Nucor Corp. v. U.S.
| Decision Date | 30 December 2005 |
| Docket Number | Slip Op. 05-168. Court No. 05-00616. |
| Citation | 412 F.Supp.2d 1341 |
| Parties | NUCOR CORPORATION, Gerdau AmeriSteel Corporation, and Commercial Metals Company, Plaintiffs, v. UNITED STATES, Defendant, and ICDAS Celik Enerji Tersane ve Ulasim Sanayi, A.S., Defendant-Intervenor. |
| Court | U.S. Court of International Trade |
Wiley Rein & Fielding LLP (Alan H. Price, John R. Shane, and Maureen E. Thorson), for Plaintiffs.
Peter D. Keisler, Assistant Attorney General; David M. Cohen, Director, and Jeanne E. Davidson, Deputy Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice (David S. Silverbrand); Ada Loo, Office of the Chief Counsel, U.S. Department of Commerce, for Defendant, of counsel.
Arnold & Porter LLP (Lawrence A. Schneider), for Defendant-Intervenor.
At issue in this action are the final results of the U.S. Department of Commerce's 2003-2004 administrative review of the antidumping order covering certain steel concrete reinforcing bars ("rebar") from Turkey, which resulted in the revocation of the order as to one Turkish rebar producer/exporter—Defendant-Intervenor ICDAS Celik Enerji Tersane ye Ulasim Sanayi, A.S. ("ICDAS"). See Certain Steel Concrete Reinforcing Bars From Turkey; Final Results, Rescission of Antidumping Duty Administrative Review in Part, and Determination To Revoke in Part, 70 Fed.Reg. 67,665 (Nov. 8, 2005) ("Final Results of Turkish Rebar Administrative Review"). Jurisdiction lies under 28 U.S.C. § 1581(c) (2000).1
Plaintiff's Nucor Corporation, Gerdau AmeriSteel Corporation, and Commercial Metals Company are domestic producers of rebar ("Domestic Producers"). The Domestic Producers dispute two specific aspects of the final results of the 2003-2004 administrative review. First, they challenge the Commerce Department's "unilateral decision to alter the date of sale for sales made by ICDAS" from the commercial invoice date (used by the agency in its preliminary results) to the contract date (used in the final results). See Motion of Plaintiff's Nucor Corporation, Gerdau AmeriSteel Corporation, and Commercial Metals Company for Preliminary Injunction Against Liquidation ("Domestic Producers Brier) at 3, 8; Complaint ¶¶ 6-8. And, second, the Domestic Producers contest the Commerce Department's refusal to treat certain of ICDAS's sales as Constructed Export Price ("CEP") sales, which "would have required Commerce to make additional, statutorily mandated adjustments to the U.S. transaction prices." See Domestic Producers Brief at 3-4; Complaint ¶¶ 10-12 (misnumbered as 10). According to the Domestic Producers, the Commerce Department's correction of the two alleged errors would result in the agency's reinstatement of the antidumping order as to ICDAS. See Domestic Producers Brief at 4.
Now pending before the Court is the Domestic Producers' Motion For Preliminary Injunction Against Liquidation, which has already been granted in part.2 With the consent of all parties, a preliminary injunction has previously issued restraining liquidation (pending a final decision in this matter) of rebar produced and/or exported by ICDAS and entered or withdrawn from warehouse for consumption during the relevant period of review ("POR")—i.e., April 1, 2003 through March 31, 2004. See Preliminary Injunction Order (Nov. 15, 2005). What remains at issue is the Domestic Producers' request for a prospective injunction restraining liquidation of future entries (i.e., "post-POR entries" —entries outside the period of review).
As detailed more fully below, the Domestic Producers have failed to make the showing required to satisfy the classic "four factors" test for injunctive relief. Their application for a prospective preliminary injunction restraining liquidation of future, post-POR entries—relief which would be truly extraordinary—must therefore be denied.
In 1997, the Commerce Department issued an antidumping order on rebar from Turkey. See Antidumping Duty Order: Certain Steel Concrete Reinforcing Bars From Turkey, 62 Fed.Reg. 18,748 (April 17, 1997). Since that time, the agency has completed a number of administrative reviews (also known as "section 751 reviews" or "annual reviews") of the order, the most recent of which is at issue in this action.3
Pursuant to section 751 of the Trade Agreements Act of 1979 (codified at 19 U.S.C. § 1675), the Commerce Department conducts administrative reviews of antidumping orders, upon request, in recognition of the fact that prices and costs change over time and that such changes may necessitate adjustments to antidumping duty rates established in antidumping orders.
The purpose of an administrative review is to determine the duty rates for the specific period of review ("POR"). The final results of the administrative review thus serve as "the basis for the assessment of ... antidumping duties on entries of merchandise covered by the determination and for deposits of estimated duties." 19 U.S.C. § 1675(a)(2)(C). The duty rates and deposit requirements established in the final results of the administrative review remain in effect until they are eclipsed by the publication of the final results of the next administrative review.4 See generally Dofasco Inc. v. United States, 390 F.3d 1370, 1371-72 (Fed.Cir. 2004); Consolidated Bearings Co. v. United States, 348 F.3d 997, 1000-01 (Fed.Cir. 2003); Fuyao Glass Indus. Group Co. v. United States, 27 CIT ___, ___, 2003 WL 21780970, **2-3 (2003); Chr. Bjelland Seafoods A/S v. United States, 19 CIT 35, 50-52, 1995 WL 25327 (1995).
If a party seeks judicial review of the results of an administrative review, the Court of International Trade "may enjoin the liquidation of some or all entries of merchandise covered by [the administrative review]." 19 U.S.C. § 1516a(c)(2). Preliminary injunctions restraining liquidation of entries made during the period of review (i.e., "POR entries") are routinely granted with the consent of all parties in cases—like this one—where the results of an administrative review are challenged in court. See Domestic Producers Brief at 4 () (citation omitted); Response of Defendant-Intervenor ICDAS to Defendant's Motion for Voluntary Remand ("ICDAS Brief') at 4-5 () (citation omitted).5 Indeed, such an injunction already has been entered in this action. See Preliminary Injunction Order (Nov. 15, 2005). As explained in greater detail below (see section II.B.1), the purpose of such an injunction is to preserve the court's jurisdiction, so that cases are not mooted by the liquidation of all POR entries during the pendency of litigation. See Zenith Radio Corp. v. United States, 710 F.2d 806 (Fed. Cir.1983).
However, the Domestic Producers are not content with the scope of the existing preliminary injunction, because it enjoins the liquidation of POR entries only. The Domestic Producers emphasize that, because the 2003-2004 administrative review was the third review in which ICDAS's dumping margin was zero or de minimis, the antidumping order was revoked as to ICDAS as a result of the review.6 The Domestic Producers assert that the Commerce Department's correction of the errors alleged in the Domestic Producers' Complaint would raise ICDAS's dumping margin above the de minimis level and, thus, result in the reinstatement of the antidumping order. The Domestic Producers therefore seek to extend the preliminary injunction, to prospectively restrain the liquidation of future, post-POR entries, pending a final decision in this litigation. See Domestic Producers Brief at 1-5, 9-11; Response of Plaintiffs Nucor Corporation, Gerdau AmeriSteel Corporation, and Commercial Metals Company Regarding Defendant's Motion for Voluntary Remand and to Reinstate Suspension of Liquidation ("Domestic Producers Reply Brief') at 2.
In a teleconference hearing on the Domestic Producers' Motions for Temporary Restraining Order and Preliminary Injunction Against Liquidation convened on November 15, 2005, both the Government and ICDAS vigorously opposed the grant of a temporary restraining order or preliminary injunction restraining the liquidation of future, post-POR entries. The Government and ICDAS maintained that—as a threshold matter—the Court lacks jurisdiction to grant such relief, and, further, that the Domestic Producers have failed to satisfy the classic "four factors" test for injunctive relief.7 The Domestic Producers' motion for a temporary restraining order was denied as to future, post-POR entries, and a schedule for further briefing and a tentative hearing on the application for a preliminary injunction as to those entries was established. See Order (Nov. 15, 2005).
A mere three days later, the Government filed a Motion for a Voluntary Remand on the "date of sale" issue—the first of the two issues raised in the Domestic Producers' Complaint. See Defendant's Motion for a Voluntary Remand ("Government Brief"); Complaint ¶¶ 6-8. In its motion, the Government advised that the Commerce Department now "consents to the entry of an injunction ordering the suspension of liquidation upon the entries of the subject merchandise produced and exported by ICDAS entered on or after April 1, 2004" —i.e., a prospective injunction restraining liquidation of future, post-POR entries. See Government Brief at 3.
In light of the Government's abrupt change of position on the entry of a prospective injunction, the tentatively-scheduled hearing was canceled, and the parties were relieved of their briefing obligations under the Court's November 15, 2005 Order "except to the extent ... appropriate, in the context of Defendant's Motion For a Voluntary Remand, to address Plaintiff...
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