                           Slip Op. 04-101

             UNITED STATES COURT OF INTERNATIONAL TRADE

         BEFORE: HON. RICHARD W. GOLDBERG, SENIOR JUDGE


CONSOLIDATED TEXTILES, INC.,

                  Plaintiff,
                                     Court No. 03-00872
             v.

UNITED STATES,

                  Defendant.


[Defendant’s motion to dismiss granted.]

                                              Date: August 11, 2004

Gregory S. Menegaz (Sonnenschein Nath & Rosenthal LLP) for
plaintiff Consolidated Textiles, Inc.

Peter D. Keisler, Assistant Attorney General, David M. Cohen,
Director, Jeanne E. Davidson, Deputy Director, Commercial
Litigation Branch, Civil Division, United States Department of
Justice (Stephen C. Tosini) for defendant United States.

                               OPINION

GOLDBERG, Senior Judge: In this action, plaintiff Consolidated

Textiles, Inc. (“Consolidated Textiles”) seeks an order requiring

defendant United States (“the Government”) to liquidate and

reliquidate certain entries of polyester staple fiber from the

Republic of Korea imported by Consolidated Textiles (“the subject

entries”).    Pursuant to liquidation instructions issued by the

U.S. Department of Commerce (“Commerce”), the subject entries are

subject to antidumping duties at the initial “all other”

exporters and producers rate of 11.35 percent ad valorem.
Court No. 03-00872                                          Page 2

Consolidated Textiles, which did not challenge the initial “all

others” rate established in the antidumping duty determination,

argues that it is entitled to the lowered “all others” rate of

7.91 percent ad valorem determined by Commerce on remand.    The

Government moves to dismiss pursuant to USCIT R. 12(b)(1) and

12(b)(5).

     For the reasons that follow, the Court grants the

Government’s motion to dismiss.

                           I.   BACKGROUND

     On April 29, 1999, Commerce initiated an investigation into

an antidumping petition filed with Commerce regarding certain

polyester staple fiber from Korea and Taiwan.    See Initiation of

Antidumping Duty Investigations: Certain Polyester Staple Fiber

From The Republic Of Korea And Taiwan, 64 Fed. Reg. 23053 (Apr.

29, 1999).    As an importer of the subject merchandise,

Consolidated Textiles participated in this investigation.    On May

25, 2000, Commerce issued its Notice of Amended Final

Determination Of Sales At Less Than Fair Value: Certain Polyester

Staple Fiber From The Republic Of Korea (“Amended Final

Determination”), 65 Fed. Reg. 33807 (May 25, 2000), in which

Commerce determined rates for two of the investigated producers

as well as an “all others” rate of 11.35 percent applicable to

all other importers in the investigation, including Consolidated

Textiles.    Id.
Court No. 03-00872                                          Page 3

     On June 22, 2000, timely complaints were filed with the

Court of International Trade by domestic petitioner E.I. DuPont

de Nemours, Inc., and by Geum Poong Corp. and Sam Young

Synthetics, two investigated producers of the subject

merchandise, contesting the manner in which Commerce determined

their dumping margins in the Amended Final Determination.

Consolidated Textiles did not challenge Commerce’s determination

at this time.   In that action, the Court remanded Commerce’s

determination for proper calculation of Geum Poong’s constructed

value rate on two occasions.     See Geum Poong Corp. v. United

States, 25 CIT 1089, 163 F. Supp. 2d 669 (2001).    In its second

redetermination, Commerce determined Geum Poong’s antidumping

margin to be de minimis, and although the “all others” cash

deposit rate was not at issue in that case, it was recalculated

and lowered from 11.35 percent to 7.91 percent.     Redetermination

Pursuant to Court Remand Order in Geum Poong Corp. v. United

States, Court. No. 00-06-00298 (Apr. 30, 2002) at 1, aff’d, No.

03-1056, 1057 (Fed. Cir., Oct. 9, 2003).

     Consolidated Textiles attempted to intervene in the Geum

Poong litigation in July 2002.    On July 26, 2002, the Court

granted Consolidated Textiles status as a plaintiff-intervenor,

and issued a temporary restraining order preventing Commerce from

liquidating Consolidated Textiles’s entries.    Geum Poong and Sam

Young Synthetics filed timely objections under USCIT R. 24, which
Court No. 03-00872                                          Page 4

requires that interested parties may only intervene after 30 days

of the filing of the complaint upon a showing of “good cause.”

Based on USCIT R. 24, the Court vacated its order granting

Consolidated Textiles intervenor status and dissolved the

temporary restraining order.    Geum Poong v. United States, 26 CIT

__, Slip Op. 02-84 (Aug. 6, 2002), aff’d, No. 02-1573, 1578 (Fed.

Cir., Oct. 2, 2002).

     On July 17, 2002, Commerce issued liquidation instructions

to the United States Bureau of Customs and Border Protection

(“Customs”) ordering the liquidation of certain entries imported

by Consolidated Textiles at the 11.35 percent cash deposit rate

established in the Amended Final Determination.    Customs began

liquidating entries made in the third period of review – May 1,

2002 through April 30, 2003.   On July 1, 2003, Commerce initiated

an administrative review of the subject merchandise for the third

period of review.    See Initiation of Antidumping and

Countervailing Duty Administrative Reviews and Request for

Revocation in Part, 68 Fed. Reg. 39055 (July 1, 2003).     On

December 10, 2003, Consolidated Textiles filed a complaint and a

motion for a preliminary injunction.   In its complaint,

Consolidated Textiles requested that the Court “enjoin any

further liquidation of Plaintiff’s third review entries of

subject [polyester staple fiber] from Korea until the litigation

affecting the legality of the ‘all others’ rate is final[,]” and
Court No. 03-00872                                          Page 5

“require the Commerce Department to instruct Customs to re-

liquidate all liquidated entries made during the period May 1,

2002 through April 30, 2003 . . . by Plaintiff of the subject

merchandise that were liquidated at 11.35 percent if the final

rate is 7.91 percent[.]”    Compl. at 6.   Sitting in motion part,

the Court granted Consolidated Textiles’s motion for preliminary

injunctive relief by Memorandum Opinion and Order dated December

19, 2003.   Per the Court’s order, Customs remains enjoined from

further liquidating any entries of polyester staple fiber from

the Republic of Korea that were imported by Consolidated Textiles

on or after May 1, 2002.

                           II.    DISCUSSION

A.   The Court Has Subject Matter Jurisdiction Pursuant to 28
     U.S.C. § 1581(i).

     The Government contends that the Court lacks subject matter

jurisdiction over Consolidated Textiles’s claim pursuant to 28

U.S.C. § 1581(i).    Defendant’s Memorandum Of Law In Support Of

Its Motion To Dismiss (“Def.’s Br.”) at 14.    The Government

argues that § 1581(i) jurisdiction cannot be invoked because

Consolidated Textiles could have brought an action under 28

U.S.C. § 1581(c).    Id. at 16.   However, like the importer in

Consolidated Bearings v. United States, Consolidated Textiles is

not challenging the final results of an administrative review,

but rather the liquidation instructions Commerce issued to

Customs, an action which could not have been brought under 28
Court No. 03-00872                                            Page 6

U.S.C. § 1581(c).      348 F.3d 997, 1002 (Fed. Cir. 2003); see also

Shinyei Corp. of America v. United States, 355 F.2d 1297, 1305

(Fed. Cir. 2004) (quoting Consolidated Bearings, 348 F.3d at

1002).      Thus, in accordance with the Court’s finding in its

Memorandum Opinion and Order granting Consolidated Textiles’s

motion for a preliminary injunction, the Court finds that 28

U.S.C. § 1581(i) provides jurisdiction over the instant matter.

B.    Consolidated Textiles’s Claim Is Not Barred by the Doctrine
      of Collateral Estoppel.

      The Government contends that Consolidated Textiles’s claim

is barred by the doctrine of collateral estoppel because

Consolidated Textiles is seeking a remedy it could have sought,

and previously attempted to seek, from the Court.      Def.’s Br. at

19.   The Government maintains that Consolidated Textiles is

merely realleging a claim already made in challenging Commerce’s

application of the initial “all others” rate to entries of

merchandise entered during the first, second, and third

administrative periods of review.      Id. at 21.   However, upon

consideration of the four-prong test set forth in Thomas v.

General Services Administration, the Court finds that

Consolidated Textiles’s claim is not precluded.      794 F.2d 661,

664 (Fed. Cir. 1986).      Thomas requires that the following four

conditions be met in order to apply collateral estoppel:

      (1)     the issue previously adjudicated is identical with
              that now presented;
      (2)     that issue was actually litigated in the prior
Court No. 03-00872                                          Page 7

            case;
      (3)   the previous determination of that issue was
            necessary to the end-decision then made; and
      (4)   the party precluded was fully represented in the
            prior action.

Id.

      In addressing the first and second prongs of the Thomas

test, the Court finds that the legal issue presented here is not

identical to any issue that was actually litigated previously in

the Geum Poong litigation.    In this case, Consolidated Textiles

contests Commerce’s instructions to Customs ordering liquidation

of the subject entries at the “all others” rate of 11.35 percent.

In the Geum Poong litigation, the issue was whether Commerce had

properly determined the dumping margins of Geum Poong Corp. and

Sam Young Synthetics.    Whether Consolidated Textiles is entitled

to the lowered “all others” rate of 7.91 percent clearly is not

an issue that was previously adjudicated in the Geum Poong

litigation, thereby barring the application of collateral

estoppel.    In addition, the fourth prong of the Thomas test lends

further support to the Court’s finding that collateral estoppel

is not applicable because Consolidated Textiles was not even a

party to the prior action, much less a “fully represented” party.

      Moreover, the Court has been reluctant to apply collateral

estoppel in trade cases as a matter of policy:

      The burden on the party seeking issue preclusion is and
      should be exacting. This is especially so in trade
      cases . . . . Since the agencies involved perform the
      function of expert finders of fact concerning different
Court No. 03-00872                                         Page 8

     programs, different time frames, economic statistics
     and other factors . . ., principles of issue preclusion
     should be carefully applied. To hold otherwise would
     have a chilling effect upon the administrative
     processes envisioned by the Congress.

E.I. DuPont de Nemours & Co. v. United States, 23 CIT 343, 347

n.6 (1999) (citing PPG Indus., Inc. v. United States, 13 CIT 297,

302, 712 F. Supp. 195, 199 (1989)).

     Accordingly, the Court holds that Consolidated Textiles’s

claim is not barred by the doctrine of collateral estoppel.

C.   Consolidated Textiles Has Failed to State a Claim Upon Which
     Relief Can Be Granted.

     The Government argues that Consolidated Textiles has failed

to state a claim upon which relief can be granted.   According to

the Government, liquidation of the subject entries is in

accordance with 19 U.S.C. § 1516a(c)(1), which provides that:

     entries of merchandise of the character covered by a
     determination . . . shall be liquidated in accordance
     with the determination of the Secretary . . . if they
     are entered, or withdrawn from warehouse, for
     consumption on or before the date of publication in the
     Federal Register by the Secretary or the administering
     authority of a notice of a decision of the United
     States Court of International Trade, or of the United
     States Court of Appeals for the Federal Circuit, not in
     harmony with that determination.

19 U.S.C. § 1516a(c)(1).   Pursuant to this statutory authority,

Commerce ordered liquidation of the subject entries under 19

C.F.R. § 351.212(c), which provides for automatic assessment of

antidumping duties at the rate equal to cash deposit of estimated

antidumping duties required at the time of entry on merchandise
Court No. 03-00872                                            Page 9

not covered by a timely request for an administrative review.

See 19 C.F.R. § 351.212(c)(2).

     An importer should not benefit from a lower rate established

by a judicial or administrative decision if in fact the importer

did not participate in the underlying proceedings.       See J.S.

Stone, Inc. v. United States, 27 CIT __, __, 297 F. Supp. 2d

1333, 1343-45 (2003); see also United States v. ITT Indus., Inc.,

28 CIT __, __, Slip Op. 04-81, 30 (July 8, 2004) (citing

Consolidated Bearings, 348 F.3d at 1005-06).

     In J.S. Stone, the antidumping duty order at issue set the

estimated duty rate of J.S. Stone, an importer of the subject

merchandise, at 43.72 percent ad valorem.       Id. at __, 297 F.

Supp. 2d at 1336.       SICC, a producer from whom J.S. Stone imported

the subject merchandise, requested an administrative review.         Id.

J.S. Stone did not participate in the review, however.       Id. at

__, 297 F. Supp. 2d at 1337.      In its questionnaire responses,

SICC failed to report its sales of the subject merchandise to

J.S. Stone.     Id.   As a result, SICC’s sales to J.S. Stone were

not used by Commerce in computing the revised 0.11 percent

dumping rate for SICC, and Commerce ultimately instructed Customs

to liquidate J.S. Stone’s entries at the 43.72 percent cash

deposit rate.     Id.

     J.S. Stone filed suit in the CIT, seeking a refund on the

difference between the cash deposit rate it paid on antidumping
Court No. 03-00872                                          Page 10

duties and the rate determined for SICC.    Id. at __, 297 F. Supp.

2d at 1342.   In rejecting J.S. Stone’s claim, the Court held that

“[n]ormally, the only means an interested party has of ensuring

that it receives the actual antidumping duty rate is through

participation in the antidumping review. . . .    If an importer

decides not to participate in an administrative review, it bears

the risk that Commerce may err in calculating the dumping

margin.”   Id. at __, 297 F. Supp. 2d at 1344.   Thus, “if an

antidumping review is not requested, antidumping duties are

collected on the unspecified merchandise in the amount of the

cash deposit paid at the time of importation, which is published

as the ‘all others’ rate in the Federal Register.”

Id. (referring to 19 C.F.R. § 351.212 (1998)).

     Here, Consolidated Textiles did not timely intervene in the

Geum Poong litigation.   See Geum Poong v. United States, 26 CIT

__, Slip Op. 02-84 (Aug. 6, 2002), aff’d, No. 02-1573, 1578 (Fed.

Cir., Oct. 2, 2002).   Rather, as the Government correctly points

out, “the Geum Poong litigation concerned only the individual

rate assessed for Geum Poong Corp.”   Reply Memorandum in Support

of Defendant’s Motion to Dismiss at 11.    The “all others” rate

was lowered only incidentally, as a consequence of the reduction

in Geum Poong Corp.’s rate.   Thus, since Consolidated Textiles

did not participate in the Geum Poong litigation, Consolidated

Textiles is not legally entitled to the revised “all others” rate
Court No. 03-00872                                          Page 11

resulting from that litigation.    Consequently, Commerce may apply

19 C.F.R. § 351.212(c)(2) to order liquidation of the subject

entries now that the deadline for filing a writ of certiorari

with the U.S. Supreme Court has passed, thus rendering Geum

Poong a final decision.

     Accordingly, the Court holds that Consolidated Textiles has

failed to present a justiciable claim.

                          III.   CONCLUSION

     For the aforementioned reasons, the Court has subject matter

jurisdiction under 28 U.S.C. § 1581(i) and holds that the

doctrine of collateral estoppel does not apply to Consolidated

Textiles’s claim.    Because Consolidated Textiles has failed to

state a claim upon which judicial relief can be granted, this

action is dismissed and the preliminary injunction issued in this

matter on December 19, 2003 is dissolved.

     A separate judgment order will be issued accordingly.




                                 /s/ Richard W. Goldberg
                                 Richard W. Goldberg
                                 Senior Judge

Date:     August 11, 2004
          New York, New York
