Agro Dutch Industries Ltd. v. U.S.

Decision Date07 January 2005
Docket NumberSlip Op. 05-2.,Court No. 02-00499.
Citation358 F.Supp.2d 1293
PartiesAGRO DUTCH INDUSTRIES LIMITED, Plaintiff, v. UNITED STATES, Defendant, and Coalition For Fair Preserved Mushroom Trade, Intervenor-Defendant.
CourtU.S. Court of International Trade

Garvey Schubert Barer (Lizbeth R. Levinson, John C. Kalitka and Ronald M. Wisla), Washington, DC, for the plaintiff.

Peter D. Keisler, Assistant Attorney General; David M. Cohen, Director, and Jeanne E. Davidson, Deputy Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice (A. David Lafer); and Office of Chief Counsel for Import Administration, U.S. Department of Commerce (William G. Isasi), of counsel, for the defendant.

Collier Shannon Scott, PLLC (Michael J. Coursey and Adam H. Gordon), Washington, DC, for the intervenor-defendant.

Opinion

AQUILINO, Senior Judge.

By letter dated November 23, 2004, counsel for the plaintiff seek to supplement their motion for judgment upon the administrative record compiled by the International Trade Administration, U.S. Department of Commerce ("ITA") sub nom. Certain Preserved Mushrooms From India: Final Results of Antidumping Duty Administrative Review, 67 Fed.Reg. 46,172 (July 12, 2002). In addition to contesting various elements of that agency determination, plaintiff's motion represents that "many"1 or "almost all"2 entries within the determination's purview have already been liquidated by Customs pursuant to ITA instructions. Whereupon the plaintiff prays that

the Court order the liquidations [ ] be rescinded and the entries reliquidated in accordance with the corrected final results of the Department, as ordered by the Court.

Plaintiff's Reply Brief, p. 13.

I

Before relief of any kind can be granted, of course, a court of limited jurisdiction must determine that the matter brought before it remains within the metes and bounds of such delimitation.3 They are for an action such as this that a summons be filed within 30 days after publication of the ITA's determination, followed no later than 30 days thereafter by the docketing of a complaint. See 19 U.S.C. § 1516a(a)(2)(A). See also 28 U.S.C. §§ 1581(c), 2631(c), 2632(c), 2636(c). On its face, this waiver of sovereign immunity is slim. Parties to the ITA proceedings, like the plaintiff at bar and experienced counsel, understand this. They are also aware that the courts have confirmed that the statutes cited have "no provision permitting reliquidation in this [type of] case ... after liquidation". Zenith Radio Corp. v. United States, 710 F.2d 806, 810 (Fed.Cir.1983).

In this case, we conclude that liquidation would indeed eliminate the only remedy available ... for an incorrect review determination by depriving the trial court of the ability to assess dumping duties ... in accordance with a correct margin on entries in the ... review period. The result of liquidating the ... entries would not be economic only. In this case, [the] statutory right to obtain judicial review of the determination would be without meaning for the only entries permanently affected by that determination. In the context of Congressional intent in passing the Trade Agreements Act of 1979 and the existing finding of injury to the industry ..., we conclude that the consequences of liquidation do constitute irreparable injury.

Id. See, e.g., SKF USA Inc. v. United States, 28 CIT ___, ___, 316 F.Supp.2d 1322, 1327 (2004).

Here, the record reflects timely compliance with the brief periods of limitation for commencement of this action. It also reflects substitution of counsel for the plaintiff thereafter and submission by the second law firm (some 73 days after commencement) of an application for a preliminary injunction that

ENJOINED during the pendency of this action ... liquidation of any and all unliquidated entries of certain preserved mushrooms exported by Agro Dutch Industries Limited that are covered by Certain Preserved Mushrooms from India: Final Results of Administrative Review, 67 Fed.Reg. 46172 ... [,] and were entered or withdrawn from warehouse, f[or] consumption between February 1, 2000, through January 31, 2001, and remain unliquidated as of 5:00 p.m. on the fifth business day upon which copies of this ORDER are personally served by plaintiff[,]

to quote from the court's injunction signed the same day the application was filed.

As indicated, plaintiff's motion for judgment would extend relief to all entries, liquidated and unliquidated. Its papers point to a notice detected on the Department of Commerce's website, to wit:

The Department ... announces that, effective immediately, it intends to issue liquidation instructions pursuant to administrative reviews conducted under section 751 of the Tariff Act of 1930, as amended, to the U.S. Customs Service within 15 days of publication of the final results of review in the Federal Register or any amendments thereto. This announcement applies to reviews conducted under sections 751(a)(1) and (2) of the Tariff Act. If you have any questions, please contact the staff member identified in the notice of final results of review published in the Federal Register.

Plaintiff's Brief, pp. 26-27 n. 6, citing U.S. Dep't of Commerce, Import Admin., Announcement Concerning Issuance of Liquidation Instructions Reflecting Results of Administrative Reviews (Aug. 9, 2002), available at http://ia.ita.doc.gov/download/liquidation-announcement.html. The plaintiff also points to Tianjin Machinery Import & Export Corp. v. United States, 353 F.Supp.2d 1294, 28 CIT ___ (CIT 2004), appeal docketed, No. 05-1077 (Fed.Cir. Nov. 15, 2004), wherein the plaintiff also took issue with the foregoing change in ITA approach to liquidation on the ground that it was in conflict with the 60-day period contemplated by the statutes and related Court of International Trade rules of practice. The court concluded that this "new policy is not in accordance with law." 28 CIT at ___, 353 F.Supp.2d at 1308 (footnote omitted). The declaratory judgment entered thereon does not appear, however, to have any impact on the jurisdiction or merits of that action. The same can be said of the subsequent opinion in Corus Staal BV v. United States, 2004 WL 2359321, 28 CIT ___ (CIT Oct. 19, 2004), which, in extending a partial-consent motion for a...

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2 cases
  • Trustees of N. Amer. Rubber Thread v. U.S.
    • United States
    • U.S. Court of International Trade
    • October 18, 2006
    ...that the matter brought before it remains within the metes and bounds of such delimitation." Agro Dutch Indus. Ltd. v. United States, 29 CIT ___, ___, 358 F.Supp.2d 1293, 1294 (2005). The CIT's principal jurisdictional statute is 28 U.S.C. § 1581. Subsections (a) through (h) of this statute......
  • Mittal Steel Galati S.A. v. U.S.
    • United States
    • U.S. Court of International Trade
    • July 18, 2007
    ...Commerce also argues that the affected parties bear the burden of enjoining liquidation, citing Agro Dutch Indus. Ltd. v. United States, 29 CIT ___, 358 F.Supp.2d 1293, 1295-96 (2005).27 Faced with these competing claims, the court must begin its analysis by determining the degree of defere......

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