                                   Slip Op. 05 - 113

               UNITED STATES COURT OF INTERNATIONAL TRADE

- - - - - - - - - - - - - - - - - - - x
UGINE & ALZ BELGIUM, N.V.; ARCELOR
STAINLESS USA, LLC; and ARCELOR TRAD- :
ING USA, LLC,
                                      :
                          Plaintiffs,
                                      :
                  v.                                Court No. 05-00444
                                      :
UNITED STATES,
                                      :
                          Defendant.
- - - - - - - - - - - - - - - - - - - x

                                   Memorandum & Order


[Plaintiffs' renewed motion to enjoin
 Department of Commerce liquidation in-
 structions to Bureau of Customs denied.]


                                                    Dated:   August 29, 2005

     Shearman & Sterling LLP (Robert S. LaRussa, Stephen J. Marzen
and Ryan A.T. Trapani) for the plaintiffs.

     Peter D. Keisler, Assistant Attorney General; David M. Cohen,
Director, and Patricia M. McCarthy, Assistant Director, Commercial
Litigation Branch, Civil Division, U.S. Department of Justice
(Michael D. Panzera); and Office of Chief Counsel for Import Ad-
ministration, U.S. Department of Commerce (Ada Loo and Arthur
Sidney) and Bureau of Customs and Border Protection, U.S. Depart-
ment of Homeland Security (Christopher Chen), of counsel, for the
defendant.

              AQUILINO, Senior Judge:         The court was constrained to

conclude in slip opinion 05-97, 29 CIT              ,    F.Supp.2d         (Aug.

17, 2005), familiarity with which is presumed, that it could not

grant plaintiffs' application for a preliminary injunction in this

action, enjoining certain liquidation instructions that have been

issued   to    the   Bureau   of    Customs   and   Border   Protection,   U.S.

Department of Homeland Security by the International Trade Admin-
Court No. 05-00444                                            Page 2

istration, U.S. Department of Commerce1 in conjunction with its

Notice of Amended Final Determinations: Stainless Steel Plate in

Coils from Belgium and South Africa; and Notice of Countervailing

Duty Orders: Stainless Steel Plate in Coils from Belgium, Italy and

South Africa, 64 Fed.Reg. 25,288 (May 11, 1999), and its Antidump-

ing Duty Orders; Certain Stainless Steel Plate in Coils From

Belgium, Canada, Italy, the Republic of Korea, South Africa, and

Taiwan, 64 Fed.Reg. 27,756 (May 21, 1999). That slip opinion, page

19, afforded the plaintiffs an opportunity before entry of an order

denying that injunctive relief to "inform the court and opposing

counsel . . . as to how they propose to proceed from now on in this

matter" and continued in effect the temporary restraining order

entered on July 27, 2005 until the close of business on August 24,

2005.

                                  I

            The plaintiffs have responded by filing the following

papers: Motion for Clarification and Reconsideration; Memorandum in

Support of Plaintiffs' Motion for Clarification and Reconsideration

or, in the Alternative, for an Injunction Pending Appeal2; Order of
Reconsideration3; and Renewed Temporary Restraining Order4.   Obvi-

   1
       Referred to hereinafter as "ITA".
   2
       Referred to hereinafter as "Plaintiffs' Memorandum".
   3
     As submitted, this proposed form of order would vacate slip
opinion 05-97.
   4
     The plaintiffs have also filed an Additional Statement of
Defendant Consenting to Extension of the Temporary Restraining

                                               (footnote continued)
Court No. 05-00444                                          Page 3


ously, these amount to a plea for a return to the beginning --

rather than any procedure for expedited joinder of issue and trial

of this action for equitable relief on the merits.


                                A

          The gravamen of that relief for which the plaintiffs

pray, whether preliminary or permanent, is essentially the same.

Compare Plaintiffs' Complaint, para. 29(a) with Plaintiffs' [Pro-

posed] Preliminary Injunction, 2nd decretal para. (filed July 22,

2005). But a preliminary injunction is extraordinary relief, while


Order and Injunction Pending Appeal wherein they represent that
counsel for the defendant responded by e-mail to these filings,
giving the consent indicated, albeit conditioned upon the report-
ed caveat that

     the Government strongly agrees with the Court's denial of
     plaintiffs' request for a preliminary injunction, and
     urges plaintiffs to withdraw their meritless complaint[.]

Subsequent to this filing, the court received defendant's Partial
Consent Motion for Extension of Time, which affirmed plaintiffs'
foregoing representations as well as their consent to that motion
of the defendant,

     conditioned upon the temporary restraining order re-
     maining in place for the duration of the Court's consid-
     eration and disposition of the motion for reconsider-
     ation.

     The plaintiffs further represent that counsel for the in-
tervenor-defendants did not have any position on the requested
extension of the temporary restraining order. See Plaintiffs'
Memorandum, p. 5 n. 1.

     "However salutary the concerns for orderly proceeding (and
even accommodation) are" [Slip Op. 05-97, p. 12], the effect of
that restraining order is the same as that of the requested pre-
liminary injunction, which, as discussed in slip opinion 05-97 and
again hereinabove, cannot be granted. Hence, that order of July
27, 2005, must be, and it hereby is, vacated (as of the close of
business on August 24, 2005).
Court No. 05-00444                                            Page 4


a permanent injunction is not -- because, by the moment of the

latter's entry, a full and complete record of all the underlying

facts and circumstances has been developed and adjudicated.    Ergo,

the standards the courts have set for grant of the former (in the

absence of such a record) are strict -- and have not been satisfied

by the plaintiffs herein.    There is no evidence yet on the record

to explain, for example, how the first-named, Belgian plaintiff

herein could have for years (1) processed (or had processed)

["pickled and annealed"5] the subject merchandise in Belgium;(2)

packaged and shipped that product from that land to this country;

(3) certified those goods upon entry via its affiliated corporate

U.S. agents, the Arcelor plaintiffs, as products of Belgium subject

to the above-cited ITA countervailing- and antidumping-duty orders;

(4) advanced without protest all of the duties contemplated by

those orders covering Belgium; (5) not challenged Belgium as the

country of origin during successive ITA administrative (or possible

court) reviews of those entries; and (6) still now plead after

myriad such entries that those deeds were all the result of

"mistake"6, one counsel now contend is actionable as a matter of
U.S. law because the merchandise is not really from or of Belgium.

            There is no evidence yet on the record to determine

whether or not the entries allegedly encompassed by this action

are, as the intervenor-defendants posit, deemed liquidated as a


   5
       Plaintiffs' Complaint, paras. 1-3.
   6
       See id., paras. 10, 14, 15.
Court No. 05-00444                                           Page 5

matter of law -- and therefore now beyond the reach of any belated

claim for equitable relief.     See Slip Op. 05-97, p. 11, quoting

from Intervenor-Defendants' Response to Plaintiffs' Motion for

Preliminary Injunction, pp. 1-2.       Indeed, this stance of the

petitioners-cum-intervenor-defendants had been taken first before

the ITA7, citing for support the recent decision in Int'l Trading

Co. v. United States, 412 F.3d 1303 (Fed.Cir. 2005), to the effect

that any entry that is not liquidated within six months after

notice of removal of the suspension of liquidation is deemed

liquidated by operation of law at the rate the product was entered.

The plaintiffs have yet to offer any response with regard to this

potentially-dispositive issue, not on the facts, not on the law,

not in their instant motion for reconsideration.


            Their motion does seek clarification of the court's

jurisdiction.    It states that, if this court


       determines that it has jurisdiction over the subject
       matter of this action and can therefore reach the merits
       of Arcelor's preliminary injunction motion, then Arcelor
       respectfully moves the Court to reconsider whether [it]
       has established a substantial likelihood of success on
       the merits.8

But it is not imperative that this court conclusively determine

   7
     See Memorandum in Support of Plaintiffs' Motion for Tem-
porary Restraining Order and Preliminary Injunction, Exhibit 9,
pp. 6-7.
   8
     Plaintiffs' Memorandum, p. 3. They also express the view
that, whether or not they would suffer irreparable harm from
denial of the preliminary injunction determines if the court
must dismiss this action for lack of subject-matter jurisdic-
tion or may reach the merits of their application for that in-
junction. See id. at 2-3.
Court No. 05-00444                                                               Page 6


jurisdiction over an action as a predicate to ruling on the merits

of such threshold equitable relief.                In U.S. Ass'n of Importers of

Textiles & Apparel v. United States, 413 F.3d 1344, 1348 (Fed.Cir.

2005),          reversing   a    Court    of   International    Trade    grant    of   a

preliminary injunction, for example, the court of appeals neverthe-

less found "no abuse of discretion in the trial court's decision to

delay consideration of the government's motion to dismiss [for lack

of subject-matter jurisdiction] until briefing was completed."                         On

the other hand, the Federal Circuit

          disagree[d] . . . that the jurisdictional arguments could
          be [completely] ignored in ruling on the Association's
          preliminary injunction motion. The question of jurisdic-
          tion closely affects the Association's likelihood of
          success on its motion for a preliminary injunction.
          Failing to consider it was legal error.


Suffice it simply to repeat now that this court has indeed con-

sidered plaintiffs' claim of jurisdiction, including its reliance

on Zenith Radio Corp. v. United States, 710 F.2d 806 (Fed.Cir.

1983)9, but that it does not enhance their application for a

preliminary injunction.

                                               B

                  Plaintiffs' instant motion for reconsideration is stated

as       made    pursuant   to    USCIT    Rules   59   (New   Trials;   Rehearings;

Amendment of Judgments) and 62(c)(Injunction Pending Appeal). With

regard to the first rule, this court recently pointed out, yet


     9
     Compare Memorandum in Support of Plaintiffs' Motion for
Temporary Restraining Order and Preliminary Injunction, p. 5
with Slip Op. 05-97, p. 8. Cf. Plaintiffs' Memorandum, p. 5.
Court No. 05-00444                                                  Page 7


again, [Agro Dutch Industries Ltd. v. United States, 29 CIT               ,

Slip Op. 05-28, pp. 5-6 (Feb. 28, 2005), appeal docketed, No. 05-

1288 (Fed.Cir. March 22, 2005)] that it considers a motion for

reconsideration   to   be   "a   means   to   correct   a   miscarriage   of

justice". Starkey Laboratories, Inc. v. United States, 24 CIT 504,

510, 110 F.Supp.2d 945, 950 (2000), quoting Nat'l Corn Growers

Ass'n v. Baker, 9 CIT 571, 585, 623 F.Supp. 1262, 1274 (1985).

Compare Bomont Industries v. United States, 13 CIT 708, 711, 720

F.Supp. 186, 188 (1989) ("a rehearing is a 'method of rectifying a

significant flaw in the conduct o[f] the original proceeding'"),

quoting RSI (India) Pvt., Ltd. v. United States, 12 CIT 594, 595,

688 F.Supp. 646, 647 (1988), quoting the "exceptional circumstances

for granting a motion for rehearing" set forth in North American

Foreign Trading Corp. v. United States, 9 CIT 80, 607 F.Supp. 1471

(1985), aff'd, 783 F.2d 1031 (Fed.Cir. 1986), and in W.J. Byrnes &

Co. v. United States, 68 Cust.Ct. 358, C.R.D. 72-5 (1972).                Cf.

USCIT Rule 61:

          No error . . . or defect in any ruling or order or
     in anything done or omitted by the court or by any of the
     parties is ground for granting a new trial or for setting
     aside a verdict or for vacating, modifying, or otherwise
     disturbing a judgment or order, unless refusal to take
     such action appears to the court inconsistent with
     substantial justice. The court at every stage of the
     proceeding must disregard any error or defect in the
     proceeding which does not affect the substantial rights
     of the parties.


Or, stated another way, the

     purpose of a petition for rehearing [] under the Rules
     . . . is to direct the Court's attention to some material
     matter of law or fact which it has overlooked in deciding
Court No. 05-00444                                            Page 8


     a case, and which, had it been given consideration, would
     probably have brought about a different result.


NLRB v. Brown & Root, Inc., 206 F.2d 73, 74 (8th Cir. 1953).     See

also Exxon Chemical Patents, Inc. v. Lubrizol Corp., 137 F.3d 1475,

1479 (Fed.Cir.), cert. denied, 525 U.S. 877 (1998); New York v.

Sokol, No. 94 Civ. 7392 (HB), 1996 WL 428381, at *4 (S.D.N.Y. July

31, 1996), aff’d sub nom. In re Sokol, 108 F.3d 1370 (2d Cir.

1997); In re Anderson, 308 B.R. 25, 27 (8th Cir. BAP 2004).


          Plaintiffs' motion at bar fails to show any miscarriage

of justice.   It does correctly state, on the other hand, that "the

standard for granting a preliminary injunction is the same as the

standard for granting an injunction pending appeal".   Plaintiffs'

Memorandum, p. 5.    But this, of course, means that, since the

plaintiffs have failed to carry their burden of persuasion for

grant of a preliminary injunction in this action in the Court of

International Trade, they also are not entitled to that kind of

extraordinary relief pending appeal to another court on the very

same grounds.

                                 II

          The plaintiffs make clear their intent to attempt to

proceed in the absence of expedited joinder of issue and trial of

this action on the merits.   And since this court is unable to con-

tinue in effect the extraordinary relief that was the temporary

restraining order or to grant a preliminary injunction either

herein or pending appeal, this memorandum, which incorporates by
Court No. 05-00444                                         Page 9


reference the court's slip opinion 05-97, shall serve as the order

denying that relief, as prayed for initially, and via plaintiffs'

instant motion for clarification and reconsideration or, in the

alternative, for an injunction pending appeal.

           So ordered.

Dated:   New York, New York
         August 29, 2005


                                     Thomas J. Aquilino, Jr.
                                            Senior Judge
