November 16th order, Plaintiff
has abandoned its request, and the parties now agree that this
action can proceed to final judgment.
Therefore, this action, having been duly submitted for
decision, and the court, after due deliberation, having rendered
decisions herein;
Now, in conformity with those decisions, it is hereby
ORDERED, ADJUDGED and DECREED that, pursuant to section 408 of
the North American Free Trade Implementation Act, 19 U.S.C. § 3438,
the CDSOA does not apply to the AD orders on stainless steel sheet
and strip products from Mexico; and it is hereby
ORDERED, ADJUDGED and DECREED that Defendant United States’
disbursement under the CDSOA to domestic producers of AD duties
assessed on imports of stainless steel sheet and strip products
from Mexico was and is contrary to law.
Dated: New York, New York
December 15, 2009
/s/ Donald C. Pogue
Donald C. Pogue, Judge
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