Slip Op. 06-20 

UNITED STATES COURT OF INTERNATIONAL TRADE

MITTAL CANADA INC., 

 

 Plaintiff, 

v. 

UNITED STATES, 

 

 Defendant, 

and 

GERDAU AMERISTEEL CORP., and 

KEYSTONE CONSOLIDATED 

INDUSTRIES, INC., 

 Defendant- 

 Intervenors. 

Before: Richard W. Goldberg,

 Senior Judge 

Court No. 05-00689 

OPINION

[Defendant’s motion to dismiss is denied, and plaintiff’s motion 

for preliminary injunction is denied.] 

Date: February 10, 2006 

Cameron & Hornbostel, LLP (Dennis James, Jr.) for Plaintiff 

Mittal Canada, Inc. 

Peter D. Keisler, Assistant Attorney General; David D. Cohen, 

Director, Jeanne E. Davidson, Deputy Director; Commercial 

Litigation Branch, Civil Division, U.S. Department of Justice, 

(Michael D. Panzera), for Defendant United States. 

Collier, Shannon, Scott, PLLC (Mary T. Staley, Paul C. 

Rosenthal, and Robin H. Gilbert) for Defendant-Intervenors 

Gerdau Ameristeel Corp. and Keystone Consolidated Industries, 

Inc. 

 
Court No. 05-00689 Page 2

GOLDBERG, Senior Judge: Before the Court is the motion of 

Plaintiff Mittal Canada, Inc. (“Plaintiff”) for a preliminary 

injunction under USCIT R. 65(a) to prevent U.S. Customs and 

Border Protection (“Customs”) from liquidating Plaintiff’s 

entries of steel wire rod entered from October 1, 2004 through 

September 30, 2005 (“the Entries”). On December 30, 2005, the 

Court granted a temporary restraining order (“TRO”) to enjoin 

the liquidations pending the disposition of the preliminary 

injunction motion. Underlying the preliminary injunction 

request is Plaintiff’s claim that the U.S. Department of 

Commerce (“Commerce”) issued liquidation instructions that were 

at odds with the final results of a changed circumstances review 

initiated by Plaintiff. 

Since entry of the TRO, substantial briefing has occurred. 

Customs has responded to Plaintiff’s motion for a preliminary 

injunction and filed its own motion to dismiss. Plaintiff has 

filed a motion in reply to Customs’ response, and in response to 

Customs’ motion to dismiss. Customs filed a reply to 

Plaintiff’s response to its motion to dismiss. Lastly, Gerdau 

Ameristeel Corp. and Keystone Consolidated Industries, Inc. 

(collectively, “Defendant-Intervenors”) filed a joint consent 

motion to intervene, which the Court granted. DefendantIntervenors also filed a reply to Plaintiff’s response to the 
Court No. 05-00689 Page 3

motion to dismiss. For the reasons that follow, the Court 

denies Customs’ motion to dismiss, and denies Plaintiff’s motion 

for a preliminary injunction. 

I. BACKGROUND

On October 29, 2002, Commerce issued an antidumping duty 

order that applied to certain Canadian steel imports including 

the Entries. See Carbon and Certain Alloy Steel Wire Rod from 

Canada, 67 Fed. Reg. 65944 (Oct. 29, 2002) (amended final 

determination and antidumping duty order) (“the Order”). The 

Order contemplated a default weighted-average dumping margin of 

8.11 percent that applied to all manufacturers/exporters subject 

to investigation that were not explicitly assessed a lower rate. 

Specifically, the Order provided that all unliquidated entries 

that entered on or after April 10, 2002, and before October 7, 

2002, be assessed a duty rate of 8.11 percent. See id. at 

65945. For all entries occurring “[o]n or after that date of 

publication of [the Order] in the Federal Register, the Customs 

service [was instructed to] require . . . a cash deposit equal 

to the estimated weighted-average antidumping duty margins as 

noted [in the Order].”1

 Id. Ispat Sidbec Inc. (“Ispat”) was one 

 

1

 Entries made between October 7, 2002 and October 29, 2002 (the 

publication date of the Order) were “not liable for the 

assessment of antidumping duties due to [Commerce’s] termination 
Court No. 05-00689 Page 4

of the Canadian steel manufacturers/exporters entitled to lower 

duty assessment and cash deposit rates. See id. Ispat was 

subject to a 3.86 percent assessment rate, as well as a 3.86 

percent cash deposit rate. Id. In late 2004, Ispat changed its 

name to Mittal Canada Inc. Carbon and Certain Alloy Steel Wire 

Rod from Canada, 70 Fed. Reg. 22845 (May 3, 2005) (preliminary 

results of changed circumstances review) (“Preliminary 

Results”). On January 15, 2005, after noticing that Customs was 

subjecting its entries to the higher default rate of 8.11 

percent, Plaintiff requested a changed circumstances review to 

take account of the name change. 

On May 3, 2005, Commerce issued its preliminary review of 

Plaintiff’s changed circumstance review request. The 

Preliminary Results stated that “Mittal is the successor-ininterest to Ispat.” Id. Commerce also described to Plaintiff 

what consequences of a final results affirmance would be: 

If the above preliminary results are affirmed in 

[Commerce’s] final results, the cash deposit rate most 

recently calculated for Ispat will apply to all entries of 

subject merchandise by Mittal entered, or withdrawn from 

warehouse, for consumption on or after the date of 

publication of the final results of this changed 

circumstances review. 

Id.

 

of . . . the suspension of liquidation.” Order, 67 Fed. Reg. at 

65945. 
Court No. 05-00689 Page 5

Commerce’s final determination affirmed the Preliminary 

Results. See Carbon and Certain Alloy Steel Wire Rod from 

Canada, 70 Fed. Reg. 39484 (July 8, 2005) (final results of 

changed circumstances review) (“Final Results”). Specifically, 

Commerce determined that “Mittal is the successor-in-interest to 

Ispat for antidumping duty cash deposit purposes.” Id. at 

39485. The Final Results contained a section entitled 

“Instructions to the U.S. Customs and Border Protection” that 

appeared immediately after its finding as to the successor-ininterest issue. In that section, Commerce stated its intention 

to follow the course indicated by the Preliminary Results: 

“[Commerce] will instruct [Customs] to suspend liquidation of 

all shipments of the subject merchandise produced and exported 

by Mittal entered, or withdrawn from warehouse, for consumption, 

on or after the publication date of this notice at 3.86 percent 

(i.e., Ispat’s cash deposit rate).” Id.

On July 25, 2005, Customs published Commerce’s instructions 

to notify its directors of field operations and port directors. 

See Def.’s Corrected Mot. to Dismiss and Resp. in Opp. to Mot. 

for Prelim. Inj., Attach. A (Message No. 5206202 dated July 25, 

2005). Those instructions provided that “as a result of [the 

changed circumstances] review, [Commerce] find[s] that Mittal 

Canada Inc. is the successor in interest to Ispat Sidbec Inc.” 
Court No. 05-00689 Page 6

Id. The instructions provided further that “shipments by Mittal 

Canada Inc. of carbon alloy and certain steel wire rod from 

Canada shall receive the same cash deposit rate as Ispat Sidbec 

Inc., for all shipments entered or withdrawn from warehouse, for 

consumption on or after July 8, 2005.” Id. Therefore, these 

cash deposit instructions did not apply to the Entries, which 

had already entered and for which cash deposits had already been 

collected. 

On December 15, 2005, Customs issued the instructions to 

its port directors that constitute the nub of this dispute. The 

port officials were “to assess antidumping duties on merchandise 

entered, or withdrawn from warehouse, for consumption at the 

cash deposit or bonding rate in effect on the date of entry.” 

Mem. in Supp. of Pl.’s Mot. for a TRO and Prelim. Inj. Enjoining 

Liquidation of Entries, Ex. A (Message No. 5349202 dated Dec. 

15, 2005) at 1. For the Entries, “the cash deposit . . . rate 

in effect on the date of entry,” id., was the higher 8.11 

percent rate. On December 27, 2005, Plaintiff sent a letter to 

the Commerce’s Assistant Secretary for Import Administration 

requesting that Commerce instruct Customs to assess antidumping 

duties at no greater than 3.86 percent, the rate to which Ispat 

imports were formerly entitled, and, according to Plaintiff, to 

which Plaintiff’s imports were entitled as well. See id., Ex. B 
Court No. 05-00689 Page 7

(Letter to Ass. Sec. of Imp. Admin. Re: Request for Correction 

of Instructions to Customs/Mittal Canada, Inc. dated Dec. 27, 

2005). 

Plaintiff then commenced this case on December 30, 2005, 

petitioning the Court for a TRO and preliminary injunction to 

stop Customs from liquidating the Entries. In its accompanying 

memorandum, Plaintiff cited Mukand Int’l, Ltd. v. United States, 

29 CIT ___, ___, Slip Op. 05-164, at 15 (Dec. 22, 2005) to 

support its position that a TRO was necessary to prevent the 

imminent liquidations, because liquidation would strip the 

Court’s jurisdiction under 28 U.S.C. § 1581(i) to hear 

Plaintiff’s challenge to the instructions. The Court entered 

the TRO on the same day as a precaution, and ordered a hearing 

on the maintenance of the TRO and imposition of the preliminary 

injunction on January 4, 2006. 

Customs filed a motion to dismiss for lack of jurisdiction 

as well as its response to Plaintiff’s motion for preliminary 

injunction on January 3, 2006. The Court held the hearing as 

scheduled, after which the parties agreed to an expedited 

briefing schedule. 

II. THE COURT HAS JURISDICTION UNDER 28 U.S.C. § 1581(i)

Absent jurisdiction, a court may not proceed in any cause, 

and must dismiss the case before it. “The requirement that 
Court No. 05-00689 Page 8

jurisdiction be established as a threshold matter ‘spring[s] 

from the nature and limits of the judicial power of the United 

States’ and is ‘inflexible and without exception.’” Steel Co. 

v. Citizens for a Better Envm’t, 523 U.S. 83, 94-95 (1988) 

(quoting Mansfield, C. & L. M. R. Co. v. Swan, 111 U.S. 379, 384 

(1884)); see also USCIT R. 12(h)(3) (“Whenever it appears . . . 

that the court lacks jurisdiction of the subject matter, the 

court shall dismiss the action.”). 

Moreover, the fact that Plaintiff desires preliminary and 

equitable relief does not mean a court can sidestep the 

jurisdictional question. In circumstances when the 

jurisdictional inquiry is inextricably intertwined with 

consideration of the merits, it may be appropriate for a court 

to postpone adjudication of the jurisdictional question pending 

a thorough examination of the merits. See, e.g., PPG Indus., 

Inc. v. United States, 84 Cust. Ct. 256, C.R.D. 80-5 (1980) 

(merger of jurisdictional and merits inquiries is appropriate 

where “the evidentiary facts necessary to controvert the 

jurisdiction challenged by the defendant concurrently are 

necessary in the submission and ultimate determination of the . 

. . action on the merits”). In this case, however, subject 

matter jurisdiction is not inextricably tied to a proper test of 

the strength of Plaintiff’s claim, and merger of the 
Court No. 05-00689 Page 9

jurisdictional and merits questions is inappropriate. Instead, 

jurisdiction is properly treated as a threshold issue, to be 

examined separately and antecedently. 

Plaintiff invokes the residual jurisdiction of the U.S. 

Court of International Trade (“CIT”) under 28 U.S.C. § 1581(i). 

By its terms, 28 U.S.C. § 1581(i) is an expansive grant of 

exclusive jurisdiction over certain causes of action against the 

government: 

[The CIT] shall have exclusive jurisdiction of any civil 

action commenced against the United States, its agencies, 

or its officers, that arises out of any law of the United 

States providing for— 

(1) revenue from imports or tonnage; 

(2) tariffs, duties, fees, or other taxes on the 

importation of merchandise for reasons other than 

the raising of revenue; 

(3) embargoes or other quantitative restrictions on 

the importation of merchandise for reasons other 

than the protection of the public health or 

safety; or 

(4) administration and enforcement with respect to 

the matters referred to in paragraphs (1)-(3) of 

this subsection and subsections (a)-(h) of this 

section. 

28 U.S.C. § 1581(i) (1999). 

A lodestar of the CIT’s jurisdictional jurisprudence is 

that a plaintiff may not pursue an action under 28 U.S.C. § 

1581(i) if any other subsection of 28 U.S.C. § 1581 “is or could 
Court No. 05-00689 Page 10

have been available, unless the remedy provided under that other 

subsection would be manifestly inadequate.” Miller & Co. v. 

United States, 824 F.2d 961, 963 (Fed. Cir. 1987), cert. denied, 

484 U.S. 1041 (1988). Thus, if Plaintiff could have obtained 

its relief under any other subsection of 28 U.S.C. § 1581, then 

the Court must immediately dismiss the case for lack of subject 

matter jurisdiction. 

Before the Court may assert jurisdiction over the subject 

matter, it must identify the claim on which Plaintiff seeks 

relief. In most cases, this exercise is routine; however, this 

case requires a more searching examination because the parties 

disagree as to the characterization of Plaintiff’s claim. 

Plaintiff contends it is challenging Commerce’s liquidation 

instructions as arbitrary and capricious or otherwise not in 

accordance with law. Customs paints Plaintiff’s request in a 

different light, arguing that Plaintiff is really seeking a 

substantive review of the changed circumstances review. 

Plaintiff believes that Commerce’s liquidation 

instructions, because they instructed Customs to liquidate the 

Entries at the cash deposit rate, failed to take into account 

the legal fact that “Mittal is the successor-in-interest to 

Ispat for antidumping duty cash deposit purposes.” Final 

Results, 70 Fed. Reg. at 39485. Plaintiff insists that, despite 
Court No. 05-00689 Page 11

the Final Results’ expressly limited application to “antidumping 

duty cash deposit purposes[,]” id., the determination of 

successor-in-interest status required Commerce to assess the 

lower 3.86 percent rate to all of Plaintiff’s unliquidated 

entries, including those for which the 8.11 percent duty cash 

deposit had been required. In Plaintiff’s view, then, the Final 

Results articulated a broad legal principle that has collateral 

effects beyond the express limitation of its language, and when 

Commerce does not recognize those effects and instruct Customs 

accordingly, it acts in contravention of law. 

Customs, on the other hand, urges the Court to construe 

Plaintiff’s complaint as a belated attempt to obtain the 

judicial review of the changed circumstances review that would 

have been available under 28 U.S.C. § 1581(c). In other words, 

Customs argues that Plaintiff is attempting to dress up a 

routine § 1581(c) claim in such a way as to avoid § 1581(i)’s 

jurisdictional bar in cases where 28 U.S.C. § 1581(c) was 

available, but not invoked. 

The language of 28 U.S.C. § 1581(i) fits Plaintiff’s 

version of the case like a glove. After all, 28 U.S.C. § 

1581(i)(4) includes civil actions against the United States 

relating to the “administration and enforcement” of “duties.” 

28 U.S.C. § 1581(i)(4) (1999). Moreover, several decisions of 
Court No. 05-00689 Page 12

the U.S. Court of Appeals for the Federal Circuit (“Federal 

Circuit”) establish that a plaintiff may invoke 28 U.S.C. § 

1581(i) to test the legality of instructions that are alleged to 

contravene determinations made in an administrative review. 

See, e.g., Shinyei Corp. of Am. v. United States, 355 F.3d 1297, 

1305 (Fed. Cir. 2004); Consol. Bearings Co. v. United States, 

348 F.3d 997, 1002 (Fed. Cir. 2003); cf. Mitsubishi Elecs. Am. 

v. United States, 44 F.3d 973, 977 (Fed. Cir. 1994) (suggesting 

that CIT had jurisdiction to hear plaintiff’s claim that 

liquidation instructions conflicted with final antidumping 

order). In those cases, the Federal Circuit has affirmed that 

the CIT possesses residual jurisdiction to hold Commerce 

accountable for the execution of its determinations arising from 

administrative reviews.2 Residual jurisdiction is appropriate in 

 

2

 The cited cases dealt with non-compliance with administrative 

reviews, which violated explicit regulatory and statutory 

provisions requiring the results of administrative reviews to be 

“the basis for the assessment of . . . antidumping duties on 

entries of merchandise covered by the determination and for 

deposits of estimated duties.” 19 U.S.C. § 1675(a)(2)(C) 

(1999); see also 19 C.F.R. § 351.212(b)(1) (2005). Under 19 

C.F.R. § 351.221, the general regulation governing review 

procedures, the same principle applies to changed circumstances 

reviews. That regulation directs Commerce to “promptly after 

publication of the notice of final results instruct the Customs 

Service to assess antidumping duties . . . on the subject 

merchandise covered by the review . . . .” Id. § 351.221(b)(6). 

If Commerce fails to instruct Customs accordingly, it withholds 

or delays the execution of its administrative duty, and the CIT 
Court No. 05-00689 Page 13

those cases because a challenge to liquidation instructions as 

not in accordance with an administrative review determination is 

not enumerated among the “reviewable determinations” of 19 

U.S.C. § 1516a that form the basis for the CIT’s 28 U.S.C. § 

1581(c) jurisdiction. See 19 U.S.C. § 1516a(a)(2)(B) (1999). 

On the other hand, it is equally straightforward that 

should the Court construe Plaintiff’s claim as a belated request 

for judicial review of the Final Results, the case must be 

dismissed. 28 U.S.C. § 1581(c) grants the CIT “exclusive 

jurisdiction of any civil action commenced under [19 U.S.C. § 

1516a].” 28 U.S.C. § 1581(c) (1999). 19 U.S.C. § 1516a, in 

turn, permits plaintiffs to seek review of “[a] final 

determination . . . under [19 U.S.C. § 1675].” 19 U.S.C. § 

1516a(a)(2)(B)(iii) (1999). One of the “final determinations” 

that Commerce makes under 19 U.S.C. § 1675 is a review “based on 

changed circumstances.” Id. § 1675(b). Therefore, because 

Plaintiff could have brought the matter before the Court under 

28 U.S.C. § 1581(c), the Court would have no residual 

jurisdiction over such a claim. 

A thorough examination of Plaintiff’s motion for 

preliminary injunction and accompanying papers reveals that 

 

must compel the issuance of correct instructions, see 5 U.S.C. § 

706(1) (1999). 
Court No. 05-00689 Page 14

Plaintiff is challenging the liquidation instructions as 

violative of the legal conclusion, embodied in the Final 

Results, that Plaintiff is the a successor-in-interest to Ispat. 

Because the Court has 28 U.S.C. § 1581(i) jurisdiction over 

civil actions that challenge Commerce’s issuance of liquidation 

instructions at odds with its own determinations, see Consol. 

Bearings, 348 F.3d at 1002, the Court must deny Customs’ motion 

to dismiss for lack of subject matter jurisdiction. In short, 

Plaintiff is not challenging the Final Results, so there can not 

be, nor could there ever have been, jurisdiction under 28 U.S.C. 

§ 1581(c). Instead, this suit is about the “‘administration and 

enforcement’ of those final results.” Id. (quoting 28 U.S.C. § 

1581(i)). 

The only puzzling aspect of the jurisdictional question is 

Plaintiff’s prior decision not to contest the Final Results

before such an appeal became time-barred.3

 Instead of timely 

 

3

 A plaintiff has thirty days after the date of publication of a 

Commerce determination in the Federal Register within which to 

contest that determination in the CIT. See 19 U.S.C. § 1516a(b) 

(1999). As such, Plaintiff had until August 8, 2005 to commence 

a case under 28 U.S.C. § 1581(c). Furthermore, Plaintiff slept 

on its rights by not filing a case brief, see 19 C.F.R. § 

351.309(c)(ii), within thirty days after publication of the 

Preliminary Results on May 3, 2005. The Preliminary Results

were clear: the changed circumstances review looked only to the 

cash deposit rate, and not the assessment rate. At both those 

points, Plaintiff could have brought to Commerce’s attention 

that it was seeking a more robust form of retroactive relief. 
Court No. 05-00689 Page 15

contesting the Final Results in the CIT so as to obtain clear 

language that would have mandated assessment of the 3.86 percent 

duty rate, Plaintiffs are now alleging Commerce’s liquidation 

instructions contravene the Final Results determination. That 

argument in effect maintains that the uncontested and 

unambiguous Final Results mean something different than what 

they say. Clearly, the Court possesses residual jurisdiction 

over such a novel argument, but Plaintiff’s victory on the 

jurisdictional issue is pyrrhic. 

Since 28 U.S.C. § 1581(c) relief was time-barred, Plaintiff 

has chosen to pursue another remedial method designed to obtain 

the identical substantive result (i.e., assessment of duties at 

3.86 percent) by different means. By fashioning its dispute as 

a challenge to defective liquidation instructions, Plaintiff has 

defined its claim such that the Court has jurisdiction. In the 

process, however, it has presented a tenuous argument that, for 

the following reasons, would make preliminary injunctive relief 

inappropriate.

III. PLAINTIFF’S MOTION FOR A PRELIMINARY INJUNCTION IS DENIED

A preliminary injunction is “extraordinary relief,” FMC 

Corp. v. United States, 3 F.3d 424, 427 (Fed. Cir. 1993), that 

should be granted sparingly. However, there are circumstances 

that can, and often do, justify injunctive relief before trial. 
Court No. 05-00689 Page 16

A court may enter a preliminary injunction when the movant has 

established (1) that it will suffer irreparable harm if relief 

is not granted; (2) that the public interest would be better 

served by the relief requested; (3) that the balance of the 

hardships tips in the movant’s favor; and (4) that the movant is 

likely to succeed on the merits at trial. See id. (citing

Zenith Radio Corp. v. United States, 710 F.2d 806, 809 (Fed. 

Cir. 1983)). 

In deciding whether to grant a preliminary injunction the 

CIT has a good deal of discretion. See id. (citing Chrysler 

Motors Corp. v. Auto Body Panels, Inc., 908 F.2d 951, 953 (Fed. 

Cir. 1990)); Asociación Colombiana de Exportadores de Flores v. 

United States, 916 F.2d 1571, 1578 (Fed. Cir. 1990). Courts 

have adopted a flexible approach in dealing with motions for 

preliminary injunctions. In some instances, the weakness of a 

showing of one factor may be overborne by the strength of 

others. See FMC Corp., 3 F.3d at 427. In other circumstances, 

the weakness of a showing of one factor may justify denial of 

the preliminary injunction motion. Id. 

In particular, the likelihood of success and the 

irreparable harm prongs “are viewed as a ‘continuum in which the 

required showing of harm varies inversely with the required 

showing of meritoriousness.’” U.S. Ass’n of Imp.’s of Textiles 
Court No. 05-00689 Page 17

and Apparel v. U.S. Dep’t of Commerce, 413 F.3d 1344, 1347 (Fed. 

Cir. 2005) (quoting Mikohn Gaming Corp. v. Acres Gaming, Inc., 

165 F.3d 891, 895 (Fed. Cir. 1998)). Thus, a convincing 

demonstration of irreparable harm will diminish the required 

burden of showing a likelihood of success on the merits. When 

irreparable harm is shown, a party need not show a likelihood of 

success; a showing of “a fair chance” of prevailing on the 

merits may entitle the moving party to preliminary injunctive 

relief.4 See Atari Games Corp. v. Nintendo of Am., Inc., 897 

F.2d 1572, 1577 (Fed. Cir. 1990). 

Diminishing the burden of proof required does not, however, 

obviate the movant’s burden to show some real possibility of 

success on the merits. See FMC Corp., 3 F.3d at 427. A court 

may not enter a preliminary injunction, even where the 

 

4

 The U.S. Association of Importers decision adverts the CIT to 

an ambiguity in the preliminary injunction jurisprudence. See

U.S. Ass’n of Imp.’s, 413 F.3d at 1347-48. In particular, it is 

unclear what precedential weight the Mikohn and Atari Games

decisions, which were patent cases applying Ninth Circuit law, 

have in the context of CIT cases. As a result, it is unclear 

whether the “fair chance” standard should apply to customs and 

trade plaintiffs seeking preliminary injunctions against the 

government. Because the Court concludes that Plaintiff has 

failed to meet its burden even under the liberal “fair chance” 

standard, this ambiguity does not affect the disposition of 

Plaintiff’s motion. 
Court No. 05-00689 Page 18

irreparable harm is conspicuous and serious,5

 if the court is 

convinced that the movant stands no chance of success on its 

underlying claim. See AM Gen. Corp. v. DaimlerChrysler Corp., 

311 F.3d 796, 804 (7th Cir. 2002) (“A party with no chance of 

success on the merits cannot attain a preliminary injunction.”); 

Hoechst Diafoil Co. v. Nan Ya Plastics Corp., 174 F.3d 411, 417 

(4th Cir. 1999). 

 In this case, the Court is unable to grant a preliminary 

injunction because Plaintiff has failed to meet its burden to 

show either a “likelihood of success on the merits,” U.S. Ass’n 

of Imp.’s, 413 F.3d at 1346, or even a “fair chance” that its 

 

5

 The Court ultimately denies the motion for preliminary 

injunction because Plaintiff stands little, if any, chance on 

the merits of its underlying claim, so its decision would be the 

same even if irreparable harm were present. However, it bears 

mention that irreparable harm is not present in this case 

either. Plaintiff’s alleged harm — its losing a statutory right 

to obtain judicial review of the liquidation instructions upon 

liquidation — is illusory. The Federal Circuit has held that in 

cases where a plaintiff brings a suit challenging liquidation 

instructions’ compliance with Commerce determinations, the CIT 

has 28 U.S.C. § 1581(i) jurisdiction to evaluate such a claim, 

even where the relevant entries are liquidated during the 

pendency of the case. See Shinyei, 355 F.3d at 1297-1303. 

Plaintiff’s reliance on Zenith Radio is misplaced because in 

that case, the denial of preliminary injunctive relief would 

have foreclosed relief to which the plaintiff was otherwise 

entitled: namely, its right to have a favorable CIT decision 

apply to its already-entered merchandise. In this case, as in 

Shinyei, Plaintiff has already preserved its 28 U.S.C. § 1581(i) 

challenge to the liquidation instructions. As such, denial of 

the preliminary injunction should not disturb Plaintiff’s 

ability to challenge the instructions after liquidation, and 

Plaintiff is not threatened with serious harm. 
Court No. 05-00689 Page 19

underlying claim will succeed, id. at 1347. Even after 

extensive briefing, Plaintiff has provided no support for its 

novel contention that a final changed circumstances 

determination finding that one producer is the successor-ininterest to another producer “for antidumping duty cash deposit 

purposes,” Final Results, 70 Fed. Reg. at 39485, articulates a 

broader commitment by Commerce to treat that producer as such 

for duty assessment purposes as well. “[M]ere novelty is [not] 

sufficient to demonstrate a fair chance of success” on the 

merits of a claim. U.S. Ass’n of Imp.’s, 413 F.3d at 1347. 

 A close look at the U.S. antidumping duty assessment 

regulations and procedures demonstrates why the Final Results 

limited the application of the successor-in-interest 

determination to cash deposits, and why therefore Plaintiff’s 

argument that Commerce was obliged to include assessment 

instructions is untenable. The United States utilizes a 

“retrospective” duty assessment system under which importers’ 

final liabilities are determined after the actual importation of 

the merchandise. See 19 C.F.R. § 351.212 (2005). Importers 

entering merchandise subject to an antidumping duty order are 

required to make a cash deposit of estimated antidumping duties 

at the rates included in the final results determination of an 

antidumping investigation. See id. § 351.211(b)(2). Unless the 
Court No. 05-00689 Page 20

importer files a request for an administrative review,6

 those 

entries will be liquidated (and those duties will be assessed) 

at the deposit rate that applied at the time the merchandise was 

entered. See id. § 351.212(a). Commerce processes these 

entries by issuing “clean-up” instructions, see Shinyei, 355 

F.3d at 1303, directing Customs to liquidate all unliquidated 

entries “as entered.” This process is referred to as “automatic 

liquidation,” see Okaya (USA), Inc. v. United States, 27 CIT 

___, ___, Slip Op. 03-130 at 3 (Oct. 3, 2003), and ensures the 

smooth functioning of the “retrospective” system. Notably, 

there is no analogous exception to automatic liquidation for 

changed circumstance reviews. See 19 C.F.R. § 351.212(b). 

 An importer may request an administrative review when it 

believes the cash deposit rate collected at entry should not be 

the assessment rate. The administrative review typically looks 

backward twelve months, see id. § 351.213(e), and permits an 

importer to recoup the excess duties deposited by halting the 

automatic liquidation process and allowing Commerce to take 

account of specific information provided by the importers 

requesting the review. The duty collection system is imprecise 

and relies on efficient transfer of information from interested 

 

6

 Two other exceptions exist for new shipper reviews, see 19 

C.F.R. § 351.214, and expedited antidumping reviews, see id. § 

351.215. Neither procedure is relevant to this case. 
Court No. 05-00689 Page 21

parties to Commerce to achieve an accurate final result; to this 

end, the administrative review process is “the most frequently 

used procedure” for apprising Commerce of relevant facts needed 

to “determin[e] final duty liability[.]” Id. § 351.213(a). The 

regulations also provide guidance for Commerce in computing new 

assessment rates and instruct Customs to liquidate at those 

rates the merchandise subject to administrative review. See id.

§ 351.212(b). 

 The changed circumstances review similarly allows 

interested parties to petition Commerce for review of a final 

determination. See 19 U.S.C. § 1675(b)(1) (1999). The party 

seeking a revocation or modification of an antidumping order 

bears the burden of persuasion with respect to whether changed 

circumstances warrant such revocation or modification. See id. 

§ 1675(b)(3)(A). Most important for the purposes of this case, 

however, is the fact that unlike an administrative review, a 

changed circumstances review does not halt the automatic 

liquidation process by causing Commerce to recalculate 

assessment rates in the case of an affirmative determination. 

In the past, Commerce has modified assessment orders during 

changed circumstances reviews. See, e.g., Leather from 

Argentina, Wool from Argentina, Oil Country Tubular Goods from 

Argentina, and Carbon Steel Cold-Rolled Flat Products from 
Court No. 05-00689 Page 22

Argentina, 62 Fed. Reg. 41361 (Dep’t Commerce Aug. 1, 1997) 

(final results of changed circumstances reviews) (providing 

retroactive relief by ordering all unliquidated merchandise 

entered within six years of publication date to be liquidated 

without regard to the countervailing duty orders then in place). 

However, such modification of assessment rates does not arise 

automatically as a result of a changed circumstances review; an 

interested party must make a specific demand that Commerce 

instruct Customs to assess different rates for entries as to 

which estimated duties have already been deposited. 

 In this case, Plaintiff made no such demand. Plaintiff 

“requested that [Commerce] determine that it had become the 

successor-in-interest of Ispat[.]” Preliminary Results, 70 Fed. 

Reg. at 22845. Commerce, in its Preliminary Results, 

unambiguously limited the scope of the changed circumstances 

review to cash deposit rates, and never addressed the 

possibility that merchandise entered before the changed 

circumstances review was entitled to the lower Ispat assessment 

rate: “If the above preliminary results are affirmed in the 

Department’s final results, the cash deposit rate most recently 

calculated for Ispat will apply to all entries of subject 

merchandise by Mittal entered, or withdrawn from warehouse, for 

consumption on or after the date of publication of the final 
Court No. 05-00689 Page 23

results of this changed circumstances review.” Id. (emphasis 

added). 

 The Final Results also focused exclusively on the narrow 

issue of cash deposit rates: “Based on the information provided 

by Mittal, and the fact that the Department did not receive any 

comments during the comment period following the preliminary 

results of this review, the Department hereby determines Mittal 

is the successor-in-interest to Ispat for antidumping duty cash 

deposit purposes.” 70 Fed. Reg. at 39485 (emphasis added). 

Commerce then indicated its intention to 

instruct [Customs] to suspend liquidation of all shipments 

of the subject merchandise produced and exported by Mittal 

entered, or withdrawn from warehouse, for consumption, on 

or after the publication date of this notice at 3.86 

percent (i.e., Ispat’s cash deposit rate). This deposit 

rate shall remain in effect until publication of the final 

results of the ongoing administrative review . . . . 

Id. Both the Preliminary Results and Final Results plainly 

address the treatment of Plaintiff’s cash deposit rate, and not 

its assessment rate. 

 There are no broader conclusions to be divined out of the 

pellucid Final Results. The changed circumstances review 

addressed the cash deposit rate treatment of Plaintiff’s 

merchandise. It seems Plaintiff came to an idiosyncratic 

interpretation of the Final Results, did nothing to convince 

Commerce of the correctness of such an interpretation, and 
Court No. 05-00689 Page 24

assumed that Commerce would do something equally idiosyncratic 

by adopting Plaintiff’s interpretation. Plaintiff could have 

petitioned Commerce for a more explicit form of retroactive duty 

assessment for already-entered merchandise; instead, it 

acquiesced to the Final Results’ implicit refusal to grant any 

such relief. Of course, the automatic liquidation instructions 

eventually arrived for the Entries, and now Plaintiff is seeking 

to vindicate its erroneous interpretation before the Court. 

Because the changed circumstances review did not address 

the treatment of the Entries at the time of duty assessment, the 

automatic liquidation system required that duties be assessed at 

“the cash deposit rate applicable at the time merchandise was 

entered[,]” 19 C.F.R. § 351.212(a), which was 8.11 percent. 

These liquidation instructions were in harmony with the 

statutory and regulatory requirements regarding the assessment 

of antidumping duties. Because Plaintiff stands little, if any, 

chance of prevailing on its underlying claim, the Court must 

deny Plaintiff’s motion for a preliminary injunction. 

IV. CONCLUSIONS

In light of the foregoing considerations, Customs’ motion 

to dismiss for lack of subject matter jurisdiction is denied. 

Plaintiff’s motion for a preliminary injunction is also denied. 
Court No. 05-00689 Page 25

A separate order will issue in accordance with these 

conclusions. 

 /s/ Richard W. Goldberg 

 Richard W. Goldberg 

Senior Judge 

Date: February 10, 2006 

 New York, NY