Wednesday, December 16, 2009

The Graceful Injunction

Agro Dutch Industries is technically a dumping case, but it deals with the issue of the impact of liquidation by Customs and Border Protection, so I will deal with it here.

This case involves the review of the dumping order covering preserved mushrooms from India. Commerce issued its determination and Agro sought to challenge it. To preserve its rights, Agro moved for an injunction with the consent of the United States. The injunction was necessary to prevent Customs from liquidating the entries. The general rule is that once liquidation happens, there is no relief available and the case is moot. So, the injunction was important and both sides knew it. In the background is the fact that Agro waited beyond the allowed 30 days to seek the injunction, but that provides context more than anything else.

At the request of the government, the injunction included a five day grace period before it became effective. The grace period was intended to prevent Customs people from accidentally violating the order and ending up in contempt of court.

Guess what happened: Customs liquidated most of the entries during the five day period.

Agro went back into Court asking that the injunction be retroactively amended to cover the entries of for some other relief to fix the situation. The Court of International Trade granted the relief and ordered that the entries be treated as unliquidated. The government appealed.

This is one of those interesting cases where the law, at least in general terms, seems to produce a bad result. Following a number of Federal Circuit decisions, it would seem clear that the liquidations mooted out the case. But, the facts matter and often the decision lies in the details.

In this case, the fact that the United States agreed to the injunction and requested the five day gap only to protect Customs from possibly erroneously violating an injunction indicated that both sides understood that there should be no intentional liquidations during that period. Consequently, the intent of both parties and the Court of International Trade was that the entries would remain unliquidated and available for judicial relief. Given those unique facts, the Court invoked its powers in equity to affirm the Court of International Trade's order modifying the injunction and preserving the entries for review and relief.

It's a surprising result, which only makes sense when you look at the details. The lawyers who worked on it for Agro must have done a good job. Unfortunately, Agro appears to have been represented by the Unknown Lawyer of Anonymous, Secret & Nameless. Otherwise, the CAFC would have named them.

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