Slip Op. 10-120
UNITED STATES COURT OF INTERNATIONAL TRADE
NATIONAL FISHERIES INSTITUTE,
INC., ET AL.,
Plaintiffs,
Before: Timothy C. Stanceu, Judge
v.
Court No. 05-00683
UNITED STATES BUREAU OF
CUSTOMS AND BORDER
PROTECTION,
Defendant.
OPINION
[Affirming an amended remand redetermination by United States Customs and Border Protection
of limits of liability on bonds previously subject to an enhanced bonding requirement and
entering a permanent injunction to accomplish bond cancellation without delay]
Dated: October 21, 2010
Steptoe & Johnson LLP (Eric C. Emerson, Gregory S. McCue, and Michael A. Pass) for
plaintiffs.
Tony West, Assistant Attorney General, Jeanne E. Davidson, Director, Patricia M.
McCarthy, Assistant Director, Commercial Litigation Branch, Civil Division, United States
Department of Justice (Stephen C. Tosini and David F. D’Alessandris); Chi S. Choy, Customs
and Border Protection, United States Department of Homeland Security, of counsel, for
defendant.
Stanceu, Judge: Plaintiffs (the “NFI Importers” or “NFI”) are domestic shrimp importers
who brought this action to contest a new, more stringent bonding requirement (the “enhanced
bonding requirement,” or “EBR”) that United States Customs and Border Protection (“Customs,”
“CBP,” or the “Agency”) applied to all importers of shrimp products subject to antidumping duty
orders. See Nat’l Fisheries Inst., Inc. v. U.S. Bureau of Customs & Border Prot., 34 CIT __, __,
Court No. 05-00683 Page 2
Slip Op. 10-61, at 1-2 (May 25, 2010) (“Nat’l Fisheries IV”). Before the court is the amended
second redetermination upon remand (“Amended Second Remand Redetermination”), which
Customs submitted to the court in response to the remand order in National Fisheries IV, 34 CIT
at __, Slip Op. 10-61, at 20. The court affirms the redetermined bond amounts in the Amended
Second Remand Redetermination. The court orders permanent injunctive relief under which
Customs, with a limited exception, is required to implement the Amended Second Remand
Redetermination within sixty days of the entry of judgment.
I. BACKGROUND
Background information, presented in National Fisheries Institute, Inc. v. U.S. Bureau of
Customs & Border Protection, 30 CIT 1838, 1843-47, 465 F. Supp. 2d 1300, 1305-09 (2006)
(“National Fisheries I”), National Fisheries Institute, Inc. v. U.S. Bureau of Customs & Border
Protection, 33 CIT __, __, 637 F. Supp. 2d 1270, 1274-81 (2009) (“National Fisheries II”), and
National Fisheries IV, 34 CIT at __, Slip Op. 10-61, at 2-10, is summarized and supplemented
herein.
Early in these proceedings, the court ordered limited preliminary injunctive relief in favor
of the eight of twenty-seven plaintiffs who testified before the court and established, inter alia,
that they would suffer irreparable harm absent such relief. Nat’l Fisheries I, 30 CIT at 1840-43,
465 F. Supp. 2d at 1303-05. More recently, in ruling on plaintiffs’ motion for judgment upon the
agency record, the court remanded for redetermination the bond sufficiency determinations that
Customs, in implementing the EBR, applied to all of the plaintiffs. Nat’l Fisheries II, 33 CIT
at __, 637 F. Supp. 2d at 1304-05. In National Fisheries II, the court held that Customs
exceeded its discretion in applying the EBR, arbitrarily and capriciously imposed increased bond
Court No. 05-00683 Page 3
requirements only on importers of shrimp products, and unreasonably applied a formula for
determining bond liability limits that secures potential antidumping duties at a substantial
amount over the required cash deposit. Id. at __, 637 F. Supp. 2d at 1294. In determining that
remand proceedings were appropriate, the court held in abeyance plaintiffs’ request for
permanent injunctive relief. Id. at __, 637 F. Supp. 2d at 1300-01. Defendant moved for a
clarification of the order the court issued in National Fisheries II, a motion the court denied.
Nat’l Fisheries Inst., Inc. v. U.S. Bureau of Customs & Border Prot., 33 CIT __, Slip Op. 09-104
(Sept. 25, 2009) (“National Fisheries III”).
Concluding that the redetermined bond amounts in the remand redetermination that
Customs issued in response to National Fisheries II did not address adequately the remaining
issues in this litigation, the court again remanded the action to Customs in National Fisheries IV,
34 CIT at __, Slip Op. 10-61, at 19-20. Customs filed a second redetermination on June 23,
2010, on which plaintiffs submitted comments on July 21, 2010. Pls.’ Comments in Resp. to
Second Remand Results (“Pls. Comments”). Defendant filed a response to plaintiffs’ comments
on August 20, 2010. Def.’s Resp. to NFI’s Remand Comments (“Def. Resp.”). On September 2,
2010, defendant filed an unopposed motion for leave for Customs to file an amended second
remand redetermination. Def.’s Consent Mot. for Leave to File Am. Remand Results. After
plaintiffs informed the court that they would file no further comments, the court accepted the
Amended Second Remand Redetermination for filing on September 8, 2010. Order,
Sept. 8, 2010.
Court No. 05-00683 Page 4
II. DISCUSSION
A. Standard of Review
The court reviews the Amended Second Remand Redetermination according to the
standard of review set forth in Section 301 of the Customs Courts Act of 1980, 28 U.S.C.
§ 2640(e), under which it “shall review the matter as provided in section 706 of title 5.”
28 U.S.C. § 2640(e) (2006). In accordance with Section 706 of the Administrative Procedure
Act, 5 U.S.C. § 706, the court will “compel agency action unlawfully withheld or unreasonably
delayed,” 5 U.S.C. § 706(1), and “hold unlawful and set aside agency action, findings, and
conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law,” id. § 706(2)(A).
B. The Bond Amounts in the Second Amended Remand Redetermination
In accordance with the court’s order in National Fisheries IV, 34 CIT at __, Slip
Op. 10-61, at 20, Customs redetermined the limits of liability on plaintiffs’ bonds using the 10%
bond formula of Customs Directive 99-3510-004, which was in effect prior to the adoption of the
enhanced bonding requirement. Am. Second Remand Redetermination 2; see Monetary
Guidelines for Setting Bond Amounts, Directive 99-3510-004 (July 23, 1991),
http://www.cbp.gov/linkhandler/cgov/trade/legal/directives/3510-004.ctt/3510-004.txt (last
visited Oct. 21, 2010). The court directed that “[o]n remand, Customs must reconsider its
application of the 10% formula to amounts that include entries for which duty liability, as
determined upon liquidation, is already satisfied.” Nat’l Fisheries IV, 34 CIT at __, Slip
Op. 10-61, at 16. The court reasoned that
Court No. 05-00683 Page 5
[a]pplication of the 10% formula to the entire amount of duties, taxes, and fees for
the bond period, including duties on entries for which liquidation is final and
liability is satisfied, results in an actual level of security that could exceed
substantially the guideline level of 10%, as applied to the actual amount of duties
at risk of nonpayment.
Id. at __, Slip Op. 10-61, at 15. Upon reconsidering the question, Customs reduced the bond
amounts to adjust for entries on which liquidation is final. Am. Second Remand
Redetermination 2 (stating that “the total duties, taxes, and fees paid during the bond period was
reduced by the total duties, taxes and fees relating to entries that were liquidated and the time to
file a protest had expired without a protest having been filed”). In response, plaintiffs state that
they “do not contest the bond redeterminations made by Defendant in its second remand results.”
Pls. Comments 1. The court affirms the redetermined limits of liability for the bonds at issue in
this action, as set forth in the Amended Second Remand Redetermination.
In the Amended Second Remand Redetermination, Customs states that it is issuing the
redetermined bond amounts “under protest,” taking the position that “once a bond is in place, its
limit of liability should not be retroactively redetermined.” Am. Second Remand
Redetermination 1. Customs states that retroactive redetermination “foregoes security to which
the agency may otherwise be entitled,” limits the agency’s ability to aggressively collect debts,
and impedes “efficient administration of bonds.” Id. at 1-2. The court does not affirm the
portion of the Amended Second Remand Redetermination stating the Agency’s position against
redetermined bond amounts. This position contradicts the court’s holdings in this action. It rests
on the untenable premise that Customs should be free to maintain in place indefinitely bonds for
which the limits of liability were determined contrary to law. Customs cannot be said to be
Court No. 05-00683 Page 6
foregoing security to which it “otherwise may be entitled,” id. at 1, when it has acted contrary to
law in ordering that security.
C. Timing of the Required Cancellation of the Bonds
Customs will be required to cancel all bonds at issue in this case, whether or not it
chooses to require a replacement (“superseding”) bond in an amount determined without regard
to the EBR and in accordance with the Amended Second Remand Redetermination. See Nat’l
Fisheries II, 33 CIT at __, 637 F. Supp. 2d at 1305. In their comments on the Amended Second
Remand Redetermination, plaintiffs advocate that the court “set a time certain by which
Defendant must cancel all bonds calculated under the enhanced bonding requirement.” Pls.
Comments 1. Plaintiffs argue that “a fixed deadline is necessary to ensure that Defendant takes
action on these illegally calculated bonds,” id. at 1-2, urging that the court allow Customs thirty
days for this purpose, id. at 3. Defendant proposes, instead, a judgment in which Customs would
be required to take no action until thirty days from the date on which the judgment becomes final
and conclusive, i.e., after all appeals have been exhausted. Def. Resp., Judgment 1 (proposing
that the court order Customs to implement the Amended Second Remand Redetermination
“within 30 days of any final and conclusive judgment in this matter which sustains those remand
results”). Defendant objects that plaintiffs are attempting to obtain relief that would void the
bonds such that the bonds could not be reinstated should the government successfully appeal a
judgment entered in this case. Def. Resp. 2.
Plaintiffs’ comments seek an order that, after expiration of a time period under which
Customs would accept replacement bonds, would compel Customs to cancel the bonds on a date
certain and would permanently enjoin Customs from making claims or charges on the original
Court No. 05-00683 Page 7
bonds. See Pls. Comments 1-4. In seeking relief entailing bond cancellation before the
conclusion of an appeal, plaintiffs are moving for permanent injunctive relief and are pursuing an
equitable remedy in the nature of the relief for which they moved earlier. See National
Fisheries II, 33 CIT at __, 637 F. Supp. 2d at 1274 (stating that plaintiffs seek a permanent
injunction to prohibit Customs from applying the EBR to them). The court has held in abeyance
any ruling on permanent injunctive relief pending the outcome of remand proceedings. Id.,
33 CIT at __, 637 F. Supp. 2d at 1300-01.
A plaintiff seeking a permanent injunction must demonstrate that it has suffered an
irreparable injury, that the remedies available at law, such as monetary damages, are inadequate
to compensate for that injury, that, considering the balance of hardships between the plaintiff and
defendant, a remedy in equity is warranted, and 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). “An
injunction is a matter of equitable discretion; it does not follow from success on the merits as a
matter of course.” Winter v. Natural Res. Def. Council, Inc., 129 S. Ct. 365, 381 (2008) (citing
Weinberger v. Romero-Barcelo, 456 U.S. 305, 313 (1982)).
The court finds as facts, based on the record in this case, that each of the plaintiffs has
incurred, and will continue to incur absent permanent injunctive relief, adverse effects as a result
of being made subject to the unlawful enhanced bonding requirement. See, e.g., Pls.’ Submission
of Supplemental Information Requested by the Ct. during In Camera Proceedings on Mar. 28,
2008, ¶¶ 25-42, Apr. 28, 2008; Nat’l Fisheries I, 30 CIT at 1850-51, 465 F. Supp. 2d at 1311-12;
Status Report in Resp. to the Ct.’s Inj., Jan. 26, 2007, Attach. 2-4; Status Report (Def.), Dec. 4,
2006; Status Report (Pls.), Dec. 4, 2006. Those adverse effects, as shown by uncontested facts
Court No. 05-00683 Page 8
and undisputed evidence on the record, have taken various forms. Generally, plaintiffs have been
required to post collateral, typically in the form of letters of credit, to obtain bonds in amounts
demanded by Customs according to the EBR. Earlier, some plaintiffs agreed to cease or reduce
importing activity to avoid the costs of enhanced bonding; others have incurred costs due to the
reduced availability of their credit to conduct their general business activities. See Nat’l
Fisheries I, 30 CIT at 1855-57, 465 F. Supp. 2d at 1313-15.
In addition, the court finds that all plaintiffs are experiencing competitive harm in
continuing to be subjected to a bonding requirement that does not apply to parties who began
importing after repeal of the EBR. See Nat’l Fisheries II, 33 CIT at __, 637 F. Supp. 2d at 1303
(“The continued refusal of Customs to address the problem of the previous bonds has resulted in
inequitable treatment of long-time importers, such as plaintiffs, relative to new importers who
were never subject to the unlawful enhanced bonding requirement.”). The harm imposed on
plaintiffs must be considered irreparable because plaintiffs will never be able to recover the costs
they incurred, or obtain redress for harm they have experienced, in maintaining the bonds that
Customs is unlawfully requiring of them. The adverse effects stemming from the EBR will
continue until cancellation of the bonds on which plaintiffs are principals. The court concludes,
therefore, that plaintiffs will continue to incur irreparable harm directly caused by unlawful
government action if cancellation of the EBR-based bonds must await the deciding of any appeal.
Regarding the second factor for permanent injunctive relief, no remedy at law is
available. Plaintiffs are not entitled to recover money damages from the United States as
compensation for the adverse effects they have incurred and will incur from the unlawful
Court No. 05-00683 Page 9
bonding requirement. Only through an injunctive remedy will plaintiffs avoid incurring
additional irreparable harm during an appellate proceeding.
With respect to the balancing of the hardships, the absence of injunctive relief will
impose on plaintiffs the irrecoverable costs of maintaining, during appeal, bonding set according
to the EBR, including the costs of maintaining collateral and of the reduced availability of credit
for other business activities and the irremediable competitive harm plaintiffs are incurring
relative to other importers. Alternatively, a grant of injunctive relief, absent a stay pending
appeal, will preclude defendant from maintaining security at EBR-based levels for entries for
which liquidation is not yet final and for which potential duty liability is not yet satisfied, even if
the government ultimately prevails upon appeal. The hardship to Customs resulting from a
permanent injunction, however, is limited. Although the level of security available for the entries
now secured by EBR-based bonds in this case will be reduced from the current levels, security
still will be available in the form of cash deposits. Additional security for amounts potentially
owing that exceed the cash deposits will be available as a result of any superseding bonds that
Customs may require, pursuant to the court’s order, as a condition of cancellation of the EBR-
based bonds. Customs will be authorized to secure the remaining liability that is the subject of
those now-terminated bonds according to the standard bond formula that it applies to all other
importers. See Monetary Guidelines for Setting Bond Amounts, Directive 99-3510-004 (July 23,
1991), http://www.cbp.gov/linkhandler/cgov/trade/legal/directives/3510-004.ctt/3510-004.txt
(last visited Oct. 21, 2010).
The court concludes that the balance of the hardships is in favor of plaintiffs. Due to the
previous decision of Customs not to apply the repeal of the EBR to bonds for previous bonding
Court No. 05-00683 Page 10
periods, a decision that Customs has maintained through two remand proceedings, plaintiffs have
been adversely affected, and continue to be adversely affected, by a regulatory requirement that
Customs never applied to any importers other than shrimp importers and that Customs itself has
abandoned and thus no longer imposes on any importers. Whatever interest Customs has in
continuing to apply the EBR to plaintiffs’ now-terminated bonds is outweighed by the harm
being caused to plaintiffs. That harm, absent a permanent injunction, will continue through the
time that an appellate proceeding will consume.
The public interest also favors the granting of the permanent injunction. Although
maintaining a maximum level of security for the unliquidated entries would serve broadly the
public interest of revenue collection, it would do so at the cost of continuing to subject plaintiffs
to an unlawful, and discriminatory, bonding requirement that Customs no longer imposes on any
importers other than on a distinct class of persons, i.e., those who began importing shrimp
subject to antidumping duty orders prior to the government’s abandonment of the EBR. The
public interest is not served by the discriminatory, arbitrary, and capricious continuation of an
onerous and unlawful requirement against a single group of importers.
Defendant argues that “[i]n essence, NFI is attempting to obtain premature relief in a
manner that may, in NFI’s view, render moot any appeal that the Solicitor General were to elect
to take from any final judgment, by voiding the bonds in a manner under which they could not be
reinstated were the Government to successfully appeal.” Def. Resp. 2. According to defendant,
plaintiffs erroneously presume that the relief sought would achieve the result plaintiffs hope to
accomplish, which is release of the collateral by the sureties prior to the conclusion of appellate
proceedings. Id. Defendant adds that “the Government will not voluntarily waive its right to
Court No. 05-00683 Page 11
redress under any bond” and that “[t]he Court cannot direct CBP to voluntarily elect never to
proceed against any bond regardless of the outcome of a Government appeal.” Id.
The court concludes that a judgment in the form sought by plaintiffs, which would
impose a permanent injunction, likely would moot any appeal by the United States in the
particular circumstances of this case, unless defendant, at a later date, were to qualify for a
modification of the injunction (essentially, a stay of the judgment) pending appeal. See USCIT
Rule 62(c); F.R. App. P. 8(a). Because the EBR that previously was in effect has been repealed,
arguably the only issue on appeal that is not already mooted by the repeal of the EBR is whether
Customs will be required to implement the Amended Second Remand Redetermination, which
affects only the level of security arising out of plaintiffs’ now-terminated bonds. Plaintiffs seek
equitable relief under which those bonds, after replacement with bonds in lower amounts, would
be canceled within a definite period of time from the entry of judgment. By definition, a
canceled bond is one on which a principal and surety are released from all liability thereunder,
and therefore Customs would be unable to obtain payment from a surety upon a demand, claim
or charge made on a bond once that bond has been canceled in accordance with the Amended
Second Remand Redetermination. The court is aware of no means, and the parties identify none,
under which Customs could reinstate a bond and thereby bind the surety once again, after the
bond is canceled. Nevertheless, the court, exercising its discretion to weigh the competing
equitable considerations, concludes that the bonds remaining at issue in this litigation must be
canceled as soon as possible. In weighing those considerations, the court concludes that the
possible mooting of defendant’s appeal is not a sufficient reason for the court to deny plaintiffs
the equitable relief to which plaintiffs are otherwise entitled. Defendant has not demonstrated
Court No. 05-00683 Page 12
that it should be granted what would constitute an automatic stay of the judgment, and a delay in
the remedy, pending a possible appeal. Should defendant choose to bring an appeal, it may
exercise its right to seek modification through the procedures of USCIT Rule 62(c) and, should
defendant not prevail, to seek a stay from the U. S. Court of Appeals for the Federal Circuit
pursuant to F.R. App. P. 8(a). To balance these competing considerations, the court is allowing
defendant sixty days, rather than thirty days, from the entry of judgment in which to implement
the Amended Second Remand Redetermination. The court considers this time period sufficient
to allow defendant to pursue a stay under USCIT Rule 62(c) and, should it not prevail, under F.R.
App. P. 8(a).
In summary, the court concludes that plaintiffs have established their entitlement to
permanent injunctive relief as contemplated by the position they took earlier in this litigation and
as specifically sought in their comments on the Amended Second Remand Redetermination.
D. Form of Equitable Relief affecting Claims or Charges against the Bonds
Plaintiffs state that they have “a well-founded fear” that the sureties will be unwilling to
release collateral absent certainty that they will not face liability on the canceled bonds. Pls.
Comments 3. “Plaintiffs accordingly request that as part of its Order this Court explicitly direct
that all bonds cancelled by Customs are null and void, and further, permanently enjoin Customs
from making any claim or charge against any canceled bond.” Id. at 4.
Plaintiffs’ request appears to presume that a canceled bond, in some respect, can be the
basis for liability of a surety, or at least for a belief by a surety that liability may exist. As the
court discussed above, a canceled bond is a bond on which Customs no longer may demand
performance of any bond condition or obligation. Therefore, an injunction that orders Customs
Court No. 05-00683 Page 13
not to make a claim or charge against a canceled bond would appear to be redundant and
unnecessary. Nevertheless, the court is unable to find in the Customs Regulations a definition of
a canceled bond or similar provision that unambiguously states the general principle that no
claim or charge can be made upon a canceled bond. See 19 C.F.R. Part 113 and Subpart F
(2010). To avoid any ambiguity that any party may discern with respect to the intent of the court
in ordering bond cancellation (with or without bond replacement), the judgment will provide that
Customs is permanently enjoined from making any demand, claim, or charge on any bond that
has undergone the cancellation procedure required therein.
III. CONCLUSION
The court concludes that the redetermined bond liability limits in the Amended Second
Remand Redetermination are in accordance with law and comply with the remand order in
National Fisheries IV, 34 CIT at __, Slip Op. 10-61, at 20. The court finds as facts that all
plaintiffs have incurred and, absent permanent injunctive relief will incur during any appeal,
irreparable harm as a result of the continued unlawful and discriminatory application to them of
the enhanced bonding requirement. Balancing all competing equitable considerations, the court
concludes that permanent injunctive relief ensuring prompt bond cancellation is the appropriate
remedy by which this litigation should be concluded. Customs, except in the event of a delay in
the tendering by a plaintiff-importer of a superseding bond, must accomplish all actions
necessary to implement the Amended Second Remand Redetermination within sixty days of the
entry of judgment.
/s/ Timothy C. Stanceu
Timothy C. Stanceu
Judge
Dated: October 21, 2010
New York, New York