Slip Op. 04-42 UNITED STATES COURT OF INTERNATIONAL TRADE

BEFORE: GREGORY W. CARMAN

YANCHENG BAOLONG BIOCHEMICA

L PRODU CTS COMPANY, LTD., Plai ntiff,

v. UNITED STATES OF AMERICA, Defendant, and CRAWFISH PROCESSORS ALLIANCE, et al. , DefendantInterve nors. Court No. 01-00338

[Defenda nt’s Motion

to Vaca te the Cour

t’s Judgme

nt Entere d on July

16, 2003, i s denied. This Court cannot award Plaintiff damages in the form of a ttorney fee s associated with the contempt procee dings be cause the United S tates ha s not waive d its sover eign immu

nity for such an awar d; Plaintiff’s request for attorney fees is denied.] deKieffer & H

organ ( J. Kevin Horgan ), Washington, D.C., for Plaintiff.
Peter D. Keisler , Assistan t Attorne y G eneral ; David M. Cohen , Director, Commercial Litig ation Br

anch, Civil Division, United Sta tes Depa rtment of Justice; Jeanne E. Davidson , Deputy Direc

tor, Commercial Litigation Bra nch, Civil Division, United States Department of Justice; Paul D. Kovac , Attorney, Commercial L itigation Branch, Civil Division, United States Department of Justice; Stephen C. Tosini , Attorne y, C ommercia

l Litig ation Br

anch, Civil Division, U

nited State s Depar

tment of Just

ice; Marisa Gol

dstein , Attorney, Off

ice of Chief Counsel for Import Administration, United States Department of Commerce , of Counsel, for Defend ant. Adduci, Mastriani & Schaum berg, L.L.P. ( Will E . Leonard , Mark R. Leventhal , John C. Steinberger), Washing

ton, D.C., for Def

endant- Inte

rvenors .Court No. 01-00338 Page 2 Dated: April 28, 2004

O PINI ON
C ARMAN , 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 Awarde d Based on a Finding of Contempt for Violation of the Injunction Against L

iquidation 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 Defend ant’s contempt.
B ACKGROUND Familiarity with this Court’s opinion issued on July 16, 2003, is pre sumed. 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 De partment of Commerce’s (“Commerce”) resc ission 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 Resu lts ”). In Aug

ust 2001, onCourt No. 01-00338 Page 3

1 The full t

ext of 19 U. S.C. § 1516a(e) is as follows: (e) Liquidation in accorda nce 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 cha racter 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 Reg ister 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 dec ision 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. consent of the parties and pursuant to 19 U.S.C. § 1516a(c)(2) (2000) , this Court issued a preliminary injunction (“Aug ust 2001 Preliminary I

njunction”) which enjoined the liquidation of any and a ll unliquidated entries of crawfish tail meat from the People’s Republic of China exported by Plaintiff that were c overed by the Final Resu lts

. Yancheng Baolong Biochemical Prods. Co., Ltd. v. United States , No. 01-00338 (Ct. Int’l Trade Aug . 2, 2001) (order granting preliminary injunction). The A ugust 2001 Preliminary I

njunction specifically stated tha t Defend ant shall b e enjoine d from liqu idating the subje ct entrie s “during the pende

ncy 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 Prelimina ry Injun ction cov ered thi

rty -one ent

ries: twe nty -eight at the Por

t of L os Ange les, 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 Ag ency Rec ord and sustained Commerce’s rescission of the administrative review of the antidumping duty orderCourt No. 01-00338 Page 4

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 N otice of Appeal to the United States Court of Appeals for the Federal Circuit (“Court of A ppeals”) 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 M ot . t o C la ri fy O r, Al te rn at iv el y, Extend Inj. Against L iquidation of Entries (“Pl.’s Mot. to Clarify”) a t 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 af

ter 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 a t an antidumping duty rate

of 201.63% of the entered value, the rate tha t was determined by Commerce in the Final Resu lts and that was sustained by this Court in its August 2002 opinion. See Yancheng Contempt Decision , 277 F. Su pp. 2d at 1 352 (citin

g Agr eed State ment of F acts ¶ 5).
Defend

ant and D efenda

nt-I nterven ors did not

file a re sponse to Pl aintiff’ 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 Cour t schedul ed a tele

phone conferen

ce on Janua

ry 15, 2003, t

o discuss the pending motion. Id . (citing Agreed Statement of F acts ¶ 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 F acts ¶ 11). By that time,Court No. 01-00338 Page 5

2 Pursuant to the renumbering of the USCI T Rules, former Rule 63 is now identified as Rule 86.2. however, the twenty-eight entries at the Port of L os Angeles had been liquidated; only the three entries at Norfolk, Virginia, remained. Id. (citing Agreed Statement of F acts ¶¶ 7, 8, & 10; Hr’g Tr. At 32, 67). Over the next several months, the parties continued to work toge ther and submitted s tatus rep orts to the Court regarding

the part ies’ eff orts to disc over the

releva nt facts and to reach a settlement resolving this matter. Id. (citing Agreed Statement of F acts ¶ 12-19).
After r epeate d effor

ts to settle

this matte

r betwee n the par ties fail ed, and the facts surrounding the liquidations were revealed to the Court, this Court issued an Orde r to Show Cause pr oviding D efenda

nt with an o

pportunit y to present evidenc e why

it should no t be held i

n contempt of this Cour

t’s Aug ust 2001 Pre liminary

Injun ction for issuing i nstruction to liquida

te 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 he ld on June 4, 2003. See USCIT R. 86.2 (1995) (renumbered Jan. 1, 2004) 2

. At the show cause hearing, Def endant argued that “the Aug ust 2001 Preliminary Injunction dissolved when this Court entered judgment in fa vor 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 duringCourt No. 01-00338 Page 6

the appeal process absent a new injunction pending appeal. Id . at 1354 (citing Def.’s Show Cause Br. at 9 -11 (i n turn citi ng Fundaicao Tupy S.A. v. United States , 841 F.2d 1101)). This Court rejected Defendant’s arg uments 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 Gover nment in contempt, this Court stated that preli minar y injunct ions issu ed by the C ourt o f Interna tion al Trad e are es senti al in p reserv ing 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 also19 U.S.C. § 1516a(c)(2) (“the United States Court of I nternational 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 prese rve 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) re quiring the suspension of covered entries through the pende ncy of the a

ction until all appeals have been exhausted. If such suspension of liquidation did not take place, importers would suff er irrepa rable ha rm beca use the Co

urt of App eals, ha

ving no ju sticiable

conflic t to resolv e, would be constitutionally powerless to reme dy any improvident determinations by the trial cour t. See Zenith Radio Corp. v. United States , 710 F.2d 806, 810 (

Fed. Cir . 1983). T

he Court o f Appea

ls is without jurisdiction to hear a case if the subject entries have been liquidated pr ior to appeal. Id. Section 15 16a(e) (2) spec ifically states tha t “[i]f the c ause of a

ction is sus tained in

whole or inCourt No. 01-00338 Page 7

part by a de cision of the United States Court of International Tra de or the United States Court of Appeal for the Federal Circuit . . . entries the liquidation of whic h was enjoined under subsection (c)(2) of this section, shall be liquidated in accordance with the final court decision in the action.” 19 U.S.C. § 1516a(e)(2) (emphasis added). I t is clear from the statutory scheme of § 1516a that Congress did not intend for the Court of Appeals to be disenfranc hised. Based upon the fac ts that we

re pres ented to t

he Court d

uring the Show Cau se hear ing, it wa s evident

that if this Court had not intervened at Plaintiff’s request, the remaining three entries, upon which the Court of Appeals rested its jurisdiction, would have been liquidated. See Yancheng Contempt Decision , 277 F. Supp. 2d at 1352. The Court of Appeals affirmed this Court’s decision in the underly ing case on August 4, 2003. Yancheng Baolong Biochemical Prods. Co., Ltd. v. United States , 337 F.3d 1332, 1333-34 (Fed. Cir. 2003). Specifically , the Court of Appeals affirmed this Court’s holding that Commerce reasonably

rescinded the administrative review as to Plaintiff. Id . Thus, Plaintiff’s entries were hel d to be subj ect to the 201.63% a

ntidumping

duty rate. The Court of

Appeals ’ mandate issued on Se

ptember 25, 2003. B efore t

his Court is sued a de cision re gardin g damages, Defendant filed its Motion to Vacate the Court’s Judgment Entered on July 16, 2003 (“Def.’s Mot. to Vacate”). While the issue of damages and Defendant’s Motion to Vac ate were under consideration, this Court s ent a lett

er to cou nsel rais ing the i ssue sove reign i mmunity in the con

text of this Court awarding attorney

fees as damages for c ontempt pursuant to this Court’s Rule 86.2. ( See Letter from chambe

rs of J. Carman to Counsel of 03/03/04.) The Court specifically br ought the Court of Appeals’ decision in M.A. Mortenson Company v. United States , 996 F.2d 1177 (Fed.Court No. 01-00338 Page 8

3 At the time of the Mortenson opinion, the court was known a s the Unite d States Cla ims Court. Its name was chang ed to the United States Court of Federal Claims as part of the Fe deral Court Administration Act of 1992, Pub. L. No. 102-572, 106 Stat. 4506 (1992). Cir. 1993), to the attention of the parties. ( Id .) The Cou

rt provid ed the pa rties two -weeks

to submit further briefing on this issue. ( Id .) After this Court granted Defenda nt’s request for an extension of time to file its supplemental brief, both Defendant and Plaintiff submitted additional briefs on the issue of sovereign immunity

. Because the Court of Appeal’s dec ision in Mortenson is central to this Court’s decision on the issue of sovereign immunity , a brief summary of Mortenson follows. In Mortenson , the Court of Appeals held that the United States Claims Court 3 could award attorney fees against the Government for violation of its court rules which authorized attorney fees as sanctions for abuses of discovery. Mortenson , 996 F.2d at 1178. The Claims Court procedural rule under examination mirrored the Federal Rules of Civil Procedure (“F RCP”) Rule 37, “Failure to Make Disclosure or Cooperate in Discovery ; Sanctions.” See id. at 1183; see alsoF ED
. R. C IV
. P. 37. The Court of Appeals determined that the Equal Access to Justice Act (“EA JA”), Pub. L. No. 96- 481, Title II , 1980 U.S.C.C.A.N. 2325 (1980) (codified as amended at various sections of Title 5 and 28 U.S.C.), waived the United States’ sovereign immunity for awards of attorney

fees under the court’s procedural rules. Id . at 1180-82. Specifically , the Court of Appeals examined 28 U.S.C. § 2412(b) which states that “[t]he United States shall be liable for such [attorney ] fees and expenses to the same extent that any other pa rty would be liable under the common law or under the terms of any sta

tute which specifically

provides for such an award.” 28 U.S.C. § 2412. The Court of A

ppeals r easoned that, bas ed on the l egisla tive histor

y of the EAJA wh

ich spec ifically contemplated awards of attorney ’s fees for violations of the FRCP, § 2412(b)’s phrase “terms ofCourt No. 01-00338 Page 9

any statute” should not be na rrowly construe d. Id. at 1181 (“ Thus, it is c onsistent w ith Congr ess’ intent and the legislative history to interpret ‘statute’ as including the FRCP.”). The Court of Appeals reasoned that because the Claims Court’s rule wa s identical to the FRCP rule, and the Claims Court had been authorized by Cong ress “to adopt its own rules without the need for supervis ory

or statutory

oversig ht,” the r ules of th e Claims Cou

rt should a

lso be inc luded with

in the EAJA’s “terms of any sta tute” requirement. Id. at 1183. The Court of Appeals asserted that “[i]t is well established that a court’s procedural rules promulgated pursuant to statutory authorization are deemed to have the force a nd effect of law.” Id. (citi ng Weil v. Neary , 278 U.S. 160, 169 (1929) (additional citations omitted)). Thus, the Court of Appeals held that § 2412(b) of the EAJA waived the Untied States’ sovereign immunity for an award of attorney

fees under the Claims Court’s Rule for violation of discovery orde rs. Id . at 1184.
P ARTIES ’ C ONTENTI ONS I. Defen dant’s Con tentions.
A. Motion to Vacate. First, De fendant

seeks re lief from this Court’ s decision of July 16, 2003, w

herein t his Court held Defendant in contempt of this Court’s August 2001 Preliminary Injunction. (Def.’s Mot. to Vacate at 1.) Defendant seeks relief under USCI T Rule 60(b)(1) which states that “the court may re lieve a party

. . . from a final judgment, order, or proce eding for . . . mistake, inadvertence, surprise, or excusable neglect.” USCIT R. 60(b)(1). Alterna tively, Defenda

nt seeks relief under USCIT Rule 60(b)(6) which allows the Court to grant relief “ from a final judgment, order, or proceeding for . . . any othe

r reason justifying

relief from the operation of the judgment.” USCIT R. 60(b)(6).Court No. 01-00338 Page 10

At the outs et, Defe

ndant note s that “[a]lt

hough Co mmerce maintains t hat its interpretation of the preliminary injunction was reasonable, it did not appeal this issue to the Federal Circuit[] because contempt citations cannot be appeale d until the order is final and damages are assessed.”

(Def.’s Mot. to Vacate at 6 (citations omitted).) Defendant claims that this Court’s contempt decision “does not satisfy the required elements for civil contempt” because Plaintiff has not suffere d any harm a s a result of Defendant’s contemptuous liquidations. ( Id . at 8-9.) Defendant contends that Plaintiff has not been harmed because the duty rate assessed on its entries in violation of this Court’s August 2001 Preliminary I

njunction was affirmed by the Court of Appeals as the correct rate of duty. ( Id . at 9.) Defendant stresses that the 28 entries liquidated in violation of this Court’s August 2001 Preliminary I

njunction were done so “at the same PRC-wide duty rate of 201.63[%] that was affirmed by

this Court and the appellate court.” ( Id .) Thus, Defendant contends that this Court’s contempt decision is mistaken because damages, a ne cessary element of contempt, has not been established. (

Id .) Defendant claims that “permitting [the Yancheng Contempt Decision ] to stand would constitute a mistake and grounds for vacatur pursuant to Rule 60(b)(1).” ( Id .) Defendant asserts that there is no remedial purpose to be served by this Court’s civil contempt decision. ( Id .) Defendant contends that Plaintiff “has not suffere d any actual losses which require compensation.” (

Id . at 10.) Lastly, Defendant states that if this Court declines to vacate its order under Rule 60(b)(1), Defendant “propos[es], as an alter native, that the extraordinary circumst ances ( as prese

nted in [its] pr

imary argume nt) warr ant vaca tur pursu ant to the ‘catch -all’ provision of Rule 60(b)(6).” ( Id . at 12.) B. Sovereign Immunity.Court No. 01-00338 Page 11

Defend ant conte nds that th

is Court “d

oes not pos sess juris diction to e ntertain claims seeking the award of attorney fees against the United States pursuant to [USCIT Rule] 86.2.” (Def.’s Supp. Br. Concerning the Court’s Jurisdiction to Assess Money Damages Against the United States Pursuant to the Court’s Contempt Rule (“Def.’s Supp. Br.”) at 4.) Defe ndant contends that this Court cannot “invalidate the sovereign immunity of the United States by issuing a local rule that allows the assessment of attorney fees against the United States.” ( Id . at 2, 6-7.) D efenda

nt conten ds that the

re is not a n express w aiver of

soverei gn immuni

ty present in this case as required by

Supreme Court precedents. ( Id . at 4.) D efenda

nt conten ds that “[e ]ven if there ha s been some wavie r of immuni

ty, the Gove

rnment is n

ot subjec t to moneta

ry liability unless the waiver unequivocally expresses consent to such claims.” ( Id . at 5 (citations omitted).) Defendant contends that “[n]o statute waives sovereign immunity by authorizing funds for

the payment of attorne

y fees pursuant to the circumstances presented in this case.” ( Id . at 6.) Defendant asserts that the “sole support proffer ed” for waiver of sovereig n immunity is “local rule” 86.2. (

Id .) Defe ndant con tends tha t “this loc al rule –

in addition

to lackin g an expr ess waiver – is not an act of Congress.” ( Id .)
Defend ant conte nds that th

is Court sho

uld not fol low the Cou

rt of Appe als’ hold

ing in Mortenson “because: (1) that case’s holding has been invalidated by

subsequent Supreme Court precedent; and (2) the facts of this case are inapposite.” (

Id . at 9.) First, Defendant claims that the Court o f Appea

ls relied on the leg

islative h istory of the EA

JA to hold tha

t “FRCP 37, in conjunction with 28 U.S.C. § 2412(b) operated as a waiver of sovere ign immunity.” ( Id . (citing Mortenson , at 1181-82).) Defendant contends that the Supreme Court’s de cision in Lane v. Pena , 518 U.S. 1 87 (1996) , “expres sly invalida ted” the Court of A

ppeals’ reasoni

ng inCourt No. 01-00338 Page 12

Mortenson . (

Id . at 10 .) Quo ting Lane v. Pena , Defendant contends that “[a] statute’s legislative history cannot supply

a waiver that does not appear clear ly in any statutory text.” (

Id . at 10 (quot ing Lane v. Pena , 518 U.S. a t 192).) T

hus, Def endant a sserts tha

t the Court

of Appea ls’ “sole basis for . . . finding [] a waiver of sovereig n immunity” has been invalidated by the Supreme Court. (

Id .) Second, Defendant contends that, even if Mortenson “retained any legal force,” the reasoning in Mortenson is no t appl icabl e to th is cas e becau se “th ere is no cor respo ndin g langua ge in the EAJA’s legislative history conc erning contempt proceedings.” ( Id .) Further, Defendant contends that unlike

the FRCP, th

is Court’s Rule 86.2 d

oes not ca rry “the for ce of sta tutes” because the Court of Appeals has explicitly held that this Court’s rules are “‘not statutory ’ even in the presence of an analogous F ederal Rule of Civil Procedure.” ( Id . at 11 (citi ng Stone Container Corp. v. United States , 229 F.3d 1345, 1355 (Fed. Cir. 2000)).) Defenda nt asserts that there is not an analogous rule to this Court’s Rule 86.2 in the Federal Rule of Civil Procedur e, as there was for the rule considered in Mortenson . ( Id . at 7.)
Defend ant conc ludes tha

t “a cour t’s local rules ca nnot inval idate the

soverei gn immuni

ty of the Un ited State s. . . . Acc ordingl y, t he Court d

oes not pos sess juris diction to e ntertain claims seeking attorney

fees against the United States pursuant to [USCIT Rule] 86.2.” ( Id . at 11-12.)
C. Dam ages. Should the C ourt find

a waive r of sove reign i mmunity , Defen

dant asse rts that Pla

intiff is
not entitl ed toattor

ney fees as da mag es be caus e “Ru

le [86 .2] do es no t con

templ ate o r aut

horiz e an award of attorney

fees in the absence of any other damages.” (Def.’ s Reply at 3.) Def endant contends that Rule 86.2 allows this Court to “include” attorney fees when awarding dama ges, butCourt No. 01-00338 Page 13

does not permit an award of fees without an awa rd of other damages. (

Id .) Even if fees were allowed u nder Rule 86.2, Def

endant c ontends that Plaintif f was not r

equired to initiate

these proceedings to preserve its rig ht to judicial review. (

Id . at 3-4.) Rather, Defendant contends that Plaintiff “could have taken the advice of the Gover nment and requested an extension of the injunction or a stay pending appeal, to which the Government was willing to consent.” ( Id . at 4.) Defendant also argues, as it did in the ear lier contempt proceedings, that the procee dings were not necessary

because Plaintiff’s importer filed protests of the liquidations of some of the subject entries with Customs. (

Id .) Therefore, Defenda

nt contends that the status quo was preserved because Customs “generally refrains from addressing the [protested] issue until the underly ing litigation is resolved.” (

Id .) Defendant asserts that the contempt procee dings, “while instructive to resolv e a ge

nuine issue of leg al disag reemen t, were n ot neces sary

to prese rve any rights to meaningful judicial review of Commerce’s de termination.” (

Id . at 5.) Defendant also claims that attorney fees should not be awarded because the Government’s position, as detailed in its Response to the Court’s Order to Show Cause, for liquidating the subject entries in violation of this Court’s August 2001 Preliminary Injunction was “substantially justified.” ( Id . at 5-6.) Finally , Defendant claims that “the amounts claimed by plaintiff are

questionable and excessive.” ( Id . at 6.)
II. Plain tiff’s Conte

ntions.
A. Motion to Vacate. Plaintiff takes the position that this Court’s contempt decision should stand and the Court should award damages to Plaintiff as requested in Plaintiff’s Memor andum on Damages to be Awarded Based on a Finding of Contempt for Violation of the Injunction Aga inst Liquidation ofCourt No. 01-00338 Page 14

Subject Entries (“Pl.’s Mem. on Damages”). (Pl.’s Opp’n to De f.’s Mot. To Vacate Finding of Contempt ( “Pl.’s Op

p’n”) a t 3, 5.) F irst, Plain

tiff cont ends that in its conte

mpt decisi on, this Court “es sentially

found tha

t damag es in the f

orm of fe es and co sts had be en incur red as a result of defendant’s contumacious conduct.” ( Id . at 4.) Pla

intiff as serts tha

t this Court “

merely postponed its calculation of damages until it could measure the ‘full eff ect of the Government’s noncompliance.’” (

Id . (quo ting Yancheng Contempt Decision , 277 F. Supp. 2d at 1364).) Plaintiff contends that this Co

urt was not mistaken

in holding

Defend ant in con tempt; thus , Defendant’s Motion to Vacate under Rule 60(b)(1) should be denied. (

Id .) Further, Plaintiff
asserts t hat Defe ndant “has also fa

iled to ar ticulate any extraord inary circumst ances that would support vacatur under Rule 60(b)(6).” ( Id . at 5.) B. Sovereign Immunity. Plaintiff contends that the doctrine of sovereign immunity does not bar this Court from awarding attorney

fees as damages for c ontempt. (Pl.’s Further Briefing on Att’y Fees under Rules 86.2 and Sovereign Immunity as Discussed in M.A. Mortenson Co. v. United States (“Pl’s Supp. Br.”) at 3.) Plaintiff contends that, in considering the issue of sove reign immunity, the questions before this Court are “whether the holding of the Court of Appeals in Mortenson should be narrowly c onstrued 1) to apply only to sanctions imposed under the Rules of the Claims Cour

t, as oppos ed to the Ru

les of the Untied Sta

tes Court o f Int

ernational Trad

e, or 2) t o apply only to attorne

y f ees awa rded as s anctions

for viola tions of dis covery

orders, as oppose d to fees awarded as sanctions for violations of other or ders issued by the Court.” ( Id . at 2.) Plaintiff asserts that the “answer to both questions is no.” ( Id .)
Plaintiff contends that Mortenson ruled that the United States’ sovereign immunity for anCourt No. 01-00338 Page 15

award of attorney

fees was waived by

§ 2412(b) of the EAJA. ( Id . at 3.) Plaintiff contends that Mortenson held that under § 2412(b), in any action in which jurisdiction properly lies in the court, th e United S tates is lia ble for a n award of attorn ey fees to the same extent that a private party would be liable. (

Id . at 3-4.) Plaintiff contends that there is no question that this Court has jurisdiction of this action. ( Id . at 2-3.)

Theref ore, Plai ntiff ass erts that

the Unite d States should be liable for attorney

fees to the same extent that a private litigant would be before this Court. ( Id . at 3-4 .) P laintif

f contends tha

t the wai ver of s overei gn i

mmun ity in § 241 2(b ) of

the EAJA was “for various abuses of the litigation proce ss.” ( Id . at 3 ( quot ing Mortenson , 996 F.2d at 1182).) Plaintiff asserts that in Mortenson , the Cour t of Appe als “re

peatedl y e mphasized

[that] the Equal Access to Justice Act was intended to allow federal cour ts to award attorney

fees against the Government to the same extent that fees may be awarded against private litig ants.” ( Id . at 3-4.) Plaintiff notes that under 28 U.S.C. § 1585, this Court has all the powers in law and equity that the fede

ral district courts have, and this Court also has the statutory authority to gr

ant any form of a

ppropriate relief in a civil action under 28 U.S.C. § 2643(c)(1) . ( Id . at 3)
Further, Plaintiff

contends that Mortenson should not be narrowly r ead to only allow attorney fe es in instances of violation of discovery orders. ( Id .) Plaintiff emphasizes that the injunction that the Government was found to violate in this action “was issued to preserve the Court’s jurisdiction,” and that this action would have been rendered moot if Plaintiff had not brought the Government’s violation of the injunction to the Court’s attention. ( Id . at 4.) Plaintiff urges this Court to “reject the notion that the government c an frustrate and undermine the proceedings of this tribunal and leave the Court of I nternational Trade helpless to preclude such conduct on the government’s part.” ( Id .)Court No. 01-00338 Page 16

Plaintiff asserts t hat Lane v. Pena “does not require the Court to disarm itself in the face of misconduct by the Gove rnment.” (

Id .) Rather, Plaintiff

contends that Lane v. Pena merely reiterates “the well-established principle that waive rs of sovereign immunity must be clear.” (

Id

. at 5.) Plai ntiff

conte nds t hat a l ater de cisio n by the S uprem e Cour t addr essin g sover eign im mu ni ty c on cl ud ed th at “t he st at ut or y la ng ua ge , t ak en to ge th er wi th st at ut or y pu rp os es , h is to ry, and the absence of any

convincing reason for deny ing the [administrative agency ] the relevant power, produce evidence of a waiver that satisfies the stricter [narrow legislative construc tion] standard.” (

Id . (quo ting West v. Gibson , 527 U.S. 212, 222 (1999)).) Plaintiff contends that the Court of Appeals has already considered “the statutory language, purpose and history of the EAJA and c oncluded

that the U

nited State s has waiv ed its sove reign i mmunity with resp ect to awards of attorney

fees pursuant to the rules of a federa l court as a sanction for violations of that court’s orders.” (

Id .) Plaintiff urges this Court to reach the same conclusion. ( Id .)
C. Dam ages. Should the Court find a waiver of sovereign immunity , Plaintiff asks this Court to award damages in the form of attorney fees and costs as detailed in Plaintiff’s Memorandum of Damages. (

Id . at 5-6.) In its Memorandum on Damag es, Plaintiff cites USCIT Rule 86.2, which provides that if a party

is found in contempt of an order of this Court, the Court shall enter an order that “fix[es] the fine, if any, imposed by the court, which fine shall include the damages found, and naming the person to whom such fine shall be pay able.” (Pl.’s Mem. on Damages at 1 (quoting USCIT R. 86.2).) Plaintiff notes that Rule 86.2 also states that “a r easonable counsel fee, necessitated by

the contempt proceeding, may be included as an item of damages.” ( Id . at 2 (quoting USCIT R. 86.2).) Plaintiff requests that this Court order De fendant to pay a ll attorneyCourt No. 01-00338 Page 17

fees and costs incurred in connection with counsel’s ef forts to enforce the Court’s injunction and the costs of participating in the contempt proceeding s. ( Id . at 5-6.) Plaintiff asserts that but for Defendant’s unlawful liquidations, it would not have accumulated these fe es. ( Id . at 2, 5-6.)
Plaintiff’s counsel submitted a declaration in accordance with 28 U.S.C. § 1746, stating that the “total of the fees and costs related only to the plaintiff’s efforts to enforce the injunction entered in this matter is $20,761.25 in fees and $756.15 in costs.” (Decl. of J. Kevin Horg an ¶ 3.) Plaintiff’s counsel also submitted billing records detailing the fee s and costs associated with Plaintiff’s efforts to enforce the injunction. ( Id .)
A NAL YSIS I. Defendant ’s Motio n to Vacat e is Denie d. This Court denies Defendant’s Motion to Vacate because this Court’s decision of July 16, 2003, was

not a fina

l decision as requi red for relief u nder USCI

T Rule 60. U

nder USCI

T Rule 60(b), a party

may seek r

elief “from a final judgment, order, or proceeding .” USCIT Rule 60(b) (emphasis added). “I

n some circumstances, a court may use the Federal Rules of Civil Procedure as a guide to construe the USCI T Rules.” Gilmore Steel Corp., Or. Steel Mills Div. v. United States , 652 F . Sup p. 154 5, 154 9 n.5 ( Ct. Int ’l Trad e 1987 ) (cit ing Sumitomo Metal Indus. v. Babcock &

Wilcox Co. , 66 9 F. 2d 7 03, 705 n.3 (C. C. P. A. 1 982 ) (w her e la ngu age of t he U SC IT rule and the FRCP rule is identical, the court properly looks to interpretations of the FRCP as an aid to construing the USCIT rule) a nd USCIT R. 1 (“The court may refer for guidance

to the rules of other co urts.”) ). In

apply ing FRCP Ru

le 60, cou rts have held that “a ‘final’ judg

ment is needed to support a Rule 60(b) motion.” 12 J AMES W M
. M OORE ET AL ., M OORE ’ S F EDERAL P RACTICE

– C IVIL § 60.23 (3 rd ed. 1999) . Here, the lang uage o f USCI T Rule 60 a nd FRCP RuleCourt No. 01-00338 Page 18

60 is nearly identica

l. Compare F ED
. R. C IV
. P. 60(b) with USCIT R. 60(b). Thus, this Court

reasons that USCIT Rule 60, l ike its FRC P counter part, al lows for r

elief on ly f rom final judgments, final orders, or final procee dings. Defendant’s Motion to Vacate seems to acknowledg e that this Court’s order of July 16, 2003, is not final. On page six of its Motion to Vacate, Defendant contends that “it did not appeal [the preliminary injunction] issue to the Fede ral Circuit, because contempt citations cannot be appeale d until the order is final and dama ges ar e assess ed.” (D ef.’s B r. at 6 (e mphasis added ) (cit ing Seiko Epson Corp. v. Nu-kote Int’l, Inc. , 190 F.3d 1360, 1369 (Fed. Cir. 1999).) Yet, Def endant se eks relie f under R ule 60 whi ch only

allows re lief from final judgments. This Court’s contempt decision was not a final judgment or a final order, a s required under Rule 60(b), precisely because, as Defendant notes, the Court’s dec ision was interlocutory and could not be appealed until damages wer e assessed. See Seiko Epson Corp. , 190 F.3d at 1369 (“A contempt order is final and appealable w hen the opportunity to purg e the contempt has
passe d and t he pos itio n of th e parti es has been af fected by the con tempt order. ”) (cit ing Hoffman v. Beer Drivers &

Salesmen’s Local Union No. 888 , 536 F.2d 1268, 1273 (9 th Cir. 1976) (contem pt order deemed f inal and a ppealab le when the that we re fine s assesse d were ordered to be paid)). However, because the issue of damages is addressed below and in the interest of judicial economy, this Court will treat its decision as final for the purposes of addressing the merits of Defend ant’s Moti on to Vac ate. Und er Rule 60 (b), this C ourt “ma y r elieve a party . . . from a final judg ment . . . f

or . . . mista

ke, inadv ertenc e, surpr

ise, or excusable neglect.” USCIT R. 60(b)(1). The Court may also grant vacatur “for . . . a ny other re ason justifying re lief from theCourt No. 01-00338 Page 19

operati on of the j udgmen t.” USCIT R. 60(b) (6). This Court find s that Def

endant ha s failed t

o present any evidenc e which would support vaca tur under Rule 60(b ). For the reasons set for th in the Yancheng Contempt Decision and for the reasons herein, this Court holds that Defendant’s characterization of this Court’s decision as “mistaken” is without merit. Further, this Court holds that the other possible grounds for vacatur under Rule 60(b)(1) are not present in this action. Additionally, this Court holds that Defendant has failed to show a ny extraordinary

circumstances required for relief under Rule 60(b)( 6). See Pioneer Inv. Serv. Co. v. Brunswick Assocs. Ltd. P’ship , 507 U.S. 380, 393 (1993) (“To justify re lief under subsection (6), a party must show ‘extraordinary c ircumstances.’” (citations omitted)). II. This Court Cannot Award Plaintiff Damages in the Form of Attorney Fees A ssociated with the Contempt Proceedings for Defendant’s Violation of this Court’s August 2001 Preliminary Injunction Because the United States Has Not Waived its Sovereign Immun ity for Such a n Award. In this Court’s earlier contempt dec ision, the Court specifically re served decision regarding damag es stating that “the full effect of the Gove rnment’s noncompliance with the Court’s August 2001 Preliminary I njunction will not be known until the Federal Circuit decides the underlying

case on appeal and the parties have ha d an opportunity to petition for a writ of certiorari.” Yancheng Contempt Decision , 277 F. Supp. 2d at 1364. Now that the Court of Appeals has issued its decision on the underly ing case, see Yancheng , 337 F.3d 1332, and the time to petition the Supreme Court for a writ of certiorari has expired, see S UP
. C T
. R. 13, this Court turns to the issue of damages. This Court finds that, but for Defendant’s contumac ious actions in issuing t he liquida tion instru

ctions in N ovember

2002 and i

n liquidati

ng the e ntries in January 2003, Plain

tiff woul d not have

incurre d the attorney

fees ne cessar

y to enforc e this Court’s August 2001 Preliminary I njunction. Contrary to Defe ndant’s contentions in its MotionCourt No. 01-00338 Page 20

to Vacate, this Court finds that Plaintiff suffered damages a s a result of Defendant’s contemptuous liquidations. Namely, Plaintiff incurred a ttorney fee s as a result of the Government’s violation of this Court’s August 2001 Preliminary Injunction. Although the Court of Appeals upheld the duty rate that was applied by

Customs when it liquidated Plaintiff’s entries in violation of this Cou

rt’s orde r, that fa ct does no t relieve

Defend ant from r esponsibi lity

for its contumacious behavior in November 2002 and January 2003. Civil contempt is intended to “compensate for losses or damages sustained by reason of noncompliance.” McComb v. Jacksonville Paper Co. , 336 U .S. 1 87, 19 1 (194 9) (ci ting United States v. United Mine Workers of Am. , 330 U.S. 2 58, 303-0 4 (1947); Penfield Co. of Cal. v. Sec. & Ex ch. Comm’n , 330 U.S. 5 85, 590 (1 947); Maggio v. Zeitz , 333 U.S. 5 6, 68 (194 8)). Civil contempt may be punished by a remedial fine, which compensates the party protected by the injunction for the effects of the other party ’s noncompliance. United Mi ne W orkers , 330 U.S. at 303-04. In contempt procee dings, under the Rules of this Court, a party may be compe

nsated for reasonable attorney

fees “necessitated by

the contempt proceeding.” USCI T R. 86.2. However, because this is an action against the Government, this Court cannot a ward money da

mages, even in the form of attorney

fees, unless there has been a waive r of sovereign immunity

. Ruckelshaus v. Sierra Club , 463 U.S. 680, 685 (1983) (“Except to the extent it has waived its immunity, the Govern ment i s imm une fro m clai ms for attor ney’s fees .” (cit ing Alyeska Pipeline Serv. Co. v. Wilderness Soc’y , 421 U.S. 2 40, 267-6 8, & n.42(1975)) ); see also Bohac v. Dep’t of Agric. , 239 F.3d 1334, 1339 (Fed. Cir. 2001) (“we cannot a llow recovery

unless there has been a waiver of sovereign immunity” ). The Su preme C ourt h as rul ed tha t “[a] waive r of th e Federa l Gove rnmen t’s so vereignCourt No. 01-00338 Page 21

4 This Court’s rules are procedural rules issued pursuant to 28 U.S.C. § 2633(b); they are notlocal rules like those issued by district cour ts. See 28 U.S.C. §§ 2071, 2072 , 2633; see also , Mortenson , 996 F.2d

at 1183 (“

the Unite d States di strict co urts . . . la

ck the power to pro mulgate their own rules”). immunity must be unequivocally expressed in statutory text and will not be implied .” Lane v. Pena , 518 U.S. at 192 (emphasis added) (citations omitted). “Moreover, a wa iver of the Government’s sovereign immunity will be strictly construed, in terms of its scope, in f avor of the sovereign.” Id . (citati ons omitted ); see also United States v. Nordic Village , 503 U.S. 30, 34 (1992) (“[T]he Government’s consent to be sued must be ‘construed strictly in favor of the sovereign,’ and not ‘enlarg ed . . . beyond wha t the language require s.’” (citations omitted)). Defendant characterizes the issue that is befor e the Court as “[w]hether the Court may invalida te the sov ereig

n immunity

of the Un

ited State s by

issuing a local ru le 4 that allows the assessment of attorney

fees against the United States.” (Def .’s Supp. Br. at 2.) Defendant miss tates the is sue. T his C ourt’ s Rul e 86.2 does n ot att empt t o “inv alida te” th e sove reign immunity of the United States. There is no lang uage in this Court’s Rule 86.2 that addresses sovereign immunity or the Court’s ability to award fe es against the United States. Rather, Congre ss has alr

eady specific ally

waived s overeig

n immunity

for an a ward of attorne y f ees in certain circumstances under the EAJA. See 28 U.S.C. § 2412(b). This Court must examine the circumstances of this case to determine if the requir ements under § 2412(b) of the EAJA are met. Thus, the issue before the Court is whether the EAJA waives sovereig n immunity for an awar

d of attorney fe es as damages for the Gover nment’s civil contempt. After careful examination of the language of the EAJA, the Court of Appea ls’ decision in Mortenson , and the r elevant Supreme Court precedents regarding sovereign immunity, this Court holds that it cannot awar d attorney fees as damages for c ontempt against the Government because the United States ha s not waivedCourt No. 01-00338 Page 22

its sovereign immunity for suc h an award. Section 24 12(b) of

the EAJA sta

tes: Unless expressly prohibited by statute, a court may

award r easona

ble fees and expenses of attorney s . . . to the prevailing party in any civil action broug ht by or agains tthe United States . . . in any cour t having jur isdic tion of such action. The United States sha

ll be liable for such fees and expenses to the same extent that any other party would be l iable und

er the c ommon law or under t he terms o f any

statute which specifically

provides for such an award. 28 U.S.C. § 2 412(b). Adhering to the Supr

eme Court ’s strict

statutory construction requ

irements for waiver of sovereign immunity, this Court must reach a different result in apply ing § 2412(b) than that reached by

the Court of Appeals in Mortenson

. This Court holds that the circumstances of this case prevent this Court from awarding
attorne y f ees to Pla intiff und er § 2412 (b) of th e EAJA for the follow

ing rea sons: 1) Pla

intiff is not the “prevailing party

”; and 2) this Court’s Rule 86.2 is not “the terms of any statute.” First, § 2412(b) specifically

allows the court to award attorney fees against the United States “to the prevailing party

in any civil action.” 28 U.S.C. § 2412(b). Althoug h Plaintiff prevailed in the contempt proceedings, Plaintiff is not the “prevailing pa rty” in the action as required for application of § 2412(b). See Former Employees of Motorola Ceramic Prods. v. United States , 336 F.3d 1360, 1364 (Fed. Cir. 2003) (noting that “[t]he Supreme Court has interpreted the phrase ‘prevailing party ’ consistently in all feder al fee-shifting statutes” and that “to be a prevai ling p arty, one m ust ‘r eceive at lea st so me rel ief on the me rits .’” (qu otin g Buckhannon Bd. and Care H

ome, Inc . v. W

. Va. Dep ’t of Heal

th and Hum an Res. , 532 U.S. 5 98, 603 (2 001))); see also A. Hirsh, Inc. v. United States , 948 F.2d 1240, 1245 (Fed. Ci

r. 1991). The Court

of Appea ls has stated that “[a]lthough [the court] recognize[s] that a ‘prevailing party ’ is not limited ‘to a victor only after

entry of a

final judgment following a full trial on the merits,’ winning on aCourt No. 01-00338 Page 23

5 This Court notes that the Court of Appeals did not address the issue of “prevailing party” in Mortenson , although the issue was raised in the lower court. See M.A. Mortenson Co. v. United States , 15 Cl. Ct. 362, 363 n.2 (1988). In Mortenson , attorney fe es were awarded at an interlocutory phase

of the litigation; it had not yet bee n determined which side was the “prevailing party

” in the action. Id . Although the Court of Appeals heard the Governme nt’s appeal of the award of attorney fees after the parties had settled their c laims, the court did not address the issue. See Mortenson , 996 F.2d at 1179.

6 Recovery

under the common law was not raised as an issue in this case. The pa rties focused their arguments on the availability of recovery

under this Court’s Rule 86.2. Under the common law “American Rule,” each par ty must bear its own attorney fees and costs. Alyeska Pipeline Serv. Co. , 421 U.S. at 247. In listing the limited common law exceptions to the American Rule, the Supreme Court stated that “a court may assess attorneys’ fees for the ‘willful disobedience of a court order.’” Alyeska , 421 U .S. at 258 (q uoti ng Fleischmann Distilling Corp. v. Maier Brewing , 386 U.S. 714, 718 (1967)). Although this Court need not address this issue, the Court does note that the circuits are split on whether or not they require a finding of willfulness in order to assess attorney fees for contempt. Compare Food Lion v. United Food & Commercial Workers Int'l Union , 103 F.3d 1007, 1017 n.14 (D.C. Cir. 1997) (“[W]e see no reason why

a district court should not be authorized to include legal fees specific ally associated with the contempt as part of the compensation that may be ordered to make the plaintiff whole, even ab sent a showing of willful dis obedienc e by

the conte mnor. Nume

rous cour ts have so held.” (citing cases from the 8 th , 9 th , 11 th , and D.C. Circuits) and John Zink Co. v. Zink , 241 F.3d 1256, 1261- 62 (10 th Cir. 2001) (“We agree with the district court and c onclude that a finding of willfulness is not required to award attorney fees in a civil contempt proceeding.”) with Omega particular point or ground, even if it may result in permanent change in gove rnment practice or may clarif

y muddled law, does not nec essarily entitle a pa rty to EAJA fees.” A. Hirsh, Inc ., 948 F. 2d at 1245 (citation omitted). The Court of Appeals ruled that the court must “look at the claimed ‘victory ’ in the context of the litigation as a whole to discern whether the party has achieved the substantive relief it sought.” Id . As detailed in the facts above, Defendant pre vailed on the merits of the underly ing case. Yancheng Baolong , 337 F.3d at 1333-3 4. Thus, Pla

intiff is not the “prevailing party

” under the EAJA. 5 Secon d, eve n if P laint iff wer e the p revail ing par ty, § 241 2(b) o nly waive s sov ereign immunity for an a ward att orney fees “t o the same

extent that

any other pa rty would be l iable under the common law 6 or under the terms of a

ny s tatutewhich specifically provides for such anCourt No. 01-00338 Page 24

World Travel, Inc. v. Omega Trave l Inc. , 710 F. Supp. 169, 172-73 (E.D. Va. 1989), aff’d without opinion , 905 F.2d 1530 (4 th Cir. 1990) (stating that the court had “considered Alyeska ’s use of the phrase ‘ willful dis obedienc e’ and de termined that a contemnor’ s refusa l to comply with a court order must rise at least to the level of obstinance or re calcitrance.”).

7 This Court notes that there is some indication in a later Supreme Court opinion that suggests that “statutory

language, taken tog ether with statutory purpose s, history, and the absenc e of any convinc ing reason for deny ing the [administrative agency ] the relevant power [to award compe nsato ry damages a gainst the Un ited S tates ] pro duce ev idenc e of a wa iver [ of sov ereign immunity].” West v. Gibson , 527 U.S. a t 222. I ndeed, the Court of

Appeals has cite d this award. ” 28 U.S.C. § 2412(b)(emphas is added) . This Cour t cannot a ward att orney fees to Plaintiff under USCIT Rule 86.2 because Rule 86.2 is not “the ter ms of any statute” a s required for a wavier of sovereig

n immunity for awarding

attorney fe es under § 2812(b). In Mortenson , the Court of Appeals used the legislative history of the EAJA to infer that “the phrase ‘terms of
any statute’ should not b e read narrowly ” and sho uld includ

e the Fe deral Rul es of Civil Procedure and the Rules of the United States Claims Court. Mortenson , 996 F.2d at 1181, 1184 (“In light of . . . Cong

ress’ intention that a court be allowed ‘in its discretion to award fee s against the United States to the same extent it may presently award such fees against other parties,’ we find no basis on which to differentiate betwe en the abilities of the federal district courts and the Claims Court to award monetary sanctions for abuse of discovery against the United States pursuant to either the FRCP or the [Rules of the United States Claims Court].”) (quoting H.R. Rep. No. 96-1418, at 6 (1980), reprinte d in 1980 U.S.C.C.A.N. 4984). Several
years a fter the Court of Appeals’ decision in Mortenson , the Supreme Court in Lane v. Pena held that “[a] statute’s legislative history ca nnot supply a waiver tha

t does not appear clearly

in any statutory text.” Lane v. Pena , 518 U.S. a t 192. Fol lowing the Supreme Court’s a naly sis, this Court fee ls constra

ined to construe § 2 812(b)’ s phrase “terms of any statute” without looking to the legislative history of

the EAJA. 7Court No. 01-00338 Page 25

Supreme Court case for the proposition that “it is possible to find support for a waiver of sovereign immunity not only in statutory langua

ge, but also in statutory pur pose and history.” Ins. Co. of the West v. United States , 243 F .3d 13 67, 13 72 (Fed . Cir . 2001 ) (cit ing West v. Gibson , 527 U.S. a

t 222)); see also Bohac , 239 F.3d at 1339 (“ [T]he Supre

me Court r

ecently appears to have allowed gre ater latitude for interpreting the scope of sovereign immunity wa

ivers in the light of ‘statutory pur poses, history, and the abse nce of convincing reason for de nying’ a wavie r.” (qu otin g West v. Gibson , 527 U.S. at 222)). However, this Court cannot ignore the Supreme Court’s clear instructions in Lane v. Pena that waivers of sovereign immunity cannot be implied through legislative history

.

8 Although Plaintiff requests both attorney fees and costs, the Court will only c onsider Plaintiff’s request for attorney fees because USCI T Rule 86.2 states that “a reasonable counsel fee . . . may

be includ ed as an i tem of da mage.” USCIT R. 86.2 (e

mphasis a dded). Pu

rsuant to the specific language

of the Rule, this Court declines to examine the costs requested by Plaintiff. Under the Supreme Court’s announced standard in Lane v. Pena , this Court cannot us e the legislative history of

the EAJA to imply a waiver of sover eign immunity for a

n award of attorney fe es for contempt under this Court’s Rule 86.2. This Court’s rules are not “the terms of any statute.” This Court, like the Claims Court in Mortenson , has bee n authori zed by

Congre ss to prescribe its own rules of practice and proc edure. See 28 U.S.C. § 2633(b) (“The Court of International Trade

shall prescribe rules governing summons, pleadings, and other papers, for their amendment, service, and filing, for c onsolidations, severances, suspensions of cases, and for other procedural matters.”). Acting pursuant to that authority, this Court promulgated Rule 86.2 which states that this Court may “include[] as an item of damag e,” “[a] reasonable counsel fee, necessitated by

the contempt proceedings.” 8 USCIT R. 86.2. Despite the fact that this Court’s Rules are promulgated pursuant to clear statutory authority and ar

e “deemed to have the force and effect of law,” Mortenson , 996 F .2d at 1183 ( citi ng Weil v. Neary , 278 U.S. at 169), the Rules of this Court are not statutory. See Stone Container , 229 F.3d at 1354. Thus, this Court’s Rules are not “the terms of any statute” as required for waiver of sove reign immunity under

§ 2412(b) of the EAJA.Court No. 01-00338 Page 26

Alth ough t he Cou rt cann ot us e the l egisla tive h isto ry to find a waiv er of so vereign immunity in this case, it was clearly Congress’ intent in passing the EAJA to hold the United States to the same sta

ndards f or violati ons of pro cedura l rules an d abuses o f the litig ation pro cess as private litigants. See , e.g. , S. R EP
. N O . 96-253, at 4(St ar P rin t 19 79) (Under

the EAJA “[attorney] [f]ees may

also be recovered aga

inst the United States under Rule 37, [FRCP], which provides for sanctions for f

ailure to make disc overy [,] and unde r the ter ms of any Feder al statute which authorizes awards against private par ties unless the statute expressly provides otherwise. There appears to be no justification for exempting the United States in these situations; the chang e simply

reflects the beli ef that, at a minimu m, the Unit

ed States should be held to the

same standar ds in litig ating a s private

parties. ”); H.R. R EP
. N O . 96-1418, at 9 (1980), reprinte d in 1980 U.S.C.C.A. N. 4984, 4 987 (“[A]t a minimum, the

United Sta

tes should

be held to

the same standards in litigating as private parties. As such, it is consistent with the history of [§] 2412 which re flects a

strong movement by Congress toward p lacing

the Fed eral Gov ernment

and civil litigants on a completely e qual footing.”). In spite of this legislative history, this Court holds that the waiver of sovereign immunity in § 2412(b) does not pass the strict statutory c onstruction
st an da rd ar ti cu la te d b y Lane v. Pena for waiver of sovereign immunity as to damages for contempt under this Court’s Rule 86.2. As detail ed in Plain

tiff’s su bmission to t

he Court, Plaintiff

’s counse l worked

diligen tly t o discover the facts surrounding the liquidation of the subject entrie s and to inform the Court of the progress of the parties in resolving this matter. ( Pl.’s Mem. on Damages Ex. A.) However, because of the restrictions placed on this Court by the doctrine of sovereign immunity , this Court does not possess jurisdiction to award attorney fees to Plaintiffs as damages for Def endant’sCourt No. 01-00338 Page 27

9 The broader question presented by the circumstances of this case, the Government’s immunity to monetary

sanctions for violation of court orders, continues to be debated among the circuits. One legal commentator has noted that “[c]ourts have g iven uncertain and vary

ing indications on the applicability of sovere ign immunity in the contempt context.” Recent Case, 108 H ARV
. L. R EV
. 965, 9 70 n.3 4 (199 5) (com parin g United Sta tes v. Ho rn , 29 F.3d 754, 765 n.13 (1 st Cir. 1994) (“The better reasoned dec isions hold that, when [sovereign immunity and the court’s inherent supervisory powers] lock horns, contempt is barred by sovereign immunity.” ) with Armstrong v. Executive Office of The President , 821 F. Supp. 761, 773 (D.D.C. 1993) (“The Court is aware tha

t imposition

of moneta

ry sanction s again st the fed eral g overnme

nt often is barred by the doctrine of sovereign immunity . However, . . . the Court finds the doctrine inapplicable to the imposition of coercive fines.), rev’d on other grounds , 1 F.3d 1274, 1290 & n.13 (D.C. Cir. 1993)). See also , Coleman v. Espy , 986 F .2d 11 84, 11 91 (8 th Cir . 1993 ) (“[ W]e will not imply into [18 U.S.C. § 401] an express waiver of sovereign immunity for the federal gover nment to be

sued for civil comp ensator

y c ontempt.” ); Barry v. Bowen , 884 F.2d 442, 444 (9th Cir. 1989) (reasoning that the court could not find “any thing which suggests that the United States expressly has waived its sovere ign immunity with respect to conte mpt sanctions.”) Additiona

lly, the circ

uits cannot agre es on whe ther sove reign i mmunity bars the courts from imposing sanctions against the Government under the FRCP for violations of court orders. One judge in the Eighth Circuit has noted that “[i]n recent decisions dealing with the government’s sovereign immunity against monetary

sanctions imposed under various rules of civil and appellate procedure, severa l circuit courts have condoned awards of a ttorney fee s and costs against the federal gove rnment despite the absence of express waivers.” McBride v. Coleman , 955 F.2d 571, 582 n.8 (8 th Cir. 1992) (dissenting opinion of Chief Judge Lay ) (citing Adamson v. Bowen , 855 F.2d 668, 672 (10 th Cir. 1988) (rejecting the Government’s cla im of soverei gn immuni

ty to FRCP Rule 11 sanction s finding a waive r under t he EAJA); Mattingly v. United States , 939 F.2d 816, 818 (9 th Cir. 1991) (affirming Rule 11 sanctions against the Government despite sovereign immunity objections and explicitly rejecting the EAJA theory relied u pon by the Tenth

Circuit, g

rounding its opinion on the FRCP a lone); United States v. Nat’l Med

. Enters ., 792 F.2d 906 (9 th Cir. 1986) (upholding compensatory sanctions against the Government under

FRCP Rule 37 (b)); In re Goo d Hope In dus. , 886 F.2d 480 (1 st Cir. 1989) (affirming an award against the Government under Federal Rule of Appe llate Procedure 38)). Such disparate application of the doctrine of sovereig n immunity for violations of court orders invites Congressional intervention. contumac ious acts

. 9 C ONCLUSI ON Defendant’s Motion to Vacate the Court’s Judgment of July 16, 2003, is denied. Based on the Cour

t’s lack o f jurisdiction under the doctr ine of sov ereig

n immunity, Plaintiff

’s reque stCourt No. 01-00338 Page 28

for attorney

fees as damages for c ontempt is denied.

/s/ Gregory W. Carman Judge Dated: April 28, 2004 New York, New York