AK Steel Corp. v. United States

Slip Op. 03 - 116

UNITED STATES COURT OF INTERNATIONAL TRADE

:
AK STEEL CORPORATION, :
:
Plaintiffs, :
:
v. : Before: MUSGRAVE, JUDGE
:
UNITED STATES, : Court No. 03-00102
:
Defendant, :
:
and :
:
THYSSENKRUPP NIROSTA GmbH and :
THYSSENKRUPP VDM GmbH, :
:
Defendant-Intervenors. :
:

[Following an emergency status conference on the allegedly inadvertent liquidation in violation of
an injunction order over entries covered by a challenged antidumping duty review determination, the
Court declares such liquidations void ab initio.]

Dated: September 3, 2003

Collier Shannon Scott, PLLC, Washington D.C. (Jeffrey S. Beckington, Adam Gordon), for
the plaintiffs.

Peter D. Keisler, Assistant Attorney General; David M. Cohen, Director, Civil Division,
Commercial Litigation Branch, United States Department of Justice (Cristina C. Ashworth); Office
of Chief Counsel for Import Administration, U.S. Department of Commerce (Elizabeth Doyle,
Bernice Brown), of counsel; Office of Assistant Chief Counsel, International Trade Litigation, U.S.
Bureau of Customs and Border Protection (Ellen Daly), of counsel, for the defendant.

Hogan & Hartson L.L.P. (Craig Lewis), Washington, D.C., for the defendant-intervenors.
Court No. 03-00102 Page 2

OPINION AND ORDER

On March 12, 2003, Plaintiff AK Steel Corporation mailed a summons to the Attorney

General of the United States and the U.S. Department of Commerce notifying them that pursuant to

28 U.S.C. § 1581(c) an action was commenced to contest Stainless Steel Sheet and Strip in Coils

From Germany: Notice of Final Results of Antidumping Duty Administrative Review, 68 Fed. Reg.

6716 (Feb. 10, 2003), an administrative review of the antidumping duty order on such product for

the period from July 1, 2000 through June 30, 2001. The summons was timely filed within 30 days

of publication in the Federal Register as required by 19 U.S.C. § 1516a(a)(2)(A)(i)(I) and 28 U.S.C.

§ 2636. On April 7, 2003, the plaintiff filed its complaint contesting aspects of the determination

as unsupported by substantial evidence on the record or otherwise not in accordance with law, and

on April 8 submitted to the Court a Consent Motion for Preliminary Injunction to Enjoin Liquidation

of Certain Entries along with a proposed order.

In order to preserve the status quo, this Court is authorized to grant injunctive relief

suspending liquidation of entries pending the outcome of litigation on the merits of an action

contesting the final results in an antidumping duty administrative review. See under 19 U.S.C. §

1516a(c). After due consideration of the four factors of irreparable harm, likelihood of success on

the merits, public interest, and balance of hardships,1 the Court (Aquilino, J.) deemed the plaintiff’s

proposed Order of Injunction acceptable and signed it on April 15, 2003. On or about April 16,

2003, the Clerk of the Court effected service of the Order of Injunction upon the United States

Department of Commerce, International Trade Administration (“Commerce”), the United States

1
See Zenith Radio Corp. v. United States, 710 F.2d 806, 809 (Fed. Cir. 1983).
Court No. 03-00102 Page 3

Bureau of Customs and Border Protection (as the former United States Customs Service)

(“Customs”), and the United States Department of Justice, by depositing certified copies in the U.S.

mails. On or about April 18, 2003, the plaintiff personally served2 copies of the Order of Injunction

upon the persons and entities named in the Order of Injunction, which reads as follows:

Upon consideration of Plaintiff’s Consent Motion for Preliminary
Injunction to Enjoin Liquidation of Certain Entries filed by Plaintiff, AK
Steel Corporation (Plaintiff), and pursuant to Section 516A(c)(2) of the Tariff
Act of 1930m as amended, 19 U.S.C. § 1516a(c)(2), it is hereby

ORDERED that Plaintiff’s Consent Motion for Preliminary
Injunction to Enjoin Liquidation of Certain Entries is GRANTED; and it is
further

ORDERED that Defendant, United States, together with the
delegates, officers, agents, servants, and employees of the United States
Department of Commerce and the United States Customs Service, shall be,
and hereby are, ENJOINED, during the pendency of this litigation, from
making or permitting liquidation of any unliquidated entries of certain
stainless steel sheet and strip in coils from Germany that:

(1) are covered by Stainless Steel Sheet and Strip in Coils From
Germany: Notice of Final Results of Antidumping Duty Administrative
Review, 68 Fed. Reg. 6716 (Feb. 10, 2003), as amended by Notice of
Amended Final Results of Antidumping Duty Administrative Review:
Stainless Steel Sheet and Strip in Coils From Germany, 68 Fed. Reg. 14,193
(Mar. 24, 2003);

(2) were produced and/or exported by ThyssenKrupp Nirosta GmbH,
Krupp Thyssen Nirosta GmbH, ThyssenKrupp VDM GmbH, or Krupp VDM
GmbH;

2
The defendant’s status report of August 12, 2003, avers that hand-delivery of the Order of
Injunction occurred on April 18 and was completed on April 21, 2003. “Upon receiving the Court’s
order, defendant’s counsel confirmed with . . . counsel for Commerce, on or about April 22, 2003,
that Commerce had received service and would issue the necessary instructions to Customs.” Def.’s
Status Report (Aug. 12, 2003).
Court No. 03-00102 Page 4

(3) which entered, or were withdrawn from warehouse, for
consumption during the period July 1, 2000 through June 30, 2001; and

(4) remain unliquidated as of 5 o’clock p.m. on the first business day
after the day upon which copies of this Order are personally served by
Plaintiff on the following individuals and received by them or their delegates:

Ms. Ann Sebastian
Import Administration
International Trade Administration
United States Department of Commerce
Room 1870
14th Street and Constitution Ave., N.W.
Washington D.C.

Hon. Robert C. Bonner
Commissioner of Customs
Attn: Alfonso Robles, Esq.
Chief Counsel
United States Customs Service
Room 3305
1301 Constitution Ave., N.W.,
Washington, D.C.

Lucius B. Lau, Esq.
Commercial Litigation Branch, Civil Division
United States Department of Justice
1100 L Street, N.W.
Suite 10114
Washington, D.C.

and it is further

ORDERED that the entries subject to this injunction shall be liquidated in
accordance with the final court decision as provided in 19 U.S.C. § 1516a(e).

Order of Injunction Dated April 15, 2003. In other words, the Court made plainly clear to Customs

that it was not to liquidate the entries covered by the challenged determination until a final

determination on the merits of this action.
Court No. 03-00102 Page 5

After service of the injunction upon the government (at the latest by April 21, 2003),

Customs Headquarters transmitted injunction instructions to the relevant Ports a full week later, on

or about April 28, 2003. In the meantime, the relevant Ports had liquidated a number of entries, in

violation of the injunction, between April 25 and as late as July 7, 2003. In total, approximately 31

of the 150 or so entries that are subject to this action were liquidated at the antidumping duty rate

established by Commerce in the review proceeding that the plaintiff brought this action to challenge.

The fact that liquidations in violation of the Order of Injunction were occurring was brought

to the attention of the government by the defendant-intervenors, who were the respondents in the

antidumping duty administrative review proceedings before Commerce. The Justice Department

therefore requested an emergency status conference with the Court, which was convened by

telephone on August 20, 2003. At the conference, counsel for the defendant-intervenors represented

that when he became aware of Customs’ liquidations, he immediately at the end of June and again

in July 2003 mailed letters to Customs’ Ports Directors where the entries had occurred, which the

Justice Department represented as being the Ports of Brownsville, Texas (including Laredo), Detroit,

Michigan, and Long Beach, California (which is included in the Port of Los Angeles) and finally

Chester, Pennsylvania (which is included in the Port of Philadelphia). The Justice Department

excused the inaction of Port officials on the ground that “Customs Headquarters did not receive

letters” until around July 25, 2003 (implying that action by Port Directors in such matters is

dependent upon instruction from Headquarters) nor were copies of such letters sent to counsel for

Commerce or Customs despite the fact that they concerned a matter in litigation. Counsel responded

that his research disclosed no responsibility to contact opposing counsel. At any rate, he opted to
Court No. 03-00102 Page 6

take a direct route to try to resolve the problem by contacting the relevant Ports, which undertake the

liquidations, not Customs Headquarters.

The Customs duties statutes state in relevant part that “decisions of the Customs Service,

including the legality of all orders and findings entering into the same, as to . . . (5) the liquidation

or reliquidation of an entry . . . shall be final and conclusive upon all persons (including the United

States and any officer thereof) unless a protest is filed in accordance with this section, or unless a

civil action contesting the denial of a protest, in whole or in part, is commenced in the United States

Court of International Trade in accordance with chapter 169 of title 28 within the time prescribed

by section 2636 of that title. . . .” 19 U.S.C. § 1514(a). Section 1514(c)(3) states that “[a] protest

of the decision, order, or finding described in subsection (a) of this section shall be filed with the

Customs Service within ninety days after but not before – (A) notice of liquidation or reliquidation,

or (B) in circumstances where subparagraph (A) is inapplicable, the date of the decision as to which

protest is made.” 19 U.S.C. § 1514(c)(3).

At the time of the emergency conference, approximately 22 of the entries had been liquidated

more than 90 days previously. Nine other liquidations were within the 90-day protest period

following liquidation, and the protest period for two ent ries was due to expire on the day following

the emergency conference. All the parties, including Customs, admit without qualification that the

liquidations were illegal.3 The Justice Department’s suggestion to rectify the problem was for

Customs to “voluntarily reliquidate” the nine liquidations pursuant to its authority under 19 U.S.C.

3
Although Customs pleads inadvertence, which might be true of liquidations occurring
before the relevant Ports received notice of instruction from Headquarters on April 28, that does not
appear to be true of subsequent liquidations, some as late as July 2003, which more closely resemble
deliberate inattention.
Court No. 03-00102 Page 7

§ 1501, on the ground that the liquidations were not yet “final,” at a higher rate than the rate at which

they had been liquidated, whereupon the defendant-intervenors could (in theory) file a protest which

the Customs Service would hold in abeyance until final disposition of the underlying challenge to

the antidumping duty rate. Counsel for defendant-intervenors vehemently opposed this suggestion,

legitimately, on the ground that the rate at which the subject entries were liquidated is the only

presumptively lawful rate that has been established, but more importantly because of the time and

expense of having to go through a protest procedure in order to correct a problem not of its own

making and which it brought to the attention of the other parties. The Court agreed that such a

situation was inequitable, but for the time being, by Order of August 20, 2003, ordered that the two

entries for which the doctrine of finality was arguably about to attach be “voluntarily reliquidated”

at the liquidated rate, thereby resetting the 90-day clock.

Discussion

Although a reliquidation at the same rate as the previous liquidation avoids burdening the

defendant-intervenors with the protest procedure, the result is unsatisfactory because there is no

guarantee that Customs will periodically act affirmatively to reset the finality clock until such time

as there is a final disposition on the underlying challenge to Commerce’s antidumping duty rate.

Moreover, it greatly disturbs the Court that the government apparently takes the position that it can

disobey an injunctive order of this Court with impunity. The defendant-intervenor suggests

sanctions, and the Court takes that under advisement; however, in view of the inequities of the

current situation to the parties, the Court inquired whether it had the power, for example pursuant

to the residual jurisdiction of 19 U.S.C. § 1581(i), to declare the liquidations void ab initio. Counsel
Court No. 03-00102 Page 8

for the Justice Department and the defendant-intervenors took the limited view that (i) jurisdiction

did not attach where another remedy was available, and they interpreted the remedies in this matter

as falling exclusively under 19 U.S.C. § 1516a(c). The plaintiffs would prefer restoration to the

status quo ante by some means, and refer the Court to LG Electronics U.S.A., Inc. v. United States,

21 CIT 1421, 991 F.Supp. 668 (1997). They take the position that the liquidations were illegal, and

that this Court can conclude that it retains jurisdiction over these matters and conclude that lawful

liquidation never occurred and declare the illegal liquidations a nullity.

The government takes the position that doctrine of finality in section 1514 is intended to

protect against all potential claims, and thus it regards the provision as “sacrosanct,” even to the

point of protecting them unconditionally from liability for the commission of admittedly illegal acts.4

The Justice Department also expressed concern that not abiding by the doctrine, even in the context

of this matter, would “open the door” to litigation of previous “illegal” liquidations, whereupon the

Court made clear that its hypothetical was restricted only to liquidations in violation of the Court’s

injunctions and queried whether the government’s agencies regularly violate them. No ready answer

was forthcoming.

LG Electronics concerned automatic and deemed liquidations, but reasoning therein is

instructive as to the current situation involving acts of volition. As that Court stated:

In the interest of protecting its injunctions and enforcing prior
judgments, the court finds that the liquidations in violation of the
preliminary injunctions had no legal effect, and need not have been
protested within 90 days, as specified by 19 U.S.C. § 1514, to
preserve the importer's right to judicial review. . . .

4
The defendant-intervenors also took the position that the Court has no jurisdiction over the
post-90 day period entries under the doctrine of finality.
Court No. 03-00102 Page 9

***
. . . The importer's ordinary obligation to watch for notices of
liquidation is suspended where the court has issued an order
forbidding liquidation. . . . An agency cannot insist that an importer
follow its administrative procedure where the agency’s own action
violates an injunction the importer obtained against that procedure in
the course of a dispute with the agency.

21 CIT at 1428, 991 F.Supp. at 675.

This Court agrees with such rationale as it applies in this case. A claim for an unqualified

right to commit an admittedly illegal act and then invoke a statute to assert immunity in such

illegality is breathtaking for its chutzpah. Even assuming that the government’s and the defendant-

intervenors’ positions are legally correct, they admit that for the nine entries for which finality

arguably has not yet attached (being within the 90-day protest window) and for which limited relief

here is sought, the government’s proposed solution burdens the plaintiff-petitioners for the

consequences of the government’s illegal acts because the plaintiff-petitioners must monitor

Customs to ensure that it retains jurisdiction via posting of periodic voluntary reliquidation notices.

For the remaining liquidations, the Court also considers that if the situation were not restored to the

status quo ante, as a result of the Customs’ illegal liquidations the plaintiffs would also lose, in

addition, whatever prospective benefits might have been forthcoming from a successful challenge

to Commerce’s “final” (as amended) antidumping duty rate (e.g., under the Continued Dumping and

Subsidies Offset Act of 2000, Pub. L. 106-387, 19 U.S.C. § 1675c, pursuant to which domestic

producers with qualifying expenditures for a particular year may, for the time being, obtain a share

of the antidumping duties collected by Customs for that year). Furthermore, it is also apparent that

none of the 31 illegal liquidations constitutes a de facto protestable event. The importer has no
Court No. 03-00102 Page 10

incentive to protest the illegal liquidations since they “benefit” him to the extent that entries covered

thereby avoid imposition of any higher antidumping duties that might result from a successful

outcome on the merits of the plaintiff-petitioner’s underlying action. The plaintiff-petitioner did all

that it could to comply with what is statutorily required of it in order to preserve its action. It has no

standing to challenge the illegality of these liquidations in any event because it is not an importer,

and Congress made clear that 19 U.S.C. § 1516a and not § 1514 was the mechanism governing

challenges to antidumping duty determinations. See, e.g., Mitsubishi Electronics America, Inc. v.

United States, 18 CIT 167, 173-74, 848 F.Supp. 193, 198-99 (1994), aff’d 44 F.3d 973 (1994).

Where liquidation occurs through an illegal act of Customs and in the absence of a protestable event,

the doctrine of finality cannot be said to attach. To reach any other result would be absurd.

Conclusion

This Court “possess[es] all the powers in law and equity of, or as conferred by statute upon,

a district court of the United States.” 28 U.S.C. § 1585. Accordingly, the Court returns the matter

to the status quo ante and declares that all 31 of the illegal liquidations at bar were, and are, null and

void ab initio. The Court further enjoins Customs from reliquidating the subject entries at a higher

rate than the Court’s Order of August 20, 2003 until a final decision on the merits.

SO ORDERED.

________________________________________
R. KENTON MUSGRAVE, JUDGE
Dated: September 3, 2003
New York, New York