Navneet Publications (India) Ltd. v. United States, Slip Op. 14-119
| Decision Date | 06 October 2014 |
| Docket Number | Slip Op. 14-119,Court No. 13-00204 |
| Parties | NAVNEET PUBLICATIONS (INDIA) LTD., MARISA INTERNATIONAL, SUPER IMPEX, PIONEER STATIONARY PVT. LTD., SGM PAPER PRODUCTS, LODHA OFFSET LIMITED, and MAGIC INTERNATIONAL PVT. LTD., Plaintiffs, v. UNITED STATES, Defendant, and ASSOCIATION OF AMERICAN SCHOOL PAPER SUPPLIERS, Defendant-Intervenor. |
| Court | U.S. Court of International Trade |
Before: Richard W. Goldberg, Senior Judge
OPINION[Granting plaintiff's motion for a preliminary injunction.]
Neil R. Ellis, Richard L.A. Weiner, and Rajib Pal, Sidley Austin LLP, of Washington, DC, for plaintiffs.
Antonia R. Soares, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, DC, for defendant. With her on the brief were Stuart F. Delery, Assistant Attorney General, Jeanne E. Davidson, Director, and Patricia M. McCarthy, Assistant Director. Of counsel on the brief was Elika Eftekhari, Office of the Chief Counsel for Trade Enforcement and Compliance, U.S. Department of Commerce, of Washington, DC.
Timothy C. Brightbill, Maureen E. Thorson, and Tessa V. Capeloto, Wiley Rein LLP, of Washington, DC, for defendant-intervenor.
Goldberg, Senior Judge: The court considers a motion by plaintiff Navneet Publications (India) Ltd. ("Navneet"), for a preliminary injunction under USCIT Rule 65. During the fifth administrative review of an antidumping order on lined paper products from India, the Department of Commerce assigned Navneet an ad valorem antidumping rate of 11.01 percent. See Certain Lined Paper Products from India, 78 Fed. Reg. 22,232, 22,234 (Dep't Commerce Apr. 15, 2013) (final admin. review) ("Final Results"). Navneet now seeks to prevent entries from a later review period from being liquidated at this 11.01 percent rate. Defendant the United States ("the Government") rejoins that the court lacks jurisdiction to issue an injunction.
The court grants the motion over the Government's objections. The court first holds that it has jurisdiction to enjoin the liquidation of entries at the 11.01 percent rate, even though those entries were made during a subsequent review period. The court also finds that Navneet meets the traditional requirements to secure a preliminary injunction, as discussed below.
In 2006, the Department of Commerce ("Commerce") issued an antidumping order on certain lined paper products ("CLPP") from India. Certain Lined Paper Products from India, 71 Fed. Reg. 56,949 (Dep't Commerce Sept. 28, 2006) (notice of antidumping duty order). The agency launched the fifth administrative review of this order in October 2011. See Initiation of Antidumping and Countervailing Duty Administrative Reviews, 76 Fed. Reg. 67,133, 67,134 (Dep't Commerce Oct. 31, 2011). During the proceeding, Commerce assigned Navneet, a cooperative respondent not selected for individual review, an 11.01 percent antidumping rate, or "all-others" rate. Final Results at 22,233-34. This all-others rate would serve as the rate of liquidation—or the final antidumping duty imposed—for each entry of Navneet's CLPP imported during the fifth review period (September 1, 2010 to August 31, 2011). Id. at 22,232.The rate also became the amount importers paid in deposits for Navneet's CLPP that entered, or was withdrawn from warehouse, after the Final Results were published. Id. at 22,234; see also 19 U.S.C. § 1675(a)(2)(C). The Final Results were published on April 15, 2013.
Navneet appealed the Final Results a month later. See Summons, ECF No. 1 (May 15, 2013). The Court of International Trade took jurisdiction under 28 U.S.C. § 1581(c), which gives the court exclusive authority to review final determinations from antidumping investigations and reviews. See Navneet Publ'ns (India) Ltd. v. United States, 38 CIT ___, ___, 999 F. Supp. 2d 1354, 1357 (2014). Thus empowered, the court held that the all-others rate from the fifth review was not based in substantial evidence. Id. at ___, 999 F. Supp. 2d at 1366. The Final Results were remanded so Commerce could revise the rate to comply with the court's opinion and order. Id.
As the parties litigated the Final Results of the fifth review, Commerce initiated its sixth review of the CLPP order. See Initiation of Antidumping and Countervailing Duty Administrative Reviews, 77 Fed. Reg. 65,858, 65,859 (Dep't Commerce Oct. 31, 2012). Commerce completed the sixth review on May 7, 2014, and assigned Navneet a 0.25 percent rate for entries of CLPP from the sixth review period (September 1, 2011, and August 31, 2012). Certain Lined Paper Products from India, 79 Fed. Reg. 26,205, 26,206 (Dep't Commerce May 7, 2014) (final admin. review).
Later, but still during the fifth-review litigation, Navneet and the Association of American School Paper Suppliers ("AASPS") requested a seventh review of Navneet's CLPP imports. See Appl. for Prelim. Inj. at Ex. 1, ECF No. 57 ("Pl.'s App."). Commerce duly initiated the review, which would have calculated duties for CLPP entered between September 1,2012, and August 31, 2013. See Initiation of Antidumping and Countervailing Duty Administrative Reviews, 78 Fed. Reg. 67,104, 67,105 (Dep't Commerce Nov. 8, 2013).
In December 2013, however, both Navneet and AASPS withdrew their requests for review. Pl.'s App. at Ex. 2. This set off a legal chain reaction that culminated in Navneet's motion for a preliminary injunction. First, because both Navneet and AASPS withdrew their review requests within 90 days of initiation, Commerce had to rescind the review with respect to Navneet. See § 19 C.F.R. § 351.213(d)(1). The agency issued its notice of rescission on September 30, 2014. See Notice of Recent Development at Ex. A, ECF No. 60 ("Rescission Notice"); 19 C.F.R. § 351.213(d)(4). Second, now that the review is rescinded, Commerce must instruct Customs and Border Protection ("CBP") to liquidate Navneet's seventh-review-period entries at the cash deposit rate in effect at the time those entries were made. See 19 C.F.R. § 351.212(c); see also 19 U.S.C. § 1516a(c)(1) (). The cash deposit rate in effect during the latter part of the seventh review period—or April 15 to August 31, 2013—was the invalidated all-others rate issued in the fifth-review Final Results.
To avoid having its seventh-review-period entries liquidated at the invalid fifth-review rate, Navneet applied for a preliminary injunction. See 19 U.S.C. § 1516a(c)(2) (). Plaintiff would limit relief to entries made between April 15 and August 31, 2013 (the "contested entries"), and claims the entries should be liquidated at a revised rate after the fifth-review litigation has ended. Pl.'s App. at Ex. 2 (proposed order); see also 19 U.S.C. § 1516a(e) (). Absent an injunction, the contestedentries will be liquidated at an unlawful rate with no chance for reliquidation to correct the error. Pl.'s App. at 6-7.
The court agrees with Navneet. As a threshold matter, the court holds that it has jurisdiction to enjoin liquidation of the contested entries at the invalid fifth-review rate. Navneet also satisfies all the criteria to secure a preliminary injunction. The court thus grants the relief Navneet has requested.
The court first holds that it has jurisdiction to enjoin the liquidation of the contested entries at the invalid fifth-review rate, even though those entries occurred during the seventh review period. The court remanded the fifth-review rate under its jurisdictional grant in 28 U.S.C. § 1581(c), and the court retains this jurisdiction to ensure compliance with its rulings. See Holmes Prods. Corp. v. United States, 17 CIT 356, 356, 822 F. Supp. 754, 756 (1993).
To illustrate why this is so, the court traces the jurisdictional chain of authority from its first link at 28 U.S.C. § 1581(c). As mentioned before, § 1581(c) gives the Court of International Trade "exclusive jurisdiction of any civil action commenced under section 516A of the Tariff Act of 1930." Section 516A of the Act, codified as amended at 19 U.S.C. § 1516a, permits review of final determinations by Commerce and the International Trade Commission, including decisions under 19 U.S.C. § 1675. See 19 U.S.C. § 1516a(a)(2)(B)(iii). And § 1675 governs Commerce's conduct of administrative reviews. Navneet invoked the court's authority under these provisions in its complaint, see Complaint 1, ECF No. 8, and by this power, the court held the fifth-review all-others rate was unsubstantiated in evidence, Navneet, 38 CIT at ___, 999 F. Supp. 2d at 1357, 1366.
By the same authority, the court may enjoin liquidation of the contested entries at the invalid fifth-review rate. 19 U.S.C. § 1516a(c)(2) provides:
In the case of a determination described in paragraph (2) of subsection (a) of this section [which includes the results of administrative reviews] by the Secretary, [Commerce], or the Commission, the United States Court of International Trade may enjoin the liquidation of some or all entries of merchandise covered by a determination of the Secretary, [Commerce], or the Commission, upon a request by an interested party for such relief and a proper showing that the requested relief should be granted under the circumstances.
To paraphrase, if the court has jurisdiction over the final results of a review, then it may enjoin liquidation of entries "covered" by those results, as long as the applicant shows proper grounds for relief. To complete the chain of authority, then, the court must decide whether Navneet's contested entries are covered by a determination from the fifth review, or by some other determination.
The court holds that the contested entries are...
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