Jilin Henghe Pharmaceutical Co. v. United States

Slip Op. 04-77

United States Court of International Trade

JILIN HENGHE PHARMACEUTICAL CO.
and JILIN PHARMACEUTICAL USA,
Before: Pogue, Judge
Plaintiffs,

v. Court No. 04-00151
UNITED STATES,

Defendant.

[Defendant’s motion to dismiss denied; declaratory judgment
entered for Plaintiffs.]

Decided: June 29, 2004

White & Case, LLP (William J. Clinton, Adams Lee, and Kathleen D.
Wallender) for Plaintiffs.

Peter D. Keisler, Assistant Attorney General, David M. Cohen,
Director, Jeanne E. Davidson, Deputy Director, Ada E. Bosque, Trial
Attorney, Commercial Litigation Branch, Civil Division, U.S.
Department of Justice, Elizabeth Cooper Doyle, Attorney, Of
Counsel, Office of Chief Counsel for Import Administration, U.S.
Department of Commerce, for Defendant.

OPINION

Pogue, Judge: In this action, Plaintiffs Jilin Henghe

Pharmaceutical Co. and Jilin Pharmaceutical USA (“Jilin”) challenge
Court No. 04-00151 Page 2

the validity of liquidation1 instructions issued by the United

States Department of Commerce (“Commerce”) to the United States

Bureau of Customs and Border Protection (“Customs”)2 regarding

Jilin’s entries of bulk aspirin from China.

Before the Court is Plaintiffs’ motion requesting mandamus

relief, which the parties have agreed to treat as a motion for

declaratory relief. Defendant has filed a motion to dismiss,

alleging a lack of subject matter jurisdiction, that its own

actions were in accordance with law, and that the equitable relief

sought by Plaintiffs is inappropriate. By agreement of the

parties, the Court has issued a preliminary injunction temporarily

enjoining liquidation of Plaintiffs’ entries and expediting

consideration of this matter.

Because this Court has jurisdiction to consider Plaintiffs’

challenge under 28 U.S.C. § 1581(i) (2000), and because Commerce’s

liquidation instructions are not in accordance with law, the Court

enters a declaratory judgment for Plaintiffs.

1
Liquidation is defined as “the final computation or
ascertainment of the duties . . . or drawback accruing on an
entry” of imported merchandise. 19 C.F.R. § 159.1 (2003).
2
Effective March 1, 2003, the United States Customs Service
was renamed the United States Bureau of Customs and Border
Protection. See Homeland Security Act of 2002, Pub. L. No. 107-
296 § 1502, 2002 U.S.C.C.A.N. (116 Stat.) 2135, 2308;
Reorganization Plan Modification for the Department of Homeland
Security, H.R. Doc. No. 108-32, at 4 (2003).
Court No. 04-00151 Page 3

BACKGROUND

Commerce’s liquidation instructions seek to impose antidumping

duties on Plaintiffs’ entries pursuant to an antidumping order

which was invalidated, with regard to Plaintiffs, by the Court’s

decision in Rhodia, Inc. v. United States, 26 CIT __, 240 F. Supp.

2d 1247 (2002) (“Rhodia II”). Specifically, Commerce instructed

Customs to impose antidumping duties on entries made prior to the

Court’s decision in Rhodia II but which remained unliquidated as of

the date of the “Timken” notice of that order.3

The Court of Appeals for the Federal Circuit affirmed the

Court’s decision in Rhodia II on October 14, 2003. See Stmt of

Relevant Agreed-Upon Facts para. 9 (“Jt. Stmt”).

The administrative background of this dispute dates to May 25,

2000, when Commerce published notice of the final determination in

Bulk Aspirin from the People’s Republic of China, 65 Fed. Reg.

33,805 (Dep’t Commerce May 25, 2000) (notice of final determination

of sales at less than fair value), as amended, 65 Fed. Reg. 39,598

(Dep’t Commerce June 27, 2000) (notice of amended final

determination of sales at less than fair value). Commerce’s final

determination established dumping margins for a number of producers

3
A “Timken notice” is so called after the result in Timken
Co. v. United States, 893 F.2d 337 (Fed. Cir. 1990). That case
held that 19 U.S.C. § 1581a(e) requires Commerce to publish a
notice in the Federal Register within ten days of issuance of a
court decision contrary to a determination by Commerce. See
Timken Co. v. United States, 893 F.2d at 340.
Court No. 04-00151 Page 4

of bulk aspirin, including Jilin. Jilin’s initial cash-deposit

rate4 was set at 10.85 percent. See Bulk Aspirin from the People’s

Republic of China, 65 Fed. Reg. at 39,599. Commerce published

notice of the antidumping duty order on bulk aspirin from China on

July 11, 2000. Bulk Aspirin from the People’s Republic of China,

65 Fed. Reg. 42,673, 42,674 (Dep’t Commerce, July 11, 2000) (notice

of antidumping duty order). Jilin appealed the final determination

and antidumping duty order, and Jilin’s appeal was consolidated

into Rhodia, Inc. v. United States, 25 CIT 1278, 1278, 185 F. Supp.

2d 1343, 1345 (2001) (“Rhodia I”). The Court’s opinion in that

case remanded the final determination to Commerce for further

consideration. See Rhodia I, 25 CIT at 1293, 185 F. Supp. 2d at

1358. On remand, Commerce found that Jilin’s duty margin was de

minimis, and that Jilin should be excluded from the dumping order

on bulk aspirin from the People’s Republic of China. See Jt. Stmt

at para. 5. The Court upheld Commerce’s determination on remand.

See Rhodia II, 26 CIT at __, 240 F. Supp. 2d at 1255. Pursuant to

the decision in Rhodia II, Commerce issued its “Timken” notice.

See Bulk Aspirin from the People’s Republic of China, 67 Fed. Reg.

61,315, 61,315-16 (Dep’t Commerce Sept. 30, 2002) (notice of court

4
In general, following an antidumping order, Customs
collects duties at the “cash deposit rate” in effect at the time
of entry. See 19 U.S.C. § 1673d(c)(1)(B)(ii). During
administrative review proceedings following the anniversary date
of an order, this rate may be revised or changed, and the amount
of actual antidumping duties assessed. See 19 U.S.C. §
1675(a)(1).
Court No. 04-00151 Page 5

decision and suspension of liquidation) (“the Timken notice”).

In addition, during the pendency of the two Rhodia cases,

Jilin participated in two administrative reviews of the dumping

order on bulk aspirin from the People’s Republic of China. See Jt.

Stmt at para. 12. The results of the two reviews, however, were

not published until after the decision in Rhodia II was issued.

See Jt. Stmt at paras. 17, 30. With regard to both the first and

second administrative reviews of the order, covering the periods

from July 6, 2000 through June 30, 2001, and July 1, 2001 through

June 30, 2002, Commerce found that Jilin’s dumping margin was de

minimis or zero. See Bulk Aspirin from the People’s Republic of

China, 68 Fed. Reg. 6,710, 6,711 (Dep’t Commerce Feb. 10, 2003) (

final results of antidumping duty review); Bulk Aspirin from the

People’s Republic of China, 68 Fed. Reg. 48,337, 48,338 (Dep’t

Commerce Aug. 13, 2003) (final results of antidumping duty review).

Jilin was originally a participant in a third administrative

review, as well, but the request for review as to Jilin was

withdrawn. See Jt. Stmt at para. 38.5 Commerce thereafter

rescinded the third administrative review as to Jilin. See Bulk

Aspirin from the People’s Republic of China, 69 Fed. Reg. 5,126,

5,127 (Dep’t Commerce Feb. 3, 2004) (notice of partial rescission

of antidumping duty administrative review).

5
This withdrawal followed shortly after the decision of the
Court of Appeals of the Federal Circuit affirming Rhodia II.
Court No. 04-00151 Page 6

On February 12, 2004, Commerce issued the liquidation

instructions in dispute here, directing Customs to liquidate

Jilin’s entries of bulk aspirin made between July 1, 2002 and

September 29, 2002, the period between the end of the second review

and Commerce’s publication of the Timken notice of judgment in

Rhodia II.6 See Jt. Stmt at para. 40. Commerce instructed Customs

to liquidate Jilin’s entries during this period at the cash-deposit

rate that was in effect at the time of entry, i.e., the rate set in

the final administrative determination and antidumping order

discredited in Rhodia II. See Jt. Stmt at para. 43.

STANDARD OF REVIEW

While jurisdiction in a case challenging the validity of

Commerce’s liquidation instructions is provided by 28 U.S.C. §

1581(i), the cause of action, in such a case arises from the

Administrative Procedure Act (“APA”). See 28 U.S.C. § 2640(e);

Shinyei Corp. of Am. v. United States, 355 F.3d 1297, 1312 (Fed.

Cir. 2004). The APA provides that a court may set aside an agency

action if it is “arbitrary, capricious, an abuse of discretion, or

6
Plaintiff’s complaint also challenges liquidation
instructions regarding entries made during the period of the
first and second administrative reviews, but Plaintiff
subsequently voluntarily dismissed its case as to these
instructions following resolution of the issues relating to them
by the parties. See Compl. of Jilin at para. 23; Pl.’s Mot. for
Voluntary Dismissal in Part and to Amend the Preliminary
Injunction at 1.
Court No. 04-00151 Page 7

otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A).

Commerce’s liquidation instructions are not subject to

deference under Chevron U.S.A. Inc. v. Natural Res. Def. Council,

467 U.S. 837 (1984). The instructions do not contain any statutory

interpretation; moreover, the issuance of liquidation instructions

is not subject to any formal hearing; nor are notice and comment

procedures afforded. See United States v. Mead Corp., 533 U.S.

218, 229-30 (2001). The instructions are only binding on the party

for which they were issued, Plaintiffs. See id. at 232.

Accordingly, there is nothing on the record here which would

indicate any Congressional intent to give Commerce’s liquidation

instructions the force of law.

DISCUSSION

The Court has consolidated its consideration of Defendant’s

motion to dismiss with the merits of the case. Accordingly, this

opinion will first discuss subject matter jurisdiction, then the

question of whether Commerce acted in accordance with law, and

finally the question of what relief is appropriate here.

A. Subject Matter Jurisdiction

Defendant’s challenge to subject matter jurisdiction rests on

two arguments. The first argument is that Plaintiffs should have

brought their complaint under 28 U.S.C. § 1581(c) rather than 28
Court No. 04-00151 Page 8

U.S.C. § 1581(i). See Def.’s Mot. Dismiss & Opp’n to Request for

Injunctive & Mandamus Relief at 16 (“Def.’s Mot. Dismiss”).

Second, Defendant claims that Plaintiffs’ failure to bring a §

1581(c) challenge to Defendant’s published notice of the Court’s

decision in Rhodia II at the time of the notice’s publication

deprives Plaintiffs of the right to bring suit now. See Def.’s

Mot. Dismiss at 20. The Court will address each argument in turn.

First, Defendant argues, correctly, that jurisdiction under 28

U.S.C. § 1581(i), the Court’s residual grant of jurisdiction, may

be invoked only if no other grant of jurisdiction could have been

invoked to provide an adequate remedy. See Def.’s Mot. Dismiss at

14. Defendant further argues that Plaintiffs could have challenged

Commerce’s decision to give Rhodia II only prospective application

by filing under 28 U.S.C. § 1581(c), which grants this Court

jurisdiction over, among other things, disputes arising out of

antidumping duty orders and the reviews thereof.7 See Def.’s Mot.

Dismiss at 16; see also 28 U.S.C. § 1581(c). However, the Court of

Appeals for the Federal Circuit recently concluded that

jurisdiction here is proper under 28 U.S.C. § 1581(i), the

statutory grant claimed by Plaintiffs. See Shinyei Corp. of Am. v.

7
There is no reason to believe that Plaintiffs could have
challenged the liquidation instructions under 28 U.S.C. §1581(a).
That provision allows for protests of decisions of the Customs
Service. See 28 U.S.C. §1581(a). As the liquidation
instructions at issue here were issued by Commerce, rather than
Customs, Plaintiffs could not have properly filed suit under §
1581(a).
Court No. 04-00151 Page 9

United States, 355 F.3d at 1305 (citing Consol. Bearings Co. v.

United States, 348 F.3d 997, 1002 (Fed. Cir. 2003) (“[A]n 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 results. Thus, Consolidated challenges

the manner in which Commerce administered the final results.

Section 1581(i)(4) grants jurisdiction to such an action.”)).

Despite the holding in Shinyei Corp. of Am., Defendant argues

that this Court should be deprived of jurisdiction over Plaintiffs’

claim because Plaintiffs’ failed to challenge Commerce’s notice of

the decision in Rhodia II, which Commerce published on September

30, 2002. See Def.’s Mot. to Dismiss at 20. Commerce argues that

this notice made Plaintiffs aware that Commerce intended to apply

the Rhodia II decision only to entries of aspirin made on or after

September 29, 2002. See id. Defendant further argues that

Plaintiffs had an opportunity to challenge this notice under 19

U.S.C. § 1581(c). See Def.’s Mot. Dismiss at 20. By failing to

challenge the published notice at the time of its publication,

Defendant argues, Plaintiffs have lost the right to file suit under

28 U.S.C. § 1581(c). See Def.’s Mot. Dismiss at 21-22. However,

because, had Plaintiff timely challenged the notice, review under

§ 1581(c) would have been available, review under § 1581(i) is now

foreclosed. See Def.’s Mot. Dismiss at 22.

Commerce’s argument is unpersuasive. The Timken notice was
Court No. 04-00151 Page 10

not sufficient to apprise Plaintiffs of Commerce’s intention to

limit the decision in Rhodia II to prospective application, and

therefore could not give rise to an opportunity to challenge that

notice under 28 U.S.C. § 1581(c).

The Timken notice stated, in relevant part, that Commerce

“will instruct [Customs] to . . . liquidate relevant entries

covering the subject merchandise effective September 30, 2002, in

the event that the CIT’s ruling is not appealed, or if appealed and

upheld by the Court of Appeals for the Federal Circuit.” Bulk

Aspirin from the People’s Republic of China, 67 Fed. Reg. 61,315,

61,316 (Dep’t Commerce Sept. 30, 2002) (notice of court decision

and suspension of liquidation). The statement appears, taken at

face value, to state only that in the absence of an appeal, or in

the event of an affirmance, Commerce would direct Customs to begin

liquidation on, and effective as of, September 30, 2002. It does

not state that entries made before that date and remaining

unliquidated as of that date would liquidate differently from those

made on or after September 30, 2002.8

8
Defendant also argues that its notice of amended final
determination published on December 30, 2003 provided notice of
the determination to prospectively apply Rhodia II. See Def.’s
Mot. Dismiss at 20. The notice states that “[Commerce] will
instruct [Customs] to liquidate entries from Jilin without regard
to antidumping duties, because Jilin is excluded from the
antidumping order, effective September 30, 2002, the date on
which [Commerce] published a notice of the Court decision.” Bulk
Aspirin from the People’s Republic of China, 68 Fed. Reg. 75,208,
75,210 (Dep’t Commerce Dec. 30, 2003) (notice of amended final
determination and amended order pursuant to final court decision)
Court No. 04-00151 Page 11

Moreover, even had the Timken notice been sufficient to put

Plaintiffs on notice of Commerce’s determination to apply Rhodia II

prospectively, it is far from clear whether 28 U.S.C. § 1581(c)

would have furnished jurisdiction for Plaintiff to make a

challenge. Title 28 U.S.C. § 1581(c) grants jurisdiction over

actions commenced under 19 U.S.C. § 1516a(a), which in turn

provides for judicial review for certain antidumping and

countervailing duty determinations described in 19 U.S.C. §

1516a(a)(2)(B). Section 1516a(a)(2)(B) does not provide for

judicial review of Commerce’s notices of published decisions. See

19 U.S.C. § 1516a(a)(2)(B). Nor does the substantive determination

to apply Rhodia II prospectively appear to be reviewable under §

1516a(a)(2)(B). Id.

Therefore, in accordance with the holding in Shinyei Corp. of

Am., jurisdiction over Plaintiffs’ challenge to Commerce’s

liquidation instructions is appropriate under 28 U.S.C. § 1581(i).

Moreover, Commerce’s published notice of the decision in Rhodia II

gave notice of no determination that falls within the category of

decisions that trigger a right of judicial review under 19 U.S.C.

§ 1516a.

(internal citation omitted). This notice, like the Timken
notice, does not state that entries made before September 30,
2002, but remaining unliquidated after that date, will be
liquidated in accordance with the discredited administrative
determination.
Court No. 04-00151 Page 12

B. Whether or Not Commerce Acted In Accordance With Law

As subject matter jurisdiction has been properly invoked, the

Court must determine whether Commerce, in issuing its liquidation

instructions, acted in a manner that was “arbitrary, capricious, an

abuse of discretion, or otherwise not in accordance with law.” 5

U.S.C. § 706(2)(A); see 28 U.S.C. § 2640(e).

Defendant argues that its liquidation instructions are in

accordance with law because liquidation at the cash-deposit rate is

proper under two statutory provisions dealing with liquidation in

accordance with court decisions: 19 U.S.C. § 1516a(c)(1) and 19

U.S.C. § 1516a(e).9 Defendant argues that 19 U.S.C. § 1516a(c)(1)

9
Title 19 U.S.C. § 1516a(c)(1) states:

(c) Liquidation of entries

(1) Liquidation in accordance with determination

Unless such liquidation is enjoined by the court
under paragraph (2) of this subsection, entries of
merchandise of the character covered by a
determination of the Secretary, the administering
authority, or the Commission contested under
subsection (a) of this section shall be liquidated
in accordance with the determination of the
Secretary, 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 Secretary
or the administering authority of a notice of a
decision of the United States Court of International
Trade, or of the United States Court of Appeals for
the Federal Circuit, not in harmony with that
determination. Such notice of a decision shall be
published within ten days from the date of the
issuance of the court decision.
Court No. 04-00151 Page 13

requires that Plaintiffs’ entries be “liquidated in accordance with

the determination of [Commerce], if they are entered . . . on or

before the date of publication in the Federal Register by

[Commerce] of a notice of a decision of the United States Court of

International Trade . . . not in harmony with that determination,”

even though Commerce’s underlying antidumping order, which serves

as the basis for those liquidations, has been invalidated by the

Court. 19 U.S.C. § 1516a(c)(1); see Def.’s Mot Dismiss at 27-29.

Defendant argues that 19 U.S.C. § 1516a(c)(1) allows Commerce to

19 U.S.C. § 1516a(c)(1).

Title 19 U.S.C. § 1516a(e) states:

(e) Liquidation in accordance with final decision

If the cause of action is sustained in whole or in
part by a decision of the United States Court of
International Trade or of the United States Court of
Appeals for the Federal Circuit--
(1) entries of merchandise of the character
covered by the published determination of the
Secretary, the administering authority, or the
Commission, which is entered, or withdrawn from
warehouse, for consumption after the date of
publication in the Federal Register by the Secretary
or the administering authority of a notice of the
court decision, and
(2) entries, the liquidation of which was
enjoined under subsection (c)(2) of this
section, shall be liquidated in accordance with the
final court decision in the action. Such notice of
the court decision shall be published within ten
days from the date of the issuance of the court
decision.

19 U.S.C. § 1581a(e).
Court No. 04-00151 Page 14

liquidate entries made on or before the September 29, 2002

publication of the notice of decision in Rhodia II, but remaining

unliquidated after the publication of the notice of decisions, in

accordance with the determination discredited in Rhodia II. See

Def.’s Mot Dismiss at 27-29. Defendant further argues that had

Plaintiffs desired to ensure that entries made before this date

would not be so liquidated, Plaintiffs should have filed an

injunction against liquidation at the outset of Rhodia II, or

pending a challenge to the Timken notice. Id. at 30-31.

Defendant’s argument would carry more weight were this case

dealing with entries actually liquidated during the pendency of the

two Rhodia suits. Liquidations made during the pendency of

litigation deprive a plaintiff of relief under § 1581(c), although

litigation may still be possible under § 1581(i). See Shinyei

Corp. of Am. v. United States, 355 F.3d at 1312. Moreover, it

seems clear that Commerce may order liquidation of entries in

accordance with its own determination, in the absence of an

injunction, until a contrary court decision is reached. See Timken

Co. v. United States, 893 F.2d 337, 342 (Fed. Cir. 1990). However,

during the pendency of the Rhodia cases, none of Jilin’s entries of

aspirin were liquidated.10

10
During the periods covered by the first and second
administrative review, liquidation was suspended by Commerce in
accordance with the procedures governing administrative reviews.
Moreover, when these reviews were completed in 2003, both found
that Jilin’s dumping rate was de minimis or zero. See Bulk
Court No. 04-00151 Page 15

Nevertheless, Commerce argues that all entries made between

July 1, 2002 and September 29, 2002 should be liquidated at the

cash-deposit rate. See Def.’s Mot. Dismiss at 27-29. Commerce

cites various cases it claims stand for the proposition that,

absent an injunction against such liquidation, 19 U.S.C. §

1516a(c)(1) and 19 U.S.C. § 1516a(e) allow entries remaining

unliquidated at the time Commerce publishes a notice of decision to

be liquidated at the cash-deposit rate, rather than in accord with

a contrary court decision. See Def.’s Mot Dismiss at 28-30.11

However, all the cited cases predate the Court’s determination in

Laclede Steel Co. v. United States, 20 CIT 712, 928 F. Supp. 1182

(1996), aff’d, 92 F.3d 1206 (Fed. Cir. 1996), a case presenting

facts similar to the ones before the Court here. Read in light of

Laclede Steel Co., Commerce’s cited cases are consistent with

Aspirin from the People’s Republic of China, 68 Fed. Reg. 6,710,
6,711 (Dep’t Commerce Feb. 10, 2003) (final results of
antidumping duty review); Bulk Aspirin from the People’s Republic
of China, 68 Fed. Reg. 48,337, 48,338 (Dep’t Commerce Aug. 13,
2003) (final results of antidumping duty review).
Therefore, the only time period in which Customs could have
liquidated entries was between July 1, 2002 and September 29,
2002. Commerce, however, failed to liquidate any of Jilin’s
entries during this time, due to the fact that those entries were
suspended under the procedures for the third administrative
review, which was later rescinded as to Jilin’s entries. See
Bulk Aspirin from the People’s Republic of China, 69 Fed. Reg.
5,126, 5,127 (Dep’t Commerce Feb. 3, 2004) (notice of partial
rescission of antidumping duty administrative review).
11
Defendant’s argument ignores the effect of its own
suspension of liquidation during the administrative reviews. See
supra note 10.
Court No. 04-00151 Page 16

Plaintiffs’ claim for relief here.

In Laclede Steel Co., the plaintiff had obtained, on remand,

a dumping margin which was lower than Commerce’s original

antidumping duty determination. Laclede Steel Co. v. United States

20 CIT at 713, 928 F. Supp. at 1184. During the pendency of the

litigation, plaintiff participated in administrative reviews, but

withdrew its requests for review shortly after the contrary court

decision issued. Id. Finding that its entries made during the

periods of administrative review were to be subject to liquidation

at the higher rate determined by Commerce before the contrary court

decision issued, plaintiff sought injunctive relief in this Court.

Id.

The Court retroactively granted the motion for injunctive

relief to prohibit liquidation of entries made during the periods

of administrative review, but before the contrary court decision,

from being liquidated at the higher rate. Laclede Steel Co. v.

United States, 20 CIT at 718, 928 F. Supp. at 1188. The Court held

that 19 U.S.C. § 1516a(c)(2)12 expressly contemplates injunctive

12
Title 19 U.S.C. § 1516a(c)(2) states:

(2) Injunctive relief

In the case of a determination described in
paragraph (2) of subsection (a) of this section by
the Secretary, the administering authority, or the
Commission, the United States Court of International
Trade may enjoin the liquidation of some or all
Court No. 04-00151 Page 17

relief. Laclede Steel Co., 20 CIT 715-16, 928 F. Supp. at 1186.

Moreover, the Court held that an injunction would serve the

interests outlined in Timken Co. v. United States, 893 F.2d 337

(Fed. Cir. 1990). See Laclede Steel Co. v. United States, 20 CIT

at 716, 928 F. Supp. at 1186-87.

In Timken Co., the Court of Appeals for the Federal Circuit

stated that when this Court reaches a decision contrary to the

agency’s determination, under 19 U.S.C. § 1516a(c)(1), “liquidation

should no longer take place in accordance with Commerce's

determination.” Timken Co. v. United States, 893 F.2d 337, 341

(Fed. Cir. 1990). This “no longer” appears to foreclose the

argument that, after the decision contrary to the agency’s

determination becomes final, further liquidation may still take

place in accordance with that invalidated determination, regardless

of when the actual entries were made. As the Laclede Steel Co.

Court explained, Timken Co. was concerned with avoiding the “yo-yo”

effect resulting from liquidations based on an agency

determination, a court determination, a determination on appeal,

and back. See Laclede Steel Co. v. United States, 20 CIT at 716-

entries of merchandise covered by a determination of
the Secretary, the administering authority, or the
Commission, upon a request by an interested party
for such relief and a proper showing that the
requested relief should be granted under the
circumstances.

19 U.S.C. § 1516a(c)(2).
Court No. 04-00151 Page 18

17, 928 F. Supp. at 1187; see also Timken Co. v. United States, 893

F.2d at 342. The Court in Laclede Steel Co. held that injunctive

relief was an appropriate method for defeating the “yo-yo” effect.

See Laclede Steel Co. v. United States, 20 CIT at 716-17, 928 F.

Supp. at 1187. While the case at bar is very similar on its facts

to Laclede Steel Co., the Court must evaluate the situation anew,

in light of the holding in Shinyei Corp of Am. v. United States,

355 F.3d 1297, 1312 (Fed. Cir. 2004).

As noted above, in Shinyei Corp. of Am., the Court of Appeals

for the Federal Circuit recognized that the APA provides a cause of

action for a challenge to the validity of Commerce’s liquidation

instructions. See 355 F.3d at 1312. Under the standard of review

established by the APA, an agency action must be “in accordance

with law.” 5 U.S.C. § 706(2)(A). An agency’s action, however, is

not in accordance with law if it conflicts with either a statute or

a binding court decision. The decision in Rhodia II was final and

conclusive as to whether Jilin was properly included in the

antidumping order on bulk aspirin from China; once that decision

became final, Commerce was bound to follow it.

Accordingly, in light of Shinyei Corp. of Am.’s determination

that liquidation instructions must pass APA review, the Court finds

that the liquidation instructions at issue here were not in

accordance with law. The instructions do not reflect the Court’s

determination in Rhodia II. Moreover, 19 U.S.C. § 1516a(c)(1) and
Court No. 04-00151 Page 19

19 U.S.C. § 1516a(e) cannot be read to legitimate the liquidation

of Jilin’s entries under Commerce’s now discredited determination.

To read the statutory provisions in that way fails to give force

and effect to this Court’s decisions, in that it allows

liquidations to continue under a legally invalid determination.

Once Commerce’s final antidumping determination has been

invalidated, it cannot serve as a legal basis for the imposition of

antidumping duties on Plaintiffs’ entries. Second, Commerce’s

reading is contrary to Timken Co.’s counsel against the “yo-yo”

effect.13 Third, such a reading runs counter to Timken Co.’s

assertion that 19 U.S.C. § 1516a(c)(1) reflects a presumption of

correctness regarding Commerce’s determination, but that “if the

CIT or [the Court of Appeals for the Federal Circuit] renders a

decision which is contrary to that determination, the presumption

of correctness disappears.” See Timken Co. v. United States, 893

F.2d at 341-42. Along with the presumption, Commerce’s ability to

order liquidation in accordance with its determination must also

disappear.

Thus, while issuance of an injunction, as in Laclede Steel

Co., would resolve this dispute, such an injunction is unnecessary

13
In the absence of some form of equitable relief, a “yo-yo”
effect will certainly result from Commerce’s liquidation
instructions: Jilin’s July 1, 2002 -- September 29, 2002 entries
would liquidate alongside previous and subsequent entries, but at
a different rate. Cf. Laclede Steel Co. v. United States, 20 CIT
at 717, 928 F. Supp. at 1187.
Court No. 04-00151 Page 20

in light of Timken Co. and Shinyei Corp. of Am. Here the Court is

faced not only with a contrary court decision, but with one that is

final and conclusive as to Jilin’s entries. Moreover, because this

action is predicated upon the APA, the Court need not look to 19

U.S.C. § 1516a(c)(2) alone in search of a remedy. While injunctive

relief would certainly preclude harm to Plaintiffs, the APA does

not limit the Court to such relief. See 5 U.S.C. § 702; see also

28 U.S.C. § 1585, 28 U.S.C. § 2643(c)(1).14 The only question

14
Title 5 U.S.C. § 702 states:

A person suffering legal wrong because of agency
action, or adversely affected or aggrieved by agency
action within the meaning of a relevant statute, is
entitled to judicial review thereof. An action in a
court of the United States seeking relief other than
money damages and stating a claim that an agency or
an officer or employee thereof acted or failed to
act in an official capacity or under color of legal
authority shall not be dismissed nor relief therein
be denied on the ground that it is against the
United States or that the United States is an
indispensable party. The United States may be named
as a defendant in any such action, and a judgment or
decree may be entered against the United States:
Provided, That any mandatory or injunctive decree
shall specify the Federal officer or officers (by
name or by title), and their successors in office,
personally responsible for compliance. Nothing
herein (1) affects other limitations on judicial
review or the power or duty of the court to dismiss
any action or deny relief on any other appropriate
legal or equitable ground; or (2) confers authority
to grant relief if any other statute that grants
consent to suit expressly or impliedly forbids the
relief which is sought.

5 U.S.C. § 702. In light of the decision in Timken Co., the
Court does not read 19 U.S.C. § 1516a(c)(1) and 19 U.S.C. §
Court No. 04-00151 Page 21

remaining, then, is that of what relief is appropriate under these

facts.

C. What Relief is Appropriate

Declaratory relief is a simple and efficient vehicle for

ensuring the same result reached in Laclede Steel Co.: liquidation

of Plaintiffs’ entries in accord with the Court’s final decision.15

1516a(e) to impliedly forbid relief, nor does the Court read 19
U.S.C. § 1516a(c)(2)’s provision for injunctive relief to
impliedly forbid declaratory relief under the APA. Moreover,
declaratory relief is among this Court’s powers by statutory
grant. Title 28 U.S.C. § 1585 states:

The Court of International Trade shall possess all
the powers in law and equity of, or as conferred by
statute on, a district court of the United States.

28 U.S.C. § 1585. Title 28 U.S.C. § 2643(c)(1) provides, in
relevant part:

[T]he Court of International Trade may . . . order
any other form of relief that is appropriate in a
civil action, including, but not limited to,
declaratory judgments, orders of remand,
injunctions, and writs of mandamus and prohibition.

28 U.S.C. § 2643(c)(1).

15
Although the Court grants declaratory relief in this case,
it should be noted that Plaintiffs would likely prevail in a
claim for injunctive relief as well, were declaratory relief
unavailable. Defendant disputes this, but its arguments are to
no avail.
First, Defendant argues that because its published notice of
court decision was sufficient to apprise Plaintiffs of the
prospective application of Rhodia II, Plaintiffs could have filed
for relief under 28 U.S.C. § 1581(c) at that time. See Def.’s
Court No. 04-00151 Page 22

Mot. Dismiss at 31-32. As the Court has already explained, that
notice was not sufficient to apprise Plaintiffs of Defendant’s
determination. Therefore, failure to file suit to challenge this
determination at the time of the notice’s publication does not
show that Plaintiffs failed to avail themselves of an adequate
alternative remedy.
Second, Defendant argues that because Jilin has “slept on
its rights,” no irreparable harm can result from the liquidation
of the July 1, 2002 –- September 29, 2002 entries of Jilin’s
merchandise. See Def.’s Mot. Dismiss at 32. Jilin, however,
does not appear to have slept on its rights in this case,
challenging the liquidation instructions immediately after their
release. Because the Timken notice published by Defendant was
not sufficient notice of the decision to apply Rhodia II
prospectively, failure to sue upon that notice cannot support a
charge that Jilin has slept on its rights. Moreover, if Jilin’s
goods are liquidated in accordance with the liquidation
instructions, Jilin will lose the benefit of the decision in
Rhodia II as it relates to those goods and be forced to pay the
10.85 percent cash-deposit rate on those entries, rather than
have them assessed at zero. Such financial harm has been
considered sufficient to show irreparable harm for the purposes
of injunctive relief in this Court. See Laclede Steel Co. v.
United States, 20 CIT 712, 717-18, 928 F. Supp. 1182, 1186-87
(1996) (granting an injunction where the only harm plaintiff
would suffer was liquidation of its entries at a higher rate).
Third, Defendant argues that the public interest would
suffer were the relief granted and that the balance of hardships
favors the government. See Def.’s Mot. Dismiss at 34-35.
Defendant’s arguments on these points, however, are directed
toward Plaintiff’s challenge to the liquidation instructions
regarding entries Jilin made between June 6, 2000 and June 30,
2002. See id. This portion of the litigation has since been
voluntarily dismissed by Plaintiff, following the resolution of
the issues presented therein. See Pl.’s Mot. for Voluntary
Dismissal in Part and to Amend the Preliminary Injunction at 1.
Moreover, it appears to the Court that there can be no harm to
the public, as the case involves only Jilin’s entries over a
limited time period, and that, although an injunction would
require new liquidation instructions to be issued, because
liquidation of the entries at issue is already enjoined pursuant
to the Court’s preliminary injunction, the hardships to be
suffered by the government are few.
Fourth, a permanent injunction would appear to address the
“yo-yo” effect which the Court of Appeals for the Federal Circuit
found distasteful in Timken Co. As discussed above, if no
Court No. 04-00151 Page 23

Under the Declaratory Judgment Act, 28 U.S.C. § 2201,16 the only

jurisdictional prerequisite for this Court’s granting of

declaratory relief is the existence of an actual controversy. The

parties have stipulated that Jilin did make entries of bulk aspirin

from China during the time period covered by the liquidation

instructions. Therefore, it is clear that there is an actual

controversy in this case. Moreover, the existence of an

alternative adequate remedy, such as injunctive relief, is no bar

injunction were to issue, the entries at issue here would
liquidate simultaneously with preceding and subsequent entries,
but at a different rate from those entries. Moreover, this Court
has used a permanent injunction to resolve this difficulty in a
past case presenting very similar facts. See Laclede Steel Co.
v. United States, 20 CIT at 718, 928 F. Supp. at 1188.
The Court notes, however, that injunctive relief is
unnecessary in this case. Where the court can protect the
interests of a federal plaintiff by entering a declaratory
judgment, “the stronger injunctive medicine [appears to] be
unnecessary,” especially in light of the view that “ordinarily, .
. . the practical effect of [injunctive and declaratory] relief
will be virtually identical.” Doran v. Salem Inn, Inc., 422 U.S.
922, 931 (1975) (stating that at the conclusion of a successful
federal challenge to a state statute or local ordinance, a
district court can “generally protect the interests of a federal
plaintiff by entering a declaratory judgment,” thereby rendering
the extraordinary relief afforded by an injunction unnecessary)
(second alteration in original) (internal citation omitted).
16
Title 28 U.S.C. § 2201 states, in relevant part:

(a) In a case of actual controversy within its
jurisdiction . . . any court of the United States,
upon the filing of an appropriate pleading, may
declare the rights and other legal relations of any
interested party seeking such declaration, whether
or not further relief is or could be sought.

28 U.S.C. § 2201.
Court No. 04-00151 Page 24

to relief under the Declaratory Judgment Act. See 28 U.S.C. §

2201. Finally, 19 U.S.C. § 1516a(c)(2) does not operate to limit

this Court to injunctive relief, as the case at bar was brought

under 28 U.S.C. § 1581(i), rather than as a § 1516a action under 28

U.S.C. § 1581(c). See Shinyei Corp. of Am., 355 F.3d at 1307-10;

see also 28 U.S.C. § 1585, 28 U.S.C. § 2643(c)(1).

CONCLUSION

Declaratory judgment is within the power of this Court, and is

a simple and effective method of resolving the instant case.

Commerce’s liquidation instructions are not in accordance with law.

Commerce is required to issue liquidation instructions in

accordance with the opinion of this Court in Rhodia II. Therefore,

declaratory judgment will be entered for Plaintiffs.

/s/ Donald C. Pogue
Donald C. Pogue
Judge

Dated: June 29, 2004
New York, New York
 ERRATUM

Jilin Henghe Pharmaceutical Co. v. United States, Court No. 04-00151, Slip Op. 04-77, dated
June 29, 2004.

Page 6, note 6: The first sentence should read: “Plaintiff’s complaint also challenges
liquidation instructions concerning entries made during the first and
second administrative reviews, but, following the parties’ resolution of the
issues relating to these entries, Plaintiff subsequently voluntarily dismissed
its challenge regarding them, except with respect to a single entry, No.
D09-0929517-8, which Customs indicated could still be liquidated at a
non-zero rate.”

Page 14, note 10: The note should read: “Liquidation of Jilin’s entries through September
29, 2002 was suspended under the procedures for the three administrative
reviews. See Bulk Aspirin from the People’s Republic of China, 68 Fed.
Reg. 6,710, 6,711 (Dep’t Commerce Feb. 10, 2003) (final results of
antidumping duty review), Bulk Aspirin from the People’s Republic of
China, 68 Fed. Reg. 48,337, 48,338 (Dep’t Commerce Aug. 13, 2003)
(final results of antidumping duty review), Bulk Aspirin from the People’s
Republic of China, 69 Fed. Reg. 5,126, 5,127 (Dep’t Commerce Feb. 3,
2004) (notice of partial rescission of antidumping duty administrative
review).”

Page 15: The first sentence should read: “Nevertheless, Commerce argues that
Jilin’s entries made prior to September 29, 2002 should be liquidated at
the cash-deposit rate.”

Page 16: The first sentence of the final paragraph should read: “The Court
retroactively granted the motion for injunctive relief to prohibit entries
made during the periods of administrative review, but before the contrary
court decision, from being liquidated at the higher rate.”

August 24, 2004