Skf Usa Inc. v. U.S.

• Decision Date: 18 February 2004
• Docket Number: Slip Op. 04-14.,Court No. 03-00490.
• Citation: 316 F.Supp.2d 1322
• Parties: SKF USA INC., SKF France S.A., and Sarma Plaintiffs, v. The UNITED STATES, Defendant, and The Timken Company, Defendant-Intervenors.
• Court: U.S. Court of International Trade

316 F.Supp.2d 1322

SKF USA INC., SKF France S.A., and Sarma Plaintiffs, v. The UNITED STATES, Defendant, and The Timken Company, Defendant-Intervenors.

Slip Op. 04-14.

Court No. 03-00490.

United States Court of International Trade.

February 18, 2004.

COPYRIGHT MATERIAL OMITTED

Steptoe & Johnson, LLP, (Herbert Carl Shelley), Washington, DC, for Plaintiffs SKF USA Inc., SKF France S.A., and Sarma.

Peter D. Keisler, Assistant Attorney General; David M. Cohen, Director; Jeanne Davidson, Deputy Director; Ada E. Bosque, Trial Attorney, U.S. Department of Justice, Civil Division, Commercial Litigation Branch; and Barbara Tsai, Attorney, Office of Chief Counsel for Import Administration, for Defendant United States, of counsel.

Stewart and Stewart, (Terence Patrick Stewart), Washington, DC, for Defendant-Intervenors.

OPINION

WALLACH, Judge.

I Introduction

On January 22, 2004, the court heard oral argument on Plaintiffs, SKF USA Inc., SKF France S.A., and SARMA (collectively "SKF"), Partial Consent Motion for Preliminary Injunction ("Motion") to enjoin the liquidation of certain ball bearings ("BBs") from France covered by the United States Department of Commerce's ("Commerce") administrative review of antidumping duty orders on BBs. Ball Bearings and Parts Thereof From France, Germany, Italy, Japan, and Singapore: Final Results of Antidumping Duty Administrative Reviews, Rescission of Administrative Review in Part, and Determination Not To Revoke Order in Part, 68 Fed.Reg. 35,623 (June 16, 2003) ("administrative review"). Plaintiffs timely filed their Motion and Defendant-Intervenor, Timken, consented to the Motion.¹ Defendant claimed that it did not have an adequate opportunity to review the proposed order of injunction.² During a telephonic status conference held with all the parties on September 18, 2003, the court asked the parties to confer. Defendant subsequently agreed to all but one aspect of the order for injunction: specifically, it did not agree to the injunction remaining in effect through any potential appeals of this court's determination.

A preliminary injunction issued by this court continues after issuance of a judgment at least through the period of the automatic stay provided pursuant to USCIT R. 62 and throughout any appeals. The court retains the power to modify or exert jurisdiction over the injunction until a final and conclusive decision is rendered. The court has jurisdiction over this matter pursuant to 28 U.S.C. § 1581(c) (2000). For those reasons, the court will grant Plaintiffs' Motion and enjoin liquidation until the injunction expires as a matter of law or until it orders otherwise.

II Background

Pursuant to USCIT 56.2, Plaintiffs challenge certain aspects of the administrative review of the antidumping duty orders covering BBs. The entries at issue are BBs and parts thereof from France, which were produced, or exported to or imported into the United States, by SKF during the period of review ("POR") from May 1, 2001, through April 30, 2002.³ Plaintiffs filed their Motion requesting that the court enter an order enjoining the United States, during the pendency of this action, from liquidating all the entries: those entered, or withdrawn from warehouse, for consumption during the POR; those produced by SKF France S.A. or Sarma, exported to or imported into the United States by SKF; or those exported to or imported into the United States with the knowledge and authorization of SKF.⁴

III Arguments

Plaintiffs claim that absent an injunction preventing liquidation, Commerce will instruct the U.S. Bureau of Customs and Border Protection ("Customs") to liquidate their entries and deprive this court of a basis for judicial review of the challenged determination. Moreover, Plaintiffs contend that injunctions granted by this court during a challenge to an antidumping review should continue in effect until the party exhausts its appeals, and a final and conclusive decision is rendered. Conversely, Defendant claims that a preliminary injunction, as a matter of law, dissolves upon issuance of a final judgment by this court.

IV Applicable Legal Standards

A preliminary injunction is considered an extraordinary remedy. See Ugine-Savoie Imphy v. United States, 24 CIT 1246, 1249, 121 F.Supp.2d 684 (2000). Pursuant to 19 U.S.C. § 1516a(c)(2) (1999), the United States Court of International Trade is authorized to "enjoin the liquidation of some or all entries of merchandise covered by a determination ... upon a request by an interested party for such relief."⁵ The purpose of a preliminary injunction is to preserve the relative positions of the parties pending adjudication by the court. See Fundicao Tupy S.A. v. United States, 841 F.2d 1101, 1103 (Fed.Cir.1988); see also Univ. of Texas v. Camenisch, 451 U.S. 390, 395, 101 S.Ct. 1830, 1834, 68 L.Ed.2d 175, 180 (1981). Before this court will grant a preliminary injunction, the Plaintiffs must establish that: (1) without the preliminary injunction, they will suffer irreparable harm; (2) the balance of hardships weighs in their favor; (3) it is likely that they will succeed on the merits of their case; and (4) granting the preliminary injunction will not run counter to the public's interest. See NMB Singapore Ltd. v. United States, 24 CIT 1239, 1242, 120 F.Supp.2d 1135 (2000).

V Discussion

Commerce issues antidumping duty orders for imported merchandise, sold in the United States below fair value, that materially injures or threatens to injure a domestic industry. See 19 U.S.C. § 1673 (2000). Importers entering merchandise covered by an antidumping order must make a deposit of estimated duties at the time the merchandise is entered. See 19 U.S.C. § 1673e(a)(3). The actual liquidation of entries subject to an antidumping order by Customs may occur years after importation. See Consol. Bearings Co. v. United States, 348 F.3d 997, 1000 (Fed.Cir.2003). Before liquidation occurs, however, an interested party may request administrative review of the antidumping duty order. Id. Pursuant to section 1675(a)(2)(C), the results of an administrative review determination become the basis for the assessment of antidumping duties on entries of merchandise covered by that determination. Shinyei Corp. of Am. v. United States, 355 F.3d 1297, 1305-06 (Fed.Cir.2004). Section 516A of the Tariff Act of 1930 provides for judicial review of Commerce's antidumping duty determinations. Id. at 1306; 19 U.S.C. § 1516a(a)(2000).

Pursuant to § 1516a(c)(1), unless liquidation is enjoined by the court, entries of merchandise covered by Commerce's determination are liquidated in accordance with that determination or a conclusive decision by either this court or an appeals court. However, this court may grant injunctive relief barring liquidation upon request by an interested party for such relief and a proper showing that a preliminary injunction should be granted.⁶ 19 U.S.C. § 1516a(c)(2). This court grants preliminary injunctions in antidumping cases when it is essential for the protection of a party's property rights against injuries otherwise irremediable.⁷ See Cavanaugh v. Looney, 248 U.S. 453, 456, 39 S.Ct. 142, 143, 63 L.Ed. 354, 358 (1919). Liquidation of a party's entries is the final computation or ascertainment of duties accruing on those entries. See Juice Farms v. United States, 68 F.3d 1344, 1345 (Fed.Cir.1995) (citing 19 C.F.R. § 159.1). Once liquidation occurs, it permanently deprives a party of the opportunity to contest Commerce's results for the administrative review by rendering the party's cause of action moot. See Zenith Radio Corp. v. United States, 710 F.2d 806, 809-10 (Fed.Cir.1983).

A Plaintiffs Have Established Their Right to Preliminary Injunctive Relief

All of the parties consented to a preliminary injunction, and no party denies that Plaintiffs have established their right to a preliminary injunction. Defendant, however, disputes the length of the injunction and states that "as a matter of law, trial court injunctions dissolve upon issuance of its final judgment." Defendant's Response to SKF's Partial Consent Motion for Preliminary Injunction ("Defendant's Response") at 2. Plaintiffs have certainly established their right to some sort of preliminary injunction.

Plaintiffs Will Suffer Irreparable Harm Absent the Requested Injunctive Relief

Plaintiffs request a preliminary injunction because they claim that they will suffer irreparable injury if their entries are liquidated because liquidation will frustrate their right to judicial review. A preliminary injunction grants equitable relief and requires a party to do or refrain from doing a particular thing. See Black's Law Dictionary (7th ed.1999). After an antidumping review determination, if a party's entries are liquidated prior to judicial review of the determination and antidumping duties are assessed, any outstanding challenges as to those entries are rendered moot because liquidation, absent errors by Commerce or Customs, places the entries outside the jurisdiction of the court.⁸ See Chr. Bjelland Seafoods A/S v United States, 1995 WL 25327, 19 CIT 35, 51 (1995).

In Zenith, 710 F.2d at 806, a party filed an action challenging Commerce's antidumping review determination. It sought a preliminary injunction against liquidation of its entries, which this court denied. The Federal Circuit held that once liquidation occurs, a subsequent decision by the Court of International Trade has no effect on the dumping duties assessed on the parties' entries.⁹ Id. at 810. The Federal Circuit found that "the statutory scheme has no provision permitting reliquidation in this case or imposition of higher dumping duties after liquidation" if and when a party "is successful on the merits."¹⁰ Id. Therefore, the Federal Circuit found if the court did not enjoin liquidation, the plaintiffs might be assessed antidumping duties regardless of the court's final judgment as to results of the administrative review. Id....