United States Court of Appeals for the Federal Circuit 

2010-1023 

AMERICAN SIGNATURE, INC., 

 Plaintiff-Appellant, 

v. 

UNITED STATES, 

 Defendant-Appellee, 

and 

AMERICAN FURNITURE MANUFACTURERS COMMITTEE FOR 

LEGAL TRADE and VAUGHAN-BASSETT FURNITURE COMPANY, INC., 

 Defendants-Appellees. 

R. Will Planert, Troutman Sanders LLP, of Washington, DC, argued for plaintiffappellant. With him on the brief were Jeffrey S. Grimson, Donald B. Cameron, Julie C. 

Mendoza, Brady W. Mills and Mary S. Hodgins. 

Stephen C. Tosini, Trial Attorney, Commercial Litigation Branch, Civil Division, United 

States Department of Justice, of Washington, DC, argued for defendant-appellee United 

States. With him on the brief were Tony West, Assistant Attorney General, Jeanne E. 

Davidson, Director, and Patricia M. McCarthy, Assistant Director. Of counsel on the brief was 

Edward N. Maurer, Deputy Assistant Chief Counsel, International Trade Litigation, United 

States Customs and Border Protection, of New York, New York. 

Joseph W. Dorn, King & Spalding LLP, of Washington, DC, argued for defendantsappellees American Furniture Manufacturers Committee for Legal Trade, et al. With him on 

the brief were Ashley C. Parrish, J. Michael Taylor, Eric M. Wachter and Steven R. Keener. 

Appealed from: United States Court of International Trade 

Judge Leo M. Gordon 
 

United States Court of Appeals for the Federal Circuit 

2010-1023 

AMERICAN SIGNATURE, INC., 

 Plaintiff-Appellant, 

v. 

UNITED STATES, 

 Defendant-Appellee, 

and 

AMERICAN FURNITURE MANUFACTURERS COMMITTEE FOR 

LEGAL TRADE and VAUGHAN-BASSETT FURNITURE COMPANY, INC., 

Defendants-Appellees. 

Appeal from the United States Court of International Trade in case no. 

09-CV-0400, Judge Leo M. Gordon. 

 ___________________________ 

 DECIDED: March 10, 2010 

 ___________________________ 

Before RADER, CLEVENGER, and DYK, Circuit Judges. 

DYK, Circuit Judge. 

 American Signature, Inc. (“ASI”) appeals from a decision of the Court of 

International Trade denying ASI’s motion for a preliminary injunction. See Am. 

Signature, Inc. v. United States, No. 09-00400 (Ct. Int’l Trade Oct. 13, 2009) (“ASI I”). 

Because we conclude that ASI has satisfied the conditions for the issuance of a 

preliminary injunction, we reverse. 
BACKGROUND 

The antidumping law imposes special duties upon imports of merchandise sold at 

less than normal value to the detriment of a domestic industry. 19 U.S.C. § 1673. ASI 

is an importer of furniture that is subject to a January 4, 2005, antidumping duty order 

on certain entries of wooden bedroom furniture from China.1

 The second administrative 

review of this order was initiated on March 7, 2007. Such administrative reviews are 

designed to revisit the original antidumping duty order in order to determine whether 

dumping has occurred and, if so, the amount of antidumping duties that are owed, and 

the amount of future cash deposit rates (in effect, dumping duties imposed on future 

entries). See generally Ugine & ALZ Belg. v. United States, 551 F.3d 1339, 1341 (Fed. 

Cir. 2009) (“Ugine II”). ASI imported subject merchandise exported by the Chinese 

exporter Dare Group during the second period of review, that is, January 1, 2006 – 

December 31, 2006, and participated as a party to that review. The Department of 

Commerce (“Commerce”) published its final results of that administrative review on 

August 20, 2008 (“Final Results”).2 

For the purpose of calculating antidumping duties in its administrative reviews, 

Commerce calculates a dumping margin for each exporter, which is calculated based 

 1

 See Notice of Amended Final Determination of Sales at Less Than Fair 

Value and Antidumping Duty Order: Wooden Bedroom Furniture From the People's 

Republic of China, 70 Fed. Reg. 329 (Dep’t Commerce Jan. 4, 2005). 

2

 See Wooden Bedroom Furniture from the People’s Republic of China: 

Final Results of Antidumping Duty Administrative Review and New Shipper Review, 73 

Fed. Reg. 49,162-01 (Aug. 20, 2008) (“Final Results”). 

2010-1023 2
on all of the subject merchandise it exports to the United States.3

 The dumping margin 

is a dollar figure and is defined as “the amount by which the normal value exceeds the 

export price . . . of the subject merchandise.” 19 U.S.C. § 1677(35)(A); see also

§ 1675(a)(2)(A) (Commerce shall calculate “the normal value and export price (or 

constructed export price) of each entry of the subject merchandise” and “the dumping 

margin for each such entry.”). Overall weighted average dumping margin rates for each 

exporter (percentage figures) are calculated and published in the Federal Register.

4

 

See id. § 1675(a)(1). Section 1675(a)(2)(C) provides that “[t]he determination under this 

paragraph shall be the basis for the assessment of countervailing or antidumping duties 

on entries of merchandise covered by the determination and for deposits of estimated 

duties.” 

Using the dumping margins for each exporter’s goods, Commerce then 

calculates importer-specific ad valorem assessment rates for each such importer. See

19 U.S.C. § 1675(a)(2)(A)(ii); 19 C.F.R. § 351.212(b).5 These importer-specific rates 

 3

 “The term ‘subject merchandise’ means the class or kind of merchandise 

that is within the scope of an investigation, a review, a suspension agreement, [or] an 

order . . . .” 19 U.S.C. § 1677(25). 

4

 “The term ‘weighted average dumping margin’ is the percentage 

determined by dividing the aggregate dumping margins determined for a specific 

exporter or producer by the aggregate export prices and constructed export prices of 

such exporter or producer.” 19 U.S.C § 1677(35)(B). 

5

 Commerce’s implementing regulation, 19 C.F.R. § 351.212(b)(1), provides 

for the calculation of assessment rates. It provides: 

(b) Assessment of antidumping and countervailing duties as the result of a 

review―

(1) Antidumping duties. If the Secretary has conducted a review of an 

antidumping order under § 351.213 (administrative review), § 351.214 

(new shipper review), or § 351.215 (expedited antidumping review), the 

2010-1023 3
are treated as confidential and are not published in the Federal Register. Normally, 

after publication of Final Results, Commerce issues liquidation instructions to Customs 

and Border Protection (“Customs”) with respect to the entries of subject merchandise. 

Liquidation of entries represents the “final computation or ascertainment of the duties 

. . . accruing on an entry.” 19 C.F.R. § 159.1. Liquidation instructions include importerspecific assessment rates. Customs then liquidates the goods at the importer-specific 

rates determined by Commerce. 

 Here, after Commerce published the Final Results of its administrative review on 

August 20, 2008, the American Furniture Manufacturers Committee for Legal Trade and 

Vaughan-Basset Furniture Company, Inc. (the “domestic producers”), ASI, and other 

parties filed actions in the Court of International Trade challenging various aspects of 

the Final Results. While those appeals were pending, Commerce twice sought and 

received leave of the Court of International Trade to amend the Final Results to correct 

ministerial errors.6 There was no dispute among the parties that correction of these 

errors was appropriate. These corrections eventually led to the issuance of the Second 

 

Secretary normally will calculate an assessment rate for each importer of 

subject merchandise covered by the review. The Secretary normally will 

calculate the assessment rate by dividing the dumping margin found on 

the subject merchandise examined by the entered value of such 

merchandise for normal customs duty purposes. The Secretary then will 

instruct the Customs Service to assess antidumping duties by applying the 

assessment rate to the entered value of the merchandise. 

6

 A ministerial error is defined in 19 C.F.R. § 351.224(f) as “an error in 

addition, subtraction, or other arithmetic function, clerical error resulting from inaccurate 

copying, duplication, or the like, and any other similar type of unintentional error which 

the Secretary considers ministerial.” 

2010-1023 4
Amended Final Results.7

 In its Second Amended Final Results, Commerce calculated 

and published in the Federal Register overall weighted average dumping margin rates 

for each exporter. See 19 U.S.C. § 1675(a)(1); id. § 1677(35)(B). The overall exporter 

dumping margin ultimately calculated for exporter Dare Group was 39.46 percent. 

There is no dispute about this rate. In connection with the preparation of its final results, 

Commerce calculated importer-specific ad valorem assessment rates using the foreign 

exporters’ dumping margins. Due to a computer programming error in Commerce’s 

antidumping margin calculation computer program, the assessment rate pertaining to 

ASI was much lower than the rate ASI would have received in the absence of the error.8

 

The calculations reflecting this error were apparently disclosed by Commerce to the 

domestic producers after the release of the Second Amended Final Results in 

accordance with the regulations discussed below, but the error was not then noted by 

 7

 See Second Amended Final Results of Antidumping Duty Administrative 

Review: Wooden Bedroom Furniture from the People’s Republic of China, 74 Fed. Reg. 

13,417-01 (Mar. 27, 2009) (“Second Amended Final Results”). 

8

 The Court of International Trade misunderstood the issue when it stated 

that “Commerce erred by incorrectly calculating the denominator of Dare Group’s 

dumping margin by multiplying per-unit entered value by quantity twice, instead of only 

once.” Am. Signature, Inc. v. United States, No. 09-00400, slip op. at 2 (Ct. Int’l Trade 

Oct. 26, 2009) (“ASI II”). In fact, the denominator does not reflect the Dare Group’s 

dumping margin but rather the entered value of the subject merchandise. The Dare 

Group’s dumping margin had already been calculated and was published in the Federal 

Register. All parties agree that there was no error in the dumping margin. Here, 

Commerce’s SAS margin calculation program, which it uses to calculate importerspecific assessment rates, erroneously multiplied the “entered value” by quantity twice, 

thereby substantially increasing the amount of the denominator. When the program 

calculated the importer-specific assessment rate by dividing the dumping margin found 

on the subject merchandise examined (the numerator) by the entered value (the 

denominator), the resulting number was much lower than it should have been, because 

the denominator was incorrectly inflated. See 19 U.S.C. § 1675(a)(2)(A); 19 C.F.R. § 

351.212(b)(1). 

2010-1023 5
the domestic producers. After Commerce issued the Second Amended Final Results, all 

parties by mutual agreement, on May 15, 2008, dismissed their pending appeals before 

the Court of International Trade.9 

On July 10, 2009, Commerce transmitted liquidation instructions to Customs, 

which reflected the error in the assessment rate as to ASI for entries during the period 

covered by the review. On July 31, 2009, the domestic producers requested a copy of 

the July 10 liquidation instructions. Commerce released the liquidation instructions on 

August 24, 2009. On August 25, 2009, the domestic producers’ counsel alerted 

Commerce to the existence of the error. Commerce confirmed the existence of the 

error and then on August 26, 2009, at Commerce’s request, the domestic producers 

filed and served on all parties a written submission, alleging that the liquidation 

instructions contained errors resulting in a significant error in the assessment rates for 

ASI and other importers.

Later that day, Commerce contacted Customs and informed Customs that it 

planned to issue instructions suspending liquidation of the Dare Group’s 2006 entries 

while Commerce decided how to correct the error in the margin calculation program.10 

For the unliquidated entries, Customs said that it could liquidate pursuant to corrected 

instructions as soon as it received such instructions. However, Customs replied that it 

had already liquidated the majority of ASI’s entries in accordance with the incorrect July 

10, 2009, liquidation instructions. Customs also indicated that it would be able to 

 9

 Am. Signature, Inc. v. United States, No. 08-00316 (Ct. Int’l Trade May 15, 

2008) (joint stipulation of dismissal). 

10 Commerce issued such instructions to suspend liquidation on August 28, 

2009. 

2010-1023 6
reliquidate those entries within the ninety-day statutory window specified in 19 U.S.C. § 

1501 at the correct rate if it promptly received corrected instructions. The statutory 

ninety-day window in which Customs could reliquidate entries was set to expire on 

October 29, 2009. See 19 U.S.C. § 1501 (providing Customs with discretionary 

authority to reliquidate within ninety days). 

Upon review of interested party comments, on September 17, 2009, Commerce 

issued its final decision regarding the liquidation instructions. This decision took the 

form of a memorandum to file in the second administrative review. In its memorandum, 

Commerce noted that 

in order to ensure that the liquidation instructions are consistent with the 

Final Results, [Commerce] must correct the programming language . . . . 

Further, the Department notes that none of the parties have argued that 

the Department did not generate incorrect assessment rates as a result of 

the programming error . . . . Accordingly . . . [Commerce] has corrected 

the programming language to comport with the Final Results and is 

issuing to [Customs] corrected liquidation instructions containing the 

assessment rates resulting from the corrected margin program. 

ASI I, slip op. at 4. Commerce further explained that it “has not determined that the 

Final Results were in error and, accordingly is not amending the Final Results. Instead 

the Department is correcting the margin program language in order to ensure that the 

liquidation instructions are consistent with the Final Results . . . .” Id.

 The same day that it issued this memorandum, Commerce attempted to transmit 

corrected liquidation instructions, which were rejected by Customs because they 

contained language errors. The next day, September 18, 2009, ASI filed suit in the 

Court of International Trade pursuant to 28 U.S.C. § 1581(i), alleging that Commerce 

had no authority to correct the error, and, inter alia, requesting the court to order 

Commerce to instruct Customs to resume liquidation in accordance with the original 

2010-1023 7
liquidation instructions. 

That same day, the Court of International Trade entered a temporary restraining 

order (“TRO”) preventing Customs or Commerce from taking any action to liquidate or 

reliquidate ASI’s entries of merchandise exported by the Dare Group. However, on 

October 13, 2009, the Court of International Trade denied ASI’s motion for a preliminary 

injunction and dissolved the TRO. ASI I, slip op. at 11. The court found that ASI had 

established a likelihood of success on the merits of its claim that the liquidation 

instructions were unlawful, concluding that Commerce’s purported correction of the 

liquidation instructions “made a substantive change to the Second Amended Final 

Results” and “arbitrarily avoids express statutory and regulatory provisions governing 

the correction of ministerial errors.” Id. at 7, 8. The court noted that it “will be inclined to 

remand the matter to the agency to address the calculation error against 19 U.S.C. § 

1675(h) and 19 C.F.R. § 351.224.” Id. at 8. Nevertheless, the court found that ASI had 

not established that it would suffer irreparable harm from having its entries liquidated 

because it has an adequate remedy under our decision in Shinyei Corp. of America v. 

United States, 355 F.3d 1297, 1311-12 (Fed. Cir. 2004). Id. at 8-9. The court also held 

that the balance of hardships weighed in favor of the government because the 

government might be harmed by being statutorily foreclosed from reliquidation. Id. at 

10. 

On October 22, 2009, ASI learned that Customs was beginning the process of 

liquidating ASI’s entries at the higher rate. The Court of International Trade denied 

ASI’s motion for injunction pending appeal on October 26, 2009. See Am. Signature, 

Inc. v. United States, No. 09-00400 (Ct. Int’l Trade Oct. 26, 2009) (“ASI II”). On October 

2010-1023 8
27, 2009, ASI filed an emergency motion for an injunction pending appeal with this 

court, which we granted on October 28, 2009, on the condition that ASI file a waiver of 

the time period requirement of 19 U.S.C. § 1501. The next day, ASI delivered the 

waiver. 

 We heard oral argument on November 19, 2009. We thereafter requested and 

received supplemental briefs as to the scope of Commerce’s authority to correct 

ministerial errors. We have jurisdiction over the Court of International Trade’s denial of 

ASI’s motion for a preliminary injunction under 28 U.S.C. § 1292 (c)(1). 

DISCUSSION 

In determining whether a preliminary injunction should issue, we apply the four 

factor test set forth by the Supreme Court. In general, “[a] plaintiff seeking a preliminary 

injunction must establish [1] that he is likely to succeed on the merits, [2] that he is likely 

to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of 

equities tips in his favor, and [4] that an injunction is in the public interest.” Winter v. 

Natural Res. Def. Council, Inc., 129 S. Ct. 365, 374 (2008); see Titan Tire Corp. v. Case 

New Holland, Inc., 566 F.3d 1372, 1375-76 (Fed. Cir. 2009). The governing standard of 

review on appeal of a grant or denial of a preliminary injunction is abuse of discretion. 

Titan Tire, 566 F.3d at 1365. “An abuse of discretion may be established under Federal 

Circuit law by showing that the court made a clear error of judgment in weighing the 

relevant factors or exercised its discretion based on an error of law or clearly erroneous 

fact finding.” Quingdao Taifa Group Co., Ltd. v. United States, 581 F.3d 1375, 1379 

(Fed. Cir. 2009) (internal citation and quotation marks omitted). 

We address these factors in turn. 

2010-1023 9
I Likelihood of Success on the Merits 

We first consider ASI’s likelihood of success on the merits. The government and 

the domestic producers contend that the error in ASI’s assessment rate is an error in 

the July 10, 2009, liquidation instructions, and that under our decision in Ugine II, the 

error could thereafter be corrected at any time before liquidation occurred. ASI on the 

other hand contends that the error was an error “in” the Second Amended Final Results 

and can only be corrected in accordance with the procedures set forth in 19 U.S.C. § 

1675(h) and Commerce’s implementing ministerial error regulation, 19 C.F.R. § 

351.224. 19 U.S.C. § 1675(h) authorizes the correction of ministerial errors “in final 

determinations within a reasonable time,” and authorizes Commerce to promulgate 

regulations providing for such corrections.11 Commerce has promulgated such 

regulations. See 19 C.F.R. § 351.224. 

The Court of International Trade agreed with ASI that the errors were “in” the 

final results, stating that “Commerce[] [is attempting] to correct a routine ministerial error 

contained in the Second Amended Final Results through a purported correction to 

liquidation instructions,” ASI II, slip op. at 8, and that “ASI’s calculated assessment rate 

 

11 19 U.S.C. § 1675(h) provides: 

The administering authority shall establish procedures for the correction of 

ministerial errors in final determinations within a reasonable time after the 

determinations are issued under this section. Such procedures shall 

ensure opportunity for interested parties to present their views regarding 

any such errors. As used in this subsection, the term “ministerial error” 

includes errors in addition, subtraction, or other arithmetic function, clerical 

errors resulting from inaccurate copying, duplication, or the like, and any 

other type of unintentional error which the administering authority 

considers ministerial. 

2010-1023 10
[is] in the Second Amended Final Results” and “is an integral part of Commerce’s 

administrative review determination.” ASI I, slip op. at 7. 

 We agree with the Court of International Trade and ASI that the corrections to 

the assessment rates were corrections of errors “in” the Second Amended Final 

Results, i.e., that the calculations performed using Commerce’s antidumping margin 

calculation program formed a part of Commerce’s administrative review determination 

under 19 U.S.C. § 1675(a)(2)(A). See ASI I, slip op. at 7. This is so for several 

reasons. 

First, Commerce’s regulations implementing section 1675(h) (subsections (b) 

and (c) of section 351.224) treat errors in data prepared “in connection with” the final 

results as being subject to the section 1675(h) procedure, i.e., the regulations equate 

“in” with “in connection with.” We give Chevron deference to this regulatory construction. 

 See Chevron, U.S.A., Inc., v. Natural Res. Def. Council, 467 U.S. 837, 842-43 

(1984). 

Second, as Commerce conceded at oral argument, the calculations at issue here 

were prepared “at the same time as” and “in connection with” preparation of 

Commerce’s final determination. See Oral Arg. at 22:53-55, 24:00-09; see also Def.-

Appellee’s Br. 5 (“In practice, the calculation of importer specific assessment rates 

under section 351.212(b)(1) occurs concurrently with the determination of exporter

specific dumping margins within the same computer program.”). This conclusion is 

supported by the record. On August 20, 2008, Commerce published the Final Results 

in the Federal Register. The Final Results themselves noted that “we [Commerce] have 

calculated customer/importer-specific antidumping duty assessment amounts.” Final 

2010-1023 11
Results, 73 Fed. Reg. at 49,167 (emphasis added). The record reflects that Commerce 

ran its margin calculation program on August 11, 2008 (before the publication of the 

Final Results) and at that time calculated an importer-specific percent ad valorem

assessment rate for ASI. Though the margin calculation program was run again several 

days after the publication of the Second Amended Final Results to produce the 

assessment rate at issue here, it is clear that the preparation of such assessment rates 

using the margin calculation program is a part of Commerce’s administrative review 

procedures. 

Third, though the importer-specific assessment rates themselves were not 

disclosed in the Federal Register, Commerce agrees that this is not dispositive as to the 

question of whether they are a part of the final results of the administrative review. 

Indeed, Commerce conceded at oral argument that many calculations are not published 

in the Federal Register, but Commerce still regards them as being a part of their final 

results. See Oral Arg. at 24:44-25:09 (“[A] number of things also don’t get published in 

the Federal Register or in the decision memo and . . . those things still would be 

subsumed within the final results.”).

Fourth, we have recognized that challenges to dumping margins and other 

aspects of final results are properly brought in the Court of International Trade under 28 

U.S.C. § 1581(c). See Consol. Bearings Co. v. United States, 348 F.3d 997, 1002 (Fed. 

Cir. 2003). The Court of International Trade has routinely exercised jurisdiction in those 

proceedings to consider challenges to assessment rate methodology and requests to 

correct ministerial errors in assessment rates. See, e.g., Fujian Lianfu Forestry Co., 

Ltd. v. United States, 638 F. Supp. 2d 1325, 1333 (Ct. Int’l Trade 2009) (exercising 

2010-1023 12
jurisdiction under section 1581(c) in a challenge to Commerce’s method of calculating 

assessment rates); Hyundai Elec. Indus. Co. v. United States, 395 F. Supp. 2d. 1231, 

1234, 1242-43 (Ct. Int’l Trade 2005) (exercising jurisdiction under section 1581(c) and 

permitting Commerce to correct a ministerial error in the program that calculates 

assessment rates); Koyo Seiko Co., Ltd. v. United States, 110 F. Supp. 2d 934, 935 (Ct. 

Int’l Trade 2000) (exercising jurisdiction under section 1581(c) in a challenge to 

Commerce’s method of calculating assessment rates), aff’d, 258 F.3d 1340 (Fed. Cir. 

2001). Commerce has apparently never before challenged jurisdiction under section 

1581(c) to consider such assessment rate issues. If we were to adopt the view that 

errors in the calculations of assessment rates do not form a part of final determinations, 

a party seeking to challenge the manner in which Commerce calculated assessment 

rates would need to wait until liquidation instructions were issued, and then bring a 

separate action under 28 U.S.C. § 1581(i). It is only logical for the Court of International 

Trade to consider any alleged errors in the assessment rates when challenges to the 

dumping margins are also being considered because assessment rates are affected by 

dumping margin calculations. 

While the domestic producers argue that we owe Chevron deference to 

Commerce’s determination in its September 18, 2009, memorandum to file that the 

error was not “in” the final results,12 we think no such deference is owed because 

Commerce’s construction is not a reasonable construction of the statute, for the reasons 

we have described immediately above. Even now, Commerce is unable to articulate a 

 12 See ASI I, slip op. at 5 (“[Commerce] does not consider that it is correcting 

an error in the Final Results. Instead, it is correcting the margin program to ensure that 

the liquidation instructions are consistent with the Final Results.”). 

2010-1023 13
coherent theory as to why we should adopt its approach. For the same reason, we see 

no need to remand this proceeding for further consideration by Commerce as to the 

scope of Commerce’s authority under 1675(h). 

We conclude that the errors in question were “in” the Second Amended Final 

Results. 

In light of our conclusion that the error here was an error in the final results of the 

administrative review, we consider whether Commerce had the authority to correct the 

error sua sponte. 13 This turns on whether Commerce acted within a “reasonable time” 

under section 1675(h). The statute does not define what constitutes a “reasonable 

time,” but leaves it to Commerce to define what constitutes a “reasonable time.” Under 

Chevron, Commerce has considerable discretion in defining a “reasonable time.” See

Chevron, 467 U.S. at 842-43; United States v. Eurodif S.A., 129 S. Ct. 878, 886-87 

(2009). The question is whether it has in fact defined a “reasonable time” in the 

regulations. 

Commerce’s implementing ministerial error regulation provides for ministerial 

error correction at the request of interested parties. The regulations set forth various 

time limits for the correction of errors at the request of a party to the proceeding, but do 

not deal explicitly with sua sponte error correction by Commerce. However, Commerce 

has long claimed the authority to correct ministerial errors during judicial review of final 

results even when no request to correct the error has been made by an interested party 

 13 The domestic producers do not argue that Commerce was compelled to 

correct the errors upon the domestic producers’ request; no timely request was made 

for a correction by the domestic producers after the disclosures mandated by section 

351.224(b) of the regulations.

2010-1023 14
pursuant to the regulations. See, e.g., Hyundai Elec. Indus. Co. v. United States, 395 F. 

Supp. 2d 1231, 1243 (Ct. Int’l Trade 2005) (citing Shandong Huarong Gen. Corp. v. 

United States, 159 F. Supp. 2d 714, 727 (Ct. Int’l Trade 2001); Aramide Maatschappij 

V.o.F. v. United States, 901 F. Supp. 353, 361 (Ct. Int’l Trade 1995)), aff’d sub nom.

Shandong Huarong Gen. Group Corp. v. United States, 60 F. App’x 797 (Fed. Cir. 

2003). The statute and the regulation clearly permit the sua sponte correction of a 

ministerial error by Commerce whether or not a party has requested correction within 

the period specified in the regulation. 

The question is then whether the regulation establishes a time limit for such sua 

sponte corrections. On its face the preamble to the regulation contemplates that 

corrections will be made before Commerce’s final determination becomes final, i.e., 

before the time for judicial review has expired. See Antidumping Duties; Countervailing 

Duties; Proposed Rules, 61 Fed. Reg. 7308, 7320 (Feb. 27, 1996). 

The principal goal of these changes is to provide for the issuance of a 

correction notice normally within 30 days after the date of public 

announcement of the preliminary or final determination or final results of 

review. The date of public announcement is the date on which the signed 

determination or results of review is first made available to interested 

parties. This goal is consistent with the proposal from a number of 

commentators that the Department should respond to ministerial error 

allegations prior to the date when a summons must be filed with the Court 

of International Trade or when a notice of intent to commence panel 

review must be filed with the NAFTA Secretariat. This 30-day framework 

is intended to avert needless litigation by allowing parties sufficient time to 

review the correction notice before the litigation deadline arrives. 

Id. (emphases added). The regulation itself also provides that 

[w]here practicable, the Secretary will announce publicly the issuance of a 

correction notice, and normally will do so within 30 days after the date of 

public announcement, or, if there is no public announcement, within 30 

days after the date of publication, of the preliminary determination, final 

determination, or final results of review (whichever is applicable). In 

2010-1023 15
addition, the Secretary will publish notice of such corrections in the 

Federal Register. 

19 C.F.R. § 351.224(e) (emphasis added). 

While the regulation is perhaps not a model of clarity, Commerce in its 

supplemental brief has interpreted the regulation to impose such a time limit.14 See

Def.-Appellee’s Supplemental Br. 2-3. Commerce’s brief states that “Commerce may 

not correct ministerial errors in final results of administrative reviews . . . if those errors 

are discovered after the expiration of the 30-day deadline for seeking judicial review of 

those results. Id. Similarly, “Commerce promulgated its regulation and explained that it 

must normally correct ministerial errors within 30 days because 19 U.S.C. § 1516a 

requires that an interested party commence an action within 30 days of the publication 

in the Federal Register of final results.” Id. at 4. 

In general, “[t]he agency’s construction of its own regulations is ‘of controlling 

weight unless it is plainly erroneous or inconsistent with the regulation.’” Reizenstein v. 

Shinseki, 583 F.3d 1331, 1335 (Fed. Cir. 2009) (citing Cathedral Candle Co. v. U.S. Int'l 

Trade Comm’n, 400 F.3d 1352, 1364 (Fed. Cir. 2005)) (quoting Bowles v. Seminole 

Rock & Sand Co., 325 U.S. 410, 414 (1945)); Christensen v. Harris County, 529 U.S. 

576, 588 (2000); Auer v. Robbins, 519 U.S. 452, 461 (1997); Gose v. U.S. Postal Serv., 

451 F.3d 831, 836 (Fed. Cir. 2006) (“As a general rule, we must defer to an agency’s 

interpretations of the regulations it promulgates, as long as the regulation is ambiguous 

and the agency’s interpretation is neither plainly erroneous nor inconsistent with the 

 14 Commerce indicated at oral argument that it does not have the authority to 

correct ministerial errors pursuant to its regulations after the time for judicial review of 

final results has expired. See Oral Arg. at 35:12-36:00. After oral argument, this court 

requested supplemental briefs on the issue in order to provide the opportunity for 

Commerce to more formally present its position. 

2010-1023 16
regulation.” (citing Gonzalez v. Oregon, 126 S. Ct. 904, 914; Christensen, 529 U.S. at 

588; and Seminole Rock, 325 U.S. at 413-14)). 

However, the question whether an agency’s interpretation of its regulations 

announced for the first time in a brief is entitled to deference has generated 

considerable authority both in the Supreme Court and our own court. See Auer, 519 

U.S. at 462-63; Reizenstein, 583 F.3d at 1335; Abbott Labs. v. United States, 573 F.3d 

1327, 1332-33 (Fed. Cir. 2009); Caribbean Ispat Ltd. v. United States, 450 F.3d 1336, 

1340 (Fed. Cir. 2006). Where the agency’s interpretation seeks to advance its litigating 

position, deference is typically not afforded to the agency’s position announced in a 

brief. See Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 213 (1988) (“Deference to 

what appears to be nothing more than an agency’s convenient litigating position would 

be entirely inappropriate.”). But where the agency is not advancing its litigating position, 

deference may be afforded an agency’s position articulated in its brief. For example, in 

Auer, the Supreme Court deferred to an agency’s position, advanced in an amicus brief. 

519 U.S. at 461. Distinguishing that circumstance from the situation where the agency’s 

position is a “post hoc rationalizatio[n] advanced by an agency seeking to defend past 

agency action from attack,” the Supreme Court noted that “[t]here is simply no reason to 

suspect that the interpretation does not reflect the agency’s fair and considered 

judgment on the matter in question.” Id. at 462 (citation and internal quotation omitted). 

While here the agency’s position is not contained in an amicus brief, it is also not a 

situation in which the agency interpretation advances the agency’s litigating position. 

Quite the contrary. The agency’s interpretation of the regulations is in fact contrary to 

the agency’s litigating position—that it had the authority to correct the error. Under such 

2010-1023 17
circumstances we conclude that deference under Auer is owed to Commerce’s 

interpretation of its regulation, and that Commerce’s sua sponte corrections must be 

made before the final determination is no longer subject to judicial review. 

Here, as Commerce concedes, the error was not corrected within this timeframe; 

indeed it was not discovered until ninety-nine days after the dismissal by the domestic 

petitioners of their lawsuit before the Court of International Trade. Because Commerce 

did not correct the error before the time for judicial review had expired, we conclude that 

the error cannot now be corrected and that ASI has demonstrated a likelihood of 

success, indeed a certainty of success, on the merits.15 

II Irreparable Harm 

We next consider the question of irreparable injury. The Court of International 

Trade concluded that ASI failed to demonstrate irreparable harm. ASI II, slip op. at 13; 

ASI I, slip op. at 9. Citing Shinyei Corp. of America v. United States, 355 F.3d 1297, 

1311-12 (Fed. Cir. 2004)), the Court of International Trade concluded that ASI has an 

 15 The government argues that ASI is judicially estopped from challenging 

Commerce’s authority to make the correction at issue here. Def.-Appellee’s Br. 14-17. 

This argument is premised on the government’s assertion that ASI raised the opposite 

argument from the one they raise here, and prevailed, in a previous case concerning 

earlier furniture imports. See Am. Signature, Inc., v. United States, 477 F. Supp. 2d 

1281 (Ct. Int’l Trade Feb. 14, 2007), rev’d, No. 2007-1216 (Fed. Cir. Nov. 30, 2007). 

We agree with ASI that ASI’s legal position in the previous case and this case are 

entirely consistent. In the previous case, ASI challenged the lawfulness of liquidation 

instructions, which were issued pursuant to 19 C.F.R. § 351.212(c), because they did 

not reflect corrections Commerce had already made to cash deposit rates in the 

administrative review. Thus, in that case, unlike here, Commerce had made timely 

determinations to correct ministerial errors during the investigation. ASI argued that 

those corrections must be reflected in the liquidation instructions issued by Commerce. 

ASI did not argue that Commerce was authorized to correct an error in assessment 

rates by issuing liquidation instructions whose assessment rates differed from those 

calculated during the administrative review proceeding. 

 

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available and adequate remedy to correct the erroneous liquidation of entries caused by 

incorrect liquidation instructions, even if liquidation is permitted to go forward. ASI I, slip 

op. at 9. 

In Zenith Radio Corp. v. United States, we held that absent a preliminary 

injunction, a challenge to an administrative review proceeding became moot when 

liquidation occurred. 710 F.2d 806, 810 (Fed. Cir. 1983). We explained that “[o]nce 

liquidation occurs, a subsequent decision by the trial court on the merits . . . can have 

no effect on the dumping duties assessed on entries.” Id.; see ASI II, slip op. at 14. 

This court therefore concluded that Zenith would suffer irreparable harm if liquidation 

was not enjoined, and reversed the trial court’s denial of a preliminary injunction on that 

basis. Zenith, 710 F.2d at 810. 

In Shinyei, the plaintiff challenged Commerce’s liquidation instructions as 

inconsistent with rates set forth in the amended review results that allegedly covered its 

entries. 355 F.3d at 1299, 1303. We held that in an action challenging liquidation 

instructions under 28 U.S.C. § 1581(i), the Court of International Trade may, under 

certain circumstances, use its equitable powers to compel reliquidation of entries if a 

preliminary injunction has been sought and denied. Id. at 1312.16 

In Ugine & Alz Belgium v. United States, where the challenge was to liquidation 

instructions, we held that, despite potential for Shinyei relief, irreparable injury may exist 

from the denial of a preliminary injunction. 452 F.3d 1289, 1297 (Fed. Cir. 2006) 

 16 However, in Mukand International, Ltd. v. United States, 502 F.3d 1366 

(Fed. Cir. 2007), we upheld a decision of the Court of International Trade to deny 

Shinyei reliquidation because the plaintiff failed to seek an injunction against liquidation 

from the Court of International Trade before its entries had liquidated. 

 

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(“Ugine I”). We noted that 

the question of the scope of Shinyei is a difficult one, for which the 

resolution is not obvious . . . . Rather than deciding the scope of Shinyei

in a preliminary injunction context . . . we conclude that the issue is 

sufficiently complex that we should resolve it only in a setting in which it 

has been litigated by the parties and decided by the trial court. 

Id. As in Ugine I, we conclude that the possibility of Shinyei relief does not defeat ASI’s 

claim of irreparable harm. 

 The domestic producers also argue that ASI has made no showing that it is 

unable to protect its interests by protesting a reliquidation of entries under 19 U.S.C. 

§ 1514. The domestic petitioners appear to argue that a protest would automatically bar 

liquidation or reliquidation. This statute authorizes importers to protest “decisions of the 

Customs Service, including the legality of all orders and findings entering into the same, 

as to . . . (5) the liquidation or reliquidation of an entry, or reconciliation as to the issues 

contained therein, or any modification thereof.” 19 U.S.C. § 1514(a). In Shinyei, we 

addressed the scope of this section, concluding that the protest provisions only apply to 

"decisions" of the “Customs Service.” Shinyei, 355 F.3d at 1311. Here, as in Shinyei, 

the alleged agency error is on the part of Commerce, not Customs. Therefore, section 

1514(a) is inapplicable. 

 In conclusion, in view of our determination that the availability of Shinyei relief to 

ASI is uncertain and our determination that ASI may not have a remedy under section 

1514(a), we conclude that ASI has made a sufficient showing of irreparable harm. 

III Balance of Equities/Hardships 

 The Court of International Trade concluded that the balance of equities tips in 

Commerce’s favor. ASI II, slip op. at 15. It based its conclusion on its perceived 

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inability to toll or permit waiver of the time limits of 19 U.S.C. § 1501 and remarked that 

“Commerce faces a significant hardship if it loses its ability to request Customs to 

reliquidate the entries pursuant to § 1501.” Id. at 14-15. We agree that if Commerce 

were to be foreclosed from reliquidation by section 1501, this would indeed be a 

significant hardship. However, we disagree with the Court of International Trade that 

this outcome is likely. 

Commerce argues that a preliminary injunction would foreclose Customs from 

reliquidating entries pursuant to 19 U.S.C. § 1501 due to the expiration of the ninety-day 

window in the statute. We cannot agree that Commerce is without a remedy if the 

ninety-day period elapses without reliquidation, for two reasons. First, under Shinyei, 

the deadline is inapplicable if reliquidation is ordered by a court.17 As we noted in that 

case, 

the Court of International Trade’s relief statute provides for entry of a 

money judgment “for or against the United States in any civil action 

commenced under section 1581 or 1582 of this title,” [19 U.S.C.] § 

2643(a)(1), and allows the court to “order any other form of relief that is 

appropriate in a civil action . . . . ” Id. § 2643(c)(1) (emphasis added). The 

absence of an express reliquidation provision should not be read as a 

prohibition of such relief when the statute provides the Court of 

International Trade with such broad remedial powers. Here, the requested 

relief [reliquidation] is easily construed as “any other form of relief that is 

appropriate in a civil action.” 

Shinyei, 355 F.3d at 1312. 

Second, and more importantly, waiver by ASI obviates any problem with the 

ninety-day deadline. In view of the potential hardship, this court required in its October 

 17 Commerce agrees that this concern is inapplicable to entries that have yet 

to be liquidated. As to such entries, the grant of a preliminary injunction suspends the 

liquidation deadline. 

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28, 2009, order, and ASI submitted, a waiver of “any defense it might otherwise have 

against reliquidation of [the applicable] entries pursuant to 19 U.S.C. § 1501 based on 

the expiration of the 90-day period for reliquidation set forth therein, during the period in 

which the injunction entered by this Court is in effect.” Waiver of Statute of Limitations 

Defense at 1, Am. Signature v. United States, No. 2010-1023 (Fed. Cir. Oct. 29, 2009). 

The Supreme Court has remarked that it has “‘in the context of a broad array of 

constitutional and statutory provisions,’ articulated a general rule that presumes the 

availability of waiver, United States v. Mezzanatto, 513 U.S. 196, 200-01 (1995).” New 

York v. Hill, 528 U.S. 110, 114 (2000). Further, the Supreme Court has announced that 

“absent some affirmative indication of Congress’ intent to preclude waiver, we have 

presumed that statutory provisions are subject to waiver by voluntary agreement of the 

parties.” Mezzanatto, 513 U.S. at 201. Therefore, we conclude this voluntary waiver 

adequately protects Commerce’s interests in being able to reliquidate ASI’s entries and 

prevents it from sustaining irreparable injury. 

 Thus, we conclude that the Court of International Trade erred in its analysis of 

the potential harm to Commerce. In view of our assessment that Commerce will not be 

foreclosed from reliquidation, if appropriate, and the uncertainty concerning the 

remedies available to ASI, we find that the balance of equities favors ASI.

IV Public Interest 

 The public interest is served by ensuring that governmental bodies comply with 

the law, and interpret and apply trade statutes uniformly and fairly. Both sides in this 

dispute contend that they are seeking to effectuate these important goals. Therefore we 

find that the public interest does not clearly favor either party in this dispute. 

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2010-1023 23

CONCLUSION 

We conclude that ASI has satisfied the requirements for a preliminary injunction. 

We reverse the Court of International Trade and require that the court grant the 

preliminary injunction prohibiting Customs or Commerce from taking any action to 

liquidate or reliquidate ASI’s import entries that are the subject of this action, and for 

further proceedings consistent with this opinion. 

REVERSED

COSTS 

 No costs.