Yancheng Baolong Biochemical Products Co. v. U.S.

• Decision Date: 11 May 2005
• Docket Number: No. 04-1500.,No. 04-1464.,04-1464.,04-1500.
• Citation: 406 F.3d 1377
• Parties: YANCHENG BAOLONG BIOCHEMICAL PRODUCTS COMPANY, LTD., Plaintiff-Cross Appellant, v. UNITED STATES, Defendant-Appellant, and Crawfish Processors Alliance, Louisiana Department of Agriculture & Forestry, and Bob Odom, Commissioner. Defendants.
• Court: U.S. Court of Appeals — Federal Circuit

406 F.3d 1377

YANCHENG BAOLONG BIOCHEMICAL PRODUCTS COMPANY, LTD., Plaintiff-Cross Appellant, v. UNITED STATES, Defendant-Appellant, and Crawfish Processors Alliance, Louisiana Department of Agriculture & Forestry, and Bob Odom, Commissioner. Defendants.

No. 04-1464.

No. 04-1500.

United States Court of Appeals, Federal Circuit.

May 11, 2005.

J. Kevin Horgan, deKieffer & Horgan, of Washington, DC, argued for plaintiff-cross appellant.

Patricia M. McCarthy, Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for defendant-appellant. On the brief were Peter D. Keisler, Assistant Attorney General, David M. Cohen, Director, Jeanne E. Davidson, Deputy Director, and Stephen C. Tosini, Trial Attorney. Of counsel on the brief were John D. McInerney, Acting Chief Counsel, Elizabeth C. Seastrum, Senior Counsel, and, Marisa Beth Goldstein, Attorney, Office of the Chief Counsel for Import Administration, United States Department of Commerce, of Washington, DC.

Before CLEVENGER, GAJARSA, and PROST, Circuit Judges.

CLEVENGER, Circuit Judge.

The United States appeals the decision of the United States Court of International Trade holding it in contempt for violating a preliminary injunction by ordering liquidation of the entries of Yancheng Baolong Biochemical Products Co., Ltd. ("Yancheng"). Yancheng cross-appeals the court's decision to deny attorney fees for the contempt proceedings. We affirm the decision of the Court of International Trade denying Yancheng an award of attorney fees because even though we find that the government was correctly held in contempt, the government has not waived its sovereign immunity for this type of award.

I

The United States Department of Commerce ("Commerce") determined that sales under an antidumping duty administrative review reported by Yancheng were actually from another exporter. Consequently, Commerce rescinded review of Yancheng's entries. Freshwater Crawfish Tail Meat from the People's Republic of China; Notice of Final Results of Antidumping Duty Administrative Review and New Shipper Reviews, and Final Partial Rescission of Antidumping Duty Administrative Review, 66 Fed.Reg. 20,634 (Apr. 24, 2001). Yancheng's merchandise that entered the United States during the period of review ("POR") was thus subjected to a China-wide duty rate of 201.63 percent.

Yancheng then commenced suit in the Court of International Trade and moved for a preliminary injunction to stop Commerce from liquidating its entries. The injunction was fashioned to prevent the government, "during the pendency of this action, including during any remands, from causing or permitting liquidation" of entries of freshwater crawfish tail meat from China exported by Yancheng and entered into the United States during the POR. Yancheng Baolong Biochem. Prods. Co. v. United States, No. 01-00338, slip op. at 1 (Ct. Int'l Trade Aug. 2, 2001) ("Injunction Order"). The injunction indicated that the entries would be "liquidated in accordance with the final court decision as provided in 19 U.S.C. § 1516a(e)." Id. at 2.

The Court of International Trade sustained Commerce's rescission of the review on August 15, 2002. Yancheng Baolong Biochem. Prods. Co. v. United States, 219 F.Supp.2d 1317 (Ct. Int'l Trade 2002) ("Yancheng I"). Yancheng appealed that decision to the Federal Circuit on October 4, 2002, and did not seek another injunction pending the appeal.

Commerce ordered Customs to liquidate Yancheng's entries at the rate of 201.63 percent on November 1, 2002. On November 5, 2002, Yancheng filed a motion to clarify the duration of the preliminary injunction. The government failed to respond to this motion to clarify. On November 8, 2002, Customs field offices received the instructions to liquidate. On January 3 and January 10, 2003, Customs liquidated some entries subject to the injunction. The trial court informed the parties on January 15, 2003, that the original injunction remained effective through the appeal. On January 17, 2003, Customs liquidated the last of the 28 entries on the West Coast. Only three of Yancheng's entries, those on the East Coast, remained unliquidated. See Yancheng Baolong Biochem. Prods. Co. v. United States, 277 F.Supp.2d 1349, 1351-52 (Ct. Int'l Trade 2003) ("Yancheng II"). On the same day that the last liquidations occurred on the West Coast, Customs received new instructions to discontinue the liquidation of Yancheng's entries. The Court of International Trade then held the government in contempt of the preliminary injunction on July 16, 2003, based on the liquidations that occurred in January 2003 that implemented Commerce's November 2002 instructions. The court found that the government violated the preliminary injunction because the injunction was in effect until all appeals were completed in the case. See Yancheng II, 277 F.Supp.2d at 1363.

The Federal Circuit sustained the application of the China-wide rate to Yancheng on August 4, 2003. Yancheng Baolong Biochem. Prods. Co. v. United States, 337 F.3d 1332 (Fed.Cir.2003) ("Yancheng III"). In response, the government filed a motion to vacate the civil contempt order. The Court of International Trade requested additional briefing on whether the government had waived sovereign immunity to the award of contempt damages. The government's motion to vacate the contempt order was denied on April 28, 2004, and the court held that Yancheng could not recover attorney fees as damages for the government's contempt because the government had not waived its sovereign immunity for such an award. Yancheng Baolong Biochem. Prods. Co. v. United States, 343 F.Supp.2d 1226 (Ct. Int'l Trade 2004) ("Yancheng IV"). Relying on Lane v. Pena, 518 U.S. 187, 116 S.Ct. 2092, 135 L.Ed.2d 486 (1996), the court found that there was no unequivocal expression of waiver in any statutory text. Yancheng IV, slip op. at 25. The government now appeals the decision of the Court of International Trade which held the government in contempt of the preliminary injunction, and Yancheng cross-appeals the finding that sovereign immunity precludes its recovery of attorney fees for the contempt proceedings. We have jurisdiction over this appeal from a final decision of the Court of International Trade pursuant to 28 U.S.C. § 1295(a)(5) (2000).

II

This court reviews contempt decisions for abuse of discretion. Ammex, Inc. v. United States, 334 F.3d 1052, 1055 (Fed.Cir.2003). Abuse of discretion will be found when there is an error of law, a clear error of judgment, or findings that were clearly erroneous. Id. Questions of law are reviewed de novo. Koyo Seiko Co. v. United States, 36 F.3d 1565, 1570 (Fed. Cir.1994).

III

The government contends that Yancheng was required to ask for a second injunction for the period pending appeal and that it should not have been held in contempt because the preliminary injunction was not a clear order. Yancheng argues that the preliminary injunction in this case issued such that entries would be "liquidated in accordance with the final court decision as provided in 19 U.S.C. § 1516a(e)," see Injunction Order, slip op. at 2, which under Federal Circuit precedent clearly included the time period pending the appeal. The government admits that the "[s]uspension of liquidation of subject entries is a routine procedure in this type of case because liquidation can render the litigation moot." The government also acknowledges that this case would have been mooted if Customs would have liquidated the three East Coast entries at the same time it liquidated the West Coast entries. As this court held in Zenith Radio Corp. v. United States, if there is no injunction, liquidation is automatic under 19 U.S.C. § 1516a(e) and § 1516a(c)(1), and any decision on the merits of a liquidation challenge after liquidation has taken place is without effect. 710 F.2d 806, 810 (Fed.Cir.1983).

To establish civil contempt, it must be shown, by clear and convincing evidence, that there was a valid order in place, the defendant had knowledge of the order, and the order was disobeyed. Ammex, Inc. v. United States, 193 F.Supp.2d 1325, 1327-28 (Ct. Int'l Trade 2002). The government argues that it cannot be held in contempt because there is a "fair ground of doubt as to the wrongfulness of the [government's] actions." Preemption Devices, Inc. v. Minn. Mining & Mfg. Co., 803 F.2d 1170, 1173 (Fed.Cir.1986). The government asserts that the injunction was dissolved upon the issuance of the Court of International Trade decision, or that at least there was a fair ground of doubt as to whether the injunction continued into the appeal stage of the litigation.

The statutory scheme under which the preliminary injunction issued in this case is critical to determining when the injunction was intended to dissolve. The preliminary injunction references the liquidation procedure set forth in 19 U.S.C. § 1516a(e). The statutory text of section 1516a(e) is as follows:

(e) Liquidation in accordance with final decision

If the cause of action is sustained in whole or in part by a decision of the United States Court of International Trade or of the United States Court of Appeals for the Federal Circuit—

(1) entries of merchandise of the character covered by the published determination of the Secretary, the administering authority, or the Commission, which is entered, or withdrawn from warehouse, for consumption after the date of publication in the Federal Register by the Secretary or the administering authority of a notice of the court decision, and

(2) entries, the liquidation of which was enjoined under subsection (c)(2) of this section, shall be liquidated in accordance with the final court decision in the action. Such notice of the court decision shall be published within ten days from the date of the issuance of the court decision.

19 U.S.C. § 1516a(e) (2000).

This court has previously determined what...