Zenith Radio Corp. v. U.S.

• Decision Date: 27 June 1983
• Docket Number: No. 83-590,83-590
• Citation: 710 F.2d 806
• Court: U.S. Court of Appeals — Federal Circuit
• Parties: , 1 Fed. Cir. (T) 74 ZENITH RADIO CORPORATION, Appellant, v. The UNITED STATES, et al., Appellees. Appeal

Page 806

710 F.2d 806

4 ITRD 2159, 1 Fed. Cir. (T) 74

ZENITH RADIO CORPORATION, Appellant, v. The UNITED STATES, et al., Appellees.

Appeal No. 83-590.

United States Court of Appeals, Federal Circuit.

June 27, 1983.

Frederick L. Ikenson, Washington, D.C., for appellant. With him on brief were J. Eric Nissley, Washington, D.C., and Philip J. Curtis, Glenview, Ill., of counsel.

Sheila N. Ziff, Washington, D.C., for appellees. Robert H. Huey and Rodney F. Page, Washington, D.C., were on brief for appellees, Toshiba Corp., Toshiba America, Inc., and Toshiba Hawaii, Inc.

Lawrence R. Walders, Washington, D.C., for intervenors. With him on brief were H. William Tanaka and Patrick O'Leary, Washington, D.C.

Stuart M. Rosen, New York City, was on brief for defendant-intervenor, Matsushita Electric Industrial Co., Ltd., et al.

Gail T. Cumins, New York City, was on brief for defendant-intervenor, Sanyo Electric, Inc.

Peter J. Gartland, New York City, was on brief for defendant-intervenor Sharp Electronic Corp.

Thomas P. Ondeck, Washington, D.C., was on brief for defendants-intervenors, Mitsubishi Electronic Corp., and Mitsubishi Electric Sales America, Inc.

Brian S. Goldstein, New York City, was on brief for defendant-intervenor, The General Corp. of Japan.

Before MARKEY, Chief Judge, DAVIS, NICHOLS, BALDWIN and NIES, Circuit Judges.

BALDWIN, Circuit Judge.

This appeal is from a decision of the United States Court of International Trade (trial court) denying the request of Zenith Radio Corporation (Zenith) for a preliminary injunction to prevent liquidation of entries of certain television receivers subject to dumping duties. The trial court's denial of injunctive relief was based on a finding that Zenith failed to show that it will suffer irreparable harm in the absence of an injunction. We reverse and remand.

Background

Zenith, a United States manufacturer of television receivers, filed an action in the trial court in June, 1981, challenging an annual review determination by the United States Department of Commerce (Commerce), published in the Federal Register on June 5, 1981, 46 Fed.Reg. 30163. The challenged annual review was undertaken pursuant to section 751 of the Trade Agreements Act of 1979, which requires Commerce to review certain antidumping duty orders and findings each year. 19 U.S.C. Sec. 1675 (Supp. V 1981) (hereinafter section 751). The review determination establishes the margins used to calculate the amount of dumping duties to be assessed on merchandise entered during the one year period under review. In addition to setting the margin used to assess dumping duties on entries of merchandise during the one year review period, the review determination is used to estimate the amount importers must deposit on entries occurring after the review period ends until Commerce completes and publishes the next section 751 review. 19 U.S.C. Sec. 1675(a)(2) (Supp. V 1981).

The determination challenged by Zenith alters the margins used to assess dumping duties on entries of Japanese television receivers subject to dumping duties under T.D. 71-76, 5 Cust.Bull. 151 (1971). The merchandise involved in this case was entered or withdrawn from warehouse between April 1, 1979 and March 31, 1980 (the '79-'80 review period). For the importers involved in this case, the determination reduces the dumping margins previously required under T.D. 71-76 so that zero or minimal dumping duties will be assessed on entries during the review period. A decision in Zenith's favor on the issues raised by its action challenging the annual review determination could significantly increase the amount of dumping duty that should be assessed on the entries that occurred during the '79-'80 review period. Since Commerce has not completed the next section 751 review of T.D. 71-76, the determination challenged by Zenith is still used to estimate deposit amounts for entries after March 31, 1980. The next published section 751 review will abrogate the effect of the challenged determination on deposit amounts by establishing the margin to be used for assessment of actual dumping duties on entries after March 31, 1980, and for estimating deposit amounts on subsequent entries. The errors complained of by Zenith are not alleged to be continued in subsequent reviews by Commerce. Zenith's action is directed only to the review determination for the '79-'80 review period.

On December 10, 1981, Zenith moved for a preliminary injunction pendente lite to prevent liquidation of entries of merchandise occurring during the '79-'80 review period. The government agreed not to liquidate the subject entries until the trial court could rule on the request for a preliminary injunction. On November 18, 1982, the trial court denied Zenith's request for a preliminary injunction on the sole ground that Zenith failed to demonstrate a likelihood of irreparable injury in the absence of an injunction. The trial court did not consider any other factors traditionally assessed in deciding whether injunctive relief should be granted or denied. Zenith appealed to this court from the trial court's decision and was granted an injunction against liquidation pending this court's decision. In addition to the United States government, importers and manufacturers who were defendant-intervenors at the trial level filed a brief and appeared as appellees in opposition to Zenith's appeal.

On appeal, Zenith raises three issues: (1) whether an injunction must issue under the All Writs Act, 28 U.S.C. Sec. 1651 (1980), to preserve this court's and the trial court's jurisdiction to review the challenged annual review determination; (2) whether the trial court abused its discretion by considering only irreparable injury instead of considering all factors traditionally assessed in deciding whether or not an injunction should issue; and (3) whether irreparable injury has been established. We hold that Zenith has established irreparable injury sufficient to require the trial court to consider all

appropriate factors in deciding whether to grant or deny an injunction.

OPINION

To support its request for an injunction under the All Writs Act, Zenith relies primarily on two cases of the United States Supreme Court: FTC v. Dean Foods Co., 384 U.S. 597, 86 S.Ct. 1738, 16 L.Ed.2d 802 (1966); and Scripps-Howard Radio, Inc. v. FCC, 316 U.S. 4, 62 S.Ct. 875, 86 L.Ed. 1229 (1942). These cases confirm the authority of appellate courts to entertain requests for injunctive relief under the All Writs Act, but they do not compel issuance of an injunction in any particular circumstances. In this case the trial court has acted on Zenith's motion for a preliminary injunction, denying relief for Zenith's failure to establish irreparable harm. Our task is to determine whether the trial court committed an error of law or abused its discretion in denying Zenith's request. S.J. Stile Assoc. Ltd. v. Snyder, 646 F.2d 522 (Cust. & Pat.App.1981). In view of our holding that Zenith has established irreparable injury, we do not reach the issue of the need for an injunction under the All Writs Act to preserve jurisdiction.

To prevail on its motion for a preliminary injunction, Zenith must show (1) that it will be immediately and irreparably injured; (2) that there is a likelihood of success on the merits; (3) that the public interest would be better served by the relief requested; and (4) that the balance of hardship on all the parties favors the petitioner. S.J. Stile Assoc. Ltd. v. Snyder, 646 F.2d at 525; Virginia Petroleum Jobbers Ass'n v. FPC, 259 F.2d 921, 925 (D.C.Cir.1958). The burden that Zenith must meet to establish irreparable injury was elaborated by the CCPA in the Stile case as follows:

Only a viable threat of serious harm which cannot be undone authorizes exercise of a court's equitable power to enjoin before the merits are fully determined. Parks v. Dunlop, 517 F.2d 785 (CA 5 1975). A preliminary injunction will not issue simply to prevent a mere possibility of injury, even where prospective injury is great. A presently existing, actual threat must be shown.

646 F.2d at 525. (Emphasis added.) (Citations omitted.) To establish a "viable threat of serious harm that cannot be undone," Zenith contends that without an injunction, it will be deprived of any opportunity to obtain a remedy for assessment of inadequate dumping duties on entries during the '79-' 80 review period. The loss of a remedy for assessment of inadequate dumping duties would relieve Zenith's competitors of a significant liability and abrogate Zenith's right to judicial review.

The trial court, however, denied injunctive relief because Zenith did not submit facts or data showing specific commercial injury that Zenith will suffer as a result of liquidation. The trial court supported its conclusion that liquidation cannot constitute irreparable harm, absent such a specific showing of injury, with statements made by Congress when the Customs Court (now the Court of International Trade) was given authority in 1979 to enjoin liquidation. Congress then characterized injunctive relief as an extraordinary measure, a form of relief that should not be granted in the ordinary course of events. Zenith Radio Corp. v. United States, 553 F.Supp. 1052, 1054 (CIT 1982). The comments relied on by the trial court simply explained why Congress specified four criteria, parallel to those recited in Stile, that the Customs Court had to consider before enjoining liquidation. We agree that injunctive relief is to be granted only in extraordinary circumstances. We also acknowledge that evidence of specific competitive injury to Zenith would establish a more compelling showing of irreparable injury warranting injunctive relief. Smith-Corona Group, Consumer Products Division v. U.S., 507 F.Supp. 1015 (CIT 1980). But general statements regarding the extraordinary nature of preliminary injunctive relief do not help resolve whether Zenith has shown...