Yancheng Baolong Biochemical v. U.S.

• Decision Date: 28 April 2004
• Docket Number: Slip Op. 04-42.,No. 01-00338.,01-00338.
• Citation: 343 F.Supp.2d 1226
• Parties: YANCHENG BAOLONG BIOCHEMICAL PRODUCTS COMPANY, LTD., Plaintiff, v. UNITED STATES of America, Defendant, and Crawfish Processors Alliance, et al., Defendant-Intervenors.
• Court: U.S. Court of International Trade

Page 1226

343 F.Supp.2d 1226

YANCHENG BAOLONG BIOCHEMICAL PRODUCTS COMPANY, LTD., Plaintiff, v. UNITED STATES of America, Defendant, and Crawfish Processors Alliance, et al., Defendant-Intervenors.

Slip Op. 04-42.

No. 01-00338.

United States Court of International Trade.

April 28, 2004.

deKieffer & Horgan (J. Kevin Horgan), Washington, DC, for Plaintiff.

Peter D. Keisler, Assistant Attorney General; David M. Cohen, Director, Commercial Litigation Branch, Civil Division, United States Department of Justice; Jeanne E. Davidson, Deputy Director, Commercial Litigation Branch, Civil Division, United States Department of Justice; Paul D. Kovac, Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice; Stephen C. Tosini, Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice; Marisa Goldstein, Attorney, Office of Chief Counsel for Import Administration, United States Department of Commerce, for Defendant, of counsel.

Adduci, Mastriani & Schaumberg, L.L.P. (Will E. Leonard, Mark R. Leventhal, John C. Steinberger), Washington, DC, for Defendant-Intervenors.

[Defendant's Motion to Vacate the Court's Judgment Entered on July 16, 2003, is denied. This Court cannot award Plaintiff damages in the form of attorney fees associated with the contempt proceedings because the United States has not waived its sovereign immunity for such an award; Plaintiff's request for attorney fees is denied.]

OPINION

CARMAN, Judge.

There are two matters presently before this Court: 1) Defendant's Motion to Vacate the Court's Judgment Entered on July 16, 2003; and 2) Plaintiff's Memorandum on Damages to be Awarded Based on a Finding of Contempt for Violation of the Injunction Against Liquidation of Subject Entries. For the reasons set forth below, this Court denies Defendant's Motion to Vacate and does not award Plaintiff attorney fees as damages for Defendant's contempt.

BACKGROUND

Familiarity with this Court's opinion issued on July 16, 2003, is presumed. See Yancheng Baolong Biochemical Products Company, Ltd. v. United States, 277 F.Supp.2d 1349 (Ct. Int'l Trade 2003) ("Yancheng Contempt Decision"). This Court incorporates the detailed recitation of the facts as agreed to by the parties at the show cause hearing on June 4, 2003, and as found by this Court in the Yancheng Contempt Decision. See id. at 1350-52. The facts leading up to the present matters are provided briefly below.

In June 2001, Plaintiff sought judicial review of the United States Department of Commerce's ("Commerce") rescission of the administrative review of an antidumping duty order as to Plaintiff. See 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 Administrative Review, 66 Fed. Reg. 20,634 (Apr. 24, 2001), amended by 66 Fed. Reg. 30,409 (June 6, 2001) ("Final Results"). In August 2001, on consent of the parties and pursuant to 19 U.S.C. § 1516a(c)(2) (2000), this Court issued a preliminary injunction ("August 2001 Preliminary Injunction") which enjoined the liquidation of any and all unliquidated entries of crawfish tail meat from the People's Republic of China exported by Plaintiff that were covered by the Final Results. Yancheng Baolong Biochemical Prods. Co., Ltd. v. United States, No. 01-00338 (Ct. Int'l Trade Aug. 2, 2001) (order granting preliminary injunction). The August 2001 Preliminary Injunction specifically stated that Defendant shall be enjoined from liquidating the subject entries "during the pendency of this action," and "that the entries subject to this injunction shall be liquidated in accordance with the final court decision as provided in 19 U.S.C. § 1516a(e)."¹ (Id. at 1-2.) The August 2001 Preliminary Injunction covered thirty-one entries: twenty-eight at the Port of Los Angeles, California; and three at the Port of Norfolk, Virginia. (Def.'s Conf. Submission of 04/09/03.)

In August 2002, this Court denied Plaintiff's Motion for Judgment on the Agency Record and sustained Commerce's rescission of the administrative review of the antidumping duty order as to Plaintiff. Yancheng Baolong Biochemical Prods. Co., Ltd. v. United States, 219 F.Supp.2d 1317 (Ct. Int'l Trade 2002). Plaintiff filed a Notice of Appeal to the United States Court of Appeals for the Federal Circuit ("Court of Appeals") on October 4, 2002. See id., appeal docketed, No. 03-1059 (Fed.Cir. Nov. 5, 2002).

While the appeal was pending, Plaintiff filed a request in this Court to clarify or amend the Court's August 2001 Preliminary Injunction. (See Pl.'s Mot. to Clarify Or, Alternatively, Extend Inj. Against Liquidation of Entries ("Pl.'s Mot. to Clarify") at 1). In that motion, Plaintiff asserted that Plaintiff's counsel had been informed by Defendant's counsel that unless Plaintiff obtained an injunction pending appeal, the subject entries would be liquidated. (Id. at 3).

Two days after Plaintiff filed its Motion to Clarify in this Court, Commerce sent instructions to the United States Customs Service, now organized as the Bureau of Customs and Border Protection ("Customs"), directing Customs to liquidate the subject entries at an antidumping duty rate of 201.63% of the entered value, the rate that was determined by Commerce in the Final Results and that was sustained by this Court in its August 2002 opinion. See Yancheng Contempt Decision, 277 F.Supp.2d at 1352 (citing Agreed Statement of Facts ¶ 5).

Defendant and Defendant-Intervenors did not file a response to Plaintiff's Motion to Clarify. Id. at 1351-52. The time to respond to Plaintiff's Motion to Clarify expired on December 15, 2002. Id. This Court scheduled a telephone conference on January 15, 2003, to discuss the pending motion. Id. (citing Agreed Statement of Facts ¶ 9). After the telephone conference with this Court, Customs issued new instructions to its field offices to stop liquidation of the subject entries. Id. (citing Agreed Statement of Facts ¶ 11). By that time, however, the twenty-eight entries at the Port of Los Angeles had been liquidated; only the three entries at Norfolk, Virginia, remained. Id. (citing Agreed Statement of Facts ¶¶ 7, 8, & 10; Hr'g Tr. At 32, 67). Over the next several months the parties continued to work together and submitted status reports to the Court regarding the parties' efforts to discover the relevant facts and to reach a settlement resolving this matter. Id. (citing Agreed Statement of Facts ¶ 12-19).

After repeated efforts to settle this matter between the parties failed, and the facts surrounding the liquidations were revealed to the Court, this Court issued an Order to Show Cause providing Defendant with an opportunity to present evidence why it should not be held in contempt of this Court's August 2001 Preliminary Injunction for issuing instruction to liquidate in November 2002 and for liquidating the subject entries in January 2003. Id.; see also Yancheng Baolong Biochemical Prods. Co., Ltd. v. United States, No. 01-00338 (Ct. Int'l Trade May 21, 2003) (order to show cause). Pursuant to Rule 86.2 of the Rules of the United States Court of International Trade, a show cause hearing was held on June 4, 2003. See USCIT R. 86.2 (1995) (renumbered Jan. 1, 2004).²

At the show cause hearing, Defendant argued that "the August 2001 Preliminary Injunction dissolved when this Court entered judgment in favor of Defendant on August 15, 2002." Yancheng Contempt Decision, 277 F.Supp.2d at 1353 (citing Def.'s Resp. to the Ct.'s Order to Show Cause of May 21, 2003 ("Def.'s Show Cause Br.") at 2, 5). Defendant argued that under the Court of Appeals' precedent, any preliminary injunction issued by this Court dissolved when this Court enters judgment on the merits and liquidation is not suspended during the appeal process absent a new injunction pending appeal. Id. at 1354 (citing Def.'s Show Cause Br. at 9-11 (in turn citing Fundicao Tupy S.A. v. United States, 841 F.2d 1101)).

This Court rejected Defendant's arguments and issued an opinion on July 16, 2003, holding the Government in contempt of this Court's August 2001 Preliminary Injunction for issuing liquidation instructions and liquidating the subject entries. Yancheng Contempt Decision, 277 F.Supp.2d at 1364. In holding the Government in contempt, this Court stated that preliminary injunctions issued by the Court of International Trade are essential in preserving a plaintiff's right to judicial review. Id. at 1359-60. As developed in this Court's earlier contempt decision, Congress specifically granted the authority to this Court to grant injunctions that suspend liquidation until there has been a "final court decision in the action." See id. at 1358-59; see also 19 U.S.C. § 1516a(c)(2) ("the United States Court of International Trade may enjoin the liquidation of some or all entries of merchandise covered by a determination"). The purpose of this Court's preliminary injunction is to preserve this Court's jurisdiction and to preserve the jurisdiction of the appellate courts. See Yancheng Contempt Decision, 277 F.Supp.2d at 1358. This Court issues preliminary injunctions pursuant to 19 U.S.C. § 1516a(e) requiring the suspension of covered entries through the pendency of the action until all appeals have been exhausted. If such suspension of liquidation did not take place, importers would suffer irreparable harm because the Court of Appeals, having no justiciable conflict to resolve, would be constitutionally powerless to remedy any improvident determinations by the trial court. See Zenith Radio Corp. v. United States, 710 F.2d 806, 810 (Fed.Cir.1983). The Court of Appeals is without jurisdiction to hear a case if the subject entries have been liquidated prior to appeal. Id. Section 1516a(e)(2) specifically states that "[i]f the cause of action is sustained in whole or in part by a decision of the ...