Slip Op. 99-114

UNITED STATES COURT OF INTERNATIONAL TRADE

________________________________________

 :

BÖHLER-UDDEHOLM CORPORATION, :

:

Plaintiff, : Consol. Court

 : No. 95-08-01024

v. :

 :

THE UNITED STATES, :

 :

Defendant, :

 :

and :

 :

ALLEGHENY LUDLUM STEEL CORPORATION,: 

WASHINGTON STEEL CORPORATION, and : 

G.O. CARLSON, INC. : 

:

Defendant-Intervenors. :

________________________________________:

[Injunction pending appeal granted.]

 Dated: October 22, 1999

O'Donnell & Williams, (R. Kevin Williams) for plaintiff.

David W. Ogden, Acting Assistant Attorney General, David M.

Cohen, Director, Commercial Litigation Branch, Civil Division, United

States Department of Justice (Lucius B. Lau), Carlos A. Garcia,

Attorney-Advisor, Office of the Chief Counsel for Import

Administration, United States Department of Commerce, of counsel, for

defendant. 

Collier, Shannon, Rill & Scott, PLLC, (John B. Brew and Jeffrey

S. Beckington) for defendant-intervenors.

OPINION

RESTANI, Judge: This matter is before the court on 

plaintiff’s motion for injunction of liquidation pending 
CONSOL. COURT NO. 95-08-01024 PAGE NO. 2

1 Plaintiff styled its motion as one for preliminary

injunction, but it is properly brought pursuant to CIT Rule 62(d),

and 19 U.S.C. § 1516a(c)(2) (1994). If applicable, the requirement

of a supersedeas bond has been met by the prepayment of estimated

duties on the unliquidated entries, as required by 19 U.S.C.

§ 1673e(a)(3) (1994). Defendant-intervenors allege no possible basis

for a bond.

appeal.1 

Plaintiff appealed the court’s judgment affirming the

determination of the United States Department of Commerce that its

products, Stavax and Ramax, were within the scope of the antidumping

duty order on Stainless Steel Plate from Sweden. See Böhler-Uddeholm

Corp. v. United States, No.95-08-01024, 1998 WL 249167, at *1 (Ct.

Int’l Trade May 14, 1998), appeal filed, No. 98-1565 (Fed. Cir. July

6, 1998). Plaintiff now seeks a stay of liquidation of entries made

during the period June 1, 1998 through May 31, 1999, so that it may

recover the estimated duties paid, if it is successful in its appeal

of the scope issue. The United States consents to the stay, but it

is opposed by defendant-intervenors, the domestic steel producers.

Defendant-intervenors first object that the motion is untimely. 

An administrative review of the entries at issue, however, resulted

in suspension of liquidation of those entries. Thus, a court ordered

stay was unnecessary during the pendency of the review. The Commerce

Department terminated the review on September 14, 1999. See

Stainless Steel Plate from Sweden: Notice of Recission of Antidumping

Administrative Review, 64 Fed. Reg. 49,773, 49,774 (Dep’t Commerce
CONSOL. COURT NO. 95-08-01024 PAGE NO. 3

1999). Thereafter Commerce issued liquidation instructions to the

Customs Service. Pl.’s Br. at 2. The instant motion was made

promptly upon the threat of imminent liquidation and is timely. 

Defendant-intervenors also assert that the standard for

injunctive relief is not met. First, they assert that Zenith Radio

Corp. v. United States, 710 F.2d 806, 808 (Fed. Cir. 1983) (stay of

liquidation pending appeal by domestic producers of annual review

determination) does not apply because liquidation of these entries

will not moot the scope issue before the appellate court. Def.-

Intervenor’s Br. at 3. Plaintiffs, however, are importers. They

will lose their right to recover the duties paid for the period at

issue if stay is not granted. That such recovery depends on the

scope determination, as opposed to issues which might be addressed

more effectively in an administrative review, is not determinative. 

Further, in Zenith more than preservation of appellate review was at

stake. Zenith, at 810. Because the adminstrative review set future

deposit rates, the entire dispute would not have been mooted by

liquidation of past entries. Id. Likewise, just because the entire

scope dispute is not mooted by liquidation of this set of entries,

does not mean that plaintiffs will not suffer irreparable harm in the

form of permanently lost duties, if stay of liquidation is not

granted. The stay sought is appropriately limited to only the
CONSOL. COURT NO. 95-08-01024 PAGE NO. 4

potential irreparable harm plaintiff would suffer in the absence of

the stay.

Second, although the court ruled against plaintiffs, it also

made clear in its four opinions in this matter that the scope issue

was a difficult one, as demonstrated by the repeated consideration of

the issue. See Böhler-Uddeholm Corp. v. United States, 20 CIT 1336,

1342-43, 946 F. Supp. 1003, 1008-1009 (1996) (remanding Commerce’s

scope determination), 978 F. Supp. 1176, 1181-1185 (Ct. Int’l Trade

1997) (remanding Commerce’s scope determination again), No. 95-08-

01024, 1997 WL 792936, at *1-2 (Ct. Int’l Trade Dec. 22, 1997)

(remanding Commerce’s scope determination to allow consideration of

the full record), 1998 WL 249167, at *2 (affirming Commerce’s scope

determination). There is no clear answer as to whether or how

Commerce may amend a twenty year old scope ruling, as it did here. 

Böhler-Uddeholm Corp., 1998 WL 249167, at *1. There are serious and

substantial questions for appeal as to whether this situation meets

the appropriate standard for such an amendment.

Third, the only party capable of suffering hardship in this

matter is plaintiff. It was required to pay such estimated duties as

were owed. The government’s and defendant-intervenors’ rights are

fully protected, as the government obviously recognizes.

Fourth, injunction is in the public interest. Defendantintervenors would have a party such as plaintiff request an
CONSOL. COURT NO. 95-08-01024 PAGE NO. 5

2 In order to obtain an injunction, the movant carries the

burden to establish: “1) that the movant is likely to succeed on the

merits [on appeal]; 2) that it will suffer irreparable harm if

[provisional] relief is not granted; 3) that the balance of the

hardships tips in the movant’s favor; and 4) that a [provisional]

injunction will not be contrary to the public interest.” Id.

(citations omitted).

administrative review, with all the time and effort such a review

would entail, merely for the purpose of continuing a suspension of

liquidation. Def.-Intervenor’s Br. at 2. The relief plaintiff seeks

is available through injunction pending appeal, at no cost or

inconvenience to anyone, and without gearing up the entire

administrative process for no good reason.

Accordingly, the court concludes that the requirements for

injunctive relief, recognized in FMC Corp. v. United States, 3 F.3d

424, 427 (Fed. Cir. 1993),2 are met. Injunction pending appeal is

granted. The terms of the injunction are set forth separately.

_______________________

Jane A. Restani

 JUDGE

Dated: New York, New York

 This 22nd day of October, 1999.