Thai Pineapple Canning Industry Corp. v. United States ( 2000 )

Slip Op. 00-47
UNITED STATES COURT OF INTERNATIONAL TRADE
___________________________________
:
THAI PINEAPPLE CANNING INDUSTRY :
CORP., LTD., and MITSUBISHI :
INTERNATIONAL CORP., :
:
Plaintiffs, : Court No. 98-03-00487
:
v. :
:
THE UNITED STATES, :
:
Defendant, :
:
and :
:
MAUI PINEAPPLE CO., LTD., and :
INTERNATIONAL LONGSHOREMEN’S AND :
WAREHOUSEMEN’S UNION, :
:
Defendant-Intervenors. :
___________________________________:
[ITA remand results affirmed.]
Dated: April 27, 2000
Dickstein Shapiro Morin & Oshinsky LLP (Arthur J. Lafave
III, Douglas N. Jacobson and Patricia M. Steele) for plaintiffs.
David W. Ogden, Acting Assistant Attorney General, David M.
Cohen, Director, Commercial Litigation Branch, Civil Division,
United States Department of Justice (Lucius B. Lau), Christine E.
Savage, Office of the Chief Counsel for Import Administration,
United States Department of Commerce, of counsel, for defendant.
Collier, Shannon, Rill & Scott, PLLC (Paul C. Rosenthal and
David C. Smith, Jr.) for defendant-intervenors.
Court No. 98-03-00487 Page 2
OPINION
RESTANI, Judge: Before the court are Commerce’s final
results pursuant to a second court remand, dated March 10, 2000.
See Final Results of Redetermination Pursuant to Court Remand:
Thai Pineapple Canning Industry Corp., Ltd. v. United States,
Court No. 98-03-00487 [hereinafter “Remand Results”]. The court
issued its initial opinion in this case on May 5, 1999, remanding
the final results of the Department of Commerce, International
Trade Administration (“Commerce” or “the Department”) in Canned
Pineapple Fruit from Thailand, 63 Fed. Reg. 7,392 (Dep’t Commerce
1998) (final results of antidumping duty admin. rev.). See Thai
Pineapple Canning Indus. Corp. v. United States, No. 98-03-00487,
1999 WL 288772 (Ct. Int’l Trade May 5, 1999). The court affirmed
the first remand results in part, but reversed Commerce’s
decision to use contract date as the date of sale for third
country sales. The court directed Commerce to recalculate the
dumping margin using invoice date for date of sale purposes. See
Thai Pineapple Canning Indus. Corp. v. United States, No. 98-03-
00487, 2000 WL 174986 at * 2 (Ct. Int’l Trade Feb. 10, 2000).
Commerce has now recalculated the dumping margin in
accordance with this court’s instructions. Plaintiffs, Thai
Pineapple Canning Industry Corp., Ltd. and Mitsubishi
International Corp., do not contest the revised margin
Court No. 98-03-00487 Page 3
calculation of 14.17 percent. There are therefore no contested
issues regarding the margin calculation on remand.
Plaintiffs request that the court order Commerce to instruct
Customs to “(1) use the correct importer-specific assessment
rates to liquidate entries during the period January 11, 1995
through June 30, 1996; and (2) apply the recalculated weighted-
average rate of 14.17 percent to liquidate entries during the
period February 13, 1998 through June 30, 1998.” Pl.’s Comments
on Final Results of Redetermination Pursuant to Court Remand at
2-3. Commerce has already stated that it would “issue
appropriate instructions . . . upon the Court’s affirmance of
these results of redetermination and the lifting of the
injunction.” Remand Results at 2.
The court enjoined liquidation of the relevant entries
entered for consumption during the period January 11, 1995
through June 30, 1996, and the period February 13, 1998 through
June 30, 1998. See Thai Pineapple Canning Indus. Corp. v. United
States, No. 98-03-00487 (Ct. Int’l Trade April 21, 1998) (order
granting preliminary injunction) and Thai Pineapple Canning
Indus. Corp. v. United States, No. 98-03-00487 (Ct. Int’l Trade
August 18, 1998) (order granting preliminary injunction). Both
orders noted that the entries would be liquidated in accordance
with the court’s final decision, pursuant to 19 U.S.C. § 1516a(e)
(1994). Section 1516a(e) provides that entries which have been
Court No. 98-03-00487 Page 4
enjoined by the court pursuant to a request for preliminary
injunction, “shall be liquidated in accordance with the final
court decision in the action.”
Because the entries have yet to be liquidated, there is no
“actual injury” for the court to address, and the court is only
empowered to decide live cases or controversies. See Verson, a
Div. of Allied Prods. Corp. v. United States, 5 F. Supp.2d 963,
966 (Ct. Int’l Trade 1998) (court does not have power “to render
an advisory opinion on a question simply because [it] may have to
face the same question in the future”) (citation omitted). The
court will not presume that Commerce will fail to comply with
this court’s orders, but rather presumes that the entries will be
liquidated in accordance with 19 U.S.C. § 1516a(e). Therefore
the court need not issue an order as requested by plaintiffs at
this time.
Accordingly, the court affirms the Remand Results addressed
herein.
_______________________
Jane A. Restani
JUDGE
Dated: New York, New York
This 27th day of April, 2000.