### Slip Op. 02- 87

UNITED ST ATES COURT OF INTE RNATIONAL T RADE

____________________________________ : CORUS GROUP PLC, CORUS UK Ltd., : CORUS STAAL

BV, CORU S : PACKAGI

NG PLU S NORWAY AS, : CORUS STEEL USA INC., and : CORUS AMERICA INC., : : Plaintiff s, :

: v. : : George W. BUSH, President of the : United States, Robert C. BONNER, : Commissione

r, United States Cust

oms : Service , and THE

UNI TED STATE S : INTERNATI ONAL TRADE : COMMISSION, : : Court No. 02-00253 Defend ants, : Public Version

: and :

: WEIRTON STEEL CORP., : : Defendant-Inte

rvenor,. :

: and :

: BETHLEHEM STEEL

CORP., : NATIONAL

STEEL CORP, and : UNI TED STATE S STEEL CORP. :

: Defend ant-I nterven ors. : ____________________________________:
[Motion for preliminary injunction denied. Partial summary judgment for defendants.] Dated: August 9, 2002Case No. 02-00253 Page 2

St ept oe & Jo hns on LLP ( Richard O. Cunningham , Peter Lichtenbaum , and Arun Venkataraman ) for pla

intiffs. Robert D. McCallum, Jr. , Assistant Attorney Gene ral, David M. Cohen , Director, Lucius B. Lau , Assistant Director, Commercial Litiga tion Branch, Civil Division, United States Department of Justice, for defendants Georg e W. Bush, President of the United States, and Robert C. Bonner, Commissioner, United States Customs Service. Ly n M. Schlitt , General Counsel, James M. Ly ons , Deputy Gene

ral Counsel, United States International Trade Commission ( Mary Elizabeth Jones and Mark B. Rees ), for defendant United States International Trade Commission. Schagrin and Associates ( Roger B . Schag rin ) for defendant-intervenor Weirton Steel Corporation. Sk add en, Arp s, S lat e, M eag her , & F lo m LLP ( Robert E. Lighthizer , John J. Mangan , James C. Hecht ) for defendant-intervenors Be thlehem Steel Corporation, National Steel Corporation, and United States Steel Corporation. OPINION RESTANI, Judge: This matter is before the court on Plaintiffs’ motion for preliminary injunctive relief pursuant to USCIT R. 65(a). Plaintiffs Corus Group PL C, Corus UK Ltd., Corus Staal BV, Corus Packaging

Plus Norwa

y A S, Corus Ste el USA I

nc., and Corus Ame

rica I nc. (col lectivel

y “Corus”) seek preliminary injunctive relief to enjoin Defendant United States Customs Service (“Customs ”) from ( 1) colle cting a dditional d

uties impos ed on Plain

tiffs’ tin mill produc

t imports, as of March 20, 2002, pursuant to the President’s March 5, 2002 Steel Products Proclamation; (2) liquidating any

and all unliquidated entries of Plaintiffs’ tin mill products that have entered and will c ontinue to

enter th e United S tates; an d (3) tak ing any other action reg arding

Plaintiff s’ tin mill prod

ucts. The Inte rnationa l Trade C ommission ( “IT C” or “Com mission”)moves to dismiss for

lack of j urisdicti on pursua nt to USCI T R. 12(b) (2) and f or failur e to state a claim pursuant to USCIT R. 12(b)(5). Defe ndants George W. Bush, President of the United States, andCase No. 02-00253 Page 3

1 The ITC concurs in the alter native motion for summary judg ment filed by the Administration. ITC Br. at 27.

2 Duties decrease over the final two y ears of the remedial period. §201 Proclamationat ¶ 9(b). Robert C. B onner, Cu stoms Commiss ioner (c ollective ly the “Admini stration” ) filed a separa te motion to dismiss for failure to state a claim or, in the alternative, a Rule 56 motion for summary judgmen t. 1 Corus file d a cross -motion for summary judgmen t. BACKGROUND On March 7, 2002, t

he Presid ent of the United Sta

tes issued a procla mation pursuant to Section 201, et seq. , of the Trade Act of 1974 (“Act”)

. Proclama tion No. 75 29 - To Fa

cilitate Positive Ad

justment to

Competition

From I mports of C ertain Ste el Products , 67 Fed. Reg. 10553 (March 7, 2002) (“ §201 Proclamation ”). The Presiden t imposed sa

fegua rd measu res to
counter act ser ious injury

, or the th reat of serious in

jury , found by

the I TC. With res

pect to certain tin mill products, the President imposed an ad valorem duty increase

of thirty (30) per

cent for the f irst y ear of t he § 201 r

emedies

. 2 Corus is, a

mong othe

r things , a fore ign prod

ucer of tin mill products. Corus challenges the invocation of § 201 safeg uard provisions on three grounds: (1) that the I TC votes su

pporting an affi rmative i njury determination wer

e imprope rly counted w

ith
respec t to tin mill pr

oducts (“ Count I ”); (2) t

hat Commissi oner De

nnis M. De

vaney was not a legal m ember of

the I TC at the ti

me of his v ote beca

use ther e was not an I TC vacan

cy at the time of his appointment (“Count II ”); and (3) that Commissioner Devaney was not a legal member of the ITC at the time of his vote because he was not lawfully a

ppointed by then President William Jefferson Clinton (“Count II I”). Corus seeks a pr eliminary injunction to enjoin enforce ment ofCase No. 02-00253 Page 4

3 The I TC conce des jurisd iction as t o Count I . The Admi

nistration does not d

ispute jurisdict ion under any count.

4 Although the court is not bound by the decision of a co-equal court, another judg e of the cour t has alre ady

determined that r

eview of Commissione

r Devaney ’s status i s appropr iate under § 1581(i). Nippon Steel Corp. v. United States , Slip Op. 01-153 (Ct. Int’l Trade Dec. 28, 2001) (challenge to I TC sunset review injury de termination). the resulting duty inc

rease and to prevent liquidation of all present and future unliquidated entries of Corus’s tin mill products. Defendants collectively oppose injunctive relief. For the purposes of this opinion, the court has consolidated Plaintiffs’ Motion for Preliminary Judgment with the ITC’s motion to dismiss for lack of jurisdiction and Count I on the merits (ITC’s method of counting vote s). DISCUSSION I. Jurisdiction As an initial matter, the ITC moves to dismiss on grounds that the court lac ks jurisdiction

to rev iew Co unt s II an d III. 3 Section 15 81(i) pr ovides in r

elevant part tha t the cour t: shall hav e exclusiv e jurisdic tion of an y c ivil action commenc ed aga inst the Un

ited State s, its agencies, or its officers, that arises out of a ny law of the United States pr oviding for--

. . . (2) tariffs, duties, fees, or other taxes on the importation of merchandise for reasons other than the raising of reve nue.

. . . (4)admin istration and enfo rcemen t with res pect to the matter s refer

red to in paragraphs (1)-(3)

of this subsection and subsections (a)-(h) of this section. 28 U.S.C. § 1581(i) (2000). The ITC arg ues that the issue of whether Commissioner Devaney was properly

appointed involves questions of Presidential power and, therefore, fa lls outside the jurisdict ion of the court. 4 The Commission’s position ignores the fact that this claim arises in theCase No. 02-00253 Page 5

5 The ITC arg

ues that, because most of the discovery in Nippon involved Wh

ite House documents, the court should acknowledge that the subject matter does not involve matters regarding international tra de. The court finds the ITC’s a rgument rely

ing on the location of documents unpersuasive.

6 For the purposes of this action, Plaintiffs do not challenge the role of the Commission or its factual determinations. Plaintiffs do not challenge the exercise of disc retion granted to the Presiden t. context of a suit cha

llengin g the imp osition of t

ariffs. 5 Plaintiffs’ claim that § 201 safeguards are invalid because of an improperly seated Commissioner clearly raises issues regarding whe ther the ITC properly

carried out the laws providing for tariff s, duties, fees, or other taxes on the importation of merchandise and whether such laws ar e properly

administered. Accordingly , the court has jurisdiction pursuant to 28 U.S.C. § 1581(i). II. ITC’s Method of Counting Votes Corus argues that, although the ITC presented an “equally divided” affirmative injury determination to the

Presiden t, the I TC vote wa s neither affirma tive nor d ivided wit

h respec t to tin mill products. Under Section 202(b) of the Act, the Commission must determine “whether an article is being imported into the United States in such increased quantities as to be a substantial cause of serious injury , or the threat thereof, to the domestic industry producing an article like or directly competitive with the imported a rticle.” 19 U.S.C. § 2252(b)(1)(A) (2000). 6 In or der to render its injury de

termination, the Commission undertakes an investigation upon the filing of: (1) a domestic injury pe

tition; (2) an executive branch referral; (3) a resolution of either the Committee on Ways and Means of the House of Representatives or the Committee on Finance of the Senate; or (4) on its own motion. Id. In this case, both the United States Trade Representative and Senate Committee on Finance reque sted an investigation of certain steelCase No. 02-00253 Page 6

7 The steel products covered by the request included: (1) certain carbon a nd alloy flat products; (2) certain carbon and alloy long products; (3) certain carbon a nd alloy pipe and tube products; and (4) certain stainless steel and alloy tool steel products. USTR Reque st at Attachment I. The specif ic products and exceptions identified are numerous and can be f ound within the request. The tin mill products at issue here fall within HTS subheadings 9903.73.37 through 9903.73.39. products

. 7 USTR Request to Initiate Section 202 I nvestigation , (June 22, 2001), http://www .usitc.g ov/steel/ ER0622Y1. pdf (las t visited A ugust 9, 2002); Resolution directing the International Trade

Commission to make an investigation into certain steel imports under section 201 of the Trade Act of 1974 (July 26, 2001), http://www.senate.gov/~fina nce/steelresolution.pdf (last visited August 9, 2002). Six Commissioners participated in the underlying investiga tion at issue here. Commissioners Koplan, Okun, Hillman, and Miller determined that the U.S. tin mill producers constitute the industry producing articles “like or directly

competitive with the imported article, tin mill steel.” Steel , Inv. No. TA-201-73, USI TC Pub. 3479 Vol. I, at 48-49 & 71 n.367 (Dec

. 2001) (hereinafter “ Determination ”). Of these four, only Commissioner Miller determined that imports of tin mill products caused serious injury to the U.S. tin mill industry

. Id. at 74 & n.402. Two Commissioners adopted a broader definition of the domestic industry and the like product corresponding to the subject imported mercha ndise. Commissioner Bragg identified the domestic industry as U.S. producer s of carbon and alloy

flat products. Id. at 272-73. Commissioner Devaney identified the domestic industry as U.S. producer s of flat-rolled steel products. Id. at 36 n.65 & 45 n.137. Tin mill products are a sub-set of the larg er product categories identified by

Commissioners Bragg and Devane y. See ITC Staff Report , Vo l. II, Tables FLAT-3 &

FLAT 10. Both Commissioners found that imports of products in larg erCase No. 02-00253 Page 7

8 The Commiss ion explain ed its dete rmination as follow s: Chairman Koplan, Vice Chairman Okun, and Commissioner Hillman determine that carbon and alloy

tin mill products are not being imported into the United States in such increa sed qu antit ies as to be a subs tanti al caus e of ser ious inju ry; Comm issi oners Bragg, Miller, and Devaney

make an affirmative determination reg arding imports of carbon and alloy tin products. Determination

at 25.

9 19 U.S.C. § 1 330(d)( 1) provid es, in re levant pa

rt, that: In a procee ding in which the Commission is required to determine . . . under [section 2252 of this title,] whether increased imports of an article are a substantial c ause of serious injury, or the thre at thereof, as described in subsection (b)(1) of that section (hereafter in this subsection referre d to as “serious injury”) . . . and the commissioners voting are equally divided with respect to such determination, then the determination agreed upon by

either group of commissioners may be considered by

the President as the determination of the Commission.” Id. (emphasis added).

10 Upon receiving a report from the Commission containing a n affirmative injury determination, the

Presiden t is direc ted to tak

e all appropriate

and fea sible ac tion within his power to facilitate efforts by the domestic industry to make a positive adjustment to import competition and provide greater economic a nd social benefits than costs. 19 U.S.C. § 2253(a)(1)(A). categories caused serious injury to the domestic industry. The Commission combined the affirmative votes of Commissioners Bragg and Devaney on the bro ader ca

tegori es with tha

t of Commissi oner Mille

r on tin mill p

roducts a nd, pursuant to 19 U.S.C. § 2 252(f), reporte d to the Pre sident tha t it was “e qually

divided” with resp ect to tin mill produc

ts. 8 Determination

at 1 n.1. 19 U.S.C. § 1330(d)(1) provides that the President may consider an equally

divided vote of the Commission to be either an affirmative determination or a negative determination. 9 The President elected to adopt the affirmative injury determination, § 201 Proclamationat ¶ 4, and, pursuant to § 2253(a)(1)(A), 10 grante d relief to the dome stic tinCase No. 02-00253 Page 8

mill industry in the form of an initial additional 30% tariff on tin mill imports. See § 201 Proclamationat ¶ 9(b) . Corus argues that the affirmative votes of Commissioners Bra gg and Devaney should not have been counted towards the tin mill injury determination because neither Commissioner specifically ana lyzed tin mill products. Corus argues that the a ggregation of Commissioners Bragg and Devane y constitutes a “funda

mental misconstruction of the Section 201 statute” employed by the ITC, accepted by

the President, and carried out by Customs. Corus
argue s that, ha

d the vote s of Commissi oners B ragg and Deva

ney been pro perly discard ed with respect to tin mill products, the Commission vote would have been 3-1 in the negative, thereby preclud ing the i mposition of

§ 201 tari ffs on tin m

ill products. Because the Act vests the President and I TC with “very broa

d discretion” and does not specifically pr

ovide for judicial review, the court’s review is extremely limited. Maple L eaf Fish Co., v. United States , 762 F.2d 86, 89 (Fed. Cir. 1985). In international trade contr oversies of this highly disc retionary kind-- involving the President and foreign affairs-- this court and its predecessors have often reitera ted the very limited role of reviewing courts. See , e.g. , American Association of Exporters and Importers v. United States , 751 F.2d 1239, 1248 -49 (Fe d. Cir. 198 5); Florsheim Shoe Co. v. United States , 744 F.2d 787, 793, 7 95-97 (F ed. Cir. 1 984). For a cour t to interpose, there has to be a clear misconstruction of the governing statute, a significant procedural violation, or action outside delegated a uthority. Id. There is no statutory or regulatory

provision enumerating how the Commission should count its vote, and this manner of counting votes does not appear to conflict with the ove rall § 201 scheme. The court, therefore, c annot find that there has been a clear misconstruc tion of the statute or a significant procedural violation. In the alterna tive, Coru s asks the

court to c onstrue t

he absen ce of suc h a provis ion as a limitation – i.e., that for the ITC to count its votes in this manner would be to act outside theCase No. 02-00253 Page 9

statutory authority

granted by

Congress. The Federal Circuit has alr eady de termined that Congress granted the I

TC broad authority to rea ch its determination. “The same factors which have led, in this kind of discretionary case, to strict confinement of the court’s intervention vis-a-vis the President are equally applicable to the ITC in its ‘escape clause’ functioning.” Id. at 89-90. Under the statute, the Commission is required to render an injury determination and transmit that determination to the President. Congress imposed no qualifications upon the I TC’s authority in this res

pect. Moreove r, it is cle ar that the Commissioners cons idered t in mill prod

ucts in the ir analysis. Commissioner Brag g found as follows: “I de termine that certain steel products are being imported in such increased quantities as to be a substantial ca use of serious injury to the domestic industries producing: (1) carbon and alloy flat products (including slab, hot-rolled sheet and strip, corrosion resistant, grain oriented elec trical steel, and tin mill products.)” Determination

at 269 (separate views on injury of Commissioner Ly

nn M. Bragg). Commissioner Devaney de fined the domestic industry “a ppl[ying] the same basic ana lysis as the majority. However , he finds a single like product consisting of all flat products.” Determination at 36 n.65. Commissioner Devaney e xpressly stated that his findings should be applied to the more narrow categorie s determined by the ma jority. “Commissioner Devaney joins in the analy sis of the majority

, relate d to injury

, as pres ented he

re. He f urther f inds that if

the anal ysi s is performed over the entire industry as he has defined it, the result is the same, i.e., the industry is seriously injured.” Determination at 52 n.18 6; see also Determi nation at 58 n.224 ( same regardi ng caus ation ). Thu s, bot h comm issi oners made af firma tive i njury and causat ion fi ndin gs with respect to tin mill products because, in their analyses, these products are included in theCase No. 02-00253 Page 10

larger categ ory of ca

rbon and alloy fla

t products. The court finds that the Commission’s method of counting votes is not a clear misconstruction of the governing statute, a signif icant procedural violation, or action outside the scope of the ITC’s delegated authority. III. Preliminary Injunction Pursuant t

o USCI T R. 65(a) , Corus se eks a pre liminary injunction

to enjoin Cu stoms from collecting additional duties on its tin mill products or liquidating its entries. A preliminary injunction is an extraordinary reme dy which may issue only upon a clea

r showing by

the moving party that it is entitled to such relief. See Trent Tube Div., Crucible Materials Corp. v. United States , 14 CIT 587, 744 F. Supp. 1177 (1990). In order to obtain a pre liminary injunction, Corus must demon strate that: (1) without a pr eliminar y in junction, Corus will s

uffer im mediate irreparable harm; (2) there is likelihood of succ ess on the merits; (3) the public interest would be better served by

the requested relief; and (4) the balanc e of hardship on all the parties favors plaintiffs. See Zenith Radio Corp. v. United States , 710 F.2d 806, 809 (Fed. Cir. 1983). In reviewing

the factors, the court employ s a “sliding scale.” Chilean Nitrate Corp. v. United States , 11 CIT 538, 539 (1987). Consequently, the factors do not necessarily carry equal weight. FMC Corp. v. United States , 3 F.3d 424, 427 (“If a preliminary injunction is gr anted by the trial court, the weakness of the showing re garding one factor ma y be overbor

ne by the strength of the others.... [Conversely ], the absence of an adequate showing w ith regard to any

one factor may be suffi cient, given the w eight or lack of i t assigned the oth er fac tors, to jus tify [its] denial.”). The crucial factor is irre parable injury

. Elkem Metals Co. v. United States , 135 F. Supp. 2d 132 4, 1329 (Ct . Int’ l Trade 2 001); Nat’l Hand Tool Corp. v. United States , 14 CIT 61,Case No. 02-00253 Page 11

11 Corus argues that, because the U.S. tin mill market is subject to a “hig h degree of price sensitivity”, Corus cannot raise the pr ices of its merchandise in the United States. Citing Affidavit of Jean-Paul Meijer (Financial Controller of Corus Packaging Plus Norway AS), ¶ 2. 65 (1990) (“[t]he critical question ... is whether denial of the requested re lief will expose the applicant to irreparable harm.”). “F ailure of an applicant to bear its burden of persua sion on irrepa rable ha rm is gro und to den

y a prelimina

ry injunction , and the c ourt nee d not conc lusively determine the other criteria.” Bomont Indus. v. United States , 10 CIT 431, 437, 638 F.Supp. 1334, 1340

(1986); see also Chilean Nitrate Corp. , 11 CIT at 539 (deny ing preliminary

injunction solely on gr

ounds that moving party f ailed to establish irreparable harm). A. Irreparable Harm 1. Collection Corus fir st argu

es that, w ithout pre liminary

injunctive

relief, it will be f

orced to close its Berg en, Norw ay

plant. Ge

nerally , where a party is requir ed to fund

amentall y a lter its bu siness operati ons during

litigati on in orde

r to comply

with a cha

llenge d Govern

ment acti on, that pa

rty suffers irreparable harm. See , e.g. , CPC Int’l v. United States , 19 CIT 978, 979-81, 896 F. Supp. 1240, 1243 -45 (1995 ); Am. Frozen Food Inst. v. United States , 18 CIT 565, 570, 855 F. Supp. 388, 393-94 (1994). Corus con

tends tha t its Ber gen, Norway

plant is un

iquely depende nt upon U.S. tin mill sales revenues to meet its operating costs. Corus arg ues that it cannot absorb the additional safeg uard duti es for U. S. sales if it results in the Be rgen p lant oper

ating a t a loss. 11 Corus estimates that the projected losses for 2002 will be approximately [ ]. Plaintiffs do not expressly attribute the entire loss to the impact of the saf eguard provision but implies so by pr

ojecting that futur e litiga tion withou

t a prelim inary injunction

will resu lt inCase No. 02-00253 Page 12

similar los ses in 2003 and 2004. Corus con tends tha t the Ber gen pla nt cannot be modifie d to produce other products. Corus argues that ope rating losses resulting from the safeg uard provision will force it to permanently c lose the Bergen plant, costing 279 jobs. Corus ar gues that closing the Ber gen the plant will have a sig

nifican t and irre versible adverse impact up on its business o

peratio ns. There is no bright line test for determining irre parable harm. Defendants arg ue that mere economic injury is insufficient. See , e.g. , Neenah Foundry Co. v. United States , 86 F. Supp. 2d 1308, 1313 (Ct. I

nt’l Tra de 2000) . Defen

dants poin

t out that, i

n previou s cases, Plaintiff s’ burden has been met by

parties demonstrating that they will go out of business in the absence of inju nctiv e reli ef. Ci ting Queen’s Flowers de Colombia v. United States , 20 CIT 1122, 125, 947 F. Supp. 5 03, 506 (Ct . Int’ l Trade 1 996); Am. Air Parcel Forwarding Co., v. United States , 4 C IT 94, 98 (1982). Contrary to De fendants’ implication, there is no requirement that a party seeking injunctive relief establish imminent failure. Although Corus need not establish that it is on the verge of bankruptcy

, Plaintiffs nevertheless bear an “extremely heavy burde

n.” Shandong Huarong General Group Corp. v. United States , 122 F. Supp. 2d. 1367, 1369 (Ct. Int’l Trade 2000). At oral argument, Corus presented two witnesses, Richar d Maxwell, Finance Controller and Director of Corus Packaging Plus Norway AS (“CPP Norway ”), and Stig Hauge, Manag ing Director, CPP Norw ay . Both te stified a s to the pr esent sta nding of Corus, an

d CPP Norwa

y in particular, after the implementation of § 201 tariffs. The c rux of the testimony sugg ested that CPP Norway

, a separ ate leg al entity

from the other Coru s affilia tes, coul d not indep endentlyCase No. 02-00253 Page 13

12 Corus America Inc. is the importing arm of Corus. It actually pays the tariff

and then charges that fee bac

k to Corus. It is unclear which aff iliate is ultimately charg ed with paying the tariff, but for th e purpose s of this ar gument, the cour

t assumes t

he cost is charg ed to CPP Norway . Plaintiff

s conced ed at ora l argument that they

could show

irrepa rable ha rm from du

ty collecti on only

as to entr ies from C PP Norway

, the owne

r of the B ergen

plant. absorb th e § 201 tar

iffs. 12 Both witnesses testified that the Bergen pla nt is uniquely dependent upon U.S. sales revenues to meet its operating costs. Both testified that the Nor way fa ctory was not sufficiently profitable to a ttract investment for upgrades that might allow it to produce articles other than tin mill products. Both witnesses testified that, as a result, the Ber gen plant would have to raise prices or absorb the tariff s. The witnesses testified that their customers had already indicated they would see k alternative suppliers should CPP Norway r aise its prices. The witnesses testified that CPP Norway has only a few customers and that a long-ter m separation would like ly s ever tho se busine ss relati onships. T he only alterna tive ava ilable, Corus arg

ues, would be t

o absorb t he tarif fs. The w itnesses t estified that CPP Nor

way would ope

rate at a loss if it were forced to absorb the tariffs. Corus ar gues that sound business principles would require it to close the plant rather than operate at a loss. I n short, although it has not made concrete plans to do so at a

ny p articula

r time, Cor

us argu es that the

effec ts of the § 201 safe guard s will forc e it to close the Berg en, Norw ay plant. Every incr

ease in duty ra

te will necessarily ha

ve an adverse affect on for eign producers and importers. That is particularly true with regards to the 30 % increa se imposed under the safeg uard provision. I f the cou rt were to find irr

eparab le harm u

nder the se fact s, the cou

rt would likely be require d to do so in any challeng e to a duty incre ase because every plaintiff could argue that incr eased ta riffs wo uld cause revenue shortfa lls possibly

resulting in either operati ng at a loss or plant closure at some future date. On balance, Corus ha s shown that it may suffer a nCase No. 02-00253 Page 14

adverse economic impact, but to find irreparable harm here would effectively create a per se irreparable harm rule in similar challeng es – a result likely contr ary to the extraordinar

y nature of the remedy. Am. Spring Wire Corp. v. United States , 7 CIT 2, 6, 578 F.Supp. 1405, 1408 (1984). The cour t finds tha t Corus has

not provid

ed suffi cient evidence t

hat the B ergen

plant is in danger of imminent closure. At best, Corus has sugg ested that CPP Norway ca nnot sustain the damage caused by

§ 201 tariffs over a long period of time. The c ourt anticipates that it will issue its final decision on Counts II a nd III within a few months if not weeks. While Corus has arguably presented evidence of economic injury , that is insufficient. See S.J. Stiles Ass. v. Snyder , 646 F.2d

522, 525 ( C.C.P.A. 19 81) (“A prelimina

ry injunction

will not issu

e simply to prevent a mere possibility of injury, even whe

re prospective injury

is great.”). Accordingly, there is li ttle chance of irr eparab le harm in adv ance of a final court rulin g. 2. Liquidation Corus seeks to enjoin liquidation on grounds that, because neither the statute nor governing reg

ulations authorize a reliquidation or refund, Corus will be denied effective a nd meaning ful judici al revie w. Corus a

rgues t hat, eve n if it succ eeds on the merits, it will be un able to recover any

excessive duties paid on entries in the past or interim and, therefore, will be irreparably

harmed. Denial of effective and me aningful judicial review as a result of a c ourt’s refusal to grant a preliminary injunction can constitute irreparable harm. See Zenith Radio Corp. v. United States , 710 F.2d 806, 810 (Fed. Cir . 1983); NMB Sing. Ltd. v. United States , 120 F. Supp. 2d 1135, 1139-40 (Ct. Int’l Trade 2000). According to counsel for the Administration, Customs normally liquidates entries on aCase No. 02-00253 Page 15

13 The par

ties seem to have f ocused o n on 28 U.S. C. § 1581(a ) which provides protest denial r eview of decision s of the Se cretar y of Treasur y, n ot the Pre sident or

ITC. 314-day cy

cle from the date of entry

. Def.s’ Response to the Court’s Inquiry Concerning Liquidation of Entries Subject to the President’s 201 Proclamation , at 2 (dated August 5, 2002). A steel e ntry filed on M arch 20, 2002, the effec tive date

of the § 20 1 remedy

, would nor

mally liquidate on or about January 30, 2003. L iquidation of a steel product entry covered by

an antidumpin

g or co unterva iling dut y or der may take substantially

longer because that entr y is automatically suspended until Customs receive s liquidation instructions from the Department of Commerce. Plaintiffs allege that their entries are not currently suspende d. The court realizes that ther e are no guara ntees on w

hen liquid

ation will o ccur, bu

t, as disc ussed, the court inte

nds to resolve the matter quickly therefore harm from liquidation is not likely . Moreover, the parties ha ve no t e xp la in ed wh y 28 U. S. C. § 1 58 1( i) wo ul d n ot pr ov id e a po st -l iq ui da ti on re me dy. 13 The absence of a statutory

refund process would not seem to be a bar to relief as the court may fashion equitable remedies. Thus, liquidation also appears an unlikely cause of irreparable har

m here. B. Public I nterest Congress has expressly

entrusted the issuance of safegua rd measures to the President of the United States. Maple Leaf F ish Co. , 762 F.2d at 89. Rev ocation o f a Presi dential ma ndate prior to a final determinat

ion that it v

iolates th e law wou

ld seem to b e counte

r to the pu

blic interest . The publ ic intere st is also se rved by ensuring that gov ernment

officia ls are a ppointed i

n a constitutional manner and in accordance with Cong ressional intent, and that trade laws are administered properly

. See , e.g. , Ugine-Savoie I mphy v. United States , 121 F. Supp. 2d 684, 690Case No. 02-00253 Page 16

14 The cour

t has not be en asked

to revie w the Commis sion’s de

terminat ion for th is purpose, and has not done so. (Ct. Int’l Trade 2000). The c ourt cannot reasonably quantify these intere sts for comparison separately from the likelihood of success on the merits and, instead, finds that this factor favors neither side. C. Balance

of Hardship Corus argues that the Government and domestic industry will suffer only neg

ligible harm should a preliminary injunction be g ranted. That position is counter to the determinations at the core of this matter – that a tariff increase is necessary

to counter-act serious injury or the threat of serious in jury as deter mined by Commission a

nd adopte d by

the Presi dent. De fendant

intervenors represent the domestic producers a nd present contrary

affidavits and testimony stating that dome stic indust

ry present ly s uffers from both

decrea sed domes tic consu mption of ti

n mill products and, at least prior to the § 201 relief, increasing mar ket share of low-priced subject imports. Defendant-intervenors argue that a preliminary injunction would ef fectively r

evoke the § 201 increases causing low-price d imports to flood the market. Defendant intervenor’s evidence was weak on the causal relationship between imports and injury , but the Commission’s affirma tive injur y de terminat ion itself would app ear to be

some support for the

domestic industry ’s hardship claim. 14 Further, defendant-intervenors pr ovided some evidence that imposition o f the § 201 relief has provid ed oppor tunities to improve their liquid

ity, which co

uld be lost if § 201 duties were not collected. Corus too has submitted some evidence of hardship. See discussion supra § III, A, 1. While the economic injury suffe red by Corus under

the § 201 safeguard provisions may beCase No. 02-00253 Page 17

15 Briefi ng and a rgumen t is not comp lete on th ese two c ounts.

16 Defendants argue that Counts I I and I II should be dismissed because Corus did not raise appointment issues before the I TC and, therefore, did not exhaust its administrative remedies. Corus argues that the Commission was aware of the questions surrounding Commissioner Devaney’s a ppointment and to raise them would be futile. In addition, Defend ants arg ue that, e ven if Comm

issioner D evaney ’s appoin tment was

technic ally

flawed, his actions were authorized by the de fact

o officer doctrine. See Ryder v. United States , 515 U.S. 171, 180 (1995) (“The de fact o officer doctrine confers validity upon acts performed by

a person acting under the color of official title eve n though it is later discovered that the legality of that person’s appointment or election to office is deficient.”). F or the purposes of ruling on the preliminary injunction, the court a ssumes that Plaintiffs’ claim would survive these particular challen ges. insufficient to establish the requisite irreparable harm, the cour t finds it persuasive to support hardship. On balance, the court finds that both parties likely have shown some hardship and cannot conclude at this point that injury suff ered by one

in the absence of § 201 safegua rds outweighs injury suf

fered by the other in their presence. D. Likelihood of Success on Merits As discussed, supra

§ III, the court analy

zes the four preliminary injunction fa ctors on a sliding scale. Because Corus makes, a t best, a weak showing of irrepara ble harm and does not prevail on either balance of hardship or public policy grounds, Corus must make a heightened showing that it is likely to succee d on the merits. As discussed, supra § II , the court finds that the ITC did not act contrary

to law in counting the votes of individual Commissioners. Co nse que nt ly, C oru s m ust dem ons tra te t hat it is ver y lik ely t o su cce ed o n t he m eri ts of C oun ts II and III. 15 Both cou

nts attack the vali dity

of Commissioner Dev aney ’s appoin tment and his
consequent vote on the § 201 safeg uards. 16 1. Count II: Vacancy Corus fir st argu

es that, a t the time o f Devaney ’s appoin tment, the re was not a vaca

ncy toCase No. 02-00253 Page 18

be filled. The term of Commissioner Devaney ’s predecessor, Thelma J. Askey , ended on December 16, 2000. She maintained her position pursuant to 19 U.S.C. § 1330(b)(2) (2000), which au thorizes a departi ng Commiss ioner to r

emain in o ffice a s a “holdover” “u ntil his successor is appointed and qualified.” Corus arg ues that, because Commissioner Askey had neither resigned nor been re moved prior to Commissioner Devaney ’s putative appointment on January 3, 2001, no vaca

ncy existed on that date for the Pre sident to “fill” by rec ess appointment. Citi ng Wilkinson v. Legal Services Corp. , 865 F.Supp. 891, 900-01 (D.D.C. 1994), rev’d on other grounds , 80 F.3d 535 (D.C. Cir. 1996) (construing the L egal Services Corporation Act of 1974, codified at 42 U.S.C. § 2996b, to read that a vacancy does not occur upon the expiration of a term of office but only upon the r

esigna tion, dea th, or re moval of a

sitting of ficer) ; Mackie v. Clinton , 827 F. Supp. 56 (D.D.C. 1993), vacated as moot , 1994 WL 163761 (D.C. Cir. Mar. 9 1994) (construing the appointment provision of the Postal Reorganization Act of 1970, as codified in 39 U.S.C. § 202(b), to read the same). Defendants argue that the Ac t establishes that the end of one Commissioner’s term

necessa rily create s a “vac ancy .” Section 330(b) o f the Act , provide s that: The term of office of each c ommissioner appointed after such date shall expire 9 y ears from the date of the expiration of the term for which his predec essor was appointed, except that--

. . . (2) any commissioner may

continue to serve as a comm

issioner a fter an expiration

of his term of office until his successor is appointed and qualified

. 19 U.S.C. § 1330(b)(2) (emphasis added). Defendants cite Staebler v. Carter for the proposition that similar statutory langua ge has been construed to rec ognize the creation of a vacanc y at the time a Commissioner’s term expires. 464 F. Supp. 585, 588-90 (D.D.C. 1979) (construing the appointment provision of the Federal Election Campaign Act, as codified in 2 U.S.C. §Case No. 02-00253 Page 19

17 The court notes that the issue of whether a vaca ncy existed at the time of Co mm is si on er De va ne y’s ap po in tm en t i s p re se nt ly u nd er re vi ew fo r f in al , n ot pr el im in ar y, resolution in Nippon Steel Corp. v. United States , Court No. 01-00103 (Ct. Int’l Trade) (J. Eaton) (“ Nippon 01-00103"). 437c(a)(2)(B) to rea

d that a vacancy

is created upon the expiration of the predecessor’s ter m). In the primary

cases relied upon by

the parties, Staebler , Wilkinson , and Mackie , the district c ourts stru

ggle d with the v acancy

issue. The

courts r ecogn ized that th ere wa s little guidance to determine when a vac ancy is cr eated. In eac

h case, the court ultimately resorted to a construction of the governing statute. The pa rties here ask the court to engag e in similar statutory construction with respe ct to the “appointed and qualified” languag e of the holdover provision. The parties debate whether Commissioner Askey ’s holdover position terminated upon Devaney ’s appointment, thus creating a vacancy . In Swan v. Clinton , 100 F.3d 973 (D.C. Cir. 1996), the only circ

uit case on point, the court found that “a more natural rea ding of ‘qualified’ [for purposes of similar language in the National Cre dit Union Administration Act] mean[s] that the requirements for assuming office ha ve been fulfilled, which could be either by nomination with Senate confirmation or by rece ss appointment .” Id. at 986 (emphasis added). Swanis not binding and may

be distinguishable, but it certainly does not assist Plaintiffs. At best, Plaintiffs can establish that the question of whether a vacanc y exists under § 1330 is open. 17 As such, Plaintiffs cannot establish that it is very likely to succeed to on this issue. 2. Count III : Rece ss Appointm ent The President is constitutionally empowere d “to fill up all Vacancies that may happen during t he Rece ss of the Se

nate, by granti ng Commiss ions which

shall expir

e at the E nd of thei r next Session.” U.S. Const. art. II, § 2, cl. 3. Unde r the recess appointment clause, the PresidentCase No. 02-00253 Page 20

18 This conc ession ma

y create a factua l scenar io signif icantly differe nt than tha

t in Nippon 01-00103.

19 Commissioner Devaney took the oa th of office on January

16, 2001. The Commission was signed on January

18, 2001. may appoint of

ficers w ithout the n

ormally requisite advice a nd conse nt of the Se

nate. U. S. Const. art. II , § 2, cl. 2. On December 15, 2000, the Senate and House a djourned sine die . On December 16, 2000, Commissioner Askey ’s term as Commissioner of the ITC expired. On the morning of Januar y 3, 2001, a r

ecess a ppointmen

t order w as prepa

red and e xecuted by

the White House Executive Clerk’s office appointing Mr. Devane y as a Commissioner to the ITC. The Senate reconvened at 12:01 p.m. on the same day

. It is important to note that Plaintiffs did not object to Defend ants’ sta tement of materia l fact tha t the orde r was exec

uted bef ore the Se nate reconvened and, therefore effectively

conceded that the appointment, in the ordinary sense of the word, wa s made dur

ing a re cess. 18 Corus challenges the sufficiency of Commissioner Devaney’ s appointment arguing that the appointment is not valid for the purposes of the recess appointment clause until the President signs a “commission,” which did not occur until after the Senate re convened. 19 Plaintiff s cite Marbury v. Ma

dison , 5 U.S. 137 , 157 (180 3), for t he propo sition that , until the P residen t’s “last act” is complete – i.e. the signature, the appointment is incomplete. While Marbury describes the commission as “conclusive evidence” of the appointment, id. at 157, it is not clear that the commission is the only sufficient evidence . The court finds that Plaintiffs have not shown that they are highly likely

to prevail on this issue.Case No. 02-00253 Page 21 CONCLUSION Because Plaintiffs’ challenge to the imposition of a tariff underlies its argument as to the status of a Commissioner, the court has jurisdiction pursuant to 28 U.S.C. § 1581(i). The ITC’s Motion to Dismiss on jurisdictional grounds is denied. With respect to the ITC’s agg regation of votes, the court does not find a clear misconstruction of the gove rning statute. As in Maple Leaf Fishing Co. , it is enough for this case that the I TC made the ultimate injury deter mination in a manner that does not violate any statutory provision. 762 F.2d at 90. More over, the court finds that Congress delegated broad a uthority to the President and Commission under § 201 and, therefore, the Commission did not act outside its authority in prese nting its determination as “equally divided” . Defendants’ Motion for Summary Judgment is granted as to Count I. As for the preliminary injunction, Plaintiffs’ wea k showing of imminent irreparable harm and questionable showing of likelihood of success on the merits are insuffic ient to justify preliminary injunction. Plaintiffs’ motion for a preliminary injunction is DENI ED.

____________________________ Jane A. Restani JUDGE

Dated: New York, New York This 9 th day of Aug

ust, 2002.