Allegheny Bradford Corp. v. United States

342 F. Supp. 2d 1162, 28 Ct. Int'l Trade 603, 28 C.I.T. 603, 26 I.T.R.D. (BNA) 1615, 2004 Ct. Intl. Trade LEXIS 42
CourtUnited States Court of International Trade
DecidedApril 29, 2004
DocketSlip Op. 04-44; Court 02-00073
StatusPublished
Cited by8 cases

This text of 342 F. Supp. 2d 1162 (Allegheny Bradford Corp. v. United States) is published on Counsel Stack Legal Research, covering United States Court of International Trade primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Allegheny Bradford Corp. v. United States, 342 F. Supp. 2d 1162, 28 Ct. Int'l Trade 603, 28 C.I.T. 603, 26 I.T.R.D. (BNA) 1615, 2004 Ct. Intl. Trade LEXIS 42 (cit 2004).

Opinion

OPINION & ORDER

RESTANI, Chief Judge.

INTRODUCTION

Plaintiff Allegheny Bradford Corporation, d/b/a Top Line Process Equipment Company (“Top Line”) asks the court to find Defendant United States (“Government”) in contempt for failing to obey a court-ordered injunction of the liquidation 1 of its stainless steel butt-weld tube fittings. Because the Government’s proposed reli-quidation of the entries is unsuitable for restoring the status quo ante, the court finds it necessary to take action in connection with the enforcement of the injunction.

BACKGROUND

The court’s injunction was entered in connection with Top Line’s suit, which claims that the Commerce Department improperly ruled that the company’s tube fittings are within the scope of an anti-dumping order issued in 1993. See Final Determination of Sales at Less Than Fair Value and Antidumping Duty Order: Stainless Steel Butt-Weld Pipe Fittings from Taiwan, 58 Fed.Reg. 33,250 (Dep’t Comm.1993) (final admin, rev.) [hereinafter “Final Antidumping Order” ].

The scope proceedings began on April 12, 2001, with Top Line’s request for a scope ruling from Commerce regarding its tube fittings imported from Taiwan. The scope request culminated in a final ruling by Commerce that Top Line’s tube fittings are within the scope of the Antidumping Order and thus subject to antidumping duties upon entry. See Final Scope Ruling on the Antidumping Duty Order on Stainless Steel Butt-Weld Pipe Fittings from Taiwan: Allegheny Bradford Corporation d/b/a Top Line Process Equipment, 66 Fed.Reg. 65899 (Dept. Commerce Dec. 21, 2001) {“Final Affirmative Scope Ruling” ).

In response to the unfavorable scope ruling, Top Line filed suit under 28 U.S.C. § 1581(c) and thereafter filed a Motion For Judgment Upon the Agency Record on June 17, 2002, alleging that the Final Affirmative Scope Ruling was “unsupported by substantial evidence on the record and otherwise not in accordance with law.” Petitioner’s Scope Br. at 1. This motion is pending before the court.

Top Line moved for an injunction of liquidation in order to preserve the status quo. Injunctive relief is made available under such circumstances by 19 U.S.C. § 1516a(c)(2), which permits the Court to enjoin the liquidation of merchandise subject to an affirmative scope determination during the pendency of the litigation. See 19 U.S.C. § 1516a(c)(2) (allowing for in-junctive relief in the case of determinations described under 19 U.S.C. § 1516a(a)(2), including scope determinations under (a)(2)(B)(vi)); see also AK Steel, 281 F.Supp.2d at 1318. In this case, the court granted the motion on February 26, 2002, enjoining the liquidation of Top Line’s tube fittings from Taiwan during the pendency of the litigation reviewing *1164 the Final Affirmative Scope Ruling. In the pertinent part of the order, the court:

ORDERED that the Defendant, together with its delegates and officers, agents, servants and employees of the United States Customs Service and/or the United States Department of Commerce be, and they hereby are, enjoined during this litigation from the liquidation from the liquidation of any and all entries of stainless steel butt-weld tube fittings from Taiwan which are covered by the Final Affirmative Scope Ruling on December 10, 2001, and notice of which was published in the Federal Register on December 21, 2001, 66 Fed.Reg. 65899, and which entries remain unliqui-dated at the close of business on the day following the day on which a copy of this order is personally served by Plaintiff on the following individuals and received by them or their successors or their delegates: (1) Ann Sebastian, A.P.O. Coordinator, U.S. Department of Commerce, 14th and Constitution Avenue, N.W., Room 1870, Washington, D.C.; and (2) Hon. Robert C. Bonner, Commissioner of Customs, Attention: Alfonso Robles, Chief Counsel, U.S. Customs Service, Suite 4.4B, 1300 Pennsylvania Avenue, N.W., Washington, D.C.

Order (Ct. Int’l Trade Feb. 26, 2002). 2 Top Line served the injunction on Commerce and Customs on March 4, 2002.

Commerce’s procedure for handling injunctions such as the one issued in this case is as follows: the Import Administration’s office director passes a copy of the injunction to the program manager; the program manager passes it to the analyst handling the case; the analyst prepares instructions for Customs regarding the implementation of the injunction; the instructions are reviewed by the program manager; the analyst forwards the approved instructions to another Commerce employee who transmits the instructions to Customs; Customs headquarters reviews the instructions and then posts them on the Customs’ Electronic Bulletin Board (“CEBB”). Def.’s Opp’n Mot., Decl. of Edward Yang at ¶ 6.

As for Customs, it has a parallel procedure: a staffperson in the Chief Counsel’s office delivers copies of the order to the staff assistant to the Executive Director of Trade Compliance and Facilitation, Office of Field Operations; the Executive Director or a subordinate passes a copy of the order to Chief of the Other Government Agencies Branch (“OGA”); the Chief of the OGA delivers the copy to the appropriate OGA Program Manager; the OGA Program Manager verifies that instructions for the implementation of the order have been received from Commerce; if no instructions have been received, the OGA Program Manager contacts Commerce, obtains the instructions, reviews them, and eventually posts them on the CEBB. Def.’s Opp’n Mot., Decl. of Alfred S. Morawski at ¶ 3.

In this case, the standard procedure' did not survive the initial steps, either at Commerce or Customs. As noted above, Commerce was served by Top Line on March 4, 2002. That same day, Commerce’s docket center forwarded the injunction to Edward Yang, the Import Administration Office Director with responsibility for *1165 stainless steel butt-weld, pipe fittings from Taiwan. Def.’s Opp’n Mot., Decl. of Edward Yang at ¶ 5. Mr. Yang signed for the injunction, but thereafter the injunction languished. According to Mr. Yang, a heavy workload caused the standard procedure to break down, preventing the prompt transmission of instructions to Customs. Id. at ¶ 7.

Similarly, Customs received a copy of the order on March 4. The appropriate staffperson in the Chief Counsel’s office delivered a copy of the order to the staff assistant to the Executive Director of Trade Compliance and Facilitation on March 6, 2002. Here the trail ends. The Chief of the OGA does not recall receiving the order from the Executive Director’s staff assistant, speculating instead that the order was “misplaced” and that the standard procedures “were not followed.” Def.’s Opp’n Mot., Decl.

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342 F. Supp. 2d 1162, 28 Ct. Int'l Trade 603, 28 C.I.T. 603, 26 I.T.R.D. (BNA) 1615, 2004 Ct. Intl. Trade LEXIS 42, Counsel Stack Legal Research, https://law.counselstack.com/opinion/allegheny-bradford-corp-v-united-states-cit-2004.