CIT Grants Indefinite Injunction Against Liquidation of Phosphate Fertilizers in CVD Order Challenge

Moroccan exporter OCP S.A. was granted an indefinite injunction against the liquidation of its phosphate fertilizers, in an Oct. 4 order from the Court of International Trade. After scrapping with the Department of Justice over the end date of the injunction, OCP eventually won out after proving that it was likely to suffer irreparable harm stemming from the automatic liquidation of the entries that could occur starting at the top of next year.

OCP contests elements of the countervailing duty investigation into phosphate fertilizers from Morocco. To ensure that its entries subject to litigation did not liquidate, OCP filed for a preliminary injunction against liquidation with an indefinite ending. The DOJ, while agreeing to the injunction in principle, opposed the open-ended injunction and instead pushed for an injunction that ran until the end of the first administrative review. The threat of liquidation for entries beyond the first period of review is too far in the future, DOJ argued (see 2109010065).

The problem, as OCP saw it, was that companies are barred from requesting an administrative review until April of next year, even though the entries would automatically start liquidation after Dec. 31. This proved that OCP would likely suffer irreparable harm without its requested injunction, Judge Timothy Stanceu said. "OCP has made a sufficient showing that it will suffer irreparable harm should the court enter an injunction that does not apply to entries affected by this litigation and occurring after the end of this calendar year," the judge said. "That harm already exists, having arisen upon the publication of the CVD Order."

"The government fails to explain why OCP, having contested the administrative decision resulting in the CVD Order itself, should have to go to such lengths or why the temporal limitation it seeks is necessary to the resolution of the issues before the court," the opinion said. "OCP has met its burden of showing that the injunction it seeks is in the public interest."

(The Mosaic Company, et al. v. U.S., Slip Op. 21-134, CIT Consol. #21-00116, dated 10/04/21, Judge Timothy Stanceu. Attorneys: William Isasi of Covington & Burling for plaintiff and defendant-intervenor OCP; L. Misha Preheim for defendant U.S. government)