Slip Op. 04-5
United States Court of International Trade
EURODIF S.A., COMPAGNIE GÉNÉRALE
DES MATIÈRES NUCLÉAIRES AND COGEMA,
INC., ET. AL.,
Consol. Court Nos. 02-
Plaintiffs, 00219 and 02-00221
v.
UNITED STATES,
Defendant.
[Plaintiffs’ Motion for Redress of Violation of the Court’s June
25, 2002 Preliminary Injunction granted in part.]
Decided: January 20, 2004
Weil, Gotshal & Manges, LLP (Jahna M. Hartwig, Jennifer J. Rhodes,
Stuart M. Rosen) for Plaintiffs and Defendant-Intervenors Eurodif
S.A., COGEMA, and COGEMA, Inc.1
Peter D. Keisler, Assistant Attorney General, David M. Cohen,
Director, Jeanne E. Davidson, Deputy Director, Stephen C. Tosini,
Trial Attorney, Commercial Litigation Branch, Civil Division, U.S.
Department of Justice, for Defendant United States.
Opinion and Order
Pogue, Judge: Before the Court is Plaintiffs’ Rule 632 Motion
seeking redress for Defendant’s violation of the Court’s June 25,
2002 Preliminary Injunction enjoining liquidations of entries of
1
Plaintiffs are sometimes collectively referred to in these
proceedings as “Eurodif.”
2
Effective January 1, 2004, Rule 63, Contempt, is now Rule 86.2.
Consol. Court Nos. 02-00219 and 221 Page 2
low enriched uranium (“LEU”). Order at 1 (June 25, 2002).
The facts involved are undisputed. Defendant, in its
Opposition to Plaintiffs’ Motion, states them as follows:
On June 25, 2002, this Court issued
orders granting [P]laintiffs' consent motions
for preliminary injunction to enjoin
liquidation of entries covered by [the]
Amended Final Determination: Low Enriched
Uranium from France; and Notice of Antidumpinq
Duty Order; Low Enriched Uranium From France,
67 Fed. Reg[.] 6[,]880 ([Dep’t Commerce] Feb.
13, 2002), and [the] Amended Final
Determination: Low Enriched Uranium from
France; and Notice of Countervailing Duty
Order; Low Enriched Uranium From France, 67
Fed. Reg[.] 6[,]889 ([Dep’t Commerce] Feb. 13,
2002).3
We first learned of liquidations in
violation of the Court's orders from counsel
for [the United States Department of Homeland
Security Customs and Border Protection]
[“]Customs[”] on Friday afternoon, October 31,
2003, and notified the parties the following
Monday, after confirmation of the relevant
dates, entry numbers, and ports involved.
Specifically Customs identified two entries of
LEU that were inadvertently liquidated by the
Customs Port of Baltimore. First, entry
number 788-23836412 was entered on September
5, 2002, and liquidated on July 18, 2003.
Second, entry number 788-23925710 was entered
on October 1, 2002, and liquidated on August
22, 2003.
We also filed a status report to inform
the Court of developments with regard to these
liquidations on November 3, 2003. On November
3
The actual determinations subject to this motion are accurately
cited as Low Enriched Uranium from France, 67 Fed. Reg. 6,680
(Dep’t Commerce Feb. 13, 2002) (notice of amended final
determination of sales at less than fair value and antidumping
duty order); Low Enriched Uranium from France, 67 Fed. Reg. 6,689
(Dep’t Commerce Feb. 13, 2002) (notice of amended final
determination and notice of countervailing duty order).
Consol. Court Nos. 02-00219 and 221 Page 3
7, 2003, the Court ordered us to file an
updated status report by December 8, 2003.
In our status report of December 8, we
informed the Court that: (1) Customs had
searched all entries of LEU filed under case
numbers A-27818 or C-427819 since September
30, 2000; (2) no other subject entries have
been liquidated; and (3) communications with
the Port of Baltimore had confirmed that the
two liquidated entries were, in fact,
liquidated as a result of an inadvertent
clerical error. We further detailed the
circumstances of the inadvertent liquidations4
and informed the Court that [P]laintiffs had
filed a protest with Customs concerning the
entry that was liquidated on August 22, 2003.
Def.’s Opp’n to Contempt Mot. at 2-3 (“Def.’s Response”).
The Court now considers Plaintiffs’ motion.
Discussion
Defendant concedes that contempt may be established upon a
4
Specifically, in its Second Status Report on this matter
Defendant reported as follows:
[P]ort personnel confirmed that the liquidations
were the result of a database query error. The
body of the instructions received by the port on
June 13, 2003 indicated that the relevant period
was from July 13, 2001 through January 8, 2002 and
any date on or after February 13, 2002. However,
the instructions’ header omitted the post February
13, 2002 period. When a Customs employee
performed database queries to locate entries
subject to the Court's injunctions, the query was
run against the dates set forth in the header of
the instructions and, consequently, did not
discover the entries at issue. . . . Accordingly,
the subject entries were liquidated . . . .
Def.’s Second Status Report at 2-3 (Dec. 8, 2003).
Consol. Court Nos. 02-00219 and 221 Page 4
showing of:
(1) the existence of a valid decree of which
the alleged contemnor had actual or
constructive knowledge; (2) . . . that the
decree was in the movant’s “favor”; (3) . . .
that the alleged contemnor by its conduct
violated the terms of the decree, and had
knowledge (at least constructive knowledge) of
such violations; and (4) . . . that [the]
movant suffered harm as a result.
Def.’s Response at 8 (citing Ashcraft v. Conoco, Inc., 218 F.3d
288, 301 (4th Cir. 2000) (citation omitted)).
Nor is there any doubt that, in the instant case, there was a
clear and valid decree, in the movant’s favor, the terms of which
were violated by Defendant. Moreover, despite Defendant’s argument
to the contrary, it is clear that “a violation of the decree need
not be willful for a party to be held in civil contempt.” 11A
Charles Alan Wright et al., Federal Practice and Procedure § 2960,
at 382 (2d ed. 1995) (citations omitted). It is sufficient that
Defendant had knowledge of the violation, as it did here.
What is substantively in dispute between the parties here is
the weight to be given to the government’s claim of “inadvertence”
and the adequacy of Defendant’s administrative procedures for
ameliorating the harm to Plaintiffs.
Specifically, Defendant proposes to remedy its own violation
of the Court’s injunction, and remedy the erroneous liquidations,
by inviting an order directing Customs to reliquidate both of the
entries in question at the final and conclusive antidumping and
Consol. Court Nos. 02-00219 and 221 Page 5
countervailing duty rates prevailing at the conclusion of this
litigation.5 See Def.’s Response at 7-8.
Plaintiffs argue that Defendant’s proposed remedy is
inadequate, noting that “[t]he Government’s promise of a delayed
and uncertain reliquidation provides Plaintiffs little comfort,
given Customs’ failure to adhere to the Court’s June 25[, 2002]
injunctions,” Pls.’ Mot. for Redress at 2, 4, and requests that the
Court “order Customs to issue such further instructions as may be
necessary to assure . . . that Customs shall not liquidate [prior
5
Defendant proposes to accomplish this reliquidation using the
following administrative procedures:
First, Eurodif has already availed itself of
an administrative remedy with respect to entry
number 788-23925710, which was liquidated on
August 22, 2003. Eurodif filed a timely protest
pursuant to 19 U.S.C. § 1514 on November 21, 2003.
Furthermore, should the protest not be heard for
any reason, Customs possesses the authority to
reliquidate entry number 788-23925710 at the final
and conclusive rate of duty for the same reasons
explained below concerning the other inadvertently
liquidated entry.
Second, we propose the following
administrative remedy with respect to entry number
788-23836412, which was liquidated on July 18,
2003. Customs possesses the authority to cure
errors that are “brought to [its] attention . . .
within one year after the date of liquidation or
exaction.” 19 U.S.C. § 1520(c)(l). Because this
error was brought to Customs’s attention “within
one year” of liquidation, Customs may reliquidate
entry number 788-23836412 at the final and
conclusive rate of duty assessed upon this entry.
Def.’s Response at 7.
Consol. Court Nos. 02-00219 and 221 Page 6
to final court decision] entries of LEU from France” that are
covered by the antidumping and countervailing duty orders. Id. at
4-5.
The Court gives weight to Plaintiffs’ claim. The record here
establishes that Defendant has not complied with the Court’s June
25, 2002 injunction. Redressing that violation requires
supervision of Customs’ compliance with the Court’s order to
provide a measure of certainty that compliance will occur.
Accordingly, to insure that Defendant’s violation is redressed, the
Court will require Defendant to monitor its compliance and report
to the Court on its effort to assure compliance with the Court’s
original injunction.6
THEREFORE, upon consideration of Plaintiff's Motion for
Redress of Violation of the Court’s June 25, 2002 Preliminary
Injunctions, Defendant’s response thereto and all other pertinent
papers, it is hereby
ORDERED that Customs shall reliquidate entry number 788-23836412
upon determination of the final and conclusive rate of duty in
accordance with the Court’s injunction of June 25, 2002; and it is
further
ORDERED that Customs shall reliquidate entry number 788-23925710
upon determination of the final and conclusive rate of duty in
accordance with the Court’s injunction Orders of June 25, 2002; and
it is further
ORDERED that Customs shall not distribute any funds from the cash
deposits made upon entry numbers 788-23836412 and 788-23925710
pursuant to 19 U.S.C. § 1675c(a) until after Customs has
reliquidated those entries in accordance with this Order; or
6
Because of the Court’s disposition, it is not necessary to reach
Plaintiffs’ claim that the erroneous liquidations are void ab
initio. Pls.’ Mot. for Redress at 3.
Consol. Court Nos. 02-00219 and 221 Page 7
reliquidated entry number 788-23836412 pursuant to this Order and
determined a final and conclusive amount of duty to be assessed
upon entry number 788-23925710 pursuant to 19 U.S.C. § 1514(c); and
it is further
ORDERED that Customs shall monitor its compliance with the Court’s
injunction of June 25, 2002, providing such further instructions as
it determines necessary to assure compliance; and it is further
ORDERED that Customs shall file with the Court a regular status
report indicating its compliance with the Court’s injunction of
June 25, 2002, and this Order, said report to be filed every 180
days.
/s/Donald C. Pogue
Judge
Dated: January 20, 2004
New York, New York