Shree Rama Enterprises v. United States

21 Ct. Int'l Trade 1165, 983 F. Supp. 192, 21 C.I.T. 1165, 19 I.T.R.D. (BNA) 2441, 1997 Ct. Intl. Trade LEXIS 152
CourtUnited States Court of International Trade
DecidedNovember 7, 1997
DocketCourt No. 97-07-01099
StatusPublished
Cited by16 cases

This text of 21 Ct. Int'l Trade 1165 (Shree Rama Enterprises 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
Shree Rama Enterprises v. United States, 21 Ct. Int'l Trade 1165, 983 F. Supp. 192, 21 C.I.T. 1165, 19 I.T.R.D. (BNA) 2441, 1997 Ct. Intl. Trade LEXIS 152 (cit 1997).

Opinion

Memorandum Opinion

DiCarlo, Senior Judge:

Plaintiffs have moved for a preliminary injunction to prevent the collection of countervailing duty deposits at the new company-specific rates published in Certain Iron-Metal Castings from India, 62 Fed. Reg. 32,297 (Dep’t Commerce 1997) (final admin, review) [hereinafter Final Determination]. Plaintiffs are asking the court to preserve the former country-wide rate of 5.13% pendingjudicial review of the Final Determination. Because plaintiffs have not demonstrated that they will be irreparably harmed by the new deposit rates, their motion is denied.

Background

Until passage of the Uruguay Round Agreements Act of 1994, Commerce routinely set a single country-wide countervailing duty rate, although it could, and often did, assign individual rates to particular exporters. 19 U.S.C. § 1671e(a)(2) (1988); see, e.g., Certain Iron Metal Castings from India, 60 Fed. Reg. 44,849 (Dep’t Commerce 1995) (final admin, review). The 1994 Act reversed this practice, creating a general rule in favor of individual company-specific rates. Cf. 19 U.S.C. §§ 1671d(c), 1677f-l(e) (1994) with 19 U.S.C. §§ 1671d(c)(l), 1671e(a)(2) (1988). Although individual rates are not a new invention, plaintiffs argue that this change has created a “new dynamic in the import marketplace!,] ” and that the deposit rate has become a determining factor in U.S. importers’ purchasing decisions. (Pis.’ Br. at 3.) This dynamic is nothing new. Foreign producers have always competed with fellow exporters assigned significantly lower individual deposit rates. Nevertheless, plaintiffs claim that as a result of the change in the law [1166]*1166they are threatened with the immediate loss of long-standing customers to other Indian producers with lower deposit rates.

Discussion

I.

As a preliminary matter, the court finds that it has the authority to rule on the plaintiffs’ motion. The court has jurisdiction under 28 U.S.C. § 1581 (1994). It is unnecessary to specify whether § 1581(c) or § 1581(i) applies, as the court is not granting the requested relief. See Shakeproof Indus. Products Div. of Illinois Tool Works, Inc. v. United States, 104 F.3d 1309, 1313-14 (Fed. Cir. 1997); Hylsa, S.A. de C.V. v. United States, 21 CIT 222, 226-28, 960 F. Supp. 320, 324-25 (citing Shakeproof Indus. Products), appeal dismissed, 113 F.3d 1255 (Fed. Cir. 1997). In exercising that jurisdiction, the Court of International Trade possesses “all the powers in law and equity of* * * a district court of the United States. ” 28 U.S.C. § 1585 (1994). These include “broad injunctive powers.” NTN Bearing Corp. of America v. United States, 892 F.2d 1004, 1006 (Fed. Cir. 1989); 28 U.S.C. § 2643(c)(1) (1994).

Defendant claims that this court has no jurisdiction over the administrative handling of entries before a final court decision, except to temporarily suspend liquidation of duties. The argument relies on NTN, which vacated an injunction ordering a refund and forbidding further collection of estimated dumping duties after a partial summary judgment. Id. Under NTN, the court may not order liquidation at a rate other than that set in the challenged determination until after a final court decision, although it may suspend liquidation pending judicial review. Id. at 1006 (citing 19 U.S.C. § 1516a(c)(2), 1516a(e) (1988)).

NTN does not limit this court’s jurisdiction. Its holding affects the timing of liquidation, not the court’s power to issue injunctions in appropriate circumstances. There have been post-NTTV cases in which the court has considered motions to enjoin collection of cash deposits. In all instances, the court has found jurisdiction to consider the motion. Queen’s Flowers de Colombia v. United States, 20 CIT 1122, 947 F. Supp. 503 (1996) (motion granted); Companhia Brasileira Carbureto de Calcio v. United States, 18 CIT 215 (1994) (citing AUWbut finding it did not prohibit extraordinary injunctive relief) (motion denied); Chilean Nitrate Corp. v. United States, 11 CIT 538 (1987) (motion denied). There is no reason to reach a different conclusion here. Given the court’s broad authority, the “former significance [of a specific provision for suspending liquidation] cannot be limiting * * *. [I] t “represents simply a particularization of relief available in one important phase of judicial review. ” Krupp Stahl AG v. United States, 4 CIT 244, 246, 553 F. Supp. 394, 396 (1982). “[EJxclusions to the Court’s powers are directly and unambiguously stated in 28 U.S.C. § 2643(c)(1).” Id. This court retains all powers of a district court not specifically excluded there.

[1167]*1167II.

While the court has the power to enjoin collection of deposits at the new rates, plaintiffs have not established that they are entitled to in-junctive relief. To obtain a preliminary injunction, petitioners must show: 1) that they will be “immediately and irreparably injured, ” 2) that there is a “likelihood of success on the merits,” 3) that the relief requested is in the public interest, and 4) that the “balance of hardship on all parties favors the petitioner.” Zenith Radio Corp. v. United States, 710 F.2d 806, 809 (Fed. Cir. 1983). If plaintiffs fail to prove any one of these factors, their motion will fail.

Plaintiffs have not shown that they are threatened with immediate and irreparable injury. Irreparable harm is serious harm that cannot be undone. Id. (citing S.J. Stile Assoc. Ltd. v. Snyder, 646 F.2d 522, 525 (C.C.P.A. 1981)). In evaluating that harm, the court must consider “the magnitude of the injury, the immediacy of the injury, and the inadequacy of future corrective relief.” Queen’s Flowers, 20 CIT at 1125, 947 F. Supp. at 506. It is not enough to establish “a mere possibility of injury, even where prospective injury is great. A presently existing, actual threat must be shown.” Zenith, 710 F.2d at 809.

Plaintiffs’ allegation of irreparable harm is identical to the claim raised in Chilean Nitrate, which alleged “significant and permanent monetary injury as a consequence of posting large cash deposits!.] ” Chilean Nitrate, 11 CIT at 540.

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21 Ct. Int'l Trade 1165, 983 F. Supp. 192, 21 C.I.T. 1165, 19 I.T.R.D. (BNA) 2441, 1997 Ct. Intl. Trade LEXIS 152, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shree-rama-enterprises-v-united-states-cit-1997.