Slip Op. 10-58
UNITED STATES COURT OF INTERNATIONAL TRADE
AMERICAN SIGNATURE, INC.,
Plaintiff,
Before: Leo M. Gordon, Judge
v.
Court No. 09-00400
UNITED STATES,
Defendant.
OPINION
[Judgment for Plaintiff.]
Dated: May 18, 2010
Mowry & Grimson, PLLC (Jeffrey S. Grimson, Kristin H. Mowry, Jill A. Cramer,
Jodi B. Herman, Susan E. Lehman) for Plaintiff American Signature, Inc.
Tony West, Assistant Attorney General, Jeanne E. Davidson, Director,
Patricia M. McCarthy, Assistant Director, Commercial Litigation Branch, Civil Division,
U.S. Department of Justice (Stephen C. Tosini, Senior Trial Attorney); and Office of
Chief Counsel for Import Administration, U.S. Department of Commerce
(Thomas Beline), of counsel, for Defendant United States.
King & Spalding LLP (Joseph W. Dorn, J. Michael Taylor) for Defendant-
Intervenors American Furniture Manufacturers Committee For Legal Trade and
Vaughan-Bassett Furniture Company, Inc.
Gordon, Judge: This action involves a ministerial error that went undetected
during an administrative review of the antidumping duty order covering wooden
bedroom furniture from the People’s Republic of China. The U.S. Department of
Commerce (“Commerce”) committed the error in its SAS margin calculation program,
yielding assessment rates for certain exporters of subject merchandise that were lower
Court No. 09-00400 Page 2
than if the SAS program had been correct. The net effect was a rather significant
under-collection of antidumping duties for these exporters.
Commerce discovered the error 99 days after a judicial action challenging the
administrative review had been voluntarily dismissed. Rather than address and
interpret the statutory provision and regulation governing ministerial errors (19 U.S.C.
§ 1675(h); 19 C.F.R. § 351.224) to determine whether the error could be corrected at
such a late date, Commerce instead characterized the error as one within its liquidation
instructions, outside the purview of the final results, and thus correctable. Although
most of the subject entries had already been liquidated, Commerce instructed U.S.
Customs and Border Protection (“Customs”) to await revised liquidation instructions for
the remaining unliquidated entries. For the subject entries already liquidated,
Commerce requested that Customs reliquidate them pursuant to 19 U.S.C. § 1501 in
accordance with the revised liquidation instructions.
American Signature, Inc. (“ASI”) then commenced this action seeking a
declaratory judgment that Commerce’s attempted ministerial error correction was
unlawful, and a permanent injunction to enjoin Commerce and Customs from
reliquidating ASI’s liquidated entries, or from altering the assessment rates for ASI’s
remaining unliquidated entries. In addition, ASI sought a preliminary injunction to
maintain the status quo while the court addressed the merits. Although this court
agreed with ASI that Commerce’s attempted ministerial error correction via an
amendment to liquidation instructions was suspect, the court could not at that stage of
the litigation conclude that Commerce could never correct the error:
Court No. 09-00400 Page 3
At this stage of the litigation, the court does not have before it the
agency’s considered interpretation of 19 U.S.C. § 1675(h) or 19 C.F.R.
§ 351.224 (2007). To properly apply the standard of review operating in
this Administrative Procedure Act (“APA”) action, . . ., the court must give
the agency the opportunity to review the statute and regulations and
determine whether the error can be lawfully corrected.
American Signature, Inc. v. United States, No. 09-00400, (CIT Oct. 26, 2009) (Mem.
and Order Den. Stay Pend. Appeal) at 9 (“Oct. 26, 2009 Order”). The court denied
Plaintiff’s request for a preliminary injunction. See American Signature, Inc. v. United
States, No. 09-00400, (CIT Oct. 13, 2009) (Mem. and Order Den. Prelim Inj.); American
Signature, Inc. v. United States, No. 09-00400 (Oct. 26, 2009 Order).
On appeal of this court’s denial of the preliminary injunction, the Federal Circuit
held that Commerce’s error was not in the liquidation instructions, but within the final
results of the administrative review. American Signature, Inc. v. United States, 598 F.3d
816, 823-25 (Fed. Cir. 2010) (“American Signature”). On the question of whether
Commerce had the authority to correct the error given the tardiness with which it was
discovered, the Federal Circuit deferred to Commerce’s interpretation of 19 U.S.C.
§ 1675(h) and 19 C.F.R. § 351.224, which the Federal Circuit received through a
supplemental request. American Signature, 598 F.3d at 823, 826-27 & n. 14. The
Federal Circuit held that “Commerce’s sua sponte corrections must be made before the
final [results of an administrative review are] no longer subject to judicial review.” Id. at
827-28. Applying this standard to the facts of this case, the Federal Circuit concluded
that because Commerce did not correct the error before the time for judicial review had
expired, “the error cannot now be corrected” and that ASI demonstrated a “certainty of
success.” Id. at 828. The Federal Circuit, in turn, reversed this court’s denial of ASI’s
Court No. 09-00400 Page 4
motion for a preliminary injunction and directed this court to grant ASI’s “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.” Id. at 830.
As ASI’s success in this action is now certain, entry of a preliminary injunction is
unnecessary because the merits have been resolved. A pending cross-claim by the
American Furniture Manufacturers Committee for Legal Trade and Vaughan-Basset
Furniture Company, Inc. (the “domestic producers”) seeking an affirmative injunction to
direct Commerce to correct the error must fail because, as noted, the error cannot be
corrected as a matter of law. Id. at 828.
Judgment will be entered accordingly.
/s/ Leo M. Gordon
Judge Leo M. Gordon
Dated: May 18, 2010
New York, New York