1 Slip Op. 04-14 UNITED STATES COURT OF I NTERNATIONAL

TRADE

: SKF USA INC., SKF FRANCE S.A., and : SARMA :

Plaintiff s, :

: Before: WALLACH, J udge v. : Court No.: 03-00490 : THE UNI TED STATE S, : : Defend ant, : and : : THE TIMKEN COMPANY , : : Defend ant-I nterven ors. :

:

____________________________________ : [Plaintiffs’ Partial Consent Motion for Preliminary I njunction is granted.]

Dated: February

18 , 2004

St ept oe & Jo hns on, LLP , ( Herbert Carl Shelley ) for Plaintiffs SKF USA Inc., SKF France S.A., and SARMA. Peter D. Keisler , Assistan t Attorne y G eneral ; David M. Cohen , Director; Jeanne Davidson , Deputy Director; Ada E. Bosque , Trial Attorney, U.S. De partment of Justice, Civil Division, Commercial Litigation Bra nch; and Barbara Tsai , Attorney, Off ice of Chief Counsel for Import Administra

tion, of Cou

nsel, for Defend ant Unite d States. Stewart and Stewart , ( Terence Patrick Stewart ) for De fendant-Int

ervenor s.1 Pursuant to USCIT R. 56.2, Judgment upon an Agency Record for an Action Described in 28 U.S.C. § 1581(c) “[a]ny motion for a preliminary injunction to enjoin the liquidation of entries that are the subject of the action shall be filed by a party to the a

ction within 30 days after the date of service of the complaint, or at such later time, for good cause shown.”

2 Pursuant t

o USCI T Rule 7, “ [b]efore . . . a motion for a pr eliminar y in junction to

enjoin the liquidation of entries . . . is made, the moving party shall consult with all other parties to the action to attempt to reach agreeme nt, in good faith, on the issues involved in the motion.”

2 OPINION WALLACH, Judge:
I Introduction On January 22, 2004, the court he ard oral argument on Plaintiffs, SKF USA I nc., SKF France S.A., and

SARMA (collectively “SKF ”), Partial Consent Motion for Preliminary Injunction (“Motion”) to enjoin the liquidation of certain ba ll bearings (“BBs”) f

rom France covered by

the United States Department of Commerce’s (“Commerce ”) administrative review of antidumping duty orde rs on BBs. Ba ll Be ar in gs an d P ar ts Th er eo f F ro m F ra nc e, Ge rm an y, Ital y, Ja pan, and Singapo re: Fina

l Results of

Antidumpin

g Duty Administra

tive Revie

ws, Rescission of Administrative Review in Part, and Determination Not To Revoke Order in Part , 68 Fed. R eg. 35, 623 (June 16 , 2003) (“ administr ative re view”). Plaintiff

s timely filed the ir Motion and Defendant-Inte rvenor, Timken, consented to the Motion. 1 Defend ant claimed that it did not have an adequate opportunity to review the proposed order of injunction. 2 Durin g a telephonic status conference held with all the parties on Septembe r 18, 2003, the court asked the parties to confer. Defendant subsequently agreed to all but one aspect of the or der for injunction: specifically, it did not ag

ree to the injunction remaining in effect throug h any potential appe als of this court’s determination.3 The products covered by the antidumping order constitute the following class or kind of merchandise and are classifiable unde r, among other provisions, Harmonized Tariff Schedules (HTSUS) h eading s or subhe adings: Ball bearings, Mounted or Unmounted, and Parts Ther eof : 3926.90.45, 4016.93.00, 4016.93.10, 4016.93.50, 6909.19.5010, 8431.20.00, 8431.39.0010, 8482.10.10, 8482.10.50, 8482.80.00, 8482.91.00, 8482.99.05, 8482.99.35, 8482.99.2580, 8482.99.6595, 8483.20.40, 8483.20.80, 8483.50.8040, 8483.50.90, 8483.90.20, 8483.90.30, 8483.90.70, 8708.50.50, 8708.60.50, 8708.60.80, 8708.70.6060, 8708.70.8050, 8708.93.30, 8708.93.5000, 8708.93.6000, 8708.93.75, 8708.99.06, 8708.99.31, 8708.99.4960, 8708.99.50, 8708.99.5800, 8708.99.8080, 8803.10.00, 8803.20.00, 8803.30.00, 8803.90.30, and 8803.90.90. Administrative Review, 68 Fed. Reg. 35,623. 3 A preliminary injunction issued by this court continues after issuance of a judgment a t least through the period of the automatic stay provided pursuant to USCIT R. 62 and throughout
any appeals . The cou

rt retai ns the pow er to modif

y or exert juri sdiction o ver the i njunction until a final and conclusive decision is rendered. The c ourt has jurisdiction over this matter pursuant to 28 U.S.C. § 1581(c) (2000). For those reasons, the court will gr ant Plaintiffs’ Motion and enjoin liquidation until the injunction expires as a matter of law or until it orders otherwise.
II Background Pursuant to USCIT 56.2, Plaintiffs challenge ce rtain aspects of the administrative review of the antidumping duty or ders covering BBs. The

entries at issue are BBs and par ts thereof from France, which were

produced, or exported to or imported into the United States, by SKF during the period of review (“POR”) f rom May 1, 2001, throug h April 30, 2002. 3 Plaintiffs filed their Motion requesting that the court enter an order enjoining the United States, during the pendency of this action, from liquidating all the entries: those entered, or withdrawn f rom warehouse, for consumption during the POR; those produced by SKF France S.A. or Sarma,4 “An injunction against liquidation is not sought for those entries of merchandise c overed

by the determination which w ere produced by SKF France S.A. or Sarma but which wer e exported and/or imported without the knowledge or authorization of SKF.” Plaintiff’s Motion at 1 n.1.

5 Section 15 16a(e) , rega rding li quidation

in accor dance w ith final d ecision, states tha

t: If the cause of

action is sustained in whole or in part by a decision of the United States Court of International Trade

. . . 4 exported to or imported into the United States by SKF; or those exported to or imported into the United St ates with t he knowledge and authoriz ation of SK F. 4
III Arguments Plaintiffs claim that absent an injunction preventing liquidation, Commerce will instruct the U.S. Bureau of Customs and Border Protection (“Customs”) to liquidate their e ntries and deprive this court of a basis for judicial review of the c hallenged determination. Moreover, Plaintiffs contend that injunctions granted by this court during a challenge to an a ntidumping review should continue in effect until the party exhausts its appeals, and a final and conclusive decision is rendered. Conversely , Defendant claims that a preliminary injunction, as a matter of law, dissolves upon issuance of a final judgment by this court.
IV Applicable

Legal Standa rds A preliminary injunction is considere d an extraordinary r emedy. See Ugine- Savoie Imphy v. United States , 24 CIT 1246, 1249 (2000). Pursuant to 19 U.S.C. § 1516a(c)(2) ( 1999), the United States Court of International Tra de is authorized to “enjoin the liquidation of some or all entri es of mer

chandise covere d by

a deter mination . . . upon a r

equest by an inter ested pa rty for such relief.” 5 The purpose of a preliminary injunction is to preserve the relative positions of(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 day s from the date of the issuance of the court decision. 5 the parties pending adjudication by the court. See Fundicao Tupy S.A. v. United States , 841 F.2d 1101, 1103 (Fed. Ci

r. 1988); see also Univ. of Texas v. Camensich , 451 U.S. 3 90, 395, 10 1 S. Ct. 1830, 1834, 68 L. Ed. 2d 175, 180 (1981). Before this court will grant a preliminary injunction , the Plain

tiffs must e stablish th at: (1) without the p relimina ry injunction , they

will suffer irreparable harm; (2) the balance of hardships weighs in their fa vor; (3) it is likely that they will succeed on the merits of their case; and (4) g ranting the preliminary

injunction will not run counter to the public’s interest. See NMB Singapore L td. v. United States , 24 CIT 1239, 1242 (2000).
V Discussion Commerce issues antidumping duty or ders for imported merchandise, sold in the United States below fair value, that materially injures or threatens to injure a domestic industry

. See 19 U.S.C. § 167 3 (2000). Impor ters ente ring me rchandi se cover

ed by an antidu mping or der must make a deposit of estimated duties at the time the merchandise is entere d. See 19 U.S.C. § 1673e(a)(3). The actual liquidation of entries subject to an a ntidumping order by

Customs may6 The Court of International Tra de possesses “all the powers in law and equity of, or as conferred by

statute upon, a district court of the United States.” 28 U.S.C. § 1585 (2000) (emphasis added).

7 An injunc tion is “fr

amed ac cording

to the cir cumstanc es of the

case” a nd acts a s a “remedial writ which courts issue for the purpose of e nforcing their equity

jurisdiction.” Black’s Law Dictionary

(7th ed. 1999) (internal citations omitted). 6 occur ye ars after importation. See Consol. Bearings Co. v. United States , 348 F.3d 997, 1000 (Fed. Ci r. 2003). Befor

e liquida tion occu rs, howe ver, an i ntereste d party

may request administrative review of the antidumping duty order. Id. Pursuant to section 1675(a)(2)(C), the results of an administrative review determination become the ba sis for the assessment of antidumping duties on entries of merchandise covere d by that determination. Shinyei Corp. of Am. v. United States , 2004 U.S. App. LEXI S 783, 20-21 (Fed. Cir. 2004). Section 516A of the Tariff Act of 19 30 provide s for judic ial revie w of Comme

rce’s a ntidumping

duty determinations. Id. at 23; 19 U.S.C. § 1516a(a)(2000). Pursuant to § 1516a(c)(1), unless liquidation is enjoined by the court, entries of merchandise covered by

Commerce’s determination are liquidated in accorda nce with that determination or a

conclusi ve decis ion by

either th is court o r an appe als cour t. Howeve

r, this court may g

rant injunctive relief barring liquidation upon request by an interested party

for such relief and a proper showing that a pr eliminary injunction should be gr anted. 6 19 U.S.C. §1516a(c)(2). This court grants pre liminary injunctions in antidumping cases whe n it is essential for the protection of a party ’s property r ights against injuries otherwise irremediable. 7 See Cavanaugh v. Loone

y , 248 U.S. 453, 456, 39 S. Ct. 142, 143, 63 L. Ed. 354, 358 (1919). Liquidation of a party ’s entries is the final computation or ascertainment of duties accr uing on those entries. See Juice Farms v. United States , 68 F.3d 1344, 1345 (Fed. Cir. 1995) (citing 198 Errors in either liquidation instructions by Commerce or in the actual liquidation of the entries by Customs do not deprive the cour t of subject matter jurisdiction. See Cons ol. Bea rings , 7 C.F.R. § 15 9.1). Onc e liquida tion occu rs, it per manently deprive s a party

of the opp ortunity

to contest Commerce’s results for the administrative review by rendering the party ’s cause of action

moot. See Zenith Radio Corp. v. United States , 710 F.2d 806, 809-10 (Fed. Cir. 1983).
A Plaintiffs Have Established Their Right to Preliminary Injunctive Relief All of the parties c onsented

to a prel iminary

injunction , and no pa

rty denies th at Plaintif

fs have est ablished their rig ht to a pre liminary

injunction . Defen

dant, how ever, di sputes the length of the injunction and states that “as a matter of law, trial court injunctions dissolve upon issuance of its final judgment.” Defendant’s Response to SKF’s Partial Consent Motion for Preliminary Injun ction (“ Defend

ant’s Res ponse”)at 2. Plain

tiffs hav e certa

inly establish ed their

right to some sort of preliminary injunction.
1 Plaintiffs Will Suffer Irreparable Harm Absent the Requested Injunctive Relief Plaintiffs request a preliminary injunction because they

claim that they will suffer irrepa rable in jury if their e ntries ar e liquida ted beca use liquid ation will f

rustrate their rig ht to judicial review. A preliminary injunction grants equitable relief and require s a party to do or refrain from doing a particular thing. See Black’s Law

Dictionary

(7th ed. 1999). After an antidumping review determination, if a party ’s entries are liquidated prior to judicial review of the dete rmination and antid umping du

ties are assesse d, any

outstandi ng cha llenge s as to thos e entries are rendered moot beca use liquidation, absent errors by Commerce or Customs, places the entries o utside the jurisdict ion of the court. 8 See Chr. Bjelland Seafoods A/S v. United States , 19348 F.3d a t 1002 (sta

ting tha t an action challe

nging Commerce ’s liquida

tion instru

ctions is a challenge to the ‘administration and enforce ment’ of Commerce’s final results and the Court of Inte rnationa l Trade may

review t he instru ctions pursuant to 28 U.S.C 1581( i)(4)); see also Xerox Corp. v. United States , 289 F.3d 792, 795 (Fed. Cir. 2002) (explaining that in cases wher e the scope of an antidumping duty order is unambiguous and undisputed, the misapplication of the antidumping order by

Customs may be protested pursuant to 19 U.S.C. § 1514(a)(2) and the Court of International Trade may review

any denials of suc

h protests pursuant to 28 U.S.C. § 1581(a)).

9 The court based its decision on sections 516A(e) and 516A(c )(1) of the Tariff Act of 1930. Absent a

prelimina

ry injunction , entrie s for the review p eriod ar

e liquida ted immedi ately in accordance with the Trade Ag reements Act of 1979, and dumping duties assessed at the margin set by

the review. Zenith , 710 F.2d at 810.

10 Moreover, the Federal Circuit stated that Congress deliberately

gave interested parties the rig ht to obtain effective judicial review of section 751 review determinations to aid eff ective enforcement of antidumping laws. A conclusion that no irreparable har m is shown when that judicial r eview is r endere d ineffe ctive by

deprivin g the int ereste d party

of the onl

y meaningful correction for the alleg ed errors, would be inconsistent with the actions ta ken by Congre ss to corr

ect def iciencie s in prior e

nforce ment acti vity under the antidumpin

g laws. Zenith , 710 F.2d at 811. 8 CIT 35, 51 (1995).
In Zenith , 710 F.2d at 806 , a party f iled an action challenging Commerce ’s antidumping review determination. It soug ht a preliminary injunction ag ainst liquidation of its entries, which this court denied. The Federal Circuit held that once liquidation occurs, a subse quent decision by the Court o f Int

ernatio nal Trad

e has no e ffect o n the dumpi ng dutie s assesse d on the pa rties’ entries. 9 Id. at 810. The Federal Circuit found that “the statutory scheme has no provision permittin g reliq uidation in

this case or impositi on of hig

her dumpi

ng dutie s after l iquidation ” if and when a party

“is successful on the merits.” 10 Id. Therefore, the Federa l Circuit found if the court did not enjoin liquidation, the plaintiffs might be assessed antidumping duties regar dless of9

the court’s final judgment as to results of the administrative review. Id. In thi s case, l iquidation

would per

manently deprive Plaintiff s SKF of th e opportu

nity to contest Commerce’s results for the administrative review by rendering Plaintiffs’ cause of ac tion moot. The inability of the reviewing court to “meaningfully

correct the review determination” constitutes irreparable injury

. Id. at 811. Ac cording ly, Plaintiff s have me t the firs t require

ment, that they will suffer irr

eparable injury

absent the requested relief.

2 The Bala nce of Hard ships Favo rs SKF Plaintiffs claim that the Government will suffer no hardship as a result of the cour t’s grant o f an injunction. As p art of its analy sis of the b alance

of hardships, the c ourt must a lso determine whether the opposing party would suffer adversely

should the court grant the preliminary injunction. See Zenith , 710 F.2d at 809. In thi s instanc e, the co

urt weig hs the re lative ha

rdships of the part ies if the injunction

is grante d and find s that the b alance favors t he Plaintif

fs. Suspen sion of liqu

idation a t most inconveniences the Government. See OKI Elec. I ndus. Co. v. United States , 11 CIT 624, 632-33 (1987); see also Timken Co. v. United States , 6 CIT 76, 81 (19 83). The

Governm ent will, in fact, ultimately collect or refund, with interest, any amounts owed from or due to the plaintiffs at the conclusion of this litigation. See Ugine-Savoie I mphy v. United States , 24 CIT at 1250-51 (2000). S imilarly

, the Def endant- Inte

rvenors will only be inconv enience d by

the dela y. Sh ould the court, however, fail to issue a preliminary injunction, Plaintiffs’ entries could be liquidated, thus, per manently deprivin g them of both a pote

ntial ref und and th e ability

to contes t Commerce’s final results. Because the ha rdship to the Plaintiffs upon liquidation outweighs the10

inconvenience of delay

to the Government and the Defendant-I ntervenors, Plaintiffs have met the second requirement of their burden.
3

There is Some Likelihood of Success by SKF on the Merits of the Action Plaintiff also cla ims that it ha s made a m

inimal show

ing of th e likeliho od of its su ccess on the merits. Significant questions of law constitute “fair ground f or litigation.” Ceramica Regiomontana, S.A. v. United States , 7 CIT 390, 397 ( 1984). Th e grea ter the p otential harm to the plaintiff, the lesser the burden on Plaintiffs to make the required showing of likelihood of success on the merits. See Am. Air Parcel Forwarding Co. v. United States , 1 CIT 293, 299 (1981). Because Plaintiffs have shown that “in the a bsence of a preliminary

injunction, they would suffer irreparable harm, they are required only

to raise ‘serious, substantial, difficult and doubtful’ questions to satisfy their burden of proving a likelihood of success on the merits.” Ugine , 24 CIT at 1251. Plaintiff makes several claims regarding Commerce’s cost calculations for the challeng ed determination in its Complaint. Plaintiffs allege “that Commerce erred in its calculation of normal value by f

ailing to calculate constructed value prof it in accordance with 19 U.S.C. § 1677b(e)(2)(B), and by

excluding data for certain below-cost sales in its calc ulations.” Plaintiffs Motion at 6 ; Complaint a t 3-4. Plai

ntiffs’ Complaint al so alleg es that Com merce e rred in it s application and selection of “facts otherwise ava ilable,” which was not in accordance with law. Complaint at 4.
4

The Public Interest is Best Served by Granting the Requested Relief Finally , Plaintiff claims tha

t the public

interest is best ser

ved by ensuring that acc urate11

amounts of antidumping duties are assessed. Certainly, the public interest is best served by prevent ing entr ies subje ct to antid

umping du

ties from escapin g the co rrect a mount of su

ch duties

. See Bomont Indus. v. United States , 10 CIT 431, 434 (1986). Accord ingly , the publi c intere st
may be best ma

intained by “ the proc edural s afegu

ard of a n injunction penden

te lite to ma

intain the status quo of the unliquidated entries until a final resolution of the merits.” Smith-Corona Group v. United States , 1 CIT 89, 98 (1980). “As for the public inter est, there can be no doubt that it is best served by ensuring that the [Department] complies with the law, and interprets and applies our international trade statutes uniformly and fairly.” Ceramica , 7 CIT at 397. Here, granting Plaintiffs motion for preliminary injunction will ensure judicial review of Commerce’s determination and will further the public interest of an accur ate assessment of antidumping duties. Therefore, the court, having a pplied the traditional four-part test for issuing a preliminary injunction

conclude s that Plain

tiffs hav e demonst

rated th at they

will suffe

r irrepa rable ha rm if their entries are liquidated prior to a conclusive court de cision; that the balance of hardships favors the grant of a preliminary injunction; that they have “a likelihood of success on the merits”; and fina

lly, that the p

ublic inte rest is be st serve d by

enjoining

liquidation. This, however , resolve s only

whether Plaintiff s are en titled to a n injunction. The co

urt now tur

ns to the issue regarding the dura tion of the injunction.12 B Scope and Duration of Preliminary Injunctions Issued by the Court
1 A Prel iminary Injunction S urvives F rom Iss uance of the Order of Inj unction thr ough a Conclusive Court Decision Defendant claims that, pursuant to the Federal Circuit’s de cision in Fundicao , 841 F.2d 1101 (Fed. Cir. 1988), “ a preliminary injunction issued by a trial court dissolves upon entry of a final court decision.” Defendant’s Response at 3. De fendant argues that “if . . . the cour t sustains th e age

ncy ’s deter

mination a s valid, th e injunct ion dissolv es and the

re is no basis for the
agency administratively to suspend liquidation, as the presumption of validity has survived judicial review.” Id. at 6 (emphasis in original). Plaintiffs contend that a preliminary injunction issued by this cour t continue s from issu

ance thr oughout an appe al. Plainti ffs’ Rep ly to Defend ant’s Res ponse to SK

F’s Part ial Consen

t Motion for

Prelimina

ry Injun ction (“ Plaintiff

s’ Reply”) at 3. Defendant’s reliance on Fundicao to bolster its argument mistakes the Federal Circuit’s holding. A decision, that is appealed from this court, is not a “final court dec ision” for purposes of liquidation. Timken Co. v. United States , 893 F.2d 337, 339-40 (Fed. Cir. 1990). Fundicao stand s for t he pro posi tion that w hen th e appea ls cou rt has an int erlocu tory appea l regard ing a preliminary injunction befor e it, that appeal becomes moot if this court rules on the merits of the case prior to the Federal Circuit’s ruling on the interlocutory a

ppeal, or if the underly

ing need for the preliminary injunction disappea rs. In Fundicao , the appellant sought review of an order by this court that denied its motion for a preliminary

injunction to prevent the Government from liquidating its entries pending the11 Thus, in Fundicao , the Federal Circuit’s review of the g rant or denial of a preliminary injunction was the matter before the court, not the lower court’s dec ision regarding the merits of Commerce’s antidumping review. 841 F.2d at 1103. For example, if a party see

ks an interlocutory appe al regarding the denia l of a preliminary injunction, the jurisdiction of the appella te court does not extend over

a motion for direc ted verd ict made d

uring th e ongoi

ng tria l, but rather the appellate court has jurisdiction solely over the interlocutory

appeal. See e.g. , Univ. of Texas , 451 U.S. at 396 (explaining that when a district court grants a pre liminary injunction, the parties generally

have not had the opportunity to pre sent their cases nor receive a fina l decision on the merits. “Thus when the injunctive aspects of a case become moot on appeal of a 13 lower court’s decision on the merits of its challenge to the unde rlying a ntidumping duty order. Before the Federa

l Circuit could rule on the preliminary injunction, this court ente red a final judgment affirming the final determinations by Commerce and dismissing the appellant’s complaint. Fundicao , 841 F.2d at 1103. The Federal Circuit stated that “althoug h a preliminary injunction

is usually

not subject to a fixed t

ime limitat

ion, it ‘is ipso facto di ss ol ve d b y a dismissal of the complaint or the entry of a final decree in the cause.’” Id. (internal citations omitted). Moreover, this court’s jurisdiction over the injunction in Fundicao was limited because: Th e f il in g o f a ti me ly a nd su ff

ic ie nt no ti ce of

ap pe al ha s t he ef

fe ct of im me di at el y transferring jurisdiction from the district court to the court of a ppeals with respect to an y matters

involved i

n the appe al. I

t divests th e distric t court of authority to proceed further with respect to such matters , except in aid of the appeal [e.g., granting a stay

to preserve the status quo pending the appeal, Fed. R. Civ. P. 62; Fed. R. App. P. 8], or to correct clerical mistakes under Rule 60(a) of the Federal Rules of Civil Procedure . . ., or in aid of execution of a judgment that has not been superseded, until the district court receives the manda te of the court of appeals

.

Id. (emphasis added). The court’s statement reg arding the matter appealed, that an a ppeal “has the eff ect of imm ediately

transfe rring j urisdicti on from th e distric t court to t he court of appea ls wi th re sp ec t t o a ny matters involved in the appeal,” is limiting language. 11preliminary injunction, any issue preserved by

an injunction bond can generally not be resolved on appea l, but must be

resolve d in a tria

l on the me

rits.”); see also Venezia v. Robinson , 16 F.3d 209, 211 (7th Cir. 1994) (stating that “a preliminary injunction cannot survive the dismissal of a complaint).

12 The court found the fact that “the term ‘final c ourt decision’ [in § 1516a(e)] must be read together with the words that follow, specific ally, ‘in the action.’ A n ‘action’ does not end when one court renders a decision, but continues throug h the appeal process. Thus, an appealed CIT decision is not the final court decision in the action .” Timken , 893 F.2d at 339. Moreover, the Federal Circuit found that § 1516a(e) did not “re quire liquidation in accordance with an appeale d CIT d

ecision, since tha

t section r equires that liquid

ation tak e place in accor dance w ith the final court decision in the action.” Id. at 339-40.

13 The Government has in the past argued that “ a decision of the CIT is not final for the purposes of publication of notice until (1) an appeal is decided by this court, or (2) the time for appeal expires. Timken , 833 F.2d at 338. 14 Defendant’s argument also over looks the Federal Circuit’s acknowledgme nt in Fundicao that preliminary injunctions are usually not subject to a fixed time limitation. Nothing in the Federal Circuit’s opinion suggests that it intended Fundicao to stand f or the pr oposition that all preliminary injunctions issued by this court dissolve upon its issuance of a judgment, before the time to appeal has run. Furthermore, the Fe deral Circuit’s decision in Timken , makes clear that “an appealed CI T decision is not a ‘final court decision’ within the plain meaning of § 1516a( e).”

12 893 F.2d at 339. Defendant next claims that [i]f this Court has sustained the agency’ s determination, appellants may se ek an injunction pending appeal to continue the injunction of liquidation. . . . Pursuant to Rule 62( d), SKF ma

y mo ve to stay

judgmen t. Similarly

, FRAP 8 pr

ovides a mechanism for parties to obtain stay s or injunctions pending appeal. SKF’s contention that preliminary injunctions encompa ss appellate proceedings render s Rule 62 an

d FRAP 8 sup erfluou s. Defendant’s Response at 6-7. 1314 Should a losing party a ppeal, the court does not have discretion to moot the appeal by amending, modify

ing, or dissolving the injunction so as to permit liquidation of the appellant’s entries prior to a conclusive decision by the appeals court. Hosiden Corp. v. United States , 85 15 FRAP 8, Sta

y or Injun ction Pend

ing Appe al, state s that: [a] party must ordinarily

move first in the district court for the following relief: (A) a stay of the judgment or order of a district court pending appeal; (B) approval of a supersedeas bond; or (C) an order suspe nding, modifying , restoring, or granti ng an in

junct ion wh ile an appeal is pen ding. Id. The FRAP, however, does not include any limiting language that differe ntiates between preliminary and pe

rmanent injunctions. It specifically also provides for modification of an injunction once a district court has rendered its judgment while an a ppeal is pending. The langua ge in F RAP 8, indic ating th at a distr ict cour t may suspend o r modify

an injunc tion, is indicative of the fact that an injunction may continue from a lower court’s issuance throug h an appeal. Defend

ant has no t cited au

thority ; nor does

any thing wit hin the an tidumping

statutes, this court’s rules, the [FRAP], or case law prevent this court from amending or modifying an injunction while a case is appealed on a collateral matter . Furthermore, neither FRAP 8 nor any other FRAP address directly the extinguishment of injunctions issued once a district court has entered its judgment.
In a ddition to st

ay s pursuan

t to FRAP 8, court ru

les provi de for a

stay of proce edings t

o enforce a judgment - an automatic sta y. USCI T R. 62(a) states that, except as ordered by the court, “ no executi on shall iss

ue upon a judgmen t nor shal l procee dings be taken for its enforc ement unt

il the expir

ation of 3 0 day s after i

ts entry .” USCI T R. 62(a) require s the cour

t to stay the execution of a judg ment so that a party ha s the opportunity to appeal this court’s decision. 14 Moreover, “ 19 U.S.C. § 1516a(e) requires that liquidation, once enjoined, remainsF.3d 589, 591 (Fed. Cir. 1996).

15 The plaintiff in Cosmos Exploration Co. v. Gray Eagle Oil Co. , 112 F. 4 (1901) instituted a suit in an attempt to regain possession of his property by means of a

n injunction. The court sta ted that “ [t]he funct

ion of an i

njunction is to afford preve

ntive re lief, not t

o redre ss alleged wrongs which had be en committed already . An injunction will not be used to take property out of the posse ssion of one party a nd put it into that of another.” Id. at 10. (Internal citations omitted). 16 suspended until there is a ‘ conclusive court decision which decides the matter, so that subsequent entries can be liquidated in accordance with that conclusive decision.’” AIMCOR v. United
States , 23 C IT 932, 9 39 (19 99) (q uoti ng Timken , 893 F.2d at 342 ) (emphasis by F ederal Circuit). Defendant misapprehends the mechanics of the antidumping statutes and the court’s rules. Pursuant to § 1516a(c)(2), this court may enjoin the liquidation of some or all entries of merchandise covered by

the antidumping review upon request by an interested party

for such relief and a proper showing by the party that the injunction should be g ranted under the circumst ances. I n antidump ing cas es, in ord er to af ford pre ventive r elief, th e court r

outinely issues preliminary injunctions, which bar the agency from liquidating entries pending final judgmen t. 15 However, in instances where an injunction has not been issued, U SCIT R. 62(d)
pr ov id es th at wh en an ap pe al is ta ke n, th e a pp el la nt ma y ob ta in a s ta y. Defend ant arg ues that prelimina

ry injunction s running

until the c ompletion o f appell ate proceedings would render USCIT R. 62 and FRAP 8 superfluous. This argument ignores the
separa te cours es of ac tion that th e antidum ping sta tutes and the cour t rules af ford to pa rties in order to prevent the Government from liquidating entrie s. There are four ge neral scenarios that the court routinely fa

ces in the context of its review of the agency ’s antidumping determination. In the first scenario, the c ourt grants an injunction against the ag ency, whic h bars liquidation of a17

party’s entr

ies; however, after judicial review the ag ency’s de termination is upheld. In the second, an injunction is issued against the agency , and the agency ’s determination is not upheld. In the third, no injunction is issued by the court against the agenc y barring liquidation of a party’s entries, and the a

gency ’s deter

mination is

upheld. F inally , in the fo urth sce nario, no injunction

is issued by the court ag ainst the agency , and the agency ’s determination ultimately is not upheld by the cour t. In the first two scenarios, in which the c ourt grants an injunction, the injunction continues until there is a conclusive decision in the case. Defendant argues that “[i]f the court deter mines ultimately that the ag ency’s de termination is invalid, the injunction is dissolved but the agency continues to administratively suspend liquidation pursuant to Timken .” Defendant’s Response at
6. Suspension of liquidation occurs prior to judicial review of the agenc y’s determination. The statu tory scheme provides t

hat if the Inte rnationa l Trade C ommission ( “IT C”) finds a reasonable indication of injury to the domestic industry in an antidumping investig ation, the United States Department of Commerce’s I nternational Trade Administration (“I TA”) must then preliminarily determine w hether there is a “reasonable ba sis to believe or suspect that merchandise is being sold, or is likely to be sold, at less than fair value [“LTF V”].” 19 U.S.C. § 1773b(b)(1)(A) (1999). I f the ITA’s deter mination is affirmative, all entries of the subject merchandise are ordered suspende d. § 1673b(d). A negative preliminary determination does not result in suspension of liquidation. See Am. Lamb Co. v. United States , 785 F.2d 994, 998 (Fed. Cir. 1986). Once the agency ’s determination is challenged before this cour t, administrative16 The Supreme Court explained in Porter v. Warner Holding Co. , 328 U.S. 395, 398

(1946), that equitable jurisdiction is not limited in the absence of a clear and valid leg islative command. Unless a statute, in words or by a necessary

inference, restricts the court’s jurisdiction in equity, the full scope of that jurisdiction must be rec ognized and applied. Id. (citi ng Brown v. Swann , 3 5 U .S . 4 97 , 5 03 , 5 11 , 9 L. E d. 50 8, 51 1 ( 18 36 )) . “ ‘T he gr ea t p ri nc ip le s o f e qu it y, securing complete justice, should not be y ielded to light inferences, or doubtful construction.’” Id. 18 suspension is nece ssary

for the a gency to confor m itself to t

he court ’s orders. Nothing within equity or the an tidumping

statutes, however , requir es this co urt to subo rdinate

its power to enjoin. While the court may not issue an injunction contrar y to law, it need not fore go granting injunctive relief because the age ncy has also a

dministratively suspended liquidation. 16 The power of this court sitting in equity c omplements Commerce’s administrative suspension. The actions taken by a

n agency to enforce the court’s judgment or orde rs, such as continued administrative suspension of liquidation throughout the court’s review of the ag ency’s determination, is separate and distinct from the court’s gr ant or denial of a preliminary injunction. Section 15 16a(e)entitled “ liquidation in accordance with fina l decision ” gove rns the f irst scenario in which the court grants an injunction ag ainst the agency , which bars liquidation of a party ’s entrie s; howeve

r, afte r judicia l review the age ncy ’s deter

mination is

upheld. T

he statute states that [i]f 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 . . . entries, the liquidation of which was enjoined . . . shall be liquidated in accordance with the final court decision in the action. Such notice of the court decision shall be published within ten day s from the date of the issuance of the court decision. Section 15 16a(e)(emphas is added) . While the s tatute do es not explic itly address an appe al, it is19

implicit that the losing party has the oppor tunity to appeal this court’s dec ision, thus the requirement of USCIT R. 62, automatic stay . Moreover, the statute explicitly provides for the dissolution

of the inju

nction, w hich per mits the ag ency

to liquidat

e entrie s in accordance

with this court’s judgment, should the losing party fail to appeal. Alternately, in ac cordance with the statute the Government might move to dissolve the injunction . “[A] part

y mo ving for

dissolution

must make a

very compellin

g demon stration, both of changed circumstances a nd resulting inequities for the moving party, to justify dissolution of the injunction prior to a final decision on the merits of the action.” AIMCOR , 23 CIT at 939. After a decision on the merits, the court certainly may revisit the nec essity of the injunction upon motion. The court, however, is not persuaded that the Plaintiffs, having met their bur den of persuasion initially in order to re ceive the preliminary injunction, must again convince the court of its necessity in order

to appeal the court’s judgment. Rather it remains incumbent upon the Defendant to persuade the court that the injunction is unnecessa ry and should be re considered or dissolved. Defend ant also c laimed du

ring or al arg ument tha t there was a conc

rete da nger to Commerce in having entries deemed liquidated if it followed Plaintiffs’ sug gestion that an injunction lasted through appeal. Defendant’s fe ar that Commerce would face deemed liquidation if an injunction continued through an appeal is unjustified. “[I]n order for a deemed liquidation to occur, (1) the suspension of liquidation that was in place must have been removed; (2) Custom s must have

receiv ed notice

of the re moval of the suspens ion; and ( 3) Customs m ust not liquidate the entry at issue within six months of receiving suc h notice.” Fujitsu Gen. Am., Inc. v. United States , 283 F.3d 1364, 1376 (Fed. Cir. 2002).20

In Fujitsu , the importer claimed that Customs erroneously liquidated its entries after having received notice that the injunction ag ainst liquidation had been removed. 283 F.3d at 1368-70. The statute, 19 U.S.C. § 1504(d) (1999), “governs the de emed liquidation of entries whose liquidation previously was suspende d by a court or der.” Id. at 1376. I

t provide s that, when a suspension of liquidation required by court order is removed, Customs must liquidate the entry within six months after receiving notice of the removal from Commerce, other ag ency, or a court wit h jurisdic tion over

the entr y. § 1504(d). Entries n

ot liquidat

ed by Customs with

in six months af ter rec eiving s

uch notic e are de emed liqu idated a t the rate of duty asserte d at the time of entry. Id. In order for a

party’s entr

ies to be deemed liquidated, a conclusive decision must be rendered so that suspension of liquidation is removed, see Fujitsu , 283 F.3d at 1379, th e same moment tha

t any prelimina

ry injunction

grante d by

the lower court dis solves. Because there is no confusion as to whether the injunction ended earlier or late r than when suspension of liquidation was removed, Commerce faces no diffic ulties in ascertaining when it may give a liquidation instructi on to Customs

. The second scenario, in which the court g rants a preliminary

injunction and determines that the agency ’s actions are invalid, leaves the injunction in force beca use there has not been an action in favor of the Government. Throughout a ny subsequent court or

dered remands to the
agency or appeals, liquidation may not occ ur until either a final decision in accordance with § 1516a(e) is reached and the time to appea l expires, or an appeals court renders a conc lusive decision. The third and fourth scenarios involve instances when the cour t does not grant an17 “The pr ovince of the cour t is, solely

, to decid e on the r ights of individua

ls, not to enquire how the executive, or executive officers, perf orm duties in which they have a discretion.” Marbury v. Ma

dison , 5 U.S. 137, 170 (1803) ; see also Morrison v. Olsen , 487 U.S. 654, 694, 108 S. Ct. 2597, 2620-21, 101 L. Ed. 2d 569, 607 (1988) (quoting that “‘[w]hile the Constitution diffuses power the better to secure liberty , it also contemplates that practice will integrate the dispersed powers into a workable gover nment. It enjoins upon its branches separa teness but interdependence, autonomy but reciprocity.’ ” Youngstown Sheet & Tube Co. v. Sawy er , 343 U.S. 579, 635, 72 S. Ct. 863, 870, 96 L. Ed. 1153, 1199 (1952) (concurring opinion)). 21 injunction. Under the third scenario, in which no injunction is issued and the court finds for the Government, the court’s rules provide a means for the plaintiff to apply for a stay of this court’s judgment pending an appeal. “The mere filing of an appeal does not act to suspend execution or enforcement of a judgment or injunction; a stay must be applied for and granted.” 20 Moore ’s Federal Practice, § 308.02 (3d ed. 2003). Thus, U SCIT R. 62(d) permits parties to apply for a stay and protec

ts their right to appeal. Furthermore, the a dministrative suspension of liquidation is lifted when the time to file an appeal expires. See Fujitsu , 283 F.3d at 1379. Without the grant of a stay , the ag ency

could liqu

idate the party ’s entrie s and ren

der its ap peal moot

. Under th e fourth

scenar io, in whic

h the ag ency

is unsucc essful a

nd no injunc

tion is issued, pursuant to § 1516a(c), Commerce must administratively suspend liquidation of the entries in order to conform itself to the court’s decision beca use the time frame for a conclusive decision in the action is uncertain. See Timken , 893 F.2d at 341. I f the ag ency

failed to administratively suspend liquidation and subsequently liquidated a party’ s entries, the agency would be in violation of the court’s remand order. An ag ency, like a ny litigant, must obey

the court’s orders. The Government may not choose to disregard court orders a t its pleasure.
Howeve r, the ma nner in w hich the a gency obey s, so long

as it is con sistent wit

h the law, is its province. 1722

An injunc tion issued

by t his court is effec tive immed

iately and conti nues until there is a final and conclusive decision, which dissolves the preliminary injunction. See Volume Footwear Retailers of Am. v. United States , 10 CIT 12, 14 (1986). FRAP 8 and USCI T R. 62 both govern instances when this court’s decisions are not y et final and conclusive. If the court does not issue an injunction and rules in favor of the agenc y, the party

may appea

l the court’s decision; FRAP 8 provides a means by

which a party

may apply

to the court to preserve its rights and prevent liquidation of its en

tries pen ding an appeal o f the cou

rt’s judg ment. I f the Fe deral Cir

cuit upholds the decision by this court and the pa rties do not appeal to the Supreme Court, this court’s judgment is final and conclusive, thus, execution on the judgment, and dissolution of the injunction, may occur y

ears later. “A ‘final decision’ genera lly is one which ends the litiga tion on the merits and leaves nothing for the court to do but execute the judg ment.” Catlin v. United
States , 324 U.S. 229, 233, 65 S. Ct. 631, 633, 89 L. Ed. 911, 916 (1945). Only after a conclusive decision by either this or a court of appeals must a preliminary injunction be dissolved.
2 This Court R

etains Jur

isdiction Ov er a Pr elimina ry Injunct ion It Has Iss ued Throughout the Pendency of an Appeal on a Collateral Matter Defendant further claims that “once a n appeal has been taken, the jurisdiction of the trial court is ‘limited,’” and that as a genera l principle “[t]rial [c]ourts are divested of jurisdiction once they ha

ve rendered judgment.” Def endant’s Response at 3, 9. The cour t retains jurisdict ion over a prelimina

ry injunction

until a co nclusive

decision is reache d and the needs whi ch nece ssitated t he injunc tion no long er exist. See Timken , 893 F.2d at
342 . Like the district courts, this court retains the power to modify or amend pre liminary18 The Supreme Court stated in United States v. Swift & Co. , 286 U.S. 1 06, 114-1 5, 52 S.

Ct. 460, 462, 76 L. Ed. 999, 1005-06 (1932), that

We are no t doubtful

of the pow er of a c ourt of e quity to modify

an injunc tion in adaptation to changed conditions . . . . Power to modify the decree was reserve d by i ts very terms, an d so from the begin

ning we nt hand in hand with it s restra ints. If the reserva

tion had been omitted, power there still would be by force of principles inherent in the jurisdiction of the chancery . A continuing decree of injunction

directe d to event s to come is subject a lway s to adapt

ation as e vents may shape the ne ed. . . . [A] court does not abdicate its power to revoke or modify its m andat e if sa tisf

ied th at wha t it h as been doin g has be en tur ned th rough changing circumstance s into an instrument of wrong. Id. (interna

l citation s omitted) ; See Lapin v. Shulton, Inc

. , 333 F.2d 169, 170 (9th Cir. 1964).

19 However, the party

that moves for an amendment or modification of an injunction bears the burden of showing the alleged c hanged circumstances, either le gal or factual, which make the injunction inequitable. AIMCOR , 23 CIT at 939. 23 injunctions it has issued, in view of equity and justice. 18 District c ourts must r etain the power to make orders appropriate to preserve the status quo of an i njun ction whil e an app eal is pendi ng. See Newton v. Consol. Gas Co. , 258 U.S. 165, 177, 42 S. Ct. 264, 267, 66 L. Ed. 538, 548 (1922). T his includ es the g eneral

power a nd discre tion to ame

nd or modif

y in junctions , should circumstances or the positions of the parties change

. 19 System Fed’n No. 91 v. Wrig ht , 364 U.S. 642, 647-48, 81 S. Ct. 368, 371, 5 L. Ed. 2d 349, 353 (1961). The necessar y corollary

to the court’s power to amend or modify is the implicit requirement that the court retain jurisdiction over injunctions it has issued. Defendant correctly

claimed in its brief that filing a notice of appeal from a district court’s judgment generally vests jurisdiction in the court of appeals, see Asher v. Harrington , 461 F.2d 890, 895 (7th Cir. 1972), however, an injunction, by its very nature, is prospe ctive. The Defendant’s challenge to the jurisdiction of this court ove r injunctions from the time this court20 USCIT R. 60(b) provides that On motion of

a party or upon its

own initia

tive and u pon such te

rms as ar e just, the court may r

elieve a party

or a party ’s legal representative from a final judgmen t, order , or proc eeding

for the f ollowing reasons : (1) mistake, i

nadvert ence, su rprise, or excusa

ble neg lect; (2) newly discover

ed evidence which by

due diligence could not have been discovered in time to move for a new trial or re hearing under Rule 59(b ); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepre sentation , or other misconduc

t of an ad verse pa rty ; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgmen t upon whic

h it is base d has bee

n rever sed or oth erwise vacated, or it is no longer equitable that the judgme nt should have prospective application; or (6) any other r

eason justifying r

elief from the operation of the judgment. The motion shall be made within a reasonable time, and for rea sons (1),

24 render s a judgment throu gh a co nclusive

decision by a n appea ls court mu st fail if t

he court is to retain its power to preserve the status quo

. 3 The Government’s Argum ent That Success Before This Court Rebuts the Presumption of Validity of the Preliminary Injunction and Requires Plaintiffs to Make A Motion for A Subsequent P relim inary Injunction Pe nding Appeal W ould Plac e An Inequit able Procedural Burden on the Parties that Is Not Statutorily Required The Government additionally argues that, after a dec ision sustaining Commerce’s determination, the

court mus t conside

r anew w hether i njunctive relief p ending

appeal i s appropriate. Defendant claims that the presumption of the validity of the preliminary injunction and its necessity ar

e rebutted by its succ ess before the court. While the court certainly ha s authority to reconsider any order

properly be fore it pursuant

to USCIT R. 60(b), 20 the Government cited no credible authority for the proposition that a final(2), and (3) not more than one y ear after the judgment, order , or proceeding was entered or taken. A motion under this subdivision (b) does not affect the finality of a judgment or suspend its operation. This rule does not limit the power of the court to entertain an independent action to relieve a party

from a judgment, order, or procee ding, or to grant relief to a defendant not actually

personally notified as pr

ovided in Title 28 U.S.C. § 1655, or to set aside a judgment for fraud upon the cour t. The procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules or by an independent action. 25 decision dissolves an injunction. See Timken , 893 F.2d at 341. Moreover, seeking a se cond injunction would impose an unnecessary procedural requirement on Plaintiffs. I f Defendant’s argument was correct, then, in a ddition to that unnecessary pr ocedural burden, Plaintiffs might be denied the right to appeal because liquidation of its entries would moot that possibility

. Moreover, should the court find that a party has fulfilled the initial requirements for a grant of a preliminary injunction, then those initial findings as w ell as all subsequent findings by the court are subject to appellate review.
4 The Irre parable Har m to P laintiff Should a P relim inary Injunction Fail to Continue Pending Conclusive Resolution by the Court Weighs in Favor of the Injunction For nearly

two decades, since Zenith , parties have sought, Commerce has consented to, and this court has issued, a single injunction when it has reviewed an a ntidumping investigation or administrative review. That injunction has remained in effec t throughout the case and any subsequent appeal. The statutory sche me does not provide for either reliquidation or imposition of higher duties should a party later be successful on the merits. See PPG Indus. v. United States , 11 CIT 5, 7 (198 7) (ci ting Zenith , 710 F.2d at 810-12 . Once liq

uidation o ccurs, j udicial r eview is ineffective and thus, “[a]llowing the liquidation to proceed would be tantamount to denial of the21 In Yancheng , Commerc e order ed Customs t

o liquidate

a party ’s entrie s, and alm ost all of the entries were liquidated. The court deter mined that this violated the court’s previous order granting a preliminary

injunction suspending liquidation. The Government argued that a f inal decision, in harmony with the Commerce ’s original determination, terminated the injunction and, absent a new injunction pen

ding ap peal, the Governm ent lawf

ully liquidate d the entr

ies. Yancheng , 277 F. Supp. 2d at 1352-56. The court held that the injunction remained in effect pending the appeal, and thus, the Government’s liquidation of the entr ies constituted contempt of the court’s order. Id. at 1365. Additiona

lly , in AK Steel Corp. v. United States , 281 F. Supp. 2d 1318 (CIT 2003), after an injunction was served on the Government, Customs liquidated a number of entries in violation of the injunction and continued to do so for a number of months. The court held an emer gency conference, at which time few e ntries whose liquidation had not become final remained. The court held that because the liquidation occurred throug h an illegal act of Customs, the doctrine of finality did not attach to the illega l liquidations and the matter was ordered returned to the status quo. Id. at 1323

. The court declared the illegal liquidations null and void ab initio

. AK Steel Corp. , 281 F. Supp. 2d at 1323. 26 opportunity to challeng e administrative determinations.” Id. Liquidation of the entries would deprive Plaintiffs the opportunity for meaningful judicial review. The Gove

rnment ha s failed t

o show wha

t harm it ha s suffer

ed from the court’ s equitab le practice in the past or make a reasona ble argument as to what harm it will suffer in the future absent the court’s consent to instituting a duplicative procedural re quirement. During oral argument, Plaintiffs suggested that Commerc e’s new stance rega rding preliminary

injunctions was the result of this court’s recent decision in the craw fish case, Yancheng Baolong Biochemical Prods. Co. v. United States , 277 F. Supp. 2d 1349 (CIT 2003). 21 Plaintiffs may be correct, given the timing of the Gove rnment’s changes in posture reg arding the duration of prelimina ry injunction s. Ultimately, the interests of judicial ec onomy weig h against requiring the issuance of a second injunction predicated on the same grounds as the first, a challenge to Commerce’s re view determination. No meritorious reason has been put forth by the Government for judicial creation27

of an additional, procedural burden. To preser ve the status quo , the preliminary injunction issued by this court will continue as long a s it is necessary to pre serve the parties rights.
VI Conclusion The court, having applied the traditional four-pa rt test for issuing a preliminary injunction concludes that: (1) that Plaintiffs will suffer irreparable ha rm if their entries are liquidated prior to a conclusive court decision; (2) that the balance of ha rdships favors granting the preliminary injunction

because Commerce

and Def endant- interve

nors will s

uffer in convenie nce while Plaintiffs would be deprived of their right to judicial review; (3) Plaintiffs have demonstrated “a likelihood of success on the merits” because they have raised serious and substantial questions
regar ding Comme

rce’s d etermina tion includ

ing its c ost calc

ulations; a

nd finally , (4) the public interest is best served by

enjoining liquidation to ensure that accurate antidumping duties ar e assessed. Plaintiffs’ Motion is granted and the preliminary injunction shall run until a final and conclusive decision is rendered in this case. /s/ Evan. J. Wallach Judge

Dated: February

18, 2004 New York, New York