Cambridge Lee Industries, Inc. v. U.S., AFL-CIO

Decision Date18 October 1990
Docket NumberNo. 90-1044,AFL-CIO,90-1044
Citation916 F.2d 1578
PartiesCAMBRIDGE LEE INDUSTRIES, INC., Plaintiff-Appellant, v. The UNITED STATES, Defendant-Appellee, and American Brass, Chase Brass & Copper Company, Hussey Copper, Ltd., The Miller Company, Olin Corporation-Brass Group, Revere Copper Products, Inc., International Association of Machinists & Aerospace Workers, International Union, Allied Industrial Workers of America (), Mechanics Educational Society of America (Local 56), and The United Steelworkers of America (/CLC), Defendants-Appellees.
CourtU.S. Court of Appeals — Federal Circuit

Gail T. Cummins, Sharretts, Paley, Carter & Blauvelt, P.C., New York City, argued, for plaintiff-appellant. With her on the brief, were Beatrice A. Brickall and Ned H. Marshak.

M. Martha Ries, Atty., Commercial Litigation Branch, Dept. of Justice, Washington Jeffrey S. Beckington, Collier, Shannon & Scott, Washington, D.C., argued, for defendants-appellees. With him on the brief, were David A. Hartquist and Kathleen Weaver Cannon.

D.C., argued, for defendant-appellee. 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. and Tanya J. Potter, Atty.-Advisor, Office of Deputy 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.

This is an appeal from a decision of the Court of International Trade denying a preliminary injunction against the liquidation of entries of merchandise covered by an antidumping order that the party seeking the injunction challenged in that court. The Court of International Trade held that the party's failure to seek an annual administrative review of the antidumping order barred the party from obtaining an injunction. The appellant challenges the latter ruling. We hold, however, that developments in the case since the appeal was argued here have made the case moot. We therefore dismiss the appeal.

I

Because of our disposition of this case, only a brief description of the statutory background and the facts is necessary.

A. The imposition of antidumping duties is based upon (1) a determination by the International Trade Administration (Administration) in the Department of Commerce that foreign goods are being sold in the United States at less than fair value, i.e., being dumped, and (2) a determination by the International Trade Commission (Commission) that such sales injure a United States industry. Following those determinations, the Administration publishes an antidumping duty order specifying the amount of antidumping duties.

Importers are required to "deposit ... estimated antidumping duties pending liquidation of entries of merchandise...." 19 U.S.C. Sec. 1673e(a)(3) (1988). These entries of merchandise "shall be liquidated in accordance with the determination of the [Administration] or the Commission," "[u]nless such liquidation is enjoined by the court...." 19 U.S.C. Sec. 1516a(c)(1) (1988). Once an entry has been liquidated, the duties 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).

Twelve months after the original antidumping order, the Administration must "review, and determine ... the amount of any antidumping duty" "if a request for such a review has been received." 19 U.S.C. Sec. 1675(a)(1)(B) (1988). This latter review is called the annual review. A Department of Commerce regulation provides that if no request for an annual review has been made, all entries during the annual review period will be liquidated "at rates equal to the cash deposit of, or bond for, estimated antidumping duties." 19 C.F.R. Sec. 353.22(e) (1990).

B. Following the Administration's final determination that brass sheet and strip from Japan had been sold in the United States at less than fair value, Final Determination of Sales at Less Than Fair Value; Brass Sheet and Strip from Japan, 53 Fed.Reg. 23,296 (Admin. June 21, 1988), and the Commission's final determination of material injury or threat thereof to a United States industry, Certain Brass Sheet and Strip From Japan and the Netherlands, 53 Fed.Reg. 29,394 (Comm'n Aug. 4, 1988), the Administration on August 12, 1988 published an antidumping duty order which required a cash deposit of "estimated antidumping duties" on all subsequent The appellant Cambridge Lee Industries, Inc. (Cambridge Lee), an importer of the merchandise involved, filed suit in the Court of International Trade in October 1988, challenging the Commission's determination that the dumping injured an American industry. It did not challenge the Administration's determination that the merchandise was sold at less than fair value in the United States.

entries. Antidumping Duty Order of Sales at Less Than Fair Value; Brass Sheet and Strip From Japan, 53 Fed.Reg. 30,454 (Admin. Aug. 12, 1988).

While proceedings on Cambridge Lee's Motion for Judgment on the Administrative Record were pending before the Court of International Trade, the anniversary date of the antidumping duty order occurred on August 7, 1989. On that date, the Administration published a notice in the Federal Register that within 30 days interested parties could request an administrative review of the antidumping order for the period from August 1, 1988 through July 31, 1989. Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation, Opportunity to Request Administrative Review, 54 Fed.Reg. 32,364 (Admin. Aug. 7, 1989). The notice further stated:

If the Department does not receive by August 31, 1989 a request for review of entries covered by an order or finding listed in this notice and for the period identified above, the Department will instruct the Customs Service to assess antidumping or countervailing duties on those entries at a rate equal to the cash deposit of (or bond for) estimated antidumping or countervailing duties required on those entries at the time of entry, or withdrawal from warehouse, for consumption and to continue to collect the cash deposit previously ordered.

54 Fed.Reg. at 32,365.

Cambridge Lee did not request an administrative review, since its suit did not challenge the dumping margins, but only the injury determination.

In September 1989, Cambridge Lee moved in the Court of International Trade for a preliminary injunction against liquidation of the entries for the annual review period, pending the court's determination of the merits of Cambridge Lee's challenge to the industry injury determination.

The court denied an injunction. The court noted that "there has been a continuing split of authority within the Court of International Trade whether a party must request an annual administrative review in order to obtain an injunction against liquidation." Cambridge Lee Indus., Inc. v. United States, 723 F.Supp. 1518, 1520 (Ct.Int'l Tr.1989). The court decided to follow the ruling in Fundicao Tupy S.A. v. United States, 669 F.Supp. 437, 11 C.I.T. 561 (1987), where it stated that "a unanimous three-judge panel held that a party that failed to avail itself of the administrative review procedure was unable to establish irreparable harm necessary to obtain injunctive relief." 723 F.Supp. at 1519.

Thereafter, the court granted Cambridge Lee's motion for an injunction pending appeal of the court's denial of the preliminary injunction. Cambridge Lee Indus., Inc. v. United States, 725 F.Supp. 543 (Ct.Int'l Tr.1989). The court found that denial of an injunction pending appeal would cause Cambridge Lee irreparable injury "because liquidation would moot its appeal, and would preclude movant from recovering its $55,000 cash deposit on the entries in issue should it prevail on the merits of its challenge to the underlying Commission determination." Id. at 544.

In December 1989, the Court of International Trade decided the merits of the case. Cambridge Lee Indus. v. United States, 728 F.Supp. 748 (Ct.Int'l Tr.1989). The court rejected most of Cambridge Lee's challenges to the industry injury determination, but remanded the case to the Commission for reconsideration of one issue. In its brief, the government informed us that on reconsideration the Commission adhered to its prior determination. At oral argument on June 4, 1990, we were told that the validity of that ruling was pending before the Court of International Trade.

II

On July 25, 1990, the government moved to dismiss the appeal as moot. It The effect of this ruling of the Court of International Trade is to end the dispute between Cambridge Lee and the...

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