Plaintiff Fights for Injunction for Entries Beyond Period of Review in CVD Case

Plaintiff and defendant-intervenor OCP S.A. wants a statutory injunction on the liquidation of all of its entries, even those beyond the period of review for the contested countervailing duty investigation, pushing back against the government's arguments in a Sept. 1 brief. The U.S. contested that OCP satisfied the "irreparable harm" standard required of injunction motions since the "threat of liquidation" from entries beyond the first period of review "is too far in the future" (The Mosaic Company, et al. v. U.S., CIT Consol. #21-00116).

OCP countered by arguing that all of its entries are threatened with irreparable harm, "automatic liquidation under the CVD Order," since no administrative review of the order has been conducted. Entries subject to an underlying CVD order are considered unliquidated until the final results in the first administrative review are published. With no such review currently underway, OCP is attempting to hedge against the possibility that the entries liquidate without the administrative review results. The CVD order involves phosphate fertilizers from Morocco.

The U.S. also pushed the idea that CIT has consistently limited injunctions with respect to litigation challenging CVD investigations to entries only covered by the first period of review. "This claim mischaracterizes this Court’s opinions and is without merit," the brief said. "There are multiple examples where the Government has consented to broader injunctions and where this Court has entered injunctions that cover all entries made during the pendency of litigation, including over the objections of the Government."

OCP also sought to counter government arguments claiming that the threat of liquidation is insufficient to back the injunction. "Absent an injunction on liquidation, meaningful judicial review is not possible for OCP; the threat of liquidation is sufficiently imminent to support a statutory injunction for entries made after the first period of review; and the potential of suspension of liquidation through the administrative review process does not obviate the need for a statutory injunction covering all entries made during the pendency of this litigation," the brief said.