Slip Op. 07-24
UNITED STATES COURT OF INTERNATIONAL TRADE
BEFORE: SENIOR JUDGE NICHOLAS TSOUCALAS
___________________________________
:
LAIZHOU AUTO BRAKE EQUIPMENT :
COMPANY; LONGKOU HAIMENG MACHINERY :
CO., LTD.; LAIZHOU LUQI MACHINERY :
CO., LTD.; LAIZHOU HONGDA AUTO :
REPLACEMENT PARTS CO., LTD.; :
HONGFA MACHINERY (DALIAN) CO.; and :
QINGDAO GREN (GROUP) CO. :
:
Plaintiffs, :
:
and :
:
Longkou TLC Machinery Co., Ltd. :
:
Plaintiff-Intervenor :
:
v. : Court No. 06-00430
:
UNITED STATES :
:
Defendant, :
:
and :
:
THE COALITION FOR THE PRESERVATION :
OF AMERICAN BREAK DRUM; :
ROTOR AFTERMARKET MANUFACTURERS :
:
Deft.-Intervenors. :
___________________________________:
[Plaintiff-Intervenor’s Motion for Preliminary Injunction to Enjoin
Liquidation of Entries is DENIED.]
Trade Pacific, PLLC, (Robert G. Gosselink), for Laizhou Auto
Brake Equipment Company; Longkou Haimeng Machinery Co., Ltd.;
Laizhou Luqi Machinery Co., Ltd.; Laizhou Hongda Auto Replacement
Parts Co., Ltd.; Hongfa Machinary (Dalian) Co.; and Qingdao Gren
(Group) Co., Plaintiffs.
Venable, LLP, (Lindsay Beardsworth Meyer)(Daniel J. Gerkin),
for Longkou TLC Machinery Co. Ltd., Plaintiff-Intervenor.
Court No. 06-00430 Page 2
Peter D. Keisler, Assistant Attorney General; Jeanne E.
Davidson, Acting Director; Commercial Litigation Branch, Civil
Division, United States Department of Justice (Stephen Carl
Tosini), for the United States, Defendant.
Porter, Wright, Morris & Arthur, LLP, (Leslie Alan
Glick)(Renata Brandao Vasconcellos), for The Coalition for the
Preservation of American Brake Drum, Defendant-Intervenor.
Porter, Wright, Morris & Arthur, LLP, (Leslie Alan
Glick)(Renata Brandao Vasconcellos), for Rotor Aftermarket
Manufacturers, defendant-intervenor.
ORDER
Plaintiff-Intervenor, Longkou TLC Machinery Co., Ltd. (“LTLC”)
moves for preliminary injunction pursuant to Rules 56.2(a) and
65(a) of the United States Court of International Trade Rules
(“USCIT R.”). Defendant, the United States (“the Government”), and
Defendant-Intervenors, the Coalition for the Preservation of
American Break Drum, and Rotor Aftermarket Manufacturers (“the
Coalition”) oppose LTLC’s motion for preliminary injunction.
On November 14, 2006, the United States Department of Commerce
(“Commerce”) published the final results of an administrative
review on automotive brake rotors from China. See Brake Rotors
from the People’s Republic of China, 71 Fed. Reg. 66,304 (Dep’t
Commerce Nov. 14, 2006)(final results). Plaintiffs initiated this
action by filing a timely summons and complaint on November 24,
2006.1 On the same date, Plaintiffs filed a motion for preliminary
1
The Plaintiffs in the instant matter are: Laizhou Auto
Brake Equipment Company; Longkou Haimeng Machinery Co., Ltd.;
Laizhou Luqi Machinery Co., Ltd.; Laizhou Hongda Auto Replacement
Court No. 06-00430 Page 3
injunction which the Court granted on December 4, 2006. See Mot.
for Prelim. Injunction to Enjoin Liquidation of Entries of November
24, 2006; See Order Granting Prelim. Injunction of December 4,
2006. On December 22, 2006, LTLC concurrently submitted a Motion
to Intervene and a Motion for a “Preliminary Injunction to Enjoin
Liquidation of Entries” in the case at bar. See Mot. Intervene at
1; Mot. Prelim. Inj. to Enjoin Liquidation Entries (“LTLC Mot.”) at
2. On December 26, 2006, Chief Judge Jane A. Restani of the United
States Court of International Trade (“CIT”) granted LTLC’s Motion
to Intervene. See Order Granting Intervention Status of Dec. 26,
2006 (“the Order”).
In the instant matter, LTLC requests that this Court enjoin
the liquidation of unliquidated entries of brake motors that it has
exported covered by the final results of the 2004/2005
administrative review of the antidumping order of brake rotors.
See LTLC Mot. at 1-3; See Resp. Pl.-Intervenor’s Mot. Prelim. Inj.
Enjoin Liquidation Entries (“Coalition Resp.”) at 1. see generally
Brake Rotors from the People’s Republic of China, 71 Fed. Reg. at
66,304-08. LTLC contends that a preliminary injunction is
necessary as it is likely that the affected entries will be
liquidated by United States Customs and Border Protection
(“Customs”) before the present action is concluded, and, as a
Parts Co., Ltd.; Hongfa Machinary (Dalian) Co.; and Qingdao Gren
(Group) Co.
Court No. 06-00430 Page 4
result, LTLC will be unable to “avail” itself of any lower rate
that may go into effect as a result of a possible recalculation
stemming from the present litigation. See LTLC Mot. at 3. LTLC
further argues that the inability to benefit from a lower sample
rate would inflict irreparable harm upon its company. See id. at
6-7.
The Government responds that LTLC is “not entitled to advance
its own claim for relief because it did not file a summons and
complaint within the statutorily required time periods and thus,
may only intervene in support of the [P]laintiffs’ claim.” Resp.
Pl.-Intervenor’s Mot. Prelim. Inj. (“Gov’t Resp.”) at 2 (citing: 19
U.S.C. § 1516a(a)(2)(A)(2000)). The Government asserts that
granting LTLC its requested relief would provide it with
preferential treatment “not allowed to other respondents who failed
to file a timely summons and complaint and, accordingly, will have
their entries during the review period liquidated at the cash
deposit rate.” Gov’t Resp. at 3.
The Coalition compliments the Government’s argument by stating
that LTLC lacks standing to seek an injunction as it would broaden
the issues and facts before this Court. Indeed, USCIT Rule 56.2
only authorizes a motion for preliminary injunction “to enjoin
liquidation of entries that are the subject to the action . . . .”
USCIT R. 56.2(a). The Coalition correctly states that the “case at
Court No. 06-00430 Page 5
bar, as it stood when [LTLC] requested intervention, did not
include [LTLC’s] entries.” Coalition Resp. at 2. The Coalition
further specifies that LTLC did in fact have the opportunity to
commence an action challenging Commerce’s administrative review,
but failed to do so, and has instead been joined as a Plaintiff-
Intervenor. See Coalition Resp. at 2.
19 U.S.C. § 1516a(a)(2)(A) (“the Statute”) clearly states that
in a situation in which there is a “review of determinations on
record,” such as in the case at bar, a summons must be filed
“within thirty days after the date of publication in the Federal
Register.”2 See § 1516a(a)(2)(A). Notification of Commerce’s
2
The Statute states, in relevant part:
(2) Review of determinations on record
(A) In general
Within thirty days after –-
(i) the date of publication in the Federal
Register of –-
(I) notice of any determination described
in clause (ii), (iii), (iv), (v) or
(viii) of subparagraph (B),
(II) an antidumping or countervailing duty
order based upon any determination described
in clause (i) of subparagraph (B), or
(III) notice of the implementation of any
determination described in clause (vii) of
subparagraph (B), or
(ii) the date of mailing of a determination
described in clause (vi) of subparagraph (B),
an interested party who is a party to the
proceeding . . . may commence an action in the
[CIT] by filing a summons, and within thirty
days thereafter a complaint, . . . contesting
any factual findings or legal conclusions upon
Court No. 06-00430 Page 6
antidumping duty order in the Federal Register for the entries at
issue was published on November 14, 2006.3 See Brake Rotors from
the People’s Republic of China, 71 Fed. Reg. at 66,304-08. This
action was initiated through the filing of a timely summons and
complaint on November 24, 2006. LTLC submitted its motion to
intervene and its motion seeking a preliminary injunction on
December 22, 2006. See Mot. Intervene at 1; LTLC Mot. at 2. LTLC
did not submit its motion within the thirty days of publication of
the Federal Register notice as is required by statute. See 19
U.S.C. § 1516a(a)(2)(A).
The United States Supreme Court has made clear that an
intervening party is admitted to a “proceeding as it stands, and in
respect of the pending issues, but is not permitted to enlarge
those issues.” Vinson v. Washington Gas Light Co., 321 U.S. 489,
498 (1944). This Court followed a similar rationale when it
rejected an intervenor’s claims as “clearly beyond the scope of the
original litigation” in Torrington Co. v. United States,14 CIT 56,
which the determination is based.
19 U.S.C. § 1516a.
3
The publication at issue served as notice of “an
antidumping or countervailing duty order based upon [a final
affirmative antidumping or countervailing duty determination].”
19 U.S.C. § 1516a(a)(2)(A); See Brake Rotors from the People’s
Republic of China, 71 Fed. Reg. at 66,304-08.
Court No. 06-00430 Page 7
59, 731 F.Supp. 1073, 1076 (1990).4 Furthermore, Rule 56.2
authorizes a motion for preliminary injunction only “to enjoin the
liquidation of entries that are subject of the action. . . .”
USCIT R. 56.2(a). LTLC is not named in the original complaint.
As a result of the Order, however, LTLC was named as a Plaintiff-
Intervenor in this case. The original complaint contains no
language which would include LTLC’s entries to the pool of
suspended liquidations.
Upon consideration of the motion submitted by LTLC, the
Government’s Response, the Coalition’s Response, all other papers
and proceedings heretofore, and due deliberation herein, it is
hereby:
ORDERED that LTLC’s Motion for Preliminary Injunction to
Enjoin Liquidation of Entries is DENIED.
/s/ Nicholas Tsoucalas
NICHOLAS TSOUCALAS
SENIOR JUDGE
Dated: February 16, 2007
New York, New York
4
It is well settled that an “intervening party may not be
permitted to contest an antidumping order in contravention of the
time limitations imposed by section 516A(a)(2) and the jurisdiction
of the court.” Torrington, 14 CIT at 58, 731 F.Supp. at 1076
(citing Nakajima All Co. v. United States, 2 CIT 170, 173 (1981)).