British Steel Corp. v. United States

• Decision Date: 17 October 1986
• Docket Number: Court No. 83-7-01032.
• Citation: 647 F. Supp. 928,10 CIT 661
• Parties: BRITISH STEEL CORPORATION, et al., Plaintiffs, v. UNITED STATES, et al., Defendants, Allegheny Ludlum Steel Corporation, et al., Defendants-Intervenors.
• Court: U.S. Court of International Trade

647 F. Supp. 928

10 CIT 661

BRITISH STEEL CORPORATION, et al., Plaintiffs, v. UNITED STATES, et al., Defendants, Allegheny Ludlum Steel Corporation, et al., Defendants-Intervenors.

Court No. 83-7-01032.

United States Court of International Trade.

October 17, 1986.

Steptoe & Johnson (Richard O. Cunningham, Charlene Barshefsky and William L. Martin, II, Washington, D.C., of counsel), for plaintiffs.

Richard K. Willard, Asst. Atty. Gen., David M. Cohen, Director, Commercial Litigation Branch, Washington, D.C. and Sheila N. Ziff, New York City, for defendants.

Collier, Shannon, Rill & Scott (Paul C. Rosenthal, Washington, D.C., of counsel), for defendants-intervenors.

NEWMAN, Senior Judge:

Introduction

Plaintiffs British Steel Corporation and British Steel Corporation, Inc. move pursuant to Rule 65(a) of the rules of this court to enjoin defendant United States from liquidating any entries of stainless steel plate from the United Kingdom, which were entered or withdrawn from warehouse for consumption on or after April 1, 1985 and exported prior to March 1, 1986 (hereinafter "the 1985-86 entries"). Plaintiffs seek a preliminary injunction pertaining to these entries pending a determination of the merits of their claim that the Department of Commerce ("Commerce") is required to first conduct an administrative review in accordance with section 751 of the Trade Agreements Act of 1979, as amended by the Tariff and Trade Act of 1984, 19 U.S.C. § 1675 (hereinafter section 751), of the countervailing duty rate applicable in the above-mentioned review period. Further, plaintiffs seek to prevent liquidation of 1985-86 entries under the provisions of 19 U.S.C. § 1516a(c)(2), irrespective of whether there is a section 751 review.

Defendants and intervenor oppose plaintiffs' application contending that the issues raised, namely, whether plaintiffs made a timely request for a section 751 review covering the 1985-86 entries, and the appropriate duty rate at which the entries covered by that review period are to be liquidated, constitute a new and distinct cause of action which is outside the scope of the pleadings and not jurisdictionally cognizable in the present action. Moreover, defendants urge that the court lacks jurisdiction in the current action to grant the requested injunctive relief under section 1516a(c)(2).

Background

On April 27, 1983 Commerce published its final affirmative countervailing duty determination covering stainless steel plate imports from the United Kingdom (48 Fed. Reg. 19,048), and on June 23, 1983 Commerce issued a countervailing duty order respecting such merchandise (48 Fed.Reg. 28,690). Subsequently, on July 21, 1983, plaintiffs filed the present action challenging the final determination of April 27, 1983.

After proceedings in compliance with Rule 56.1 of the rules of this court, the action was twice remanded: British Steel Corp. v. United States, 9 CIT ___, Slip Op. 85-26, 605 F.Supp. 286 (March 8, 1985); British Steel Corp. v. United States, 11 CIT ___, Slip Op. 86-37, 632 F.Supp. 59 (March 31, 1986) (defendants' motion for rehearing pending; remand suspended pending defendants' motion for vacatur) (British Steel II).

During the pendency of British Steel II, Commerce conducted annual reviews of the countervailing duty order, as required by section 751¹ for the periods February 10, 1983 to March 31, 1984, and April 1, 1984 to March 31, 1985. Under the provisions of section 751, then in effect, the first periodic review commenced automatically; the second review was requested by British Steel on October 15, 1985.² Respecting the 1985-86 entries, plaintiffs move to enjoin liquidation of these entries pending a judicial determination of whether Commerce has wrongfully refused to initiate an administrative review for that time period.

Taking the position that British Steel did not file a timely request for an administrative review under section 751, Commerce has instructed Customs to proceed with liquidation of the 1985-86 entries at a rate equal to the estimated countervailing duties deposited on the entries at the time of entry or withdrawal from warehouse for consumption in accordance with its regulations. See 19 CFR § 355.10(d).³ The court is advised by plaintiffs that Customs liquidated one entry on September 19, 1986 following Commerce's instructions. Upon discovering that Customs was liquidating the 1985-86 entries on the basis of the estimated duty deposit rate, plaintiffs applied ex parte for a temporary restraining order preventing the government from liquidating the 1985-86 entries, which order was granted on October 3, 1986 at 6:30 P.M. Plaintiffs now seek a preliminary injunction pendente lite.

Opinion

I.

The within action was instituted under 28 U.S.C. § 1581(c) and 19 U.S.C. § 1516a(a)(2)(B) challenging the final affirmative subsidy determination of April 27, 1983 concerning stainless steel plate from the United Kingdom (48 Fed.Reg. 19,048). Plaintiffs challenged Commerce's decision to countervail certain subsidies and the valuation methodology used to calculate the countervailing duty rate.

The administrative action challenged in the present action by plaintiffs' application for a temporary restraining order and preliminary injunction is, essentially, Commerce's determination that no timely request for a review, in accordance with its published notice on June 10, 1986 (51 Fed.Reg. 21,011) had been received, and therefore, that it would not conduct a section 751 review for the period of April 1, 1985 to March 1, 1986, but would liquidate those entries without an administrative review.

Patently, plaintiffs' new claim raises issues that are entirely unrelated to the administrative determination that is contested in this action, and completely outside the scope of the pleadings in the present case. Indeed, the administrative action for which plaintiffs now seek judicial review does not involve a determination specified in 19 U.S.C. § 1516a, and hence, does not come within the ambit of that provision. Consequently, the court agrees with defendants and intervenor that in order to contest Commerce's refusal to conduct a section 751 review, plaintiffs must commence a new action pursuant to 28 U.S.C. § 1581(i). That residual jurisdictional provision permits the court to review, inter alia, certain countervailing and antidumping duty determinations that do not fall within the court's jurisdiction under 19 U.S.C. § 1516a and 28 U.S.C. § 1581(c).

Plaintiffs cannot, by means of now enjoining liquidation of the 1985-86 entries, enlarge the scope of the existing action, which involves a challenge to the 1983 final affirmative countervailing duty determination, to embrace plaintiffs' new and totally different claim that Commerce refuses to conduct a section 751 review covering the 1985-86 entries. As aptly phrased by intervenor, British Steel is attempting to "bootstrap its new cause of action onto the pending case", and "British Steel simply is trying to evade the statutory requirement that it file a summons and complaint to commence a new action" (Intervenors brief, pp. 2-3).

Moreover, the duty assessment rate for the 1985-86 entries is not governed by the administrative record or remand proceedings in this action. If plaintiffs are entitled to an administrative review under section 751 for the 1985-86 entries, assessment of countervailing duties for those entries would be governed by the results of that administrative review based upon the record therein.⁴ On the other hand, if plaintiffs failed to timely request an administrative review, the countervailing duty assessment must be made at a rate equal to the estimated duty deposit rate at the time of entry. 19 CFR § 355.10(d). If a party believes that the estimated duty deposit rate is erroneous, the prescribed procedure is that such party request an administrative review in the manner provided by the regulations. Failing that, the unreviewed entries must be liquidated as provided in the regulations. Hence, regardless of the outcome of plaintiffs' new claim that a section 751 review should be conducted, the disposition of the remand in the present action will have no prospective effect upon the duty rate to be assessed in liquidation of the 1985-86 entries.

In view of the foregoing, this court is without jurisdiction in the present case to issue an injunction in accordance with Rule 65(a) preventing liquidation of the 1985-86 entries pending a decision on the merits of plaintiffs' claim that Commerce wrongfully refuses to conduct an administrative review under section 751. Plaintiffs may, however, if they are so advised, file a new summons and complaint pursuant to 28 U.S.C. § 1581(i) and litigate their recent claim that Commerce has wrongfully refused to initiate a section 751 review covering the involved entries. Further, plaintiffs may renew their application to enjoin liquidation of the 1985-86 entries until there is a determination of the merits of the new action. Cf. Zenith Radio Corp. v. United States, 1 CAFC 74, 710 F.2d 806 (1983); Timken Co. v. United States, 6 CIT 76, 569 F.Supp. 65 (1983).

II.

Plaintiffs also contend that, apart from the issue of whether plaintiffs timely requested a section 751 review, the court should enjoin liquidation of the involved entries under 19 U.S.C. § 1516a(c)(2) until there is a final disposition of the remand in the present case.

Plaintiffs' predicate for the court's jurisdiction in the present case to grant injunctive relief under § 1516a(c)(2) is that the 1985-86 entries are covered by Commerce's final countervailing duty determination of April 27, 1983, and thus the remand results in the present action would govern the methodology for the duty assessment rate on those entries irrespective of the results of a section 751 review. A corollary of plaintiffs' argument is that if liquidation of the 1985-86 entries is enjoined in the present action under section 1516a(c)(2),...