Sharp Corp. v. U.S.

• Decision Date: 21 January 1988
• Docket Number: 87-1252 and 87-1253,Nos. 87-1087,s. 87-1087
• Citation: 837 F.2d 1058
• Parties: , 6 Fed. Cir. (T) 63 SHARP CORP., et al., and Toshiba Corp., et al., Plaintiffs-Appellees, v. The UNITED STATES, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Federal Circuit

Page 1058

837 F.2d 1058

9 ITRD 2025, 6 Fed. Cir. (T) 63

SHARP CORP., et al., and Toshiba Corp., et al., Plaintiffs-Appellees, v. The UNITED STATES, et al., Defendants-Appellants.

Nos. 87-1087, 87-1252 and 87-1253.

United States Court of Appeals, Federal Circuit.

Jan. 21, 1988.

Peter J. Gartland, Shanley & Fisher, New York City, argued, for plaintiffs-appellees Sharp. Charles D. Donahue, Shanley & Fisher, of New York City, of counsel.

Robert H. Huey, Arent, Fox, Kintner, Plotkin & Kahn, Washington, D.C., argued, for plaintiff-appellee Toshiba. Mira Davidovski, Arent, Fox, Kintner, Plotkin & Kahn, Washington, D.C., of counsel.

David M. Cohen, Commercial Litigation Branch, Dept. of Justice, Washington, D.C., argued, for defendants-appellants. J. Kevin Horgan, Dept. of Justice, Washington, D.C., of counsel.

Before FRIEDMAN, NEWMAN, and ARCHER, Circuit Judges.

FRIEDMAN, Circuit Judge.

These are consolidated appeals by the United States from preliminary injunctions of the Court of International Trade that barred the government from taking certain actions in connection with its administrative reviews of portions of an antidumping order. We reverse.

I

A. The pertinent background facts are set forth in our opinion in Matsushita Elec. Indus. Co. v. United States, 823 F.2d 505 (Fed.Cir.1987), where we reversed a similar preliminary injunction of the Court of International Trade:

In 1971, the Secretary of the Treasury published T.D. 71-76, a "finding of dumping" that reported the Secretary's determination "that an industry in the United States is being injured by reason of the importation of television receiving sets, monochrome and color, from Japan sold at less than fair value within the meaning of section 201(a) of the Antidumping Act of 1921, as amended [then 19 U.S.C. Sec. 160(a), now Sec. 1673]." 5 Cust.Bull. 151, 152, 36 Fed.Reg. 4597 (1971). [The appellees Sharp Corporation (Sharp) and Toshiba Corporation (Toshiba) were two of the parties subject to the antidumping order.]

The administration of the Antidumping Act was transferred to the Department of Commerce (Commerce) in 1979. See Exec. Order No. 12,175, 3 C.F.R. 463 (1980). In 1980, Commerce entered into settlement agreements with the importers of color television receivers from Japan, including [Sharp and Toshiba], respecting their potential liability for dumping duties assessed pursuant to T.D. 71-76. See Montgomery Ward & Co., Inc. v. Zenith Radio Corp., 673 F.2d 1254 (CCPA), cert. denied, 459 U.S. 943, 103 S.Ct. 256, 74 L.Ed.2d 200 (1982). The ... Under 19 U.S.C. Sec. 1675(a) (1984), Commerce is required to review at least annually the basis and amount of duty to be assessed under an antidumping duty order, and to publish the results of each such review in the Federal Register. The Antidumping Act provides that, after such a review, Commerce "may revoke" the antidumping duty order. 19 U.S.C. Sec. 1675(c) (1984). Commerce's regulations authorize revocation

agreements provided for the payment of roughly $70 million [of which Sharp paid $9,124,000 and Toshiba $7,600,000] ... in settlement of all claims for duties assessed pursuant to T.D. 71-76 on television receivers imported on or before March 31, 1979.

[w]henever the Secretary determines that sales of merchandise subject to an Antidumping Finding or Order ... are no longer being made at less than fair value ... and is satisfied that there is no likelihood of resumption of sales at less than fair value.... Ordinarily, consideration of such revocation ... will be made only subsequent to [an administrative] review.

19 C.F.R. Sec. 353.54(a) (1981-86) (Commerce's Sec. 353.54 is substantively identical to the Treasury regulation that it replaced, Sec. 153.44 (1980)).

The revocation of an antidumping duty order is presaged by the publication by Commerce of a "Notice of Tentative Determination to Revoke or Terminate." 19 C.F.R. Sec. 353.54(e) (1981-86). "As soon as possible after publication," 19 C.F.R. Sec. 353.54(f), but after opportunity has been provided "for interested parties to present views with respect to the tentative revocation," 19 C.F.R. Sec. 353.54(e),

the Secretary will determine whether final revocation ... is warranted. In cases where an application for a revocation ... is based on the absence of sales at less than fair value with respect to the imported merchandise and the dispositive date for establishing a two-year period of no sales at less than fair value is the date of publication of the Finding or Order, the Secretary may determine that a final revocation ... is warranted only if the firm involved provides information showing no sales at less than fair value with respect to the subject merchandise up to the date of publication of the "Notice of Tentative Determination to Revoke or Terminate."

19 C.F.R. Sec. 353.54(f) (1981-86).

823 F.2d at 506-07.

B. 1. Following its administrative review of the two separate one-year periods between April 1, 1978 and March 31, 1981, for which it found there was no dumping, Commerce, on September 27, 1983, published a notice of its tentative revocation of TD 71-76 with respect to Toshiba. 48 Fed.Reg. 44101 (1983). In that notice, Commerce pointed out that Toshiba had made no shipments of television receivers between April 1, 1980 and March 31, 1982. The notice specified that a final revocation "could not be issued until administrative reviews [have] been completed on import of [television] receiving sets from April 1, 1982, through the date of this notice." Commerce has initiated three other annual reviews covering the period from April 1, 1981 to September 27, 1983.

Toshiba filed its complaint in the Court of International Trade on October 15, 1986. The complaint stated that it was designed "to require Defendants to comply with the antidumping law ... as well as [the] April 28, 1980 Settlement Agreement...." Specifically, Toshiba sought:

(i) to require Defendants to complete the administrative review under T.D. 71-76, the dumping finding covering television receiving sets, monochrome and color, from Japan, as to merchandise produced by Toshiba Corporation ("TC") for the period prior to September 27, 1983, specifically, the period April 1, 1981--March 31, 1982 ("third round"), and to conduct and complete such reviews for the periods April 1, 1982--March 31, 1983 ("fourth round"), and April 1, 1983--September 27, 1983 "(partial fifth round") [sic] pursuant to a schedule established by the Court;

(ii) to compel Defendants to determine, on the basis of the third, fourth, and (iii) to enjoin Defendants from conducting any administrative reviews of T.D. 71-76, as to merchandise produced by TC for periods after September 27, 1983, unless and until it is determined that final revocation of T.D. 71-76 as to TC is not warranted, and;

partial fifth round reviews and Plaintiffs' assurances or, in the alternative, on the record in the proceeding undertaken by the Department of Commerce regarding the likelihood of the resumption of sales at less than fair value, whether final revocation of T.D. 71-76 as to TC is warranted;

(iv) to require Defendants to use in these administrative reviews of Plaintiffs' merchandise, the "traditional methodology" for determining whether dumping margins exist, in accordance with the Settlement Agreement.

2. Following its review of the same two-year period, Commerce found that Sharp either had not dumped or had engaged in only a de minimis margin of dumping, and on August 18, 1983 published notice of its tentative revocation of TD 71-76 with respect to Sharp. 48 Fed.Reg. 37506, 37508 (1983). Commerce also initiated administrative reviews of Sharp for the five subsequent periods between April 1, 1981 and February 28, 1986, but has not published the result of any of those reviews.

Sharp filed its complaint in the Court of International Trade on October 20, 1986. The complaint made substantially the same allegations and sought substantially the same relief as the Toshiba complaint.

C. The Court of International Trade granted preliminary injunctions in both cases.

The court rendered its major opinion in the Toshiba case. It held that Toshiba had met the requirements for a preliminary injunction with respect to irreparable injury. The court stated:

[W]hile it is true that the ordinary consequences of antidumping duty procedures do not constitute irreparable harm, Commerce is not seeking ordinary annual reviews. It seeks to compel plaintiffs to submit data for three years within 45 days and to furnish these data under new accounting methodology. Plaintiffs have averred that it is improbable that they will be able to comply with Commerce's demands and that if Commerce follows its alternative course, using the best information available (e.g., the domestic manufacturers' data), they may be subject to an antidumping determination even though they are not indeed importing their merchandise at LTFV.

The court further ruled that Toshiba had shown that it probably would prevail on the merits, that the balance of hardship favored Toshiba, and that the public interest favored a preliminary injunction. The court entered the following injunction:

The Court preliminarily enjoins defendants from conducting any administrative reviews under T.D. 7176 [sic] as to these plaintiffs until it has made a final determination as to the final revocation of T.D. 7176 with respect to plaintiffs' products covered by that order.

As to any reviews conducted by Commerce as necessary for its determination as to whether T.D. 71-76 should be revoked as to plaintiffs' products, Commerce is enjoined from changing its traditional methodology for determining any market values or other data necessary for its determination of this issue, that is Commerce must examine the information it requests and verify it using accounting procedures that were agreed to in the settlement agreement.

In its opinion in Sharp, rendered three days after Toshiba, the...