Ssab North American v. U.S. Bureau of Customs, Slip Op. 08-77. Court No. 07-00057.

Citation571 F.Supp.2d 1347
Decision Date14 July 2008
Docket NumberSlip Op. 08-77. Court No. 07-00057.
PartiesSSAB NORTH AMERICAN DIVISION and Nucor Corporation, Plaintiffs, v. UNITED STATES BUREAU OF CUSTOMS AND BORDER PROTECTION, W. Ralph Basham, Commissioner of Customs, Defendants.
CourtU.S. Court of International Trade

Schagrin Associates, (Roger B. Schagrin, Brian E. McGill, Michael J. Brown), Washington, DC, for Plaintiff SSAB North American Division.

Wiley Rein, LLP, (Alan H. Price, Maureen E. Thorson, Timothy C. Brightbill), Washington, DC, for Plaintiff Nucor Corporation.

Gregory G. Katsas, Acting Assistant Attorney General; Barbara S. Williams, Attorney in Charge, International Trade Field Office, Commercial Litigation Branch, Civil Division, Department of Justice (Amy M. Rubin), for Defendants.

Arent Fox Kintner Plotkin & Khan, PLLC, (John M. Gurley, Diana Dimitriuc-Quaia, Nancy A. Noonan), Washington, DC, for Defendant-Intervenors Mittal Steel Galati, S.A. and Sidex Trading S.R.L. Galati.

OPINION

GORDON, Judge.

This case involves the premature liquidation of entries by U.S. Customs and Border Protection ("Customs") during an antidumping administrative review in violation of the statutory suspension of liquidation contained in Section 751(a)(2) of the Tariff Act of 1930, as amended, 19 U.S.C. § 1675(a)(2)(2000).1 Plaintiffs seek reliquidation of the entries in accordance with the court's judgment in Mittal Steel Galati, S.A. v. United States, 31 CIT ___, 491 F.Supp.2d 1273 (2007) ("Mittal"). The Court has jurisdiction pursuant to 28 U.S.C. § 1581(i)(2) & (4) (2000). For the reasons set forth below, the court declares the liquidations unlawful, but declines to issue a mandatory injunction ordering reliquidation in accordance with the judgment in Mittal.

I. Background

The United States Department of Commerce ("Commerce") conducted an administrative review of the antidumping duty order on cut-to-length carbon steel plate from Romania for entries made between August 1, 2003 and July 31, 2004. Certain Cut-to-Length Carbon Steel Plate from Romania, 71 Fed.Reg. 7008 (Dep't Commerce Feb. 10, 2006) (final results admin. review) ("Final Results"). Unbeknownst to Commerce and interested parties, Customs violated the statutory suspension of liquidation during the administrative review by liquidating four entries on April 22, 2005, resulting in under-collection of the applicable antidumping duties.

Commerce first learned of the incorrect liquidations shortly after the Final Results were challenged in Mittal. Customs notified Commerce of the error in response to Commerce's March 10, 2006, instructions to continue suspension of liquidation pending completion of judicial review. Commerce, in turn, asked Customs to restore the entries, but Customs refused based on a lack of statutory authorization. The court, unaware of the liquidated entries, issued a preliminary injunction on March 7, 2006, continuing suspension of liquidation. On May 14, 2007, the court sustained the Final Results. Mittal, 31 CIT ___, 491 F.Supp.2d 1273 (2007). Plaintiffs first learned about the incorrect liquidations on or around May 14, 2006 and commenced this action on February 14, 2007. Defendants and Defendant-Intervenors subsequently filed motions to dismiss, which the court denied. Ipsco Steel Inc. v. United States, No. 07-00057 (USCIT Nov. 20, 2007) (order denying motions to dismiss).

Together with their complaint, Plaintiffs filed a petition for a writ of mandamus. The writ of mandamus is an extraordinary remedy with three requirements: (1) defendant must owe plaintiff a clear, nondiscretionary duty; (2) plaintiff must have no adequate alternative remedies; and (3) the issuing court must be satisfied that the writ is appropriate under the circumstances. Cheney v. U.S. Dist. Court for D.C., 542 U.S. 367, 380, 124 S.Ct. 2576, 159 L.Ed.2d 459 (2004). Mandamus, though, is not applicable in this case because the requirement that plaintiff have no adequate, alternative remedies is not satisfied.

Plaintiffs have a remedy under § 706(2) of the Administrative Procedure Act (APA) to have the court set aside unlawful agency action, 5 U.S.C. § 706(2), and mandamus is therefore technically not available. See generally 3 Charles H. Koch, Jr., Administrative Law and Practice § 8.20[4] (2d ed.2008) ("mandamus should be and generally has been replaced in modern administrative law by more flexible and better designed forms [of action] and remedies"). Importantly, this case does not involve the failure to perform a non-discretionary duty (agency inaction); it involves unlawful agency action—Customs' premature liquidation of subject entries. Properly framed, the relief Plaintiffs seek is not mandamus, but a declaration that Customs' action is unlawful, and a mandatory injunction directing Customs to reliquidate the entries in accordance with the judgment in Mittal. See id. at § 8.20[3]. It is to those, specific remedies that the court now turns.

II. Discussion
A. Declaratory Relief for Customs' Violation of the Statutory Suspension of Liquidation

"[T]he United States uses a `retrospective' assessment system under which final liability for antidumping ... duties is determined after merchandise is imported." 19 C.F.R. § 351.212(a) (2003); see 19 U.S.C. § 1675(a)(2). "While liability to pay dumping duties accrues upon entry of subject merchandise, see 19 C.F.R. § 141.1(a), the actual duty is not formally determined until after entry, and not paid until the [entries] are liquidated by [Customs]." Parkdale Int'l v. United States, 475 F.3d 1375, 1376-77 (Fed.Cir.2007). "Generally, the amount of duties to be assessed is determined in a review of the order covering a discrete period of time." 19 C.F.R. § 351.212(a) (2003).

The most important element of this retrospective assessment system is the statutorily implied suspension of liquidation contained in 19 U.S.C. § 1675(a)(2) that applies to entries of subject merchandise covered by an administrative review of an antidumping duty order. See American Permac, Inc. v. United States, 10 CIT 535, 539, 642 F.Supp. 1187, 1191 (1986) ("Because 19 U.S.C. § 1675(a)(2) expressly calls for the retrospective application of antidumping review determinations ..., suspension of liquidation during the pendency of a periodic antidumping review is unquestionably `required by statute.'"); see also Ambassador Div. of Florsheim Shoe v. United States, 748 F.2d 1560 (Fed. Cir.1984) (suspension of liquidation impliedly required by statute during administrative review of countervailing duty order to effectuate retrospective system of duty assessment); Koyo Corp. v. United States, 497 F.3d 1231, 1241-42 (Fed.Cir.2007).

This suspension of liquidation enables Commerce to calculate assessment rates for the subject entries, see 19 U.S.C. § 1675(a)(2), which are then applied by Customs pursuant to liquidation instructions received from Commerce after publication of the final results of an administrative review. See 19 U.S.C. § 1675(a)(3)(B) (Customs must liquidate "promptly and, to the greatest extent practicable, within 90 days after the instructions to Customs are issued."). Under this framework Commerce performs the substantive role of determining correct assessment rates, and Customs performs a ministerial role in fulfilling Commerce's liquidation instructions. Mitsubishi Elec. Am., Inc. v. United States, 44 F.3d 973, 977 (Fed.Cir.1994) ("Customs merely follows Commerce's instructions in assessing and collecting duties."); Koyo Corp., 497 F.3d at 1242 ("Our holding also comports with Congress' intent to delegate to Commerce the authority to establish special duty rates, leaving Customs only the ministerial capacity to liquidate antidumping duties according to Commerce's directions as determined through the administrative and judicial review process.").

For the antidumping statutory scheme to work, Customs may not violate the suspension of liquidation contained in 19 U.S.C. § 1675(a)(2) and render Commerce's administrative review and any subsequent judicial review a meaningless exercise for subject entries, which is precisely what happened here. Accordingly, Customs' premature liquidation of entries in violation of the statutory suspension of liquidation is unlawful.

B. Injunctive Relief to Reliquidate the Entries in Accordance with Final Judgment in Mittal

Having declared the liquidations in issue unlawful, the next question is whether the court should issue a mandatory injunction to direct Customs to reliquidate them in accordance with the judgment in Mittal. See 3 Charles H. Koch, Jr., Administrative Law and Practice § 8.31[4](c) (2d ed.2008) ("injunctive relief under the APA is controlled by principles of equity and a court is not required to set aside every unlawful agency action"). The extraordinary remedy of injunction is governed by a four factor test in which plaintiff must demonstrate: "(1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction." eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391, 126 S.Ct. 1837, 164 L.Ed.2d 641 (2006) (citations omitted). The "four-factor test" is a balancing test. See, e.g., Amoco Prod. Co. v. Gambell, 480 U.S. 531, 542 & 546 n. 12, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987).

(1) Irreparable Harm & Lack of Alternative Remedies2

The harm Plaintiffs have suffered is apparent. As domestic producers of cut-to-length carbon steel plate, Plaintiffs derive a direct competitive benefit from the proper administration and enforcement of the antidumping laws, and more specifically, the proper assessment of antidumping duties on entries of cut-to-length carbon steel plate from Romania. Customs' liquidation...

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