Ad Hoc Shrimp Trade Action Comm. v. United States

• Decision Date: 27 September 2010
• Docket Number: Slip Op. 10-109.,Court No. 08-00283.
• Citation: 724 F.Supp.2d 1373
• Parties: AD HOC SHRIMP TRADE ACTION COMMITTEE, Plaintiff, v. UNITED STATES, Defendant, and Pakfood Public Company Limited, et al., Defendant-Intervenors.
• Court: U.S. Court of International Trade

724 F.Supp.2d 1373

AD HOC SHRIMP TRADE ACTION COMMITTEE, Plaintiff,

v. UNITED STATES, Defendant,andPakfood Public Company Limited, et al., Defendant-Intervenors.

Slip Op. 10-109. Court No. 08-00283.

United States Court of International Trade.

Sept. 27, 2010.

Pickard, Kentz and Rowe, LLP (Andrew W. Kentz and Nathaniel Maandig Rickard), for Plaintiff Ad Hoc Shrimp Trade Action Committee.

Tony West, Assistant Attorney General; Jeanne E. Davidson, Director, Franklin E. White, Jr., Assistant Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice (Stephen C. Tosini and Joshua E. Kurland), for Defendant United States.

White & Case LLP (Walter J. Spak, Christopher F. Corr, and Jay C. Campbell), Washington, DC, for Defendant-Intervenors Andaman Seafood Co., Ltd., Chanthaburi Frozen Food Co., Ltd., Chanthaburi Seafoods Co., Ltd., Phatthana Seafood Co., Ltd., Phatthana Frozen Food Co., Ltd., Thailand Fishery Cold Storage Public Co., Ltd., Thai International Seafoods Co., Ltd., and Rubicon Resources LLC.

Akin, Gump, Strauss, Hauer & Feld, LLP (Warren E. Connelly and Jarrod M. Goldfeder), Washington, DC, for Defendant-Intervenors Thai Union Seafood Co., Ltd. and Thai Union Frozen Products Public Co., Ltd.

Trade Pacific PLLC (Robert G. Gosselink and Jonathan M. Freed), for Defendant-Intervenors Pakfood Public Co., Ltd., Asia Pacific (Thailand) Co., Ltd., Chaophraya Cold Storage Co., Ltd., Okeanos Co. Ltd., and Takzin Samut Co., Ltd.

Before: WALLACH, Judge.

OPINION

WALLACH, Judge:

I

INTRODUCTION

This matter is before the court on a Partial Consent Motion to Modify the Preliminary Injunction (“Pakfood's Preliminary Injunction Motion”) filed by Defendant-Intervenors Pakfood Public Co., Ltd., Asia Pacific (Thailand) Co., Ltd., Chaophraya Cold Storage Co., Ltd., Okeanos Co. Ltd., and Takzin Samut Co., Ltd. (collectively, “Pakfood”). Judgment in the underlying action has been entered in favor of Defendant United States (“Defendant”) and against Plaintiff Ad Hoc Shrimp Trade Action Committee (“Ad Hoc”), and Ad Hoc has appealed. See April 29, 2010 Order; Notice of Appeal to the United States Court of Appeals for the Federal Circuit. Because Pakfood has not carried its burden of establishing that changed circumstances necessitate modification of the preliminary injunction while Ad Hoc's appeal is pending, Pakfood's Preliminary Injunction Motion is DENIED.

II

BACKGROUND

A. Preliminary Injunction Overview

In cases challenging antidumping determinations by the U.S. Department of Commerce (“Commerce”), “the United States Court of International Trade may enjoin the liquidation of some or all of the merchandise covered ..., 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). Entries subject to a preliminary injunction issued by this court “shall be liquidated in accordance with the final decision in the action.” Id. § 1516a(e)(2). Courts only grant preliminary injunctions when the party seeking such relief establishes that:

(1) absent the requested relief, it will suffer immediate irreparable harm;

(2) there exists in its favor a likelihood of success on the merits;

(3) the public interest would be better served by the requested relief; and(4) the balance of hardships on all parties tips in its favor.

Ad Hoc Shrimp Trade Action Comm. v. United States, 562 F.Supp.2d 1383, 1386-87 (2008) (citing Zenith Radio Corp. v. United States, 710 F.2d 806, 809 (Fed.Cir.1983)).

Preliminary injunctions granted by this court pursuant to 19 U.S.C. § 1516a(c)(2) emphasize the irreparable harm that results from liquidation. See SKF USA Inc. v. United States, 28 CIT 170, 176, 316 F.Supp.2d 1322 (2004) (“Because Plaintiffs have shown that in the absence of a preliminary injunction, they would suffer irreparable harm, they are required only to raise serious, substantial, difficult and doubtful questions to satisfy their burden of proving a likelihood of success on the merits.”) (Quotation omitted).

This court grants preliminary injunctions in antidumping cases when it is essential for the protection of a party's property rights against injuries otherwise irremediable. Liquidation of a party's entries is the final computation or ascertainment of duties accruing on those entries. Once liquidation occurs, it permanently deprives a party of the opportunity to contest Commerce's results for the administrative review by rendering the party's cause of action moot.

Id. at 173, 316 F.Supp.2d at 1327 (citations omitted); see Zenith Radio, 710 F.2d at 809-10.

The Supreme Court in 2008 reversed lower courts for not considering the “likelihood of success on the merits” before ordering a preliminary injunction, the demonstration of which is required before issuing the “extraordinary and drastic remedy [that] is never awarded as of right.” Munaf v. Geren, 553 U.S. 674, 128 S.Ct. 2207, 2219, 171 L.Ed.2d 1 (2008) (internal quotation and citations omitted). The Federal Circuit in 2009 reconciled this concern with preliminary injunctions to prevent liquidation as follows:

The court takes very seriously the Supreme Court's recent emphasis on the importance of the likelihood of success in the preliminary injunction calculus. But the court also recognizes that 19 U.S.C. § 1516a(c)(2) envisions the use of preliminary injunctions in the antidumping context to preserve proper legal options and to allow for a full and fair review of duty determinations before liquidation.

Qingdao Taifa Group Co. v. United States, 581 F.3d 1375, 1382 (2009) (citation omitted).

B. This Litigation and Pakfood's Preliminary Injunction Motion

Ad Hoc in September 2008 initiated its challenge to numerous Commerce actions that resulted in Certain Frozen Warmwater Shrimp From Thailand: Final Results and Final Partial Rescission of Antidumping Duty Administrative Review, 73 Fed.Reg. 50,933 (August 29, 2008) (“ Final Results”). See Complaint. Commerce in that administrative review selected four mandatory respondents by largest volume, including Pakfood. See Ad Hoc Shrimp Trade Action Comm. v. United States, 675 F.Supp.2d 1287, 1292-93 (CIT 2009). Commerce calculated antidumping margins for each of the four mandatory respondents, and the remaining cooperative companies subject to the review received the weighted-average dumping margin. See id. at 1296; Final Results, 73 Fed.Reg. at 50,937-38.

Ad Hoc in September 2008 sought a preliminary injunction to enjoin liquidation of the entries covered by the Final Results. Plaintiff's Consent Motion for Preliminary Injunction to Enjoin Liquidation of Certain Entries. Ad Hoc argued that each preliminary injunction factor favored issuance, id. at 4-9, and Defendant consented to the requested relief despite not conceding the likelihood of Ad Hoc succeeding on the merits, id. at 9. This court granted the preliminary injunction. September 10, 2008 Order (“Preliminary Injunction”). The Preliminary Injunction enjoined Commerce and U.S. Customs and Border Protection, “during the pendency of this action, from liquidating, or causing or permitting liquidation of, any unliquidated entries of certain frozen warmwater shrimp from Thailand that: (1) are covered by [the Final Results];” and “(2) were produced and/or exported by” listed companies that included Pakfood. Id. at 1-2. The Preliminary Injunction concluded that “entries subject to this injunction shall be liquidated in accordance with the final court decision in this action as provided in 19 U.S.C. § 1516a(e).” Id. at 4.

Pakfood and other mandatory respondents in the underlying administrative review thereafter entered this action as defendant-intervenors. See, e.g., September 16, 2008 Order. In November 2008, Pakfood moved to sever the first two counts of Ad Hoc's Complaint from the remaining counts. See Defendant Intervenors' Motion to Sever Counts I and II of Plaintiff's Complaint and To Establish These Counts as a Separate Civil Action (“Pakfood's Motion to Sever”). These first two counts, the only that apply to Pakfood, ¹ challenged the process through which Commerce selected the mandatory respondents and the number of mandatory respondents. See Complaint ¶¶ 9-20.

In March 2009, Pakfood's Motion to Sever was denied, and Ad Hoc's action was consolidated with a separate challenge to the Final Results initiated by Defendant-Intervenors Andaman Seafood Co., Ltd., Chanthaburi Frozen Food Co., Ltd., Chanthaburi Seafoods Co., Ltd., Phatthana Seafood Co., Ltd., Phatthana Frozen Food Co., Ltd., Thailand Fishery Cold Storage Public Co., Ltd., Thai International Seafoods Co., Ltd., and Rubicon Resources LLC (collectively, the “Rubicon Group”). See March 17, 2009 Order. In December 2009, this court rendered its determination on the consolidation action. Ad Hoc Shrimp, 675 F.Supp.2d 1287. The Rubicon Group's challenge was voluntarily remanded to Commerce, and every Ad Hoc claim was denied. See id. at 1312. With respect to the first and second counts of Ad Hoc's Complaint, this court held that Commerce properly selected four mandatory respondents by largest volume and that Ad Hoc failed to exhaust its administrative remedies. See id. at 1298-1302.

Pakfood in April 2010 moved for modification of the Preliminary Injunction to exclude Pakfood. See Pakfood's Preliminary Injunction Motion. The other defendant-intervenors consented to Pakfood's Preliminary Injunction Motion. See id. at 13. Ad Hoc opposed Pakfood's Preliminary Injunction Motion. See id. Defendant opposed Pakfood's Preliminary Injunction Motion and also filed a consent motion to sever the Rubicon Group's remanded action from that initiated by Ad Hoc. See Defendant's Response to Pakfood's Motion to Amend the Court's Preliminary Injunction; Defendant's Consent Motion to Sever Cases and to Enter Judgment. This court granted the severance, see April 29, 2010 Order, and entered judgment in favor of Defendant...