Canadian Wheat Board v. United States

Slip Op. 07-61

UNITED STATES COURT OF INTERNATIONAL TRADE

:
CANADIAN WHEAT BOARD, :
:
Plaintiff, :
: Before: Richard K. Eaton, Judge
v. :
: Consol. Court No. 07-00058
UNITED STATES, :
:
Defendant. :
:

OPINION AND ORDER

[Plaintiff’s motion for preliminary injunction granted.]

Dated: April 24, 2007

Steptoe & Johnson, LLP (Mark Astley Moran, Jamie Benjamin Beaber
and Matthew S. Yeo), for plaintiff.

Peter D. Keisler, Assistant Attorney General; Jeanne E. Davidson,
Director, Commercial Litigation Branch, Civil Division, United
States Department of Justice; Patricia M. McCarthy, Assistant
Director, Commercial Litigation Branch, Civil Division, United
States Department of Justice (Stephen C. Tosini); Office of Chief
Counsel for Import Administration, United States Department of
Commerce (Scott McBride), of counsel, for defendant.

Eaton, Judge: This matter is before the court on the

Canadian Wheat Board’s (“CWB”) motion for a preliminary

injunction pursuant to USCIT Rule 65(a). By its motion,

plaintiff seeks an order enjoining the United States, the United

States Department of Commerce (“Commerce” or the “Department”)

and the Bureau of Customs and Border Protection (“Customs”) from

liquidating or causing or permitting to be liquidated all entries
Consol. Court No. 07-00058 Page 2

of Canadian hard red spring (“HRS”) wheat that were: “(1)

entered, or withdrawn from warehouse, for consumption prior to

January 2, 2006; (2) imported into the United States by or on

behalf of the CWB; and (3) subject to the antidumping . . . and

countervailing duty . . . orders on HRS wheat from

Canada . . . .” Pl.’s Mem. P. & A. Supp. Mot. TRO & Prelim. Inj.

1 (“Pl.’s Mem.”);1 see also HRS Wheat from Canada, 68 Fed. Reg.

60,641 (Dep’t of Commerce Oct. 23, 2003) (notice) (antidumping

duty order); HRS Wheat from Canada, 68 Fed. Reg. 60,642 (Dep’t of

Commerce Oct. 23, 2003) (notice) (countervailing duty order)

(collectively, the “AD/CVD Orders”).

Plaintiff’s substantive challenge is to a legal conclusion

contained in Commerce’s notice of revocation of the AD/CVD

Orders, which was published following a negative injury

determination of the United States International Trade Commission

(“ITC” or the “Commission”). See HRS Wheat from Canada, Notice

of Panel Decision, Revocation of Countervailing and Antidumping

Duty Orders and Termination of Suspension of Liquidation, 71 Fed.

Reg. 8275 (Dep’t of Commerce Feb. 16, 2006) (notice) (“Notice of

1
Pursuant to this Court’s entry of a temporary
restraining order on February 28, 2007, and the subsequent
extension of that order for 60 days on March 14, 2007,
plaintiff’s merchandise is not presently at risk of being
liquidated. See Can. Wheat Bd. v. United States, Ct. No. 07-
00058 (CIT Feb. 28, 2007) (order granting plaintiff’s motion for
TRO) (Ridgway, J.); Can. Wheat Bd. v. United States, Ct. No. 07-
00058 (CIT Mar. 14, 2007) (order extending TRO for 60 days)
(Eaton, J.).
Consol. Court No. 07-00058 Page 3

Revocation”). The ITC made its negative determination following

remand from a binational panel assembled pursuant to article 1904

of the North American Free Trade Agreement (“NAFTA”).

Specifically, plaintiff takes issue with Commerce’s statement in

the Notice of Revocation that it would instruct Customs to

liquidate, without duties, only those imports that “entered the

United States on or after January 2, 2006.” Id. For plaintiff,

Commerce committed legal error by not making the Notice of

Revocation applicable to all entries, the liquidation of which

had been suspended, made while the now invalid AD/CVD Orders were

in place. Plaintiff claims that its position is supported by

this Court’s decision in Tembec, Inc. v. United States, 30 CIT

, 461 F. Supp. 2d 1355 (2006) (“Tembec II”), judgment vacated

by Tembec, Inc. v. United States, 31 CIT , Slip Op. 07-28 (Feb.

28, 2007) (“Tembec III”).2 See id. at , 461 F. Supp. 2d at

1367 (“Congress did not set up a system to retain duties that are

not owed.”).

The CWB asserts 28 U.S.C. § 1581(i)(4) (2000)3 as the

2
The Tembec III Court vacated as moot its prior judgment
in Tembec II, but, having found “that the issues in Tembec II
were decided within the context of a live controversy,” kept the
Tembec II decision in place. Tembec III, 31 CIT at , Slip Op.
07-28 at 15.
3
Section 1581(i)(4) grants this Court exclusive
jurisdiction to entertain “any civil action commenced against the
United States, its agencies, or its officers, that arises out of
any law of the United States providing for . . . (4)
(continued...)
Consol. Court No. 07-00058 Page 4

jurisdictional basis for its suit. By its opposition to

plaintiff’s motion, the United States, on behalf of Commerce,

argues that the Court lacks jurisdiction over this matter. See

Def.’s Opp’n Pl.’s Mot. Prelim. Inj. 4–10 (“Def.’s Opp’n”). For

the reasons that follow, the court finds that jurisdiction lies

pursuant to 28 U.S.C. § 1581(i)(4). In addition, the court

grants plaintiff’s motion for a preliminary injunction.

BACKGROUND

The CWB is an exporter of Canadian HRS wheat. In September

2002, the domestic wheat industry petitioned both Commerce and

the ITC seeking investigations into possible dumping and

subsidization of Canadian HRS wheat, and the effects of Canadian

wheat imports on the U.S. market. Thereafter, the Department

published its findings that Canadian HRS wheat was both

subsidized and being sold in the United States at less than fair

value. See Certain Durum Wheat and HRS Wheat from Canada, 68

Fed. Reg. 52,747 (Dep’t of Commerce Sept. 5, 2003) (final

affirmative countervailing duty determination); Certain Durum

Wheat and HRS Wheat from Canada, 68 Fed. Reg. 52,741 (Dep’t of

Commerce Sept. 5, 2003) (final affirmative sales at less than

3
(...continued)
administration and enforcement with respect to the matters
referred to in paragraphs (1)-(3) of this subsection and
subsections (a)-(h) of this section.” 28 U.S.C. § 1581(i)(4).
Consol. Court No. 07-00058 Page 5

fair value determination).

In October 2003, after conducting its own investigation, the

ITC determined that imports of Canadian HRS wheat were materially

injuring the domestic industry. See Durum and HRS Wheat from

Canada, USITC Pub. 3639, Inv. Nos. 701-TA-430A and 430B and 731-

TA-1019A and 1019B (Oct. 2003) (Final). Thereafter, on October

23, 2003, Commerce published the AD/CVD Orders.

Plaintiff challenged the ITC’s affirmative determination

before a NAFTA panel. On June 7, 2005, the NAFTA panel found

unsupported by substantial evidence the ITC’s affirmative

material injury determination and remanded the matter to the

Commission for further consideration. See HRS Wheat from Canada,

USA-CDA-2003-1904-06 (panel decision) at 64 (June 7, 2005),

available at http://www.nafta-sec-alena.org/app/DocRepository/

1/Dispute/english/NAFTA_Chapter_19/USA/ua03060e.pdf (last visited

Apr. 24, 2007). On remand, the ITC reversed its original

affirmative determination and concluded “that an industry in the

United States is not materially injured, or threatened with

material injury, by reason of imports of [HRS] wheat from Canada

found to be subsidized and sold in the United States at less than

fair value.” HRS Wheat from Canada, USITC Pub. 3806, Inv. Nos.

701-TA-430B and 731-TA-1019B (Oct. 2005) (Remand).

The domestic wheat industry then challenged the ITC’s

negative determination before the NAFTA panel. On December 12,
Consol. Court No. 07-00058 Page 6

2005, the NAFTA panel sustained the ITC’s negative determination

and ordered the U.S. NAFTA Secretary to issue a Notice of Final

Panel Action. See HRS Wheat from Canada, USA-CDA-2003-1904-06

(panel decision on remand determination) at 5, 21–22 (Dec. 12,

2005), available at http://www.nafta-sec-alena.org/app/

DocRepository/1/ua03061e.pdf (last visited Apr. 24, 2007). That

notice was issued on December 23, 2005.

On January 30, 2006, the U.S. NAFTA Secretary published in

the Federal Register a Notice of Completion of Panel Review,

which by its terms was effective as of January 24, 2006. See

Article 1904 NAFTA Panel Reviews; Completion of Panel Review, 71

Fed. Reg. 4896 (Dep’t of Commerce Jan. 30, 2006) (notice).

On January 31, 2006, pursuant to 19 U.S.C. § 1516a(g)(5)(B),

Commerce published in the Federal Register notice that the NAFTA

panel’s final decision was not in harmony with the Commission’s

original affirmative injury determination. See HRS Wheat from

Canada: NAFTA Panel Decision, 71 Fed. Reg. 5050 (Dep’t of

Commerce Jan. 31, 2006) (“Timken Notice”); see also Timken Co. v.

United States, 893 F.2d 337, 340 (Fed. Cir. 1990). This notice

had an effective date of January 2, 2006.4 The notice stated

4
In Timken Co. v. United States, 893 F.2d 337, 340 (Fed.
Cir. 1990), the Court of Appeals for the Federal Circuit held
that 19 U.S.C. § 1516a(c)(1) required Commerce to “publish notice
of a . . . decision not in harmony [with the original
determination] within 10 days of the issuance of the
decision . . . .” This requirement is equally applicable to
(continued...)
Consol. Court No. 07-00058 Page 7

that it “serve[d] to suspend liquidation of entries of subject

merchandise entered, or withdrawn from warehouse, for consumption

on or after January 2, 2006, i.e., 10 days from the issuance of

the Notice of Final Panel Action, at the current cash deposit

rate.” Timken Notice, 71 Fed. Reg. at 5051. Thus, the notice

preserved from liquidation those entries made on or after January

2, 2006, but did nothing to prevent liquidation of earlier

entries made with unfair trade duties in place.

Commerce took this action even though it recognized that the

ITC’s negative determination removed the foundation for the

AD/CVD Orders. That is, the ITC’s October 2003 affirmative

injury determination had been reversed. In keeping with this

reversal, on February 16, 2006, the Department published the

Notice of Revocation, which “revok[ed] the countervailing duty

order and antidumping duty order on [HRS] wheat from

Canada . . . .” Notice of Revocation, 71 Fed. Reg. at 8275.

Nonetheless, Commerce explicitly stated that the Notice of

Revocation “[did] not affect the liquidation of entries made

prior to January 2, 2006.” Id.

4
(...continued)
NAFTA panel decisions not in harmony with the original challenged
determination. See 19 U.S.C. § 1516a(g)(5)(B). Thus, even
though the Timken Notice was published later than 10 days after
the NAFTA panel decision, it obtained legal effect on January 2,
2006, the last day the notice could lawfully be published.
Consol. Court No. 07-00058 Page 8

Plaintiff’s entries were made in September 2004. At the

time plaintiff entered its merchandise, the goods were subject to

the duties imposed by the then-existing AD/CVD Orders. As a

result, the CWB paid cash deposits based on the 5.29 percent net

subsidy rate and 8.86 percent antidumping duty margin.5

Liquidation of these entries was suspended on October 31, 2005,

when the CWB filed a request for an administrative review of the

AD/CVD Orders. See Pl.’s Mem. 6. On February 26, 2007, however,

the CWB withdrew its request for an administrative review,

thereby exposing its entries to liquidation under the terms of

the Notice of Revocation. See Pl.’s Mem. 7.

On February 21, 2007, nearly one year after the publication

of the Notice of Revocation, the CWB commenced this action.

Plaintiff now asks the court to enjoin preliminarily the

liquidation of its merchandise to allow it to litigate the merits

of its case.

DISCUSSION

The Courts have developed the familiar four-part test

requiring a party seeking injunctive relief to establish that:

5
According to Customs’s fiscal year 2004 annual report,
as of October 1, 2004, $176,171.37 in cash deposits had been paid
on entries of Canadian HRS wheat. See http://www.cbp.gov/
linkhandler/cgov/import/add_cvd/cont_dump/cdsoa_04/fy2004_annual/
clearing_account.ctt/clearing_account.pdf (last visited April 24,
2007). This amount includes any cash deposits paid by the CWB on
its September 2004 entries.
Consol. Court No. 07-00058 Page 9

(1) it is likely to succeed on the merits of its complaint; (2)

absent an injunction, it will be irreparably harmed; (3) the

balance of hardships on the parties favors the movant; and (4)

the public interest would be better served by the issuance of the

injunction. See FMC Corp. v. United States, 3 F.3d 424, 427

(Fed. Cir. 1993); Zenith Radio Corp. v. United States, 710 F.2d

806, 809 (Fed. Cir. 1983).

In determining whether the movant has carried its burden and

satisfied the four-part test, “[n]o one factor, taken

individually is necessarily dispositive.” FMC Corp., 3 F.3d at

427. Indeed, “[a]s a basic proposition, the matter lies largely

within the sound discretion of the [Court].” Id.

I. Likelihood of Success on the Merits

The court first addresses plaintiff’s claim that it is

likely to succeed on the merits of its case. Here, the most

significant obstacle facing it is defendant’s assertion that the

Court lacks jurisdiction to grant the relief sought.

The Court of Appeals for the Federal Circuit has held that

“[t]he question of jurisdiction closely affects the [movant]’s

likelihood of success on its motion for a preliminary

injunction.” U.S. Ass’n of Imps. of Textiles & Apparel v. U.S.

Dep’t of Commerce, 413 F.3d 1344, 1348 (Fed. Cir. 2005). The

importance of addressing the question of jurisdiction when
Consol. Court No. 07-00058 Page 10

deciding a motion for a preliminary injunction is amplified by

the Federal Circuit’s statement that failure to do so is legal

error. See id. While this rule may be most applicable where a

court grants rather than denies a motion seeking an injunction,

see Nippon Steel Corp. v. United States, 219 F.3d 1348, 1353

(Fed. Cir. 2000), here, a discussion of jurisdiction appears to

be mandatory.

Plaintiff claims that the Court may hear this case under its

residual provision of jurisdiction set forth in 28 U.S.C.

§ 1581(i). The important caveat to finding jurisdiction under

this provision is that “[s]ection 1581(i) jurisdiction may not be

invoked when jurisdiction under another subsection of § 1581 is

or could have been available, unless the remedy provided under

that other subsection would be manifestly inadequate.” Miller &

Co. v. United States, 824 F.2d 961, 963 (Fed. Cir. 1987). Thus,

as an initial matter, the court must address defendant’s

contention that plaintiff is precluded from litigating its action

under 28 U.S.C. § 1581(i)(4) because jurisdiction was available

under 28 U.S.C. § 1581(c).6

A. Notice of Revocation and Reviewability Pursuant to 19
U.S.C. § 1516a

The court first takes up the question of whether the Notice

6
Congress granted the Court “exclusive jurisdiction of
any civil action commenced under [19 U.S.C. § 1516a].” 28 U.S.C.
§ 1581(c).
Consol. Court No. 07-00058 Page 11

of Revocation constitutes a reviewable determination under 19

U.S.C. § 1516a and thus may be reviewed pursuant to 28 U.S.C.

§ 1581(c). Defendant insists that this is this case, while

plaintiff claims that the Notice of Revocation is not a

reviewable determination and thus lies outside the Court’s 28

U.S.C. § 1581(c) jurisdiction.7 While plaintiff acknowledges

that the Notice of Revocation contains a legal conclusion

resulting from Commerce’s application of the unfair trade laws,

it maintains that the notice did not announce a final

determination within the meaning of 19 U.S.C. § 1516a. Rather,

plaintiff argues that the Notice of Revocation merely implemented

the ITC’s negative injury determination. Further, plaintiff

asserts that because the Notice of Revocation reflects Commerce’s

administration and enforcement of the antidumping and

countervailing duty laws, it is reviewable by this Court pursuant

to 28 U.S.C. § 1581(i)(4).

7
The dispute centers on whether the Notice of Revocation
falls within the terms of 19 U.S.C. § 1516a(a)(2)(B)(i), which
provides for judicial review of:

[f]inal affirmative determinations by the
administrating authority and by the
Commission under section 1671d [final
determinations regarding countervailable
subsidies] or 1673d [final determinations
regarding sales at less than fair value] of
this title, including any negative part of
such a determination (other than a part
referred to in clause (ii)).
Consol. Court No. 07-00058 Page 12

The Department’s primary objection to plaintiff’s assertion

of jurisdiction is that the “CWB could have challenged the Notice

of Revocation pursuant to 28 U.S.C. § 1581(c) . . . .” Def.’s

Opp’n 4. Underlying the Department’s position is its contention

that the Notice of Revocation is a reviewable determination under

19 U.S.C. § 1516a(a)(2)(B)(i), and therefore judicial review was

available at the time of its issuance. See Def.’s Opp’n 5.

Thus, the Department claims that because plaintiff could have

obtained the same remedy it now seeks had it proceeded under 28

U.S.C. § 1581(c), the exercise of jurisdiction under 28 U.S.C.

§ 1581(i) is prohibited. See Def.’s Opp’n 4 (citing Int’l Custom

Prods., Inc. v. United States, 467 F.3d 1324, 1327 (Fed. Cir.

2006); Norcal/Crosetti Foods, Inc. v. United States, 963 F.2d

356, 359 (Fed. Cir. 1992)).

Specifically, the Department states that in issuing the

Notice of Revocation:

Commerce reapplied the antidumping duty
statutes with respect to the issuance of
antidumping duty orders and concluded that
the orders should be revoked only
prospectively. In essence, Commerce amended
its determinations in the investigations,
which pursuant to [Freeport Minerals Co. v.
United States, 758 F.2d 629 (Fed. Cir.
1985)],8 were reviewable pursuant to 19

8
As support for its position, Commerce relies on the
Federal Circuit’s decision in Freeport Minerals Co. v. United
States, 758 F.2d 629 (Fed. Cir. 1985). The court finds this
reliance misplaced. The controversy here involves a legal
(continued...)
Consol. Court No. 07-00058 Page 13

U.S.C. § 1516a and 28 U.S.C. § 1581(c).

Def.’s Opp’n 7.

In keeping with this argument, Commerce asserts that because

it believes the Notice of Revocation was a final determination

subject to review in this Court pursuant to 19 U.S.C. § 1516a and

28 U.S.C. § 1581(c), plaintiff untimely commenced the instant

action. According to Commerce:

CWB is impermissibly attempting [to] bring a
claim that it could have brought pursuant to
28 U.S.C. § 1581(c) more than a year ago,
when the Notice of Revocation was issued.
Such a claim is untimely pursuant to 19
U.S.C. § 1516a(a)(2)(A), and CWB may not
circumvent that statutory bar by attempting
to invoke the Court’s jurisdiction pursuant
to section 1581(i).

Def.’s Opp’n 4–5.9 Thus, because plaintiff waited more than a

8
(...continued)
conclusion found in the Notice of Revocation. Freeport Minerals
involved a challenge to a final determination made on remand.
Such final determinations are indeed reviewable under 19 U.S.C.
§ 1516a. As in Tembec, Inc. v. United States, 30 CIT , , 441
F. Supp. 2d 1302, 1316 n.19 (2006) (“Tembec I”), defendant
misstates the “matter” to be reviewed. Here, the matter is the
validity of the administration and enforcement of a final
determination, not the validity of the final determination
itself. See Tembec I, 30 CIT at , 441 F. Supp. 2d at 1318
(“Plaintiffs have brought a challenge to the administration and
enforcement of a determination, not to the validity of the
determination itself. Consequently, the availability of a remedy
under § 1581(c) as to the underlying determination does not bar
suit under § 1581(i).”). Thus, the teaching of Freeport Minerals
does not apply.
9
Pursuant to 19 U.S.C. § 1516a(a)(2)(A):

Within thirty days after——
(continued...)
Consol. Court No. 07-00058 Page 14

year from the publication of the Notice of Revocation to sue,

defendant insists that its claim is barred by the 30-day statute

of limitations applicable to determinations reviewable under 19

U.S.C. § 1516a. See 28 U.S.C. § 2636(c).

Commerce’s arguments notwithstanding, the court finds that

the Notice of Revocation is not a reviewable final determination

under 19 U.S.C. § 1516a and, as a result, plaintiff had no remedy

available to it under 28 U.S.C. § 1581(c). While the agency may

have had internal discussions regarding the contents of the

Notice of Revocation, its legal conclusion that the revocation of

the orders should be prospective only, was reached without

notice, public hearings or briefing by the parties and was

9
(...continued)
(i) the date of publication in the
Federal Register of . . .

(II) an antidumping or
countervailing duty order
based upon any
determination described
in clause (i) of
subparagraph (B) . . .

an interested party who is a party to the
proceeding in connection with which the
matter arises may commence an action in the
United States Court of International Trade by
filing a summons, and within thirty days
thereafter a complaint, each with the content
and in the form, manner, and style prescribed
by the rules of that court, contesting any
factual findings or legal conclusions upon
which the determination is based.

19 U.S.C. § 1516a(a)(2)(A).
Consol. Court No. 07-00058 Page 15

outside of the reviewable determinations found in 19 U.S.C.

§ 1516a. In other words, the Notice of Revocation “was not made

during any proceeding that would culminate in a determination for

which judicial review is provided under 19 U.S.C. § 1516a and 28

U.S.C. § 1581(c).” Ceramica Regiomontana, S.A. v. United States,

5 CIT 23, 26, 557 F. Supp. 596, 600 (1983) (emphasis in

original); see also Consol. Fibers, Inc. v. United States, 30 CIT

, , 465 F. Supp. 2d 1338, 1341 (2006) (finding no

jurisdiction under 28 U.S.C. § 1581(c) to hear plaintiff’s claim

challenging ITC’s denial of its request for reconsideration of

ITC final determination and stating that “[h]ad the Commission

commenced a reconsideration proceeding, then the resulting

reconsideration determination would have been reviewable under 28

U.S.C. § 1581(c). . .”).

In like manner, the court finds without merit the

Department’s contention that the Notice of Revocation, because it

revoked the AD/CVD Orders for all entries made on or after

January 2, 2006, and reaffirmed the orders’ application to all

other entries, is a reviewable determination as defined by 19

U.S.C. § 1516a(a)(2)(B)(i). See Def.’s Opp’n 5. This argument

is merely a different iteration of Commerce’s previous claim.

Under 19 U.S.C. § 1516a(a)(2)(B)(i), this Court may review

final affirmative and negative determinations made by Commerce

regarding countervailable subsidies or sales at less than fair
Consol. Court No. 07-00058 Page 16

value. The Department urges that the Notice of Revocation was a

final affirmative determination in that it reasserted the legal

effect of the affirmative determinations in the AD/CVD Orders

with respect to entries made prior to January 2, 2006, and was a

negative determination with respect to subject entries made after

that date. In other words, the Department claims that the Notice

of Revocation contains both a final affirmative and a final

negative determination.

This contention is impossible to credit. In Norsk Hydro

Canada, Inc. v. United States, 472 F.3d 1347 (Fed. Cir. 2006),

the Federal Circuit instructed this Court to “look to the true

nature of [an] action.” Id. at 1355 (internal quotation marks &

citation omitted). The true nature of plaintiff’s case can be

seen by examining what it is not. That is, it is not a case

“contesting any factual findings or legal conclusions” contained

in the final determinations of either the ITC or Commerce,

following their investigations. 19 U.S.C. § 1516a(a)(1). Both

Commerce’s and the ITC’s final determinations were published

before the Notice of Revocation. The conclusion that the AD/CVD

Orders should be revoked only prospectively was found in neither.

Indeed, as the prevailing party, plaintiff had no dispute with

the ITC’s final negative determination that resulted in the

Notice of Revocation. That being the case, the teaching of

Consolidated Bearings Co. v. United States, 348 F.3d 997 (Fed.
Consol. Court No. 07-00058 Page 17

Cir. 2003), is useful.

In Consolidated Bearings, an importer challenged Commerce’s

liquidation instructions to Customs, seeking to compel the

application of the antidumping duty rates from the Department’s

final determination to its merchandise. The Federal Circuit

confirmed jurisdiction under 28 U.S.C. § 1581(i) after finding

that “Consolidated [did] not object to the final results. Rather

Consolidated [sought] application of those final results to its

entries . . . .” Consol. Bearings, 348 F.3d at 1002. The

Federal Circuit based its finding on its conclusion that

plaintiff’s “case involve[d] a challenge to [Commerce’s] 1998

instructions, which is not an action defined under [19 U.S.C.

§ 1516a].” Id. The Federal Circuit further found that

“[b]ecause Consolidated [was] not challenging the final results,

[28 U.S.C. § 1581(c)] is not and could not have been a source of

jurisdiction for this case.” Id. Finally, after concluding that

jurisdiction did not lie pursuant to § 1581(c), the Federal

Circuit found the case “squarely within the provisions of

subsection (i).” Id. Specifically, the Federal Circuit observed

that “Commerce’s liquidation instructions direct Customs to

implement the final results of administrative reviews.

Consequently, an action challenging Commerce’s liquidation

instructions is not a challenge to the final results, but a

challenge to the ‘administration and enforcement’ of those final
Consol. Court No. 07-00058 Page 18

results.” Id.

Likewise, the Federal Circuit found in Shinyei Corp. of

America v. United States, 355 F.3d 1297 (Fed. Cir. 2004), that

Commerce’s liquidation instructions were reviewable under 28

U.S.C. § 1581(i)(4):

As we have recently held, a challenge to
Commerce instructions on the ground that they
do not correctly implement the published,
amended administrative review results, “is
not an action defined under [19 U.S.C.
§ 1516a] of the Tariff Act.” [19 U.S.C.
§ 1516a] is limited on its face to the
judicial review of “determinations” in
countervailing duty and antidumping duty
proceedings.

Id. at 1309 (quoting Consol. Bearings, 348 F.3d at 1002).

The case law from the Federal Circuit, then, confirms that

the Notice of Revocation is not a reviewable determination within

the meaning of 19 U.S.C. § 1516a and thus plaintiff’s challenge

to its contents could not be heard by this Court pursuant to 28

U.S.C. § 1581(c). That is, if a legal conclusion, found in

liquidation instructions based on Commerce’s own final

determination, is reviewable under 28 U.S.C. § 1581(i), then a

legal conclusion found in the Notice of Revocation resulting from

an ITC final determination is too.

The court finds that the Notice of Revocation implemented

the ITC’s final determination that domestic wheat producers were

not injured or threatened with injury by imports of Canadian HRS

wheat. Thus, although containing a legal conclusion with respect
Consol. Court No. 07-00058 Page 19

to the prospective application of the revocation, the Notice of

Revocation cannot be categorized as a final affirmative

determination subject to judicial review under 19 U.S.C.

§ 1516a(a)(B)(i) and 28 U.S.C. § 1581(c).

B. Choice of Forum and Jurisdiction

The court now turns to the question of whether plaintiff’s

decision to challenge the original ITC affirmative injury

determination before a NAFTA panel rather than in this Court

precludes jurisdiction over its claim under 28 U.S.C. § 1581(i).

Commerce asserts that the “CWB could also have obtained an

adequate remedy by challenging the ITC’s original 2003

determination in this Court pursuant to section 1581(c) and,

thus, section 1581(i) jurisdiction is unavailable . . . .”

Def.’s Opp’n 7–8. Put another way, the Department maintains that

by choosing to appeal the Commission’s original affirmative

injury determination to a NAFTA panel, the CWB is now “foreclosed

from seeking relief from the Court, pursuant to 28 U.S.C.

§ 1581(i), to enforce the NAFTA panel decision or to obtain

relief that it might have obtained had it elected to proceed in

this Court in the first place.” Def.’s Opp’n 8.

The Department recognizes that a similar line of argument

was found wanting by this Court in Tembec, Inc. v. United States,
Consol. Court No. 07-00058 Page 20

30 CIT , 441 F. Supp. 2d 1302 (2006) (“Tembec I”).10 Tembec I

involved plaintiffs’ appeal of an affirmative injury

determination from the ITC to a NAFTA panel. The panel found the

ITC determination unsupported by substantial evidence and

remanded the matter to the Commission. On remand, the Commission

issued a negative injury determination. Thereafter, Commerce

revoked the unfair trade orders prospectively.

Unlike here, the plaintiff in Tembec I also instituted a

parallel proceeding before the World Trade Organization (“WTO”).

That proceeding resulted in an affirmative injury determination

10
In support of its contention that the Tembec I
rationale with respect to jurisdiction no longer applies,
Commerce cites the Federal Circuit’s recent decision in
International Custom Products, Inc. v. United States, 467 F.3d
1324 (Fed. Cir. 2006) (“ICP”). In Commerce’s view, the Tembec I
Court incorrectly focused on the nature of plaintiffs’ claims
instead of examining the remedies available under the other
subsections of section 1581. Here, Commerce maintains that the
Federal Circuit’s holding in ICP precludes the exercise of
jurisdiction under 28 U.S.C. § 1581(i) because “[r]elief was
‘otherwise available,’ but [plaintiff] simply elected not to
pursue such relief.” Def.’s Opp’n 8. Commerce further asserts
that in this case, when determining the propriety of exercising
jurisdiction under 28 U.S.C. § 1581(i), the Court must, in
accordance with ICP, “focus upon the remedies available and upon
the fact that CWB could have received the same remedy it seeks
here, had it originally challenged the ITC’s 2003 injury
determination,” in this Court. Def.’s Opp’n 10.
The court finds nothing in ICP requiring it to abandon the
reasoning in Tembec I that a party’s decision to challenge the
substance of a final determination before a NAFTA panel does not
preclude it from contesting the administration and enforcement of
that final determination in this Court. Indeed, as has been
previously noted, the CWB’s challenge is to a legal conclusion
found in a notice of revocation, which is not a final
determination within the meaning of 19 U.S.C. § 1516a. Thus,
plaintiff had no avenue to relief under 28 U.S.C. § 1581(c).
Consol. Court No. 07-00058 Page 21

by the ITC and a direction by the United States Trade

Representative (“USTR”) to Commerce to amend the unfair trade

orders to implement the determination. The plaintiffs in Tembec

I filed a lawsuit in this Court challenging the action taken by

the USTR directing the implementation of the determination. See

Tembec I, 30 CIT at , 441 F. Supp. 2d at 1306.

The Tembec I Court found that plaintiffs’ appeal of the

final determination to a NAFTA panel did not preclude the

exercise of jurisdiction by this Court to hear a separate

challenge to the USTR’s administration and enforcement of the

determination. Thus, “the court [had] jurisdiction to review the

administration and enforcement of that determination regardless

of where the substance of the determination [was] being

reviewed.” Tembec I, 30 CIT at , 441 F. Supp. 2d at 1316

n.19. In addition, the Tembec I Court acknowledged the general

rule reiterated by the Federal Circuit in International Custom

Products, Inc. v. United States, 467 F.3d 1324 (Fed. Cir. 2006),

that “section 1581(i) jurisdiction may not be invoked when

jurisdiction under another subsection of § 1581 is or could have

been available, unless the remedy provided under that other

subsection would be manifestly inadequate,” Tembec I, 30 CIT at

, 441 F. Supp. 2d at 1317 (internal quotation marks, citations

& alteration omitted), but stated that “[t]his constraint does

not mean, however, that Plaintiffs must forgo their right to
Consol. Court No. 07-00058 Page 22

NAFTA panel review of the substance of [a determination] in order

to seek review of a completely separate action taken to

administer and enforce [the determination].” Id. at , 441 F.

Supp. 2d at 1317.

Likewise, the CWB’s challenge to the ITC’s original

affirmative injury determination before a NAFTA panel did not

oust this Court of jurisdiction to entertain its challenge to

Commerce’s administration and enforcement of that determination.

Therefore, because: (1) the legal conclusion found in the Notice

of Revocation was not reviewable pursuant to 19 U.S.C. § 1516a

and 28 U.S.C. § 1581(c); and (2) plaintiff’s decision to contest

the ITC’s original affirmative injury determination before a

NAFTA panel does not preclude the exercise of jurisdiction to

hear plaintiff’s challenge to the administration and enforcement

of that determination, the court finds that it has jurisdiction

over plaintiff’s claim pursuant to 28 U.S.C. § 1581(i)(4).

C. Prospective Revocation of AD/CVD Orders

As plaintiff’s asserted basis of jurisdiction has been found

to be valid, the court now addresses the likelihood that

plaintiff will succeed on the substantive merits of its case.

While the applicable standard for determining whether a movant

has satisfied the likelihood of success on the merits portion of

the four-part test remains unsettled by the Federal Circuit, it
Consol. Court No. 07-00058 Page 23

is apparent that the court must, at minimum, weigh plaintiff’s

arguments in favor of its position against those raised in

opposition by defendant. See U.S. Ass’n of Imps. of Textiles and

Apparel, 413 F.3d at 1347 (“[T]he movant’s evidence and arguments

must actually be weighed against those of the non-movant to

determine whether the movant’s likelihood of success meets the

applicable standard, whatever that standard may be.”) (citations

& footnote omitted).

The parties agree that plaintiff’s case hinges on the

interpretation and application of 19 U.S.C. § 1516a(g)(5)(B) and

(C). Section 1516a(g)(5)(B) contains the general rule for the

liquidation of pre-Timken notice entries and provides:

In the case of a determination for which
binational panel review is requested pursuant
to article 1904 of the NAFTA or of the
Agreement, entries of merchandise covered by
such determination shall be liquidated in
accordance with the determination of the
administering authority or the Commission, if
they are entered, or withdrawn from
warehouse, for consumption, on or before the
date of publication in the Federal Register
by the administering authority of notice of a
final decision of a binational panel, or of
an extraordinary challenge committee, not in
harmony with that determination. Such notice
of a decision shall be published within 10
days of the date of the issuance of the panel
or committee decision.

19 U.S.C. § 1516a(g)(5)(B).

There is, however, an exception to the general rule in 19

U.S.C. § 1516a(g)(5)(C), which is entitled “Suspension of
Consol. Court No. 07-00058 Page 24

liquidation” and states:

Notwithstanding the provisions of
subparagraph (B), in the case of a
determination described in clause (iii)
[administrative review] or (vi) [scope
ruling] of subsection (a)(2)(B) of this
section for which binational panel review is
requested pursuant to article 1904 of the
NAFTA or of the Agreement, the administering
authority, upon request of an interested
party who was a party to the proceeding in
connection with which the matter arises and
who is a participant in the binational panel
review, shall order the continued suspension
of liquidation of those entries of
merchandise covered by the determination that
are involved in the review pending the final
disposition of the review.

19 U.S.C. § 1516a(g)(5)(C)(i).

For Commerce, the language of § 1516a(g)(5)(B) applies and

all plaintiff’s entries made prior to the publication of the

Timken Notice are to be liquidated in accordance with the

original determination. See Def.’s Opp’n 13. For plaintiff, the

exception found in § 1516a(g)(5)(C) applies and preserved its

entries for liquidation with no duties following revocation of

the AD/CVD Orders.

Plaintiff relies on Tembec II as support for its position

that its entries, all of which were made prior to the Timken

Notice, should be liquidated in accordance with the ITC’s

negative injury determination. In Tembec II, the Court found

that the general rule of 19 U.S.C. § 1516a(g)(5)(B) did not apply

to pre-Timken notice entries when liquidation of those entries
Consol. Court No. 07-00058 Page 25

had been suspended. In that case, the court found that 19 U.S.C.

§ 1516a(g)(5)(C) controlled. See Tembec II, 30 CIT at , 461 F.

Supp. 2d at 1367 (“Entries, the liquidation of which has been

suspended, cannot, then, be liquidated with AD/CV duties under

these conditions. . . . Rather, Congress provided for a

suspension of liquidation to keep entries available for

liquidation in accordance with law.”); see also Asociacion

Colombiana de Exportadores de Flores v. United States, 916 F.2d

1571, 1577 (Fed. Cir. 1990) (“The flaw in the government’s

argument is that without a valid antidumping determination in the

original order, there can be no valid determination in a later

annual review.”). Thus, the Tembec II Court ordered Commerce to

instruct Customs to liquidate all of plaintiffs’ subject entries,

including those made prior to the Timken notice, without unfair

trade duties.

The court cannot discern a substantial difference between

the facts presented in this case and those faced by the Court in

Tembec II. Therefore, this Court’s decision in Tembec II

indicates that plaintiff will likely succeed on the merits of its

case and thus this part of the four-part test favors granting

plaintiff’s motion.

II. Irreparable Harm

The next part of the four-part test requires a movant to
Consol. Court No. 07-00058 Page 26

demonstrate that it will suffer irreparable harm in the absence

of an injunction. Plaintiff asserts that it will be irreparably

harmed if liquidation is not enjoined because “[i]f Customs is

permitted to liquidate the CWB’s entr[ies] at issue in this

action prior to the completion of judicial review, the CWB may be

denied its only remedy for Commerce’s failure to revoke the

AD/CVD Orders and liquidate its entr[ies] in accordance with

law.” Pl.’s Mem. 10. In other words, plaintiff contends that if

liquidation is not enjoined, Customs may liquidate its pre-

January 2, 2006, entries with the unfair trade duties in place

and the CWB will lose its opportunity to reclaim its deposits

with respect to those entries. The Department does not oppose

plaintiff’s assertion of irreparable harm. See Tr. Oral Argument

24:7–8 (“Likewise, turning to irreparable injury, we agree

that . . . under [Zenith Radio Corp. v. United States, 710 F.2d

806 (Fed. Cir. 1983)] plaintiff[] would meet that prong.”).

It has long been established that liquidation renders

without meaning a movant’s “statutory right to obtain judicial

review” with respect to the liquidated entries and, thus, that

the “consequences of liquidation do constitute irreparable

injury.” Zenith, 710 F.2d at 810 (“The statutory scheme has no

provision permitting reliquidation in this case or imposition of

higher dumping duties after liquidation if [plaintiff] is

successful on the merits. Once liquidation occurs, a subsequent
Consol. Court No. 07-00058 Page 27

decision by the trial court on the merits . . . can have no

effect on the dumping duties assessed . . . .”). Here, plaintiff

opened up its pre-January 2, 2006, entries to liquidation by

withdrawing its request for an administrative review. If some or

all of those entries are liquidated, plaintiff would lose its

right to judicial review as to those entries, although other

issues might remain to be litigated. Therefore, the court finds

that plaintiff has demonstrated that as to any pre-January 2,

2006, entries that face liquidation, it will suffer irreparable

harm absent a preliminary injunction. This factor, then, also

favors granting plaintiff’s motion.

III. Balance of Hardships

“In evaluating whether to grant a motion for injunctive

relief, the court must ‘determine which party will suffer the

greatest adverse effects as a result of the grant or denial of

the preliminary injunction.’” Nat’l Fisheries Inst., Inc. v.

U.S. Bureau of Customs & Border Protection, 30 CIT , , 465 F.

Supp. 2d 1300, 1329 (2006) (quoting Ugine-Savoie Imphy v. United

States, 24 CIT 1246, 1250, 121 F. Supp. 2d 684, 688 (2000)).

Plaintiff contends that the balance of hardships leans in

its favor because only an injunction can “preserve fully the

CWB’s statutory right to challenge the failure of Commerce to act

in accordance with law.” Pl.’s Mem. 13. For plaintiff, this
Consol. Court No. 07-00058 Page 28

outweighs any harm the United States might endure because the

government “already holds the CWB’s antidumping and

countervailing duty cash deposits for the relevant entr[ies],

which ensures that its rights are fully protected.” Pl.’s Mem.

13–14 (citing Böhler-Uddeholm Corp. v. United States, 23 CIT 801,

803 (1999) (not reported in the Federal Supplement)) (internal

quotation marks omitted).

For its part, the Department states that “the balance of

hardships . . . counsel[s] against issuance of an injunction

concerning a question that could have been before the

international body that is charged with making the same findings

that plaintiff[] [is] asking the Court to make.” Def.’s Opp’n

19. In other words, the Department relies on its jurisdictional

arguments to support its assertion that the balance of hardships

leans in its favor.

The court finds that defendant will suffer comparably less

harm as the result of an injunction than would plaintiff in the

absence of equitable relief. Here, the United States currently

holds plaintiff’s cash deposits. Therefore, “at most, the

decision to grant an injunction . . . will only delay

liquidation.” Fundicao Tupy S.A. v. United States, 11 CIT 635,

638, 671 F. Supp. 27, 30 (1987). Plaintiff, on the other hand,

risks losing a portion of its deposits. Thus, the court

concludes that the balance of hardships weighs in favor of
Consol. Court No. 07-00058 Page 29

granting plaintiff’s motion.

IV. Public Interest

The final part of the four-part test requires the movant to

demonstrate that the public interest would be better served by

the issuance of an injunction. Plaintiff contends that this part

favors granting its motion because “the public interest is best

served by ensuring that duties are assessed under the trade

statutes in accordance with law.” Pl.’s Mem. 14. That is,

because it maintains that Commerce acted unlawfully by limiting

the effect of the Notice of Revocation to those entries made on

or after January 2, 2006, plaintiff argues that final judicial

resolution of the legality of Commerce’s application of the

unfair trade statute would, no matter the outcome, assure the

public that Commerce was or would ultimately be complying with

the law.

The Department urges that “the integrity of the NAFTA

binational panel process and the public policy inherent in

Congress’[s] clear separation between binational panels and the

courts would suffer, both to the detriment of the Executive

Branch and to public policy in general” were the injunction to be

issued. Def.’s Opp’n 19–20.

“[T]he public interest is served by ensuring that [Commerce]

complies with the law, and interprets and applies [the]
Consol. Court No. 07-00058 Page 30

international trade statutes uniformly and fairly.” Ugine-Savoie

Imphy, 24 CIT at 1252, 121 F. Supp. 2d at 690 (internal quotation

marks & citations omitted) (third alteration in original).

Plaintiff’s complaint raises an important question concerning

whether Commerce complied with the law when it issued the Notice

of Revocation. Thus, because of the public’s interest in

ensuring that duties are assessed in accordance with law, this

factor also favors granting plaintiff’s motion.

CONCLUSION

Based on the foregoing, the court finds that plaintiff has

demonstrated its entitlement to injunctive relief. Therefore, it

is hereby

ORDERED that plaintiff’s motion for a preliminary injunction

is granted; and it is further

ORDERED that the parties consult and jointly submit to the

court the form of the preliminary injunction on or before May 7,

2007. The parties’ submission shall be made to Casey Ann

Cheevers, Case Manager, United States Court of International

Trade, One Federal Plaza, New York, New York, 10278.

/s/Richard K. Eaton
Richard K. Eaton

Dated: April 24, 2007
New York, New York