Böhler-Uddeholm Corp. v. United States ( 1999 )

Slip Op. 99-114
UNITED STATES COURT OF INTERNATIONAL TRADE
________________________________________
:
BÖHLER-UDDEHOLM CORPORATION, :
:
Plaintiff, : Consol. Court
: No. 95-08-01024
v. :
:
THE UNITED STATES, :
:
Defendant, :
:
and :
:
ALLEGHENY LUDLUM STEEL CORPORATION,
:
WASHINGTON STEEL CORPORATION, and :
G.O. CARLSON, INC. :
:
Defendant-Intervenors. :
________________________________________:
[Injunction pending appeal granted.]
Dated: October 22, 1999
O'Donnell & Williams, (R. Kevin Williams) for plaintiff.
David W. Ogden, Acting Assistant Attorney General, David M.
Cohen, Director, Commercial Litigation Branch, Civil Division, United
States Department of Justice (Lucius B. Lau), Carlos A. Garcia,
Attorney-Advisor, Office of the Chief Counsel for Import
Administration, United States Department of Commerce, of counsel, for
defendant.
Collier, Shannon, Rill & Scott, PLLC, (John B. Brew and Jeffrey
S. Beckington) for defendant-intervenors.
OPINION
RESTANI, Judge: This matter is before the court on
plaintiff’s motion for injunction of liquidation pending
CONSOL. COURT NO. 95-08-01024 PAGE NO. 2
appeal.1
Plaintiff appealed the court’s judgment affirming the
determination of the United States Department of Commerce that its
products, Stavax and Ramax, were within the scope of the antidumping
duty order on Stainless Steel Plate from Sweden. See Böhler-Uddeholm
Corp. v. United States, No.95-08-01024, 1998 WL 249167, at *1 (Ct.
Int’l Trade May 14, 1998), appeal filed, No. 98-1565 (Fed. Cir. July
6, 1998). Plaintiff now seeks a stay of liquidation of entries made
during the period June 1, 1998 through May 31, 1999, so that it may
recover the estimated duties paid, if it is successful in its appeal
of the scope issue. The United States consents to the stay, but it
is opposed by defendant-intervenors, the domestic steel producers.
Defendant-intervenors first object that the motion is untimely.
An administrative review of the entries at issue, however, resulted
in suspension of liquidation of those entries. Thus, a court ordered
stay was unnecessary during the pendency of the review. The Commerce
Department terminated the review on September 14, 1999. See
Stainless Steel Plate from Sweden: Notice of Recission of Antidumping
Administrative Review, 64 Fed. Reg. 49,773, 49,774 (Dep’t Commerce
1 Plaintiff styled its motion as one for preliminary
injunction, but it is properly brought pursuant to CIT Rule 62(d),
and 19 U.S.C. § 1516a(c)(2) (1994). If applicable, the requirement
of a supersedeas bond has been met by the prepayment of estimated
duties on the unliquidated entries, as required by 19 U.S.C.
§ 1673e(a)(3) (1994). Defendant-intervenors allege no possible basis
for a bond.
CONSOL. COURT NO. 95-08-01024 PAGE NO. 3
1999). Thereafter Commerce issued liquidation instructions to the
Customs Service. Pl.’s Br. at 2. The instant motion was made
promptly upon the threat of imminent liquidation and is timely.
Defendant-intervenors also assert that the standard for
injunctive relief is not met. First, they assert that Zenith Radio
Corp. v. United States, 710 F.2d 806, 808 (Fed. Cir. 1983) (stay of
liquidation pending appeal by domestic producers of annual review
determination) does not apply because liquidation of these entries
will not moot the scope issue before the appellate court. Def.-
Intervenor’s Br. at 3. Plaintiffs, however, are importers. They
will lose their right to recover the duties paid for the period at
issue if stay is not granted. That such recovery depends on the
scope determination, as opposed to issues which might be addressed
more effectively in an administrative review, is not determinative.
Further, in Zenith more than preservation of appellate review was at
stake. Zenith, at 810. Because the adminstrative review set future
deposit rates, the entire dispute would not have been mooted by
liquidation of past entries. Id. Likewise, just because the entire
scope dispute is not mooted by liquidation of this set of entries,
does not mean that plaintiffs will not suffer irreparable harm in the
form of permanently lost duties, if stay of liquidation is not
granted. The stay sought is appropriately limited to only the
CONSOL. COURT NO. 95-08-01024 PAGE NO. 4
potential irreparable harm plaintiff would suffer in the absence of
the stay.
Second, although the court ruled against plaintiffs, it also
made clear in its four opinions in this matter that the scope issue
was a difficult one, as demonstrated by the repeated consideration of
the issue. See Böhler-Uddeholm Corp. v. United States, 20 CIT 1336,
1342-43, 946 F. Supp. 1003, 1008-1009 (1996) (remanding Commerce’s
scope determination), 978 F. Supp. 1176, 1181-1185 (Ct. Int’l Trade
1997) (remanding Commerce’s scope determination again), No. 95-08-
01024, 1997 WL 792936, at *1-2 (Ct. Int’l Trade Dec. 22, 1997)
(remanding Commerce’s scope determination to allow consideration of
the full record), 1998 WL 249167, at *2 (affirming Commerce’s scope
determination). There is no clear answer as to whether or how
Commerce may amend a twenty year old scope ruling, as it did here.
Böhler-Uddeholm Corp., 1998 WL 249167, at *1. There are serious and
substantial questions for appeal as to whether this situation meets
the appropriate standard for such an amendment.
Third, the only party capable of suffering hardship in this
matter is plaintiff. It was required to pay such estimated duties as
were owed. The government’s and defendant-intervenors’ rights are
fully protected, as the government obviously recognizes.
Fourth, injunction is in the public interest. Defendant-
intervenors would have a party such as plaintiff request an
CONSOL. COURT NO. 95-08-01024 PAGE NO. 5
administrative review, with all the time and effort such a review
would entail, merely for the purpose of continuing a suspension of
liquidation. Def.-Intervenor’s Br. at 2. The relief plaintiff seeks
is available through injunction pending appeal, at no cost or
inconvenience to anyone, and without gearing up the entire
administrative process for no good reason.
Accordingly, the court concludes that the requirements for
injunctive relief, recognized in FMC Corp. v. United States, 3 F.3d
424, 427 (Fed. Cir. 1993),2 are met. Injunction pending appeal is
granted. The terms of the injunction are set forth separately.
_______________________
Jane A. Restani
JUDGE
Dated: New York, New York
This 22nd day of October, 1999.
2 In order to obtain an injunction, the movant carries the
burden to establish: “1) that the movant is likely to succeed on the
merits [on appeal]; 2) that it will suffer irreparable harm if
[provisional] relief is not granted; 3) that the balance of the
hardships tips in the movant’s favor; and 4) that a [provisional]
injunction will not be contrary to the public interest.” Id.(citations omitted).