Asociacion Colombiana de Exportadores de Flores v. U.S.

• Decision Date: 18 October 1990
• Docket Number: 90-1140,Nos. 90-1131,s. 90-1131
• Citation: 916 F.2d 1571
• Parties: The ASOCIACION COLOMBIANA DE EXPORTADORES DE FLORES, Plaintiff-Appellee, Association of Floral Importers of Florida, Flores Del Rio, S.A., et al., Plaintiffs, v. The UNITED STATES, and Floral Trade Council of Davis, California, Defendants-Appellants.
• Court: U.S. Court of Appeals — Federal Circuit

Page 1571

916 F.2d 1571

12 ITRD 1945

The ASOCIACION COLOMBIANA DE EXPORTADORES DE FLORES Plaintiff-Appellee Association of Floral Importers of Florida, Flores Del Rio S.A., et al., Plaintiffs, v. The UNITED STATES, and Floral Trade Council of Davis California, Defendants-Appellants.

Nos. 90-1131, 90-1140.

United States Court of Appeals, Federal Circuit.

Oct. 18, 1990.

Patrick F.J. MaCrory, Arnold & Porter, Washington, D.C., argued, for plaintiff-appellee. With him on the brief, were Spencer S. Griffith and Gwyn F. Murray.

James R. Cannon, Jr., Stewart & Stewart, Washington, D.C., argued, for defendants-appellants. With him on the brief, were Eugene L. Stewart, Terence P. Stewart and Charles A. St. Charles.

Jeanne E. Davidson, Atty., Commercial Litigation Branch, Dept. of Justice, Washington, D.C., argued, for defendants-appellants. With her on the brief, were Stuart M. Gerson, Asst. Atty. Gen. and David M. Cohen, Director. Also on the brief, were Wendell L. Willkie, II, General Counsel, Stephen J. Powell, Chief Counsel for Import Admin., Anne White and Andrea F. Dynes, Atty.-Advisors, Office of Chief Counsel for Import Admin., U.S. Dept. of Commerce, of counsel.

Before MARKEY, ^* Circuit Judge, FRIEDMAN, Senior Circuit Judge, and BROWN, ^** District Judge.

FRIEDMAN, Senior Circuit Judge.

These appeals present the question of the authority of the Court of International Trade to enjoin the liquidation of entries in the amount specified in an antidumping order where, as a result of litigation before the Court of International Trade, the amount of duty thus specified was reduced but where the party seeking the injunction has not requested an annual review of the amount of the antidumping duty. The Court of International Trade enjoined liquidation at the higher duty. We affirm.

I

A. The procedure for issuing an antidumping duty order comprises three steps involving two separate agencies, the International Trade Administration of the Department of Commerce ("Administration") and the International Trade Commission ("Commission"). Mitsubishi Elec. Corp. v. United States, 898 F.2d 1577, 1579 (Fed.Cir.1990). First, the Administration determines whether "foreign merchandise is being, or is likely to be" dumped in the United States, i.e., "sold in the United States at less than its fair value," 19 U.S.C. Sec. 1673(1) (1988). Second, the Commission determines whether "an industry in the United States" is "materially injured" or "threatened with material injury," or "the establishment of an industry in the United States is materially retarded" "by reason of" such imports. 19 U.S.C. Sec. 1673(2). Third, if both of these determinations are adverse to the imported merchandise, the Administration issues an antidumping duty order imposing upon the merchandise "an antidumping duty ... in an amount equal to the amount by which the foreign market value exceeds the United States price for the merchandise." 19 U.S.C. Sec. 1673.

Importers of the merchandise the antidumping order covers are required to "deposit ... estimated antidumping duties pending liquidation of entries of merchandise...." 19 U.S.C. Sec. 1673e(a)(3). "[E]ntries of [such] merchandise ... shall be liquidated in accordance with the [Administration's] determination" "[u]nless such liquidation is enjoined by the court...." 19 U.S.C. Sec. 1516a(c)(1) (1988). The Administration's regulations provide for automatic liquidation at the cash deposit rate unless an interested party requests review. 19 C.F.R. Sec. 353.53a(d) (1988) (now codified at 19 C.F.R. Sec. 353.22(e)(1) (1990)). Once an entry has been liquidated, the duty paid cannot be recovered even if the payor subsequently prevails in its challenge to the antidumping order. Zenith Radio Corp. v. United States, 710 F.2d 806, 809-10 (Fed.Cir.1983).

Each year, "on the anniversary of the date of publication of a countervailing duty order ..., if a request for such a review has been received after publication of notice of such review in the Federal Register, [the Administration] shall ... review, and determine ... the amount of any antidumping duty...." 19 U.S.C. Sec. 1675(a)(1)(B) (1988). This latter review is called the annual review.

The Administration has a regulation, 19 C.F.R. Sec. 353.53a(d) (1988) (now codified at 19 C.F.R. Sec. 353.22(e)(1) (1990)), which provides that

if the Secretary does not receive a timely request [for an annual review], the Secretary, without additional notice, will instruct the Customs Service to assess antidumping duties on the merchandise ... at rates equal to the cash deposit of (or bond for) estimated antidumping duties ... and to continue to collect the cash deposit previously ordered.

The statute provides for review in the Court of International Trade of (1) a "[f]inal affirmative determination" by the Administration or the Commission, 19 U.S.C. Sec. 1516a(a)(2)(B)(i) (1988), and (2) the determination made in an annual review, 19 U.S.C. Sec. 1516a(a)(2)(B)(iii).

The statute further provides that, in connection with review of a final antidumping duty determination, the Court of International Trade "may enjoin the liquidation of some or all entries of merchandise covered by [the] determination ... 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. Sec. 1516a(c)(2).

B. In March 1987, in response to a petition filed by the appellant Floral Trade Council of Davis, California (Council), an association of United States flower growers, the Administration issued an antidumping duty order covering the sales of certain imported flowers from Colombia that the Administration found were made at less than fair value. Certain Fresh Cut Flowers from Colombia, 52 Fed.Reg. 6842 (Mar. 5, 1987), amended, 52 Fed.Reg. 8492 (Admin. Mar. 18, 1987). For a group of "all other" producers (all but 12 specifically named flower growers), the Administration found that the dumping margin was 4.4 percent and established that amount as the deposit rate.

The final less-than-fair value determination was challenged in the Court of International Trade by both the Council (as being too low), and by an association of producers, exporters and importers of Colombian flowers, the appellee The Asociacion Colombiana de Exportadores de Flores (Asociacion) (as being too high). Both actions were consolidated by that court [No. 87-04-00622]. Although the court upheld the antidumping duty order, the original deposit rate for the "all other" producers was lowered from 4.4 percent to 3.1 percent. Asociacion Colombiana de Exportadores de Flores v. United States, 704 F.Supp. 1114, after remand 717 F.Supp. 834 (Ct.Int'l Tr.1989), aff'd, 901 F.2d 1089 (Fed.Cir.1990).

On the first anniversary of the antidumping duty order, while the merits of that order were being litigated, a number of Colombian producers requested the Administration to conduct an administrative review of the rate at which their entries should be liquidated during the annual review period. The Council requested review of six named exporters and producers and of numerous unnamed Colombian producers. The Administration initiated the annual reviews, except for the unnamed producers. Pursuant to 19 C.F.R. Sec. 353.53a(d) (now codified at 19 C.F.R. Sec. 353.22(e)(1)), the Administration ordered the United States Customs Service (Customs) to liquidate all entries for which review had not been requested.

The Council then filed suit in the Court of International Trade challenging the Administration's refusal to initiate reviews of the unnamed producers. The court in June 1988 suspended the liquidation of the first-review period entries while the judicial action was pending, see Floral Trade Council v. United States, 692 F.Supp. 1387 (1988), after remand, 707 F.Supp. 1343 (Ct.Int'l Tr.), aff'd, 888 F.2d 1366 (Fed.Cir.1989). This suspension of liquidation remained in effect until the Court of International Trade rejected the Council's contentions in February 1989, see Floral Trade Council, 707 F.Supp. 1343, and this court affirmed that decision in November 1989, see Floral Trade Council, 888 F.2d 1366.

At the same time that the Council obtained the injunction against liquidation, Asociacion sought from the Court of International Trade a temporary restraining order directing Customs to suspend the liquidation of all entries other than those already subject to administrative review. Because the court already had granted the Council's request for the same relief, it denied Asociacion's request for an injunction, but without prejudice to Asociacion's right to reapply to the court for injunctive relief. Order of July 17, 1989 Denying Plaintiff's Motion for an Injunction of Liquidation, CIT Court No. 87-04-00622, at 2.

In October 1989, in anticipation of this court's affirmance in the Council's appeal, the Court of International Trade granted Asociacion's renewed request for an injunction. Asociacion Colombiana de Exportadores de Flores v. United States, 724 F.Supp. 969 (Ct.Int'l Tr.1989). That injunction, which became effective on December 3, 1989, after we affirmed the Court of International Trade in Floral Trade Council, 888 F.2d 1366, is the subject of the present appeal. The injunction bars the liquidation of entries for the first review period at the original 4.4 percent rate, which subsequently was reduced to 3.1 percent.

In its opinion granting the injunction, the Court of International Trade first held that Asociacion's failure to seek an annual review for the entries, the liquidation of which it sought to enjoin, did not bar granting the injunction. 724 F.Supp. at 971. The court then held that under the four factors governing the issuance of preliminary injunctions, Asociacion was entitled to an injunction against liquidation of the entries for the period of the first annual review at the 4.4 percent rate specified in the original antidumping...