Asociacion Colombiana de Exportadores v. US

• Decision Date: 19 October 1989
• Docket Number: Court No. 87-04-00622.
• Citation: 724 F. Supp. 969
• Parties: The ASOCIACION COLOMBIANA DE EXPORTADORES DE FLORES, et. al., Plaintiffs, v. The UNITED STATES, et al., Defendants, and Floral Trade Council of Davis, California, Defendant-intervenor.
• Court: U.S. Court of International Trade

724 F. Supp. 969

The ASOCIACION COLOMBIANA DE EXPORTADORES DE FLORES, et. al., Plaintiffs, v. The UNITED STATES, et al., Defendants, and Floral Trade Council of Davis, California, Defendant-intervenor.

Court No. 87-04-00622.

United States Court of International Trade.

October 19, 1989.

Arnold & Porter, Patrick F.J. Macrory, Spencer S. Griffith and Gwyn F. Murray, for Asociacion Colombiana de Exportadores de Flores, et al.

Heron, Burchette, Ruckert & Rothwell, Thomas A. Rothwell, Jr. and James M. Lyons, for Floramerica.

Stuart E. Schiffer, Acting Asst. Atty. Gen., David M. Cohen, Director, Commercial

Litigation Branch, Jeanne E. Davidson, Civ. Div., U.S. Dept. of Justice, and Anne W. White, Office of the Chief Counsel for Import Admin., U.S. Dept. of Commerce, Washington, D.C., for defendant.

Stewart & Stewart, Eugene L. Stewart, Terence P. Stewart, James R. Cannon, Jr., and Jimmie V. Reyna, Washington, D.C., for Floral Trade Council of Davis, California.

OPINION

RESTANI, Judge:

Plaintiffs seek an injunction pursuant to 19 U.S.C. § 1516a(c), (e) (1982) preventing liquidation according to the agency's original determination and, thus, liquidation in accordance with the court's decision of all entries which might have been, but were not, covered by the International Trade Administration's (ITA's) first annual administrative review. The court has granted such injunctive relief in certain cases, notably OKI Elec. Indus. Co. v. United States, 11 CIT 624, 669 F.Supp. 480 (1987); Ipsco, Inc. v. United States, 12 CIT ___, 692 F.Supp. 1368 (1988); and Sonco Steel Tube Div. v. United States, 12 CIT ___, 698 F.Supp. 927 (1988). On the other hand, such injunctive relief has been denied in similar situations. See eg. Cambridge Lee Industries, Inc. v. United States, Slip Op. 89-145, 1989 WL 125739 (Oct. 18, 1989); NTN Bearing Corp. v. United States, 12 CIT ___, 701 F.Supp. 226 (1988), appeal dismissed as moot, 884 F.2d 1397 (Fed.Cir. 1989); Fundicao Tupy S.A. v. United States, 11 CIT ___, 669 F.Supp. 437 (1987), appeal dismissed as moot, 841 F.2d 1101 (Fed.Cir.1988).¹

The court will not attempt to harmonize these cases today as they appear to represent a conflict over the meaning of several interlocking provisions of a comprehensive statutory scheme which the court is charged to interpret. On the other hand, more sophisticated arguments are being presented to the court while others are being abandoned with regard to the various statutes involved, so that some degree of harmony may eventually arise.² As far as the court can determine there is a degree of harmony in the court's opinions in that none have treated the issue directly as one involving jurisdiction. Nonetheless, defendant continues to treat this as a jurisdictional issue. The court adheres to its previously expressed views. The court has jurisdiction over the parties and the subject matter. The statute by its plain language allows the court to issue injunctions in cases involving, inter alia, reviews of final affirmative determinations. 19 U.S.C. § 1516a(a)(2)(B)(i) and § 1516a(c)(2) (1982 & Supp. V 1987).

The case of British Steel Corp. v. United States, 10 CIT 661, 647 F.Supp. 928 (1986), appeal dismissed as moot, No. 87-1050 (Fed.Cir. Apr. 1, 1987), cited by defendants is distinguishable and adds nothing to defendants' arguments on jurisdiction. The court's comments regarding the scope of the original determination before the court in that case were made in the context of an added challenge to a refusal of ITA to commence an administrative review. To the extent that that case involved denial of an injunction to effectuate the court's decision, the case did not appear to turn on jurisdiction. Furthermore, the lack of discussion of the meaning of the crucial statute, 19 U.S.C. § 1516a(c), makes the case of little instructive value with regard to this action.

Defendants appear to argue that in Ipsco the court misconstrued legislative history. See 692 F.Supp. at 1372. Defendants make too much of the language in Ipsco indicating that it is possible in some cases for parties to forego annual administrative reviews entirely and to limit their challenge to ITA action to judicial review of final original orders. This is a possibility, but it does not alter the fact that the court cannot review administrative action until there is such action. In this case the agency acted. It issued a reviewable final administrative decision which was judicially reviewed and found wanting in part. See Asociacion Colombiana De Exportadores De Flores v. United States, et al., 13 CIT ___, 704 F.Supp. 1114 (1989), and 13 CIT ___, 717 F.Supp. 834 (1989), appeal pending No. 89-1742 (Fed.Cir. Sept. 27, 1989). The issue now before the court is what effect to give the court's determination. The court has jurisdiction to decide that issue.³

The statute provides only one clear avenue for obtaining liquidation of past entries in accordance with the court's determination. That avenue is through injunction of liquidation under 19 U.S.C. § 1516a(c). In this case injunction of liquidation has been obtained at the behest of the domestic industry. Unlike the plaintiff in British Steel, Floral Trade Council (FTC), which represents various U.S. flower growers, filed a new action challenging ITA's refusal to institute a review of its order as to the entries of certain exporters and producers for the first annual period. This court upheld ITA's determination to conduct a limited review and that case is now on appeal. Floral Trade Counsel of Davis, Calif. v. United States, 13 CIT ___, 707 F.Supp. 1343 (1989), appeal pending, No. 89-1425 (Fed.Cir. Apr. 26, 1989). The injunction issued in that case pending appeal, however, is not an injunction under 19 U.S.C. § 1516a(c) that will compel liquidation of the entries subject to injunction in accordance with the court's decision. Hence it is not premature to consider plaintiffs' request.⁴

In terms of the standard four-part test for injunctive relief, some requirements are clearly met while others present debatable issues. See Matsushita Elec. Indus. Co. v. United States, 823 F.2d 505, 509 (Fed.Cir. 1987) (In order for a preliminary injunction to issue plaintiff must show (1) likelihood of success on the merits; (2) the balance of hardship is in favor of plaintiff; (3) the public interest will be served by the relief requested; and (4) immediate and irreparable injury.); S.J. Stile Assoc. v. Snyder, 68 CCPA 27, 30, 646 F.2d 522, 525 (1981); American Air Parcel Forwarding Co. v. United States, 1 CIT 293, 297, 515 F.Supp. 47, 52 (1981).

This appears to be a case in which success on the merits, in terms of plaintiffs' challenge to the original determination, is not an issue. The court has issued a final judgment sustaining an ITA remand determination reflecting lower duty rates than originally ordered. Although plaintiffs did not upset the entire antidumping order, their litigation did succeed in part and they wish effectuation of the results of the litigation to a greater degree than merely future alteration of deposit rates, which may never occur.⁵

The balance of hardships tips toward plaintiffs. An injunction at this point would cause no disturbance of the status quo in terms of derailing ongoing administrative processes. No entries are being liquidated. Disruption of ongoing agency operations was of concern to the court in Algoma Steel Corp. v. United States, 12 CIT ___, 696 F.Supp. 656 (1988) (partial stay pending appeal of ITC determination). Liquidation in accordance with the court's determination will only cause payment of such duties as the court has found to be lawful. This hardly can be labeled a burden on defendants. FTC may bemoan its inability to obtain a full administrative review for the first annual period because of this court's Floral Trade decision cited previously, but no legally cognizable hardship is involved. Whether FTC might have obtained a better result had it requested a full review in time is simple speculation. Furthermore, any such speculative harm should not be weighed against plaintiffs as FTC's failure to obtain the review it desired is not attributable to plaintiffs' behavior but, rather, to FTC's own actions. See Floral Trade, 707 F.Supp. 1343.⁶ Plaintiffs, as indicated, want to avoid payment of millions of dollars in duties which the court has determined are not owing. The balance tips in favor of plaintiffs on this point.

The public interest is a bit difficult to analyze here, except that a result which aids the goals of the statute may be said to be in the public interest. The court is not convinced that it should abandon the Oki-Ipsco-Sonco, supra, lines of cases which hold that the fullest appropriate effectuation of judicially determined results and avoidance of baseless requests for administrative review is the result preferred by the statutory scheme.

The court is concerned, however, that injunction may not be appropriate in this case because of plaintiffs' change in position, which is relevant to the irreparable harm factor. While the court believes plaintiffs cannot simply change positions on whether injunctive relief should be granted depending on how they see the judicial winds blowing, they do have an independent reason for their change of position here. At first plaintiffs sought immediate liquidation in order to regularize their accounts. Upon FTC's successful motion for injunction of liquidation plaintiffs could not promptly normalize their financial arrangements and reports, e.g., by releasing contingent liability funds, and they now seek the effectuation of the court's opinion. This, in and of itself, does not bar plaintiffs' latest request. It does, however, make a point raised by defendants. Perhaps plaintiffs can change positions so easily because they would not be irreparably harmed by any failure to order liquidation in accordance with the ITA determination approved by the final decision...