Diamond Sawblades Mfrs. Coal. v. United States
| Decision Date | 03 November 2011 |
| Docket Number | Slip Op 11- 137 |
| Parties | DIAMOND SAWBLADES MANUFACTURERS COALITION, Plaintiff, v. UNITED STATES, Defendant, and EHWA DIAMOND INDUSTRIAL CO., LTD., SH TRADING INC., and SHINHAN DIAMOND INDUSTRIAL CO. LTD., Defendant-Intervenors. |
| Court | U.S. Court of International Trade |
Before: R. Kenton Musgrave, Senior Judge
OPINION[Addressing grant of plaintiff's motion for injunction]
Wiley, Rein & Fielding LLP (Daniel B. Pickard and Maureen E. Thorson), for the plaintiff.
Tony West, Assistant Attorney General; Jeanne E. Davidson, Director, Franklin E. White, Jr., Assistant Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice (Stephen C. Tosini and Delisa M. Sanchez), and Office of the Chief Counsel for Import Administration, U.S. Department of Commerce (Hardeep K. Josan), of counsel, for the defendant.
Akin Gump Strauss Hauer & Feld LLP (J. David Park and Jarrod M. Goldfeder), for the defendant-intervenor Ehwa Diamond Industrial Co., Ltd.
Perkins Coie LLP (Michael P. House and Sabaha Chaudhary), for the defendant-intervenors SH Trading Inc. and Shinhan Diamond Industrial Co. Ltd. Musgrave, Senior Judge: Slip opinion 11-117 previously denied as unripe the motion of the plaintiff Diamond Sawblades Manufacturers Coalition ("DSMC") to enjoin the International Trade Administration of the Department of Commerce ("Commerce") from revoking and/or causing liquidation of entries currently suspended administratively pursuant to the antidumping duty order on diamond sawblades and parts thereof from the Republic of Korea, 74 Fed. Reg. 57154 (Nov. 4, 2009) ("Order"). For the following reasons, the court has granted DSMC's renewed motion for injunction.
DSMC filed the underlying judicial action in 2006 to challenge certain scope and dumping margin aspects of Notice of Final Determination of Sales at Less Than Fair Value and Final Determination of Critical Circumstances: Diamond Sawblades and Parts Thereof from the Republic of Korea, 71 Fed. Reg. 29310 (May 22, 2006) ("LTFV"), as compiled by Commerce. In January 2011, at the request of the government of the Republic of Korea, the World Trade Organization issued an adverse panel report concluding that the United States had "acted inconsistently with the first sentence of Article 2.4.2 of the Anti-Dumping Agreement by using the zero methodology," inter alia, in determining the margins for the LTFV determination. See Panel Report, United States - Use of Zeroing in Anti-dumping Measures Involving Products from Korea, WT/DS402/R ¶ 8.1 (Jan. 18, 2011). On October 4, 2011, pursuant to section 129 of the Uruguay Round Agreements Act ("URAA"), 19 U.S.C. § 3538(b)(2), Commerce issued its final results on implementation of the adverse panel report, wherein it announced issuance of its "determination inconnection with the particular proceeding that would render the administering authority's action . . . not inconsistent with the findings of the panel or the Appellate Body."
Implementation of Commerce's section 129 determination from that point only requires instruction from the Office of the United States Trade Representative, see 19 U.S.C. § 3538(b)(4), and on the date of such instruction, the Order will be revoked, and further instruction issued by Commerce to U.S. Customs and Border Protection ("Customs") to lift the administrative suspension of liquidation of subject merchandise entered after such date, for which liquidation has been suspended since January 23, 2009, the date following Commerce's receipt of the "Timken" notice on this matter. See id. at § 3538(c); Diamond Sawblades and Parts Thereof from the People's Republic of China and the Republic of Korea: Notice of Court Decision Not In Harmony With Final Determination of the Antidumping Duty Investigations, 74 Fed. Reg. 6570, 6570-71 (Feb. 10, 2009).
Averring that it would receive no further notice prior thereto, DSMC renewed its petition to enjoin Commerce from revoking the Order and/or issuing instructions to Customs to liquidate entries of subject merchandise for which liquidation has been administratively suspended in accordance with the affirmative LTFV determination underlying this action.
In determining whether an administrative determination is final, a court looks to (1) "the fitness of the issue for judicial decision" and (2) "the hardship to the parties of withholding court consideration." Abbott Laboratories v. Gardner, 387 U.S. 136, 149 (1967).
As a general matter, two conditions must be satisfied for agency action to be "final": First, the action must mark the "consummation" of the agency's decision[ ]making process - it must not be of a merely tentative or interlocutory nature. And second,the action must be one by which "rights or obligations have been determined," or from which "legal consequences will flow."
Bennett v. Spear, 520 U.S. 154, 177-78 (1997). See Tokyo Kikai Seisakusho, Ltd. v. United States, 529 F.3d 1352, 1362 (Fed. Cir. 2008) (quoting Bennett). On October 13, 2011, the court concluded Commerce's final section 129 determination satisfied both standards: it is clearly "final," leaving no "room for Commerce to change course" if USTR instructs it to implement its determination (see 529 F.3d at 1363), and is one from which legal consequences will flow upon implementation. After considering DSMC's petition and the government's response of October 12, 2011, the court issued a temporary restraining order to preserve the status quo, via continuance of the suspension of liquidation, and called a hearing for October 24, 2011.
The purpose of an injunction is to continue to preserve the relative positions of the parties pending adjudication. See, e.g., Fundicao Tupy S.A. v. United States, 841 F.2d 1101, 1103 (Fed. Cir. 1988). Injunction requires consideration of the familiar four factors of (1) the threat of immediate and irreparable harm if preliminary relief is not granted, (2) the movant's likelihood of success on the merits, (3) the balance of the hardships, and (4) the public interest. See, e.g., FMC Corp. v. United States, 3 F.3d 424, 427 (Fed. Cir. 1993); PPG Industries, Inc. v. United States, 14 CIT 18, 729 F. Supp. 859 (1990). The absence of any one factor precludes issuance of the writ.
At the hearing, and in its petition, with regard to the first prong of the test, DSMC emphasizes that without an injunction against the discontinuance of the suspension of liquidation, all incoming entries of diamond sawblades and parts thereof from Korea subject to the Order will be liquidated, no dumping duties will be assessed regardless of the court's final judgment in thisunderlying challenge to the LTFV margin, and liquidation will moot DSMC's arguments as to incoming entries and thereby deny DSMC a substantial portion of the relief if seeks, thus causing DSMC irreparable injury. See Pl's (Second) Mot. for . . . Injunction ("Pl's Mot."), Ex. 2 (). Moreover, DSMC avers, apart from liquidation, the mere entry of Korean imports without the proper imposition of antidumping duties denies DSMC the relief owed to it under the trade remedy laws, and in the absence of an injunction against liquidation meaningful relief will be foregone. Regarding the likelihood of success on the merits, DSMC points to the thirteen counts of its complaint, among which are allegations of LTFV error in decisions, e.g., not to collapse two affiliated producers, in calculations of constructed export price profit and net U.S. price, and in the proper treatment of non-market economy (NME) inputs in a market economy case. On the third factor for injunction, DSMC argues that the other parties would at most be inconvenienced by delayed liquidation, and that any "hardship" to them is far outweighed by the irreparable harm to it; that is, the potential entry of imports that are never subject to antidumping duties amounts to negation of a statutory right of judicial review, whereas for the government to continue to suspend liquidation merely amounts to an inconvenience. Pl's Mot. at 12. See Timken Co v. United States, 6 CIT 76, 81, 569 F. Supp. 65, 71 (1983); Target Corp. v. United States, Slip Op. 10-141 at 6 (Dec. 23, 2010). On the fourth factor, DSMC argues granting the injunction would serve the public interest because it is settled that "it is best served by ensuring that [Commerce] complies with the law, and interprets and applies [U.S.] international trade statutes uniformly and fairly[,]" Ceramica Regiomontana, S.A. v. United States, 7 CIT 390, 397, 590 F. Supp. 1260, 1265 (1984), and "it is always in the public interest to allow the courts to conduct a full examination ofthe facts and the law in any given case, to ensure that justice will prevail." Pl.'s Mot. at 14, referencing id. and Target, supra.
DSMC clarifies that a direct challenge to the 129 determination is neither necessary nor appropriate for preserving its challenge to the LTFV determination because what is at stake is the appropriate calculation of the margin. In other words, DSMC states, it does not have any issue with the section 129 determination per se, but it objects that the 129 determination "does 'change or alter' the effects of the [LTFV] results . . . by making the original determination completely ineffective as to incoming entries," and that an injunction is necessary to prevent any Korean imports later determined through the process of judicial review of the LTFV determination to be sold at unfair prices - even in the absence of zeroing methodology - from "escaping antidumping duty liability[.]" Pl.'s Mot. at 8-9, referencing Hosiden Corp. v. United States, 85 F.3d 589 (Fed. Cir. 1996) (). DSMC avers that its client would be...
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