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.

Comments

Post a Comment

Popular posts from this blog

CAFC Decision in Double Invoicing Case

The Federal Circuit has issued a decision on the merits in United States v. Inn Foods, Inc.  There had been a previous decision on jurisdiction, which was followed by a trial at the Court of International Trade and then this appeal on the substance. The initial issue is whether Inn Foods' invoicing practice amounts to fraud.  Inn Foods had been receiving an invoice from growers in Mexico that had a relatively low sales prices on it.  Subsequent to entry, Inn Foods created a second invoice at something more similar to market value, retaining the original invoice number, and paid at that higher amount.   Superficially, this looks like a standard-issue double-invoicing scheme.  But, in the age of reconciliation, is it really more like a provisional pricing mechanism?  It might have been possible to make that argument had Inn Foods adjusted its entries accordingly.  It didn't and the loss of revenue was approximately $624,000.  Based on testimony and evidence indicating both knowl
Read more

Ninestar and UFLPA Exhaustion

Image
Exhaustion is a key doctrine in administrative law. When applicable, it requires that a party unhappy with an agency’s determination complete the administrative appeal process before turning to the courts for judicial review. Requiring exhaustion typically promotes judicial efficiency by ensuring that disputes are resolved at the agency and, if they are not, that there is a complete record of the agency process. Exhaustion also ensures that the judiciary respects the executive agencies and their expertise.  There are, on the other hand, times when the courts will find that exhaustion is not necessary or appropriate. Such is the case in  Ninestar Corporation et al. v. United States  et al., a decision of the U.S. Court of International Trade.  Ninestar is also interesting because it is one of the first cases in the CIT involving the Uyghur Forced Labor Prevention Act, known as UFLPA. In my hiatus from active blogging, I missed the rise of UFLPA as a major compliance topic. So, let's
Read more

Ruling of the Week 2015.8: Old Jersey and Pitcairn Island

Image
For today's ROTW, I set out looking for a ruling dealing with some far off and preferably warm location. Turns out that, with the exception of coastwise transit issues, there are no Customs and Border Protection rulings involving Pitcairn Island or any of several Pacific Ocean microstates including Tuvalu , Niue , and Kiribati . Pitcairn Island What I did find is an interesting question about the country of origin marking for products of the Bailiwick of Jersey Island, Channel Islands. The ruling is HQ 561938 (Mar. 18, 2002). For those of you who may not know, Jersey is an island off the coast of Normandy, France. It is an independent international actor and not part of the U.K. although the U.K. is responsible for its defense and external relations. Also, the Queen is the Head of State in her capacity as "the Crown in Right of Jersey." It is, according to the U.S. Department of State, a " Crown Dependency " along with the Isle of Man and the Bailiwick o
Read more