British Steel Corp. v. United States

• Citation: 649 F. Supp. 78,10 CIT 716
• Decision Date: 12 November 1986
• Docket Number: Court No. 83-7-01032.
• 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

649 F. Supp. 78

10 CIT 716

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.

November 12, 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 and Sheila N. Ziff, Washington, D.C., for defendants.

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

Memorandum and Order On Plaintiffs' Motion for an Injunction Pending Appeal

NEWMAN, Senior Judge:

I.

Presently before the court is plaintiffs' application for an injunction pending appeal of this court's recent decision in British Steel Corporation v. United States, 12 CIT ___, 647 F.Supp. 928 (1986). Plaintiffs again seek to prevent defendants from liquidating any entries of stainless steel plate from the United Kingdom entered or withdrawn from warehouse for consumption on or after April 1, 1985 and exported prior to March 1, 1986 (hereinafter referred to as the 1985-86 entries). A temporary restraining order was issued by the court on October 23, 1986 and extended to November 12, 1986.

In 647 F.Supp. 928, this court denied plaintiffs' request for a preliminary injunction restraining liquidation of the 1985-86 entries pending a final decision on the merits of their claim that the Commerce Department has wrongfully refused to conduct an administrative review covering that time period. There, the court held that insofar as plaintiffs sought to raise a new cause of action relating to the refusal of Commerce to initiate an administrative review in accordance with section 751 of the Trade Agreements Act of 1979, 19 U.S.C. § 1675, covering the 1985-86 entries, such new claim could not now be "bootstrapped" into the present action which contests the final countervailing duty determination and order issued in 1983. The court, however, left it open for plaintiffs to pursue their new claim that Commerce is required to commence an administrative review covering the 1985-86 entries by instituting an action under 28 U.S.C. § 1581(i) and renewing their request to enjoin liquidation of the 1985-86 entries. 647 F.Supp. at p. 931. Plaintiffs state that they are not appealing from that aspect of the court's decision in 647 F.Supp. 928.

In 647 F.Supp. 928, this court also rejected plaintiffs' argument that apart from the issue of whether Commerce has wrongfully refused to conduct an administrative review of the countervailing duty order covering the 1985-86 entries pursuant to section 751, this court has jurisdiction in the current action under 19 U.S.C. § 1516a(c)(2) to enjoin liquidation of those entries pending a final decision on the merits. In essence, it is plaintiffs' firm conviction that irrespective of the administrative review procedures provided by section 751, the 1985-86 entries may ultimately be liquidated on the basis of the administrative record and final decision in the present action simply by now enjoining liquidation of the entries in accordance with § 1516a(c)(2). However, in 647 F.Supp. 928 this court agreed with defendants' and intervenors' position that the 1985-86 entries would be liquidated pursuant to the record and administrative proceedings conducted under section 751, if such review were timely requested, and that absent such request, Commerce is required to liquidate those entries in compliance with its regulation 19 CFR § 355.10(d). The foregoing regulation directs that liquidation be made on the basis of the cash deposit rate at the time of entry in cases where no timely request for a section 751 review has been made.

Plaintiffs have appealed to the Court of Appeals for the Federal Circuit seeking review of the foregoing aspect of 647 F.Supp. 928 (part II thereof), and now request that this court issue an injunction pending appeal to prevent liquidation of the 1985-86 entries until the Court of Appeals has had an opportunity to complete its review. Defendants and intervenors oppose plaintiffs' request.

II.

The court now addresses the oft-repeated traditional four criteria relevant to a request for injunctive relief. See e.g. Zenith Radio Corp. v. United States, 1 CAFC 74, 710 F.2d 806, 809 (Fed.Cir.1983); S.J. Stile Associates, Ltd. v. Snyder, 68 CCPA 27, 30, 646 F.2d 522, 525 (1981); UST, Inc. v. United States, 12 CIT ___, 648 F.Supp. 1 (1986). The criteria employed in issuing an injunction pending appeal are substantially identical to those used in issuing a preliminary injunction. Timken Co. v. United States, 6 CIT 76, 81, fn. 7, 569 F.Supp. 65, 70, fn. 7 (1983).

Plaintiffs' request meets the irreparable harm criterion for granting injunctive relief. Liquidation of the involved entries by Customs clearly would moot the appeal of 647 F.Supp. 928. Cf. Zenith Radio Corp. and Timken Co., supra. If no injunction pending appeal were granted, and this court's decision in 647 F.Supp. 928 were reversed by the Court of Appeals, plaintiffs would achieve only a "hollow victory". Cf. J. Weingarten v. Potter, 233 F.Supp. 833, 839 (S.D.Tex. 1964).

In the circumstances presented here, the court further holds it is sufficient that plaintiffs have raised questions which are "serious, substantial, difficult and doubtful", and plaintiffs need not show that there is a probability of success on the merits, particularly where, as here, the balance of equities weighs heavily in favor of granting injunctive relief. Cf. Timken Co. and cases cited therein. See also American Air Parcel Forwarding Company, Ltd. v. United States, 1 CIT 293, 515 F.Supp. 47 (1981).

There is no doubt that under 19 U.S.C. § 1516a(c)(2), liquidation of entries covered by a challenged countervailing duty determination may be enjoined pending judicial review. However, the precise issue raised by plaintiffs' application in 647 F.Supp. 928 is whether entries made in the 1985-86 time period, which could be the subject of an administrative review under section 751 if requested, may be enjoined in the pending court action contesting the underlying countervailing duty order. As is apparent, the 1985-86 entries sought to be enjoined were made several years after the time period and entries investigated by Commerce prior to the 1983 countervailing duty order, and that order has never been administratively reviewed respecting these 1985-86 entries.

The issue presented by plaintiffs' appeal is one of first impression because prior to 1984, administrative reviews under section 751 were automatically initiated by Commerce, whereas under the Tariff and Trade Act of 1984 such reviews are commenced only on the request of an interested party.¹ The 1...