Corus Staal BV v. United States , 28 Ct. Int'l Trade 1781 ( 2004 )

SLIP OP. 04-132
UNITED STATES COURT OF INTERNATIONAL TRADE
__________________________________________
:
CORUS STAAL BV, :
:
Plaintiff, :
:
v. :
:
UNITED STATES, : Court No. 04-00316
:
Defendant, :
:
and :
:
UNITED STATES STEEL CORPORATION, :
:
Defendant-Intervenor. :
__________________________________________:
[Plaintiff’s Partial Consent Motion for Preliminary Injunction Granted.]
Dated: October 19, 2004
Steptoe & Johnson LLP (Richard O. Cunningham, Joel D. Kaufman, Alice A. Kipel and
Troy H. Cribb) for plaintiff.
Peter D. Keisler, Assistant Attorney General, David M. Cohen, Director, Jeanne E.
Davidson, Deputy Director, Commercial Litigation Branch, Civil Division, United States
Department of Justice (Claudia Burke), Barbara J. Tsai, Office of Chief Counsel for Import
Administration, United States Department of Commerce, of counsel, for defendant.
Skadden, Arps, Slate, Meagher & Flom LLP (John J. Mangan) for defendant-intervenor.
MEMORANDUM OPINION
RESTANI, Chief Judge:
Before the court is a partially consented to motion for “preliminary injunction” under
19 U.S.C. § 1516a(c)(2) (2000) to stay liquidation of entries pending litigation in this unfair
trade matter. In fact, this statutory injunction is not an ordinary preliminary injunction but a
COURT NO. 04-00316 Page 2
special injunction to prevent liquidation of entries until a final and conclusive judicial decision,
as referenced in 19 U.S.C. § 1516a(e), is reached. Such a decision does not occur until all
avenues of appeal are exhausted. See Timken Co. v. United States, 893 F.2d 337, 339 (Fed. Cir.
1990) (holding that “an appealed CIT decision is not a ‘final court decision’ within the plain
meaning of § 1516a(e)”); accord Cemex, S.A. v. United States, No. 04-1058,-1080 at *18 (Fed.
Cir. Sept. 28, 2004); Fujitsu Gen. Am., Inc. v. United States, 283 F.3d 1364, 1379 (Fed. Cir.
2002).
The only issue before the court is the duration of the injunction. The government asserts
that an injunction which extends beyond the end of litigation in this court is unnecessary, and
that if an opinion is issued which is not in harmony with its administrative determination,
administrative suspension will occur. On the other hand, if the court issues an opinion in
harmony with the agency determination, the government states it may commence liquidation
despite any rights of appeal.* Of course, plaintiffs may seek an injunction pending appeal, but
that would entail further use of attorney and judicial resources. Presumably, there are no unusual
fact scenarios which would make this dispute suitable for the statutory injunction at one judicial
level but not the next.
Further, given the recent difficulties in this court with liquidation in violation of court
orders, see, e.g., AK Steel Corp. v. United States, 281 F. Supp. 2d 1318 (Ct. Int’l Trade 2003), it
seems prudent to attempt to avoid creating any opportunities for error and to bar any liquidation
until all litigation is complete. This disposition is in accord with recent decisions of this court.
*
The court has ruled the government’s policy of proceeding with liquidation within the
period for appeal unlawful. Tianjin Mach. Import & Export Corp. v. United States, No. 02-
00637, Slip Op. 04-125 at 29–32 (Ct. Int’l Trade Oct. 4, 2004).
COURT NO. 04-00316 Page 3
See, e.g., PAM, S.p.A. v. United States, No. 04-00082, Slip Op. 04-66 at 11–15 (Ct. Int’l Trade
June 10, 2004), SKF USA Inc. v. United States, 316 F. Supp. 2d 1322, 1333–35 (Ct. Int’l Trade
2004), Yancheng Baolong Biochemical Prods. Co., Ltd. v. United States, 277 F. Supp. 2d 1349,
1358–60 (Ct. Int’l Trade 2003). In addition, there is nothing in the statute which limits the
court’s discretion in fashioning an injunction appropriate to the case and the preliminary
injunction law of the various circuits, which might indicate a preliminary injunction terminates
with the conclusion of litigation in the trial court, does not apply to the special statutory
injunction at issue. The injunction lasts according to its terms, which a court may adjust as it
sees fit. See United States v. Swift & Co., 286 U.S. 106, 114 (1932) (courts retain power to
modify their injunctions). At this time, the court sees no reason why the fullest possible
injunction of liquidation should not be granted.
ACCORDINGLY, plaintiff’s proposed order granting an injunction of liquidation until a
final and conclusive court decision is reached will be entered.
/s/ Jane A. Restani
Jane A. Restani
Chief Judge
Dated: New York, New York.
This 19th day of October, 2004.