                                         Slip. Op. 10-142

                UNITED STATES COURT OF INTERNATIONAL TRADE


                                          :
WALGREEN CO.,                             :
                                          :
                  Plaintiff,              :
            v.                            :                   Before: Jane A. Restani, Judge
                                          :
UNITED STATES,                            :                   Court No. 10-00373
                                          :
                  Defendant.              :
_________________________________________ :


                                            OPINION

[Plaintiff’s motion for preliminary injunction is granted.]

                                                                        Dated: December 23, 2010

             Katten Muchin Rosenman, LLP (Mark S. Zolno, Eric R. Rock, and Benjamin H.
Shanbaum) for the plaintiffs.

                Tony West, Assistant Attorney General; Jeanne E. Davidson, Director, Patricia M
McCarthy, Assistant Director, Commercial Litigation Branch, Civil Division, U.S. Department
of Justice (Stephen C. Tosini); Office of the Chief Counsel for Import Administration, U.S.
Department of Commerce (Thomas M. Beline), of counsel; Office of the Assistant Chief Counsel
International Trade Litigation, U.S. Customs and Border Protection (Paula S. Smith), of counsel,
for the defendant.

               The matter is before the court on plaintiff’s motion for a preliminary injunction of

liquidation of entries imported by plaintiff into the United States. That injunction has been

granted.1

                                         BACKGROUND

               Walgreen Co. (“Walgreen”) is an importer of cased pencils from the People’s


       1
       A temporary restraining order with respect to entries made through the Port of
Savannah, Georgia was issued on December 16, 2010. Order (Dec. 16, 2010) (Docket No. 13).
Court No. 10-00373                                                                           Page 2


Republic of China (“PRC”). See Complaint ¶ 4 (Docket No. 2). Such merchandise is covered by

an antidumping duty order. See Antidumping Duty Order: Certain Cased Pencils from the

People’s Republic of China, 59 Fed. Reg. 66,909, 66,909 (Dep’t Commerce Dec. 28, 1994). At

issue here are liquidation instructions relating to an administrative review of that order. See

Certain Cased Pencils from the People’s Republic of China, 75 Fed. Reg. 38,980, 38,980 (Dep’t

Commerce July 7, 2010) (“Final Results”). The review covered entries into the United States

made during the period December 1, 2007, through November 30, 2008. Id. at 38,981. Although

there is a China-wide entity rate of in excess of 100%, one company which produced the cased

pencils imported by Walgreen, Shanghai Three Star Stationery Co., Ltd. (“Three Star”), was a

mandatory respondent in the review and demonstrated that it was separate from the China-wide

entity. See id. The Final Results established “a per-unit assessment rate for each importer (or

customer)” of this producer. Id. at 38,982.

               Plaintiff asserts that the Liquidation Instructions issued by the Department of

Commerce (“Commerce”) to the Bureau of Customs and Border Protection (“Customs”) are

inconsistent with the Final Results. Supplemental Mem. of P&A in Supp. of Pl.’s Mot. for a

Prelim. Inj. Against Liquidation of Certain Entries 19 22.

               The key paragraph of the Liquidation Instructions is as follows:

       1. FOR ALL SHIPMENTS OF CERTAIN CASED PENCILS FROM THE
       PEOPLE”S REPUBLIC OF CHINA EXPORTED BY THREE STAR
       STATIONARY INDUSTRY CO., LTD. (A-570-827-005), IMPORTED BY, OR
       SOLD TO, THE IMPORTER OR CUSTOMER (AS INDICATED ON THE
       COMMERCIAL INVOICE OR CUSTOMS DOCUMENTATION) LISTED
       BELOW AND ENTERED, OR WITHDRAWN FROM WAREHOUSE, FOR
       CONSUMPTION DURING THE PERIOD 12/01/2007 THROUGH 11/30/2008.
       ASSESS AN ANTIDUMPING LIABILITY EQUAL TO THE PER-UNIT
Court No. 10-00373                                                                          Page 3


       DOLLAR AMOUNT FOR EACH UNIT OF SUBJECT MERCHANDISE
       LISTED BELOW.

Confidential Administrative R. (“Admin. R.”) 1102. The list referred to contains the names of

“importer(s) or customer(s)” of the Chinese manufacturer. Among the “customers” are certain

entities which were involved in the Walgreen entries at issue. In some cases they may be

affiliated with purchasing agents in the United States, which placed orders for Walgreen, the

importer of record.

               The problem arose here because Three Star is not listed as an “exporter” in the

documents presented to Customs, but rather as a“manufacturer” and the “exporters” seem in

most cases to be the “customers.” Customs decided either on its own or under advice from

Commerce to begin to liquidate these entries under this paragraph of the Liquidation Instructions:

       1. FOR ALL SHIPMENTS OF CERTAIN CASED PENCILS FROM THE
       PEOPLE’S REPUBLIC OF CHINA (PRC) EXPORTED BY THE PRC-WIDE
       ENTITY (A-570-827-000) ENTERED, OR WITHDRAWN FROM
       WAREHOUSE, FOR CONSUMPTION DURING THE PERIOD 12/01/2007
       THROUGH 11/30/2008, ASSESS AN ANTIDUMPING LIABILITY EQUAL TO
       114.90 PERCENT OF THE ENTERED VALUE. ENTRIES MAY HAVE ALSO
       ENTERED UNDER CASE NUMBERS A-570-827-001, A-570-827-007, AND
       A-570-827-011.

Admin. R. 1092.

               Documentation presented to the court and examined by the Government indicate

that the sales at issue are for the most part the very sales of Three Star that Commerce analyzed

in arriving at the very low or de minimis customer specific assessment rates Walgreen seeks to

have applied to its entries, as opposed to the China-wide entity rate of 114.90 percent.
Court No. 10-00373                                                                             Page 4


                                         JURISDICTION

               If the Liquidation Instructions described above varied from the Final Results or

reflected some decision made by Commerce after the Final Results, jurisdiction would lie under

28 U.S.C. § 1581(i)2 to correct any error. If an error occurred in the Final Results for any reason,

including failure of Walgreen’s manufacturer to present some information to Commerce,

jurisdiction would lie only under 28 U.S.C. § 1581(c).3 The United States alleges that is the case.

The statute of limitation has expired for an action under § 1581(c) and, in any case, plaintiff was

not a participant in the underlying proceeding so it lacks standing to proceed under that section.

See 28 U.S.C. § 2631(c). As an interested party, the importer, plaintiff could have participated.

Id. If plaintiff had an adequate remedy under 28 U.S.C. § 1581(c), it may not bring an action

under 28 U.S.C. § 1581(i). Miller & Co. v. United States, 824 F.2d 961, 963 (Fed. Cir. 1987). If

instead the error is in the Liquidation Instructions, as indicated jurisdiction will lie under 28

U.S.C. § 1581(i), and this action would be timely, as liquidation is just now commencing. See

Consol. Bearings Co. v. United States, 348 F.3d 997, 1002 03 (Fed. Cir. 2003); Shinyei, 355



       2
            “[T]he Court of International Trade shall have exclusive jurisdiction of any civil action
commenced against the United States . . . that arises out of any law of the United States providing
for . . . tariffs, duties, fees, or other taxes on the importation of merchandise” or the
“administration and enforcement” thereof. 28 U.S.C. § 1581(i)(2), (4). Nevertheless, “[t]his
subsection shall not confer jurisdiction over an antidumping or countervailing duty determination
which is reviewable . . . by the Court of International Trade Under section 516A(a) of the Tariff
Act of 1930.” Id. at § 1581(i); see also Shinyei Corp. of Am. v. United States, 355 F.3d 1297
(Fed. Cir. 2004).
       3
         “The Court of International Trade shall have exclusive jurisdiction of any civil action
commenced under section 516A of the Tariff Act of 1930.” 28 U.S.C. § 1581(c) (relating to
reviews of certain determinations by Commerce, including administrative reviews of
antidumping duty orders).
Court No. 10-00373                                                                                Page 5


F.3d at 1312. There is also a possibility that Customs made a decision which is incorrect under

the Liquidation Instructions, in which case jurisdiction may eventually lie under 28 U.S.C.

§ 1581(a) (protest denial jurisdiction). Jurisdictional facts are unclear, but it appears 28 U.S.C.

§ 1581(i) jurisdiction is likely, as the Final Results do not seem to lead to the assessment rate

proposed by the United States for the entities at issue.

                                          DISCUSSION

               First, there is a strong possibility that liquidation will foreclose plaintiff’s

remedies. If the error would have been correctable under 28 U.S.C. § 1581(i) but liquidation is

not enjoined, it is not clear that under these facts that the liquidation may be overturned. See

Am. Signature, Inc. v. United States, 598 F.3d 816, 829 (Fed. Cir. 2010) (“ASI”) (citing Ugine &

Alz Belgium v. United States, 452 F.3d 1289, 1297 (Fed. Cir. 2006)). Further, the jurisdictional

facts which might establish 28 U.S.C. § 1581(a) jurisdiction, under which reliquidation may be

ordered, have not been established. In such an uncertain situation, preservation of remedies is to

be favored. See ASI, 598 F.3d at 828 30. Thus, plaintiff has satisfied the requirement to show

irreparable harm.

               Second, there is a likelihood of success on the merits or, at least, a very substantial

question. As conceded by the Government counsel, most if not all of the entries at issue

involved sales which formed the bases for Commerce’s customer specific rates for the involved

manufacturer. The Final Results refer to the manufacturers under a listing for

“manufacturers/exporters,” Final Results, 75 Fed. Reg. at 38,981, not just to “exporters,” as do

the Liquidation Instructions, Admin. R. 1096, 1102. While the “customers” information seems
Court No. 10-00373                                                                              Page 6


to match, the Liquidation Instructions do not appear to fully reflect the Final Results. Compare

Final Results, 75 Fed. Reg. at 38,981, with Admin. R. 1102. At the very least there is ambiguity

as to what “customer” is supposed to designate. This situation requires a halt to liquidation to

resolve the pending issues of law and fact.

               Third, the balance of hardships favor Walgreen. There seem to be no reason to

believe that the United States will be deprived of anything if liquidation is enjoined, while

Walgreen may be in an irremediable situation without preliminary relief. See ASI, 598 F.3d at

829.

               Finally, the public interest is served by permitting a full examination of the facts

and law. See ASI, 598 F.3d at 830.

                                         CONCLUSION

               The motion for preliminary injunction is granted and the parties shall submit a

scheduling order by December 30, 2010.




                                                         /s/ Jane A. Restani
                                                             Jane A. Restani
                                                                 Judge
Dated: This 23rd day of December, 2010.
       New York, New York.
