This оrder concerns Shinho Steel Co.’s (“Shinho”), formerly Korea Steel Pipe Co., motion for permanent injunction, pursuant to 19 U.S.C. § 1516a(c) (2) (1994), regarding the liquidation of certain entries subject to antidumping duties.
Judgment was entered affirming the United States Department of Commerce’s (“Commerce”) final determination after remand, which imposed antidumping duties at a 4.08 percent rate on Shinho’s imports of welded non-alloy steel pipe from the Republic of Korea. Laclede Steel Co. v. United States,
Meanwhile, Commerce ordered a suspension of liquidation of Shin-ho’s entries made between November 1,1993 through October 31,1994 (“second period of review”) and between November 1, 1994 through October 31,1995 (“third period of review”) pending the completion of the second and third administrative reviews. On January 30,1996, all requests for the second administrative review were withdrawn, and Shinho withdrew its own request for third period administrative review on March 26, 1996. Commerce terminated those reviews. Accordingly, Shinho’s entries made during the second and third review periods becamе vulnerable to an “automatic assessment of duty” pursuant to 19 C.F.R. § 353.22(e) (1995), at the original 6.21 percent antidumping duty deposit rate that was held unlawful by this Court in Laclede. Because the Court’s judgment was not appealed with respect to Shinho, all parties agree that this judgment is final as it pertains to Shinho. Shinho now moves for an injunction requiring the liquidation of the subject entries in conformity with the Court’s judgment.
The sole issue raised by this motion is whether this Court may exercise its authority
A. Timeliness of Motion:
As a preliminary matter, Commerce challenges the timeliness of Shin-ho’s motion. The Court observes that none of the Court’s own rules specifically address the deadline regarding the filing of a motion for post-judgment injunction. USCIT Rule 56.2(a) which governs, inter alia, the time for filing a motion for an injunction in an antidumping or countervailing duty action, provides that the motion is to be filed within 30 days from the date of service of the complaint, or at such other time for good cause shown. This rule was intended to reduce costs and procedural delays in antidumping and countervailing litigation by encouraging the early filing of motions for preliminary injunction. While it appears that the rule is designed to address pre-judgment motions for injunction, it does not preclude the filing of post-judgment motions where good cause is shown beyond the 30-day time limit. It does not, however, offer much guidance to parties filing post-judgment motions for injunction.
Congress also failed to impose any specific deadline by which a post-judgment injunction must be filed. Section 1516a(c)(2), which provides for general injunctive relief, does not impose any deadline for injunctions. Instead, it directs the Court to consider motions for injunctive relief in light of a “proper showing that the requested relief should be granted under the circumstances.” 19 U.S.C. § 1516a(c)(2).
The Court will therefore consider the timeliness of this motion by еxamining all the relevant circumstances pursuant to 19 U.S.C. § 1516a(c)(2).
First, Shinho correctly points out that it could not have successfully brought any motion for injunction until it and other parties withdrew their requests for administrative review. See LMI-La Metalli Industriale, S.p.A. v. United States,
Second, there appears to be no formal time limit for post-judgement injunctions at the Court of International Trade. Therefore, no clear deadline exists by which Shinho could take definitive guidance.
Finally, Shinho filed its motion for injunction on the same day that it withdrew its request for administrative review.
Considered together, these circumstances persuade the Court that this motion is timely. The Court and litigants have an interest in motions being brought in a timely manner, and it appears that under the circumstances, Shinho brought the present motion as soon as was practicable.
Commerce argues that it retains the authority under 19 U.S.C. § 1516a(c)(1) (1994) to order thе liquidation of the entries covered in the second and third review periods in accordance with its original determination, and that the Court lacks authority to enter an injunction with respect to those entries. The Court disagrees.
Section 1516a(c)(1) authorizes the liquidation of entries in accordаnce with Commerce’s original determination “[u]nless such liquidation is enjoined by the [Court of International Trade] under [19 U.S.C. § 1516a(c)(2)].” Section 1516a(e)(2) provides for injunctive relief and has been utilized both for pre-judgment injunctions and post-judgment injunctions. See Holmes,
C. Discussion of Timken:
Commerce argues that granting an injunction will disturb the statutory scheme as laid out by Congress and is unnecessary in light of Commerce’s compliance with Timken Co. v. United States, 8 Fed. Cir. (T) 29,
Entries subject to an antidumping duty order are to be liquidated in conformity with the final court decision in an action. 19 U.S.C. § 1516a(e) (1994); see also 19 U.S.C. § 1516a(c)(3) (1994) (stating that if final disposition of an action brought under this section is not in harmony with the final published determination of the Court, the matter is to be remanded to the administering authority for correction).
Entries may, however, be liquidated pursuant to Commerce’s original determination if those entries are made prior to an adverse decision by the Court of International Trade and if the liquidation is not enjoined. 19 U.S.C. § 1516a(c)(1) (1994); see also NTN Bearing Corp. v. United States, 8 Fed. Cir. (T) 26, 29,
According to Commerce, the entriеs from the second and third periods of review are liquidated solely pursuant to 19 U.S.C. § 1516a(c)(1) during the pendency of an appeal. The appeal precludes the operation of 19 U.S.C. § 1516a(e) because “the final court decision in the action” will not have been rendered by the Federal Circuit. In effect, Commerce is arguing that because the decision in Laclede is not final for all parties, liquidation for those entries belonging to importers who are not party to the appeal, and that were entered prior to the Court of International Trade’s judgment, should take place in accordаnce with Commerce’s original determination. The Court rejects this argument under the facts of this case.
First, as noted above, this Court’s authority to issue an injunction is expressly contemplated by the statute. 19 U.S.C. § 1516a(c)(1)-(2). Therefore, granting an injunction would not disturb the statutory scheme.
Second, the injunction is more in kеeping with the outcome contemplated in Timken. According to Timken, the authority to liquidate subsequent entries pursuant to Commerce’s original determination ceases once notice of the first decision by this Court or by the Court of Appeals for the Federal Circuit adverse to Commerce is published. Timken, 8 Fed. Cir. (T) at 33-5,
Commerce claims that it has complied with Timken by implementing this Court’s judgment as to all future entries by adjusting the cash deposit rates in accordance with Laclede. See 60 Fed. Reg. 55,833 (1995).
However, under the circumstances of this case, there is no reason why this Court’s judgment should not be given its full effect with respect to entries made prior to the Court of International Trade’s decision which have been administratively suspended up until the time that requests for administrative review were withdrawn. Although Timken only dealt with entries made subsequent to the issuance of an judgment by the Court of International Trade, an injunction in this case would render results consistent with the policy underlying the decision in Timken.
Timken was concerned with avoiding the “yo-yo” effect that accompanies switching between Commerce’s original determination, an amended determination approved by the Cоurt of International Trade after a remand, and a possible subsequent decision by the Federal Circuit. In the present case, both Commerce and Shinho agreed at oral argument that the Court of International Trade’s judgment is final with respect to Shinho. There are no appeals pending with respect to Shinho, although there are appeals pending with respect to other parties. The outcome of these appeals will not have any practical effect on Shinho. The time for appeal has run with respect to the judgement’s effect on Shinho, thereby mаking it final and conclusive with respect to Shinho. See Piazza v. Aponte Roque,
Because this Court’s judgement is final and conclusive with respect to Shinho, there can be no “yo-yo” effect if Commerce applies the Court’s judgment to all of Shinho’s entries not yet liquidated. Indeed, failure to do so will result in a “yo-yo” effect because suspended entries made prior to this Court’s judgment, but suspended until the filing of this motion, now will be liquidated alongside subsequent entries under two different rates. The rationale of Timken demands that Commerce be enjoined from liquidating at dual rates in this case. Granting the injunction would mean that Shinho is to receive the benefit of 19 U.S.C. § 1516a(e) fоr the liquidation of the entries made both prior to and subsequent to this Court’s judgment in Laclede.
C. Injunction:
The Court now will consider whether injunction is appropriate under the facts of this case.
Commerce contends that injunction is inappropriate in the present case because the granting of an injunction is aрpropriate only where it maintains the status quo or concerns an existing right. NTN Bearing Corp., 8 Fed. Cir. at 28,
All of Shinho’s rights were in existence before or by reason of this Court’s judgment in Laclede. Shinho now is simply asking that this Court’s judgment be given its full effect with respect tо it. No new rights are created by the Court’s enforcement of its judgment.
The Court will therefore proceed to apply the traditional four prong test for a request for injunctive relief. First, the Court finds that Shinho faces immediate and irreparable harm because additional duties total-ling hundreds of thousands of dollars may be assessed on entries made during the second and third review periods. In their briefs and at oral argument, Commerce made the argument that it has the authority under
Second, there is a compelling public interest in having Commerce promptly comply with the judgments of the Court of International Trade as to all entries not subject to appeal. The argument presented by Commerce that it may continue to imрose “unlawful” duties pursuant to 19 U.S.C. § 1516a(c)(1) under the circumstances of this case lacks any basis in public policy. Third, the Court determines that Shinho is most certain to succeed in obtaining duties pursuant to Laclede, once the pending appeals are resolved by operation of 19 U.S.C. § 1516a(e). Finally, Commerce has failed to show any hardship to it by having to order the liquidation of these entries in accordance with the Court’s decision. Accordingly, an injunction is appropriate in this case.
Conclusion
Where a judgment involves multiple parties, the Court of International Trade’s judgment pertaining to parties not subject to appeal will be considered “final” and “conclusive” with respect to the entries of those parties not yet liquidated at the time of the judgment, thereby immediately extending operation of 19 U.S.C. § 1516a(e) to these entries. Commerce should promptly comply with an order of this Court to the еxtent that it is not the subject of appeal.
For the foregoing reasons, it is hereby:
Ordered that Shinho’s motion to enjoin Commerce from ordering liquidation of the subject entries in accordance with their original determination is granted; and it is further
Ordered that any liquidation of the subject entries with respect to Shinho shall be in accordanсe with Laclede Steel Co. v. United States,
Notes
In Holmes, the Court considered the timeliness of a post-judgment motion for injunction as one factor to be weighed in applying the traditional four prong test for injunction. Holmes,