American Signature, Inc. v. U.S., No. 2010-1023 (Fed. Cir. 3/10/2010), 2010-1023.

• Decision Date: 10 March 2010
• Docket Number: No. 2010-1023.,2010-1023.
• Parties: AMERICAN SIGNATURE, INC., Plaintiff-Appellant, v. UNITED STATES, Defendant-Appellee, and AMERICAN FURNITURE MANUFACTURERS COMMITTEE FOR LEGAL TRADE and VAUGHAN-BASSETT FURNITURE COMPANY, INC., Defendants-Appellees.
• Court: U.S. Court of Appeals — Federal Circuit

Page 1

AMERICAN SIGNATURE, INC., Plaintiff-Appellant, v. UNITED STATES, Defendant-Appellee, and AMERICAN FURNITURE MANUFACTURERS COMMITTEE FOR LEGAL TRADE and VAUGHAN-BASSETT FURNITURE COMPANY, INC., Defendants-Appellees.

No. 2010-1023.

United States Court of Appeals, Federal Circuit.

Decided: March 10, 2010.

Appeal from the United States Court of International Trade in case no. 09-CV-0400, Judge Leo M. Gordon.

R. Will Planert, Troutman Sanders LLP, of Washington, DC, argued for plaintiff-appellant. With him on the brief were Jeffrey S. Grimson, Donald B. Cameron, Julie C. Mendoza, Brady W. Mills and Mary S. Hodgins.

Stephen C. Tosini, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for defendant-appellee United States. With him on the brief were Tony West, Assistant Attorney General, Jeanne E. Davidson, Director, and Patricia M. McCarthy, Assistant Director. Of counsel on the brief was Edward N. Maurer, Deputy Assistant Chief Counsel, International Trade Litigation, United States Customs and Border Protection, of New York, New York.

Joseph W. Dorn, King & Spalding LLP, of Washington, DC, argued for defendants-appellees American Furniture Manufacturers Committee for Legal Trade, et al. With him on the brief were Ashley C. Parrish, J. Michael Taylor, Eric M. Wachter and Steven R. Keener.

Before RADER, CLEVENGER, and DYK, Circuit Judges.

DYK, Circuit Judge.

American Signature, Inc. ("ASI") appeals from a decision of the Court of International Trade denying ASI's motion for a preliminary injunction. See Am. Signature, Inc. v. United States, No. 09-00400 (Ct. Int'l Trade Oct. 13, 2009) ("ASI I"). Because we conclude that ASI has satisfied the conditions for the issuance of a preliminary injunction, we reverse.

BACKGROUND

The antidumping law imposes special duties upon imports of merchandise sold at less than normal value to the detriment of a domestic industry. 19 U.S.C. § 1673. ASI is an importer of furniture that is subject to a January 4, 2005, antidumping duty order on certain entries of wooden bedroom furniture from China.¹ The second administrative review of this order was initiated on March 7, 2007. Such administrative reviews are designed to revisit the original antidumping duty order in order to determine whether dumping has occurred and, if so, the amount of antidumping duties that are owed, and the amount of future cash deposit rates (in effect, dumping duties imposed on future entries). See generally Ugine & ALZ Belg. v. United States, 551 F.3d 1339, 1341 (Fed. Cir. 2009) ("Ugine II"). ASI imported subject merchandise exported by the Chinese exporter Dare Group during the second period of review, that is, January 1, 2006 — December 31, 2006, and participated as a party to that review. The Department of Commerce ("Commerce") published its final results of that administrative review on August 20, 2008 ("Final Results").²

For the purpose of calculating antidumping duties in its administrative reviews, Commerce calculates a dumping margin for each exporter, which is calculated based on all of the subject merchandise it exports to the United States.³ The dumping margin is a dollar figure and is defined as "the amount by which the normal value exceeds the export price . . . of the subject merchandise." 19 U.S.C. § 1677(35)(A); see also § 1675(a)(2)(A) (Commerce shall calculate "the normal value and export price (or constructed export price) of each entry of the subject merchandise" and "the dumping margin for each such entry."). Overall weighted average dumping margin rates for each exporter (percentage figures) are calculated and published in the Federal Register.⁴ See id. § 1675(a)(1). Section 1675(a)(2)(C) provides that "[t]he determination under this paragraph shall be the basis for the assessment of countervailing or antidumping duties on entries of merchandise covered by the determination and for deposits of estimated duties."

Using the dumping margins for each exporter's goods, Commerce then calculates importer-specific ad valorem assessment rates for each such importer. See 19 U.S.C. § 1675(a)(2)(A)(ii); 19 C.F.R. § 351.212(b).⁵ These importer-specific rates are treated as confidential and are not published in the Federal Register. Normally, after publication of Final Results, Commerce issues liquidation instructions to Customs and Border Protection ("Customs") with respect to the entries of subject merchandise. Liquidation of entries represents the "final computation or ascertainment of the duties. . . accruing on an entry." 19 C.F.R. § 159.1. Liquidation instructions include importer-specific assessment rates. Customs then liquidates the goods at the importer-specific rates determined by Commerce.

Here, after Commerce published the Final Results of its administrative review on August 20, 2008, the American Furniture Manufacturers Committee for Legal Trade and Vaughan-Basset Furniture Company, Inc. (the "domestic producers"), ASI, and other parties filed actions in the Court of International Trade challenging various aspects of the Final Results. While those appeals were pending, Commerce twice sought and received leave of the Court of International Trade to amend the Final Results to correct ministerial errors.⁶ There was no dispute among the parties that correction of these errors was appropriate. These corrections eventually led to the issuance of the Second Amended Final Results.⁷ In its Second Amended Final Results, Commerce calculated and published in the Federal Register overall weighted average dumping margin rates for each exporter. See 19 U.S.C. § 1675(a)(1); id. § 1677(35)(B). The overall exporter dumping margin ultimately calculated for exporter Dare Group was 39.46 percent. There is no dispute about this rate. In connection with the preparation of its final results, Commerce calculated importer-specific ad valorem assessment rates using the foreign exporters' dumping margins. Due to a computer programming error in Commerce's antidumping margin calculation computer program, the assessment rate pertaining to ASI was much lower than the rate ASI would have received in the absence of the error.⁸ The calculations reflecting this error were apparently disclosed by Commerce to the domestic producers after the release of the Second Amended Final Results in accordance with the regulations discussed below, but the error was not then noted by the domestic producers. After Commerce issued the Second Amended Final Results, all parties by mutual agreement, on May 15, 2008, dismissed their pending appeals before the Court of International Trade.⁹

On July 10, 2009, Commerce transmitted liquidation instructions to Customs, which reflected the error in the assessment rate as to ASI for entries during the period covered by the review. On July 31, 2009, the domestic producers requested a copy of the July 10 liquidation instructions. Commerce released the liquidation instructions on August 24, 2009. On August 25, 2009, the domestic producers' counsel alerted Commerce to the existence of the error. Commerce confirmed the existence of the error and then on August 26, 2009, at Commerce's request, the domestic producers filed and served on all parties a written submission, alleging that the liquidation instructions contained errors resulting in a significant error in the assessment rates for ASI and other importers.

Later that day, Commerce contacted Customs and informed Customs that it planned to issue instructions suspending liquidation of the Dare Group's 2006 entries while Commerce decided how to correct the error in the margin calculation program.¹⁰ For the unliquidated entries, Customs said that it could liquidate pursuant to corrected instructions as soon as it received such instructions. However, Customs replied that it had already liquidated the majority of ASI's entries in accordance with the incorrect July 10, 2009, liquidation instructions. Customs also indicated that it would be able to reliquidate those entries within the ninety-day statutory window specified in 19 U.S.C. § 1501 at the correct rate if it promptly received corrected instructions. The statutory ninety-day window in which Customs could reliquidate entries was set to expire on October 29, 2009. See 19 U.S.C. § 1501 (providing Customs with discretionary authority to reliquidate within ninety days).

Upon review of interested party comments, on September 17, 2009, Commerce issued its final decision regarding the liquidation instructions. This decision took the form of a memorandum to file in the second administrative review. In its memorandum, Commerce noted that

in order to ensure that the liquidation instructions are consistent with the Final Results, [Commerce] must correct the programming language . . . . Further, the Department notes that none of the parties have argued that the Department did not generate incorrect assessment rates as a result of the programming error . . . . Accordingly . . . [Commerce] has corrected the programming language to comport with the Final Results and is issuing to [Customs] corrected liquidation instructions containing the assessment rates resulting from the corrected margin program.

ASI I, slip op. at 4. Commerce further explained that it "has not determined that the Final Results were in error and, accordingly is not amending the Final Results. Instead the Department is correcting the margin program language in order to ensure that the liquidation instructions are consistent with the Final Results . . . ." Id.

The same day that it issued this memorandum, Commerce attempted to transmit corrected liquidation instructions, which were rejected by Customs because they contained language errors. The next day, September 18, 2009, ASI filed suit in the Court of International Trade pursuant to 28 U.S.C. § 1581(i), alleging that Commerce had no authority to correct the error, and, inter alia, requesting the...