Cementos Anahuac del Golfo, SA v. US, Court No. 86-01-00082.

• Decision Date: 24 November 1989
• Docket Number: Court No. 86-01-00082.
• Citation: 13 CIT 981,727 F. Supp. 620
• Parties: CEMENTOS ANAHUAC DEL GOLFO, S.A., Plaintiff, v. UNITED STATES, and Malcolm Baldrige, Secretary of Commerce, Defendants.
• Court: U.S. Court of International Trade

727 F. Supp. 620

13 CIT 981

CEMENTOS ANAHUAC DEL GOLFO, S.A., Plaintiff, v. UNITED STATES, and Malcolm Baldrige, Secretary of Commerce, Defendants.

Court No. 86-01-00082.

United States Court of International Trade.

November 24, 1989.

Ross & Hardies, Joseph S. Kaplan, New York City, and Michelle F. Forte, for plaintiff.

Stuart M. Gerson, Asst. Atty. Gen., David M. Cohen, Director, Commercial Litigation Branch, Civ. Div., U.S. Dept. of Justice, Washington, D.C., Velta A. Melnbrencis, New York City, for defendants.

MEMORANDUM & ORDER

AQUILINO, Judge:

This case was remanded to the International Trade Administration, U.S. Department of Commerce ("ITA") for reconsideration of its first administrative review of its Final Affirmative Countervailing Duty Determination and Countervailing Duty Order; Portland Hydraulic Cement and Cement Clinker from Mexico, 48 Fed.Reg. 43,063 (Sept. 21, 1983), in the light of the court's slip op. 88-58, 12 CIT ___, 687 F.Supp. 1558 (1988), which held that no countervailing duties could be imposed upon entries of the indicated merchandise for the period July 1 through December 31, 1983 unless it was determined that those entries, by reason of subsidy, were causing or threatening to cause material injury to an industry in the United States or that they retarded materially the establishment of an industry in the United States. The court's order of remand also enjoined the defendants from imposing duties on the entries in the absence of a determination of such injury.

The defendants appealed from the order, which was reversed by the U.S. Court of Appeals for the Federal Circuit sub nom. Cementos Guadalajara, S.A. v. United States, 879 F.2d 847 (1989). A petition for rehearing, including a suggestion that it occur en banc, was then filed. The original three-judge panel denied rehearing by it in an order which also indicated that the court's mandate would issue on September 19, 1989. Prior thereto, the plaintiff-appellee sought (and obtained) a stay of the mandate until seven days after the still-outstanding suggestion of rehearing by the full court had been resolved, but, in an order dated October 19, 1989, the suggestion was declined, and the judgment of the court of appeals issued as a mandate on October 26, 1989.

The plaintiff has now returned with an application to extend this court's injunction of liquidation upon a representation that it intends to petition the Supreme Court of the United States for a writ of certiorari. A hearing was held on November 16, 1989 in this case and also in cases before Judge Carman of this Court of International Trade sub nom. Cementos Guadalajara, S.A. et al. v. United States, No. 86-12-01525, and Cementos Anahuac del Golfo, S.A. v. United States, No. 86-12-01607¹, in which similar applications were presented.

I

The defendants vigorously contest the application(s). They argue, for example, that it is

well established that an inferior court has no power or authority to deviate from the mandate issued by an appellate court. A lower court cannot vary the mandate or give any further relief. A mandate must be interpreted in accordance with the context of the proceedings. A lower court can only consider and decide matters of record before the appellate court, and the law of the case, as decided by the appellate court, "comprehends things decided by necessary implication as well as those decided explicitly."²

As shown in defendants' memorandum, there is ample precedent to support each of these points. The "hope" of this law, as indicated, for example, by the court in Litman v. Massachusetts Mutual Life Insurance Co., 825 F.2d 1506, 1512 (11th Cir. 1987), cert. denied, 484 U.S. 1006, 108 S.Ct. 700, 98 L.Ed.2d 652 (1988), is "finality". That goal was achieved upon entry of the final judgments in the cases before Judge Carman and their subsequent affirmance on appeal.

In this case, on the other hand, the defendants appealed from the remand order, which was interlocutory. The decision of that appeal necessarily led to return of the case to the jurisdiction of this court upon issuance of the circuit mandate. Hence, the court is seized not only with the authority and the obligation to implement in an orderly manner the judgment of the court of appeals as it pertains to this court's interlocutory order, but also to grant such other and further relief as justice may require. Cf. Cementos Guadalajara, S.A. v. United States, supra note 1. Indeed, in this case, the defendants had agreed to suspension of liquidation, which was granted on October 21, 1987, and the effect of the subsequent remand order has been to continue the suspension³, pending ITA reconsideration of its first administrative review or pursuit of any appeal.

II

The government has often consented to suspension of liquidation of entries covered by actions seeking judicial review of ITA determinations made pursuant to 19 U.S.C. § 1675 since the decision in Zenith Radio Corporation v. United States, 710 F.2d 806, 810 (Fed.Cir.1983), which concluded that, in a case like the one at bar, "the consequences of liquidation do constitute irreparable injury" in the context of obtaining meaningful relief after full exercise of the right to judicial review, including, of course, appeal. In other words, suspension of liquidation can be necessary for the preservation of jurisdiction.

Notwithstanding the government's past acquiesence in suspension in this case, and in others until finally resolved, the defendants now oppose extension of suspension herein. As for the regular requirements for grant of such extraordinary equitable relief, as enumerated, for example, in S.J. Stile Associates Ltd. v. Snyder, 646 F.2d 522, 525, 68 C.C.P.A. 27 (1981), and Cambridge Lee Industries, Inc. v. United States, 13 CIT ___, 725 F.Supp. 543, 544 (1989), cash apparently has been deposited with the government on behalf of the plaintiff to cover any countervailing duties that may be owed on the entries in question. This fact diminishes defendants' ability to show a balance of hardship in their favor— particularly in the face of the irrevocable act that essentially is liquidation. The existence of the deposit(s) also implies protection of the public interest. Moreover, as was pointed out in slip op. 88-58, "the overriding concern this case touches upon is continuation and enhancement of long-standing, friendly relations between the United States of America and of Mexico." 12 CIT at ___, 687 F.Supp. at 1561. Surely, this being the concern, it is in the public interest to permit the plaintiff a full and fair opportunity to present its position to this country's court of last resort. And, as the Federal Circuit recognized in its Zenith decision, supra, to permit liquidation to be carried out before an appeal with potential impact thereon has run its course can leave a successful appellant with a Pyrrhic victory, a court judgment of little moment. In short, the present facts and circumstances of this case clearly support plaintiff's position on these traditional counts, and this and other courts have held that the remaining requisite showing of likelihood of success on the merits is in "inverse proportion to the severity of the injury the moving party will sustain without injunctive relief." Smith Corona Corporation v. United States, 11 CIT ___, ___, 678 F.Supp. 285, 293 (1987). See, e.g., Ceramica Regiomontana, S.A. v. United States, 7 CIT 390, 395, 590 F.Supp. 1260, 1264 (1984); American Air Parcel Forwarding Company v. United States, 1 CIT 293, 300, 515 F.Supp. 47, 53 (1981).

The merits here are of notable consequence. Whether a nation which becomes a "country under the Agreement" within the meaning of 19 U.S.C. § 1671(b) is then entitled to an injury determination by the International Trade Commission pursuant to section 1671(a) even as to pre-existing, unliquidated entries before countervailing (or antidumping) duties can be imposed on them is one of the most important issues to confront this Court of International Trade and the Federal Circuit since passage of the Trade Agreements Act of 1979.

The defendants argue that the merits are whether or not the Supreme Court would grant plaintiff's projected petition for a writ. They quote the decision of then Justice Rehnquist, sitting as Circuit Justice, in Houchins v. KQED, Inc., 429 U.S. 1341, 1345, 97 S.Ct. 773, 775, 50 L.Ed.2d 733 (1977), that "the threshold barrier confronting all stay applications is reasonable likelihood that the petition for certiorari will be granted" and also Circuit Justice Marshall's analogous opinion in Brennan v. United States Postal Service, 439 U.S. 1345, 99 S.Ct. 22, 58 L.Ed.2d 51 (1978), that the

well-established criteria for granting a stay are "that the applicants must show `a balance of hardships in their favor' and that the issue is so substantial that four Justices of this Court would likely vote to grant a writ of certiorari."

439 U.S. at 1346, 99 S.Ct. at 23 (emphasis in original), quoting New York Times Co. v. Jascalevich, 439 U.S. 1331, 1337, 99 S.Ct. 11, 15, 58 L.Ed.2d 38 (1978). If this is the immediate issue, of course this court is not competent to opine as to whether or not the requisite number of justices would vote to place plaintiff's issue on their crowded docket for plenary review. All that this court can state is that that substantive issue is anything but frivolous. Obviously, if it were of no import, the court would have no difficulty denying now plaintiff's application, notwithstanding the satisfaction of the other prerequisites for grant thereof.

III

Applications like the one at bar seek to preserve the status quo. In this case, that status has included suspension of liquidation — since the defendants first agreed thereto more than two years ago. As for the present and the immediate future, the 90-day period prescribed by 28 U.S.C. § 2101(c) and Supreme Court Rule 20.2 for filing of a petition for certiorari in a case...