Wind Tower Trade Coalition v. United States , 741 F.3d 89 ( 2014 )

United States Court of Appeals
for the Federal Circuit
______________________
WIND TOWER TRADE COALITION,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee,
AND
CS WIND CHINA CO., LTD., CS WIND
CORPORATION, AND TITAN WIND ENERGY
(SUZHOU) CO., LTD.,
Defendants-Appellees,
AND
CHENGXI SHIPYARD CO., LTD.,
Defendant-Appellee,
AND
SIEMENS ENERGY, INC.,
Defendant-Appellee.
______________________
2013-1303
______________________
Appeal from the United States Court of International
Trade in Nos. 13-CV-0080, 13-CV-0081, and 13-CV-0082,
Judge Leo M. Gordon.
2 WIND TOWER TRADE v. US
______________________
Decided: January 24, 2014
______________________
ROBERT E. DEFRANCESCO, III, Wiley Rein, LLP, of
Washington, DC, argued for plaintiff-appellant. With him
on the brief were ALAN H. PRICE, DANIEL B. PICKARD, and
USHA NEELAKANTAN.
JOSHUA E. KURLAND, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States
Department of Justice, of Washington, DC, argued for
defendant-appellee, United States. With him on the brief
were STUART F. DELERY, Assistant Attorney General,
JEANNE E. DAVIDSON, Director, and REGINALD T. BLADES,
JR., Assistant Director. Of counsel on the brief was
DANIEL J. CALHOUN, Attorney, Office of the Chief Counsel
for Import Administration, United States Department of
Commerce, of Washington, DC.
NED H. MARSHAK, Grunfeld, Desiderio, Lebowitz,
Silverman & Klestadt, of New York, New York, argued for
defendants-appellees, CS Wind China Co., Ltd., et al.
With him on the brief were BRUCE M. MITCHELL, MAX F.
SCHUTZMAN, ANDREW B. SCHROTH, and KAVITA MOHAN.
Of counsel was ANDREW THOMAS SCHUTZ, of Washington,
DC.
ELLIOT J. FELDMAN, Baker Hostetler, LLP, of
Washington, DC, argued for defendant-appellee, Siemens
Energy, Inc. With him on the brief was MICHAEL S.
SNARR.
MARK DAVID DAVIS, Davis & LEiman, PC, of
Washington, DC, for defendant-appellee Chengxi
Shipyard Co., Ltd.
______________________
WIND TOWER TRADE v. US 3
Before NEWMAN, MOORE, and WALLACH, Circuit Judges.
WALLACH, Circuit Judge.
The Wind Tower Trade Coalition (“Appellant” or the
“Coalition”), a group of domestic manufacturers of utility
scale wind towers, appeals the decision of the United
States Court of International Trade (“CIT”) denying its
motions for preliminary injunctions. See Wind Tower
Trade Coal. v. United States, 904 F. Supp. 2d 1349 (Ct.
Int’l Trade 2013). This court affirms.
BACKGROUND
After receiving petitions filed by the Coalition, the
United States Department of Commerce (“Commerce”)
initiated antidumping and countervailing duty
investigations covering utility scale wind towers (“subject
merchandise”) from the People’s Republic of China
(“China”) and an antidumping investigation covering
subject merchandise from the Socialist Republic of
Vietnam (“Vietnam”). The antidumping and
countervailing duty statutes 1 require Commerce and the
United States International Trade Commission (“ITC”) to
conduct parallel investigations to determine whether the
application of one or both of these remedial duties is
1 The antidumping statute governs the application
of remedial duties to foreign goods sold, or likely to be
sold, in the United States “at less than fair value,” 19
U.S.C. § 1673 (pertaining to the “imposition of
antidumping duties”), while the countervailing duty
statute governs the application of remedial duties to
subsidized imports, 19 U.S.C. § 1671 (pertaining to the
“imposition of countervailing duties”). These sections
contain parallel provisions and much of the governing
language is identical.
4 WIND TOWER TRADE v. US
warranted. 19 U.S.C. §§ 1671a–1671d, 1673a–1673d
(2006).
Pursuant to 19 U.S.C. §§ 1671b(a) and 1673b(a), the
ITC issued a preliminary injury determination that there
was a reasonable indication of threat of material injury to
a domestic industry by reason of imports of subject
merchandise from China and Vietnam. Commerce then
issued a preliminary affirmative countervailing duty
determination with respect to imports of subject
merchandise from China and preliminary affirmative
antidumping duty determinations with respect to imports
of subject merchandise from China and Vietnam. Based
on these determinations, and pursuant to the “provisional
measures” requirements of 19 U.S.C. §§ 1671b(d) and
1673b(d), Commerce instructed the United States
Customs and Border Protection (“Customs”) to suspend
liquidation of all entries of subject merchandise that were
entered or withdrawn from warehouse for consumption on
or after the dates of Commerce’s preliminary antidumping
and countervailing duty determinations. The instructions
also required cash deposits for the entries based on the
preliminary duty margins Commerce calculated in its
preliminary determinations.
Commerce then made final affirmative
determinations, after which the ITC issued its final
affirmative determination in an evenly-divided vote (i.e.,
three negative votes and three affirmative votes). Utility
Scale Wind Towers from China and Vietnam, 78 Fed. Reg.
10,210, 10,210 n.2 (ITC Feb. 13, 2013) (final injury
determination) (“ITC Determination”). Under the
“divided vote” provision of 19 U.S.C. § 1677(11), the ITC’s
split vote constituted an affirmative determination. 19
U.S.C. § 1677(11) (“If the Commissioners voting on a
determination by the [ITC] . . . are evenly divided as to
whether the determination should be affirmative or
negative, the [ITC] shall be deemed to have made an
affirmative determination.”). However, of the six
WIND TOWER TRADE v. US 5
Commissioners on the investigation panel, three
Commissioners voted entirely in the negative, finding
neither material injury nor threat of injury, two
determined that the domestic wind tower industry had
suffered present material injury, and a third determined
that the domestic industry was threatened with material
injury, but that the domestic industry would not have
suffered material injury in the absence of the provisional
measures. ITC Determination at 10,210 n.2–3.
Commerce then issued antidumping and
countervailing duty orders implementing the results of
the final affirmative determinations. Utility Scale Wind
Towers from China, 78 Fed. Reg. 11,146 (Dep’t of
Commerce Feb. 15, 2013) (antidumping duty order);
Utility Scale Wind Towers from China, 78 Fed. Reg.
11,152 (Dep’t of Commerce Feb. 15, 2013) (countervailing
duty order); Utility Scale Wind Towers from Vietnam, 78
Fed. Reg. 11,150 (Dep’t of Commerce Feb. 15, 2013)
(antidumping duty order) (collectively, the “Orders”). As
to the effective dates of the Orders, Commerce applied the
so-called “Special Rule” of 19 U.S.C. §§ 1671e(b)(2) and
1673e(b)(2), making the Orders effective prospectively
from the publication date of the ITC Determination. The
Orders also indicated that Commerce would instruct
Customs to terminate the suspension of liquidation and
refund the cash deposits made prior to the publication
date of the ITC Determination.
Appellant challenged Commerce’s application of the
Special Rule before the CIT and sought temporary
restraining orders (“TRO”) and preliminary injunctions to:
(1) enjoin Commerce from ordering the termination of the
suspension of liquidation and the refund of cash deposits;
and (2) enjoin Customs during the pendency of the
litigation before the CIT, including any subsequent
remands and appeals, from discontinuing the suspension
of liquidation and refunding the cash deposits. Wind
Tower Trade Coal., 904 F. Supp. 2d at 1351. The CIT
6 WIND TOWER TRADE v. US
initially denied Appellant’s applications because it found
Appellant had not made an adequate showing of
likelihood of success on the merits. Id. Appellant
submitted a supplemental response further explaining its
position on its likelihood of success. The CIT then entered
TROs to provide the Appellees an opportunity to respond
to Appellant’s motions.
After receiving Appellees’ responses, the CIT denied
Appellant’s motions for preliminary injunctions and
dissolved the TROs. Id. Appellant filed a timely appeal
to this court. Upon Appellant’s motion to stay pending
appeal, this court reinstated the TROs pending full
consideration of the issues. Wind Tower Trade Coal. v.
United States, No. 13-1303 (Fed. Cir. June 28, 2013) (ECF
No. 52) (order granting motion for emergency stay
pending appeal).
DISCUSSION
I. Jurisdiction
Of the Appellees, Siemens Energy, Inc. (“Siemens”)
alone challenges this court’s jurisdiction: “[The
Coalition’s] interlocutory appeal of the CIT’s order, and its
case as a whole, may be dismissed for lack of subject
matter jurisdiction, lack of standing, and lack of appellate
jurisdiction.” Appellee Siemens’s Br. 4 (emphasis added).
Siemens bases its challenge on 28 U.S.C. § 1292(d)(1),
which provides
when any judge of the [CIT], in issuing any other
interlocutory order, includes in the order a
statement that a controlling question of law is
involved with respect to which there is a
substantial ground for difference of opinion and
that an immediate appeal from that order may
materially advance the ultimate termination of
the litigation, [this court] may, in its discretion,
permit an appeal to be taken from such order
WIND TOWER TRADE v. US 7
(emphasis added). Siemens contends this appeal does not
meet these criteria. Siemens also acknowledges, however,
that “[t]his Court previously has assumed jurisdiction
over appeals of interlocutory orders pertaining to
injunctions from the CIT, relying on § 1292(c).” Appellee
Siemens’s Br. 7.
In American Signature, Inc. v. United States, 598 F.3d
816, 823 (Fed. Cir. 2010), for example, this court exercised
jurisdiction over a case in which the CIT denied a motion
for a preliminary injunction. This court expressly stated
that jurisdiction was proper under § 1292(c)(1), which
provides that this court “shall have exclusive jurisdiction
. . . of an appeal from an interlocutory order or decree
described in subsection (a) . . . in any case over which the
court would have jurisdiction of an appeal under section
1295 of this title.” Section 1295(a)(5) provides that this
court has exclusive jurisdiction “of an appeal from a final
decision of the [CIT].” Section 1292(a), however, specifies
that
the courts of appeals shall have jurisdiction of
appeals from . . . [i]nterlocutory orders of the
district courts of the United States, the United
States District Court for the District of the Canal
Zone, the District Court of Guam, and the District
Court of the Virgin Islands, or of the judges
thereof, granting, continuing, modifying, refusing
or dissolving injunctions, or refusing to dissolve or
modify injunctions.
Because this subsection does not specify the CIT, Siemens
argues that only those appeals from interlocutory orders
that meet the criteria of § 1292(d)(1), the subsection that
specifically references the CIT, can be heard by this court.
Contrary to Siemens’s arguments, this court has held
that §§ 1292(a), 1292(c)(1), and 1295 in conjunction confer
jurisdiction upon this court over appeals of interlocutory
orders issued by the CIT “granting, continuing, modifying,
8 WIND TOWER TRADE v. US
refusing or dissolving” injunctions. 28 U.S.C. § 1292(a);
see, e.g., Norcal/Crosetti Foods, Inc. v. United States, 963
F.2d 356, 358 (Fed. Cir. 1992) (stating, in an appeal from
the CIT, “[p]ursuant to 28 U.S.C. § 1292(c)(1) . . . , this
court has jurisdiction over an appeal from interlocutory
orders described in section 1292(a), which include orders
granting injunctive relief”). Under our precedent, this
court has jurisdiction under 28 U.S.C. § 1292(c)(1).
II. Standard of Review
“The governing standard of review on appeal of a
grant or denial of a preliminary injunction is abuse of
discretion.” Am. Signature, 598 F.3d at 823 (citing Titan
Tire Corp. v. Case New Holland, Inc., 566 F.3d 1372, 1375
(Fed. Cir. 2009)). “An abuse of discretion may be
established under Federal Circuit law by showing that
the court made a clear error of judgment in weighing the
relevant factors or exercised its discretion based on an
error of law or clearly erroneous fact finding.” Qingdao
Taifa Grp. Co. v. United States, 581 F.3d 1375, 1379 (Fed.
Cir. 2009) (internal citation and quotation marks
omitted). To the extent a court’s decision to grant or deny
a preliminary injunction “hinges on questions of law,” this
court’s review is de novo. Nat’l Steel Car, Ltd. v.
Canadian Pac. Ry., Ltd., 357 F.3d 1319, 1325 (Fed. Cir.
2004).
III. Legal Framework
A. Standard for Preliminary Injunctions
“A plaintiff seeking a preliminary injunction must
establish [(1)] that he is likely to succeed on the merits,
[(2)] that he is likely to suffer irreparable harm in the
absence of preliminary relief, [(3)] that the balance of
equities tips in his favor, and [(4)] that an injunction is in
the public interest.” Winter v. Natural Res. Def. Council,
Inc., 555 U.S. 7, 20 (2008) (citations omitted). As
observed by the CIT, “[i]n antidumping and
WIND TOWER TRADE v. US 9
countervailing duty cases preliminary injunctions against
liquidation have become almost automatic due to the
retrospective nature of U.S. trade remedies, the length of
the judicial review process, and the cruciality of
unliquidated entries for judicial review.” Wind Tower
Trade Coal., 904 F. Supp. 2d at 1352 (citing 19 C.F.R. §
351.212(a) (2012); Zenith Radio Corp. v. United States,
710 F.2d 806, 810 (Fed. Cir. 1983); SKF USA, Inc. v.
United States, 512 F.3d 1326, 1329 (Fed. Cir. 2008) (“The
Zenith rule renders a court action moot once liquidation
occurs.”); Qingdao Taifa, 581 F.3d at 1381–82).
However, “[a] preliminary injunction is an
extraordinary remedy never awarded as of right.” Winter,
555 U.S. at 24 (citing Munaf v. Geren, 553 U.S. 674, 689–
90 (2008)); see also Qingdao Taifa, 581 F.3d at 1382(noting the Supreme Court’s “emphasis on the importance
of the likelihood of success in the preliminary injunction
calculus” in Munaf, 553 U.S. at 689–90). Therefore, “even
if a party establishes that it will be irreparably harmed,
the party must also demonstrate that it has at least a fair
chance of success on the merits for a preliminary
injunction to be appropriate.” Qingdao Taifa, 581 F.3d at
1381 (internal quotation marks and citation omitted).
B. ITC Injury Determinations
In parallel investigations, Commerce investigates the
extent to which foreign imports are “dumped” (i.e., sold or
likely to be sold in the United States “at less than fair
value”) or subsidized by a foreign government, while the
ITC investigates whether the U.S. domestic industry has
been materially injured, or threatened with material
injury, as a result of the foreign imports. 19 U.S.C.
§§ 1671a–1671d, 1673a–1673d. If both Commerce and the
ITC make preliminary affirmative determinations,
provisional measures take effect, which suspend
liquidation and require cash deposits for entries of
merchandise covered by the investigation. Id. §§ 1671b(d),
10 WIND TOWER TRADE v. US
1673b(d). If Commerce and the ITC then make
affirmative final determinations at the conclusion of their
respective investigations, the statute directs Commerce to
publish antidumping and/or countervailing duty orders.
Id. §§ 1671e(a), 1673e(a). In such orders, Commerce
specifies the effective date of the orders—either the duty
orders apply retrospectively to the entries that were
suspended, or the orders apply prospectively from the
date of publication of the final ITC determination.
Pursuant to 19 U.S.C. §§ 1671e(b) and 1673e(b), 2 the
effective date depends on the nature of the ITC
determination, which will lead to the application of either
the “General Rule” or the “Special Rule” (collectively, “the
Rules”). The Rules are as follows:
(1) General rule
2 The enactment of the Trade Agreements Act of
1979 (codified at 19 U.S.C. §§ 1671e(b) and 1673e(b))
implemented the provisions of two international trade
agreements the United States entered into as part of the
Tokyo Round of Multilateral Trade Negotiations.
According to the Trade Agreements Act’s legislative
history, these provisions prohibit the collection of duties
during the provisional-measures period “unless the final
determination is that there is material injury or threat of
material injury which, but for provisional measures, e.g.,
suspension of liquidation, during the investigation, would
have been material injury.” S. Rep. No. 96-249, at 59, 77
(1979), reprinted in 1979 U.S.C.C.A.N. 381, 445, 463.
These agreements recognize that, without a finding of
material injury or threat with an affirmative “but for”
finding, there is no affirmative injury determination to
support the imposition of duties during the provisional-
measures period.
WIND TOWER TRADE v. US 11
If the [ITC], in its final determination . . . finds
material injury or threat of material injury which,
but for the suspension of liquidation . . . would
have led to a finding of material injury, then
entries of the [subject merchandise], the
liquidation of which has been suspended . . . ,
shall be subject to the imposition of . . . duties . . . .
(2) Special rule
If the [ITC], in its final determination . . . finds
threat of material injury, other than threat of
material injury described in paragraph (1), . . .
then [subject merchandise] which is entered, or
withdrawn from warehouse, for consumption on or
after the date of publication of notice of an
affirmative determination of the [ITC] . . . shall be
subject to the [assessment or imposition] of . . .
duties . . . , and [Customs] shall release any bond
or other security, and refund any cash deposit
made.
Id. §§ 1671e(b), 1673e(b) (providing parallel rules for
countervailing and antidumping duties, respectively). In
other words, the General Rule applies if the ITC makes
(1) an affirmative finding of present material injury, or (2)
a finding of a threat of material injury that would have
been a finding of present material injury in the absence of
the provisional measures (i.e., a finding that “but for” the
suspension of liquidation, the ITC would have concluded
that the domestic industry is materially injured). Id.
Under this Rule, duties are collected retrospectively on
subject merchandise that entered the United States
during the course of the investigation. On the other hand,
the Special Rule applies if the ITC finds that the U.S.
industry is threatened with material injury, but there
would not be present material injury in the absence of the
provisional measures. Id. Under this rule, Commerce’s
orders are effective prospectively from the publication
12 WIND TOWER TRADE v. US
date of the ITC’s final determination and provisional cash
deposits are refunded.
The statutes do not explicitly address which of the
Rules applies to the fragmented ITC voting pattern
presented in this case (i.e., an evenly-divided affirmative
determination comprising three negative votes and three
affirmative votes, with two commissioners voting for
material injury and one voting for threat with a negative
“but for” finding). The CIT, however, addressed this
voting pattern in MBL (USA) Corp. v. United States, 787
F. Supp. 202 (Ct. Int’l Trade 1992), where Commerce
applied the General Rule based on its interpretation of 19
U.S.C. § 1673e(b). The CIT reviewed Commerce’s
interpretation of § 1673e(b) under the second prong of
Chevron, U.S.A., Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837, 842–45 (1984), and
determined that the interpretation was unreasonable
because Commerce was effectively ignoring the three
negative votes, and focusing only on the three affirmative
votes. MBL, 787 F. Supp. at 207–08. The CIT found it
unreasonable that two votes for and four votes against
material injury during the provisional-measures period
could justify retroactive application of the duties.
Therefore, the CIT reversed Commerce’s determination,
holding that the Special Rule applies to this particular
voting pattern.
Here, expressly noting the holding of MBL, Commerce
applied the Special Rule, making the Orders effective
prospectively. Because the CIT did not find that
Appellant’s challenge based on Commerce’s application of
the Special Rule was likely to succeed on the merits, it
denied the Coalition’s motions for preliminary
injunctions. Appellant argues that the CIT erred in this
regard.
WIND TOWER TRADE v. US 13
IV. Likelihood of Success of the Merits
In response to Appellant’s contention that Commerce
erred in applying the Special Rule, the CIT stated that it
was “persuaded that this issue is just not winnable.”
Wind Tower Trade Coal., 904 F. Supp. 2d at 1356. When
a court examines the lawfulness of Commerce’s statutory
interpretations, it employs the two-prong test established
in Chevron. 467 U.S. at 842–45. The court first examines
“whether Congress has directly spoken to the precise
question at issue,” and if so, the agency and the court
must comply with Congress’s clear intent. Id. at 842–43.
If, however, “the statute is silent or ambiguous with
respect to the specific issue,” a prong-two analysis is
warranted, under which the court must determine
“whether the agency’s answer is based on a permissible
construction of the statute.” Id. at 843. “To determine
whether Commerce’s interpretation is reasonable, the
court ‘may look to the express terms of the provisions at
issue, the objectives of those provisions, and the objectives
of the antidumping scheme as a whole.’” Wheatland Tube
Co. v. United States, 495 F.3d 1355, 1361 (Fed. Cir. 2007)
(quoting NSK Ltd. v. United States, 217 F. Supp. 2d 1291,
1297 (Ct. Int’l Trade 2002)).
Relying on Chevron, the CIT found, “[b]eginning from
the premise that Congress did not address the specific
ITC voting pattern presented here, it is not difficult to
sustain Commerce’s interpretation of sections 1671e(b)
and 1673e(b) as a reasonable construction of the statute
to which the court must defer.” Wind Tower Coal., 904 F.
Supp. 2d at 1356. The CIT properly held it was
reasonable for Commerce to consider all of the ITC
Commissioners’ votes—not just the affirmative votes—
under the second prong of Chevron.
Appellant argues that the CIT should not have moved
beyond Chevron’s first prong because the plain language
of the statute is clear that the General Rule applies to the
14 WIND TOWER TRADE v. US
voting pattern at issue. To Appellant, as “the text of the
statute makes clear, the Special Rule is only applicable
when the ITC makes a final determination of threat of
material injury.” Appellant’s Br. 17–18; id. at 19–20
(“[T]he Special Rule is not applicable in circumstances
where only one Commissioner has made an affirmative
finding of threat of material injury with a corresponding
‘but for’ determination and the statute does not support
attributing negative ‘but for’ determinations to
Commissioners who made overall negative findings.”). As
noted, however, the plain language of the statute does not
address the voting pattern at issue here. See 19 U.S.C.
§§ 1671e(b), 1673e(b). Because “the statute is silent . . .
with respect to the specific issue,” a prong-two analysis is
warranted. Chevron, 467 U.S. at 843.
In the alternative, Appellant argues that, to the
extent the statute is unclear, Commerce’s application of
the Special Rule is not a reasonable interpretation of the
statute and is not entitled to deference. First, Appellant
argues that Commerce’s application of the Special Rule is
unreasonable because it renders the affirmative threat
determination of a single Commissioner the controlling
vote of the entire ITC. To Appellant, the statute “clearly
indicates that Congress did not intend for the Special
Rule to be applied when a majority of the Commissioners
who votes in the affirmative found that a U.S. industry is
materially injured by reason of subject imports.”
Appellant’s Br. 27–28. In support, Appellant relies on the
“divided vote” provision of 19 U.S.C. § 1677(11) (“If the
Commissioners voting on a determination by the [ITC] . . .
are evenly divided as to whether the determination
should be affirmative or negative, the Commission shall
be deemed to have made an affirmative determination.”).
“Based on this explicit statutory directive,” Appellant
argues, “there is no doubt that under such split vote
circumstances, Congress intended for duties to be
assessed on the subject merchandise.” Appellant’s Br. 34.
WIND TOWER TRADE v. US 15
The Coalition’s argument is unpersuasive because it
ignores the votes of three of the six Commissioners,
relying solely on the three votes for affirmative material
injury or threat thereof. Such an interpretation of the
statute, one that ignores that only two of the six
Commissioners found present material injury and no
Commissioner made an affirmative “but for”
determination, is not reasonable. Indeed, the statutory
language of the Rules requires that the ITC as a whole
makes a finding when determining which of the Rules
applies. 19 U.S.C. § 1671e(b)(1) (“If the Commission, in
its final determination . . . finds material injury or threat
of material injury . . . .”) (emphasis added); id.
§ 1671e(b)(2) (same); id. § 1673e(b)(1) (same); id. §
1673e(b)(2) (same). “The [ITC] makes its determinations
by tallying the votes of the six individual commissioners.”
U.S. Steel Grp. v. United States, 96 F.3d 1352, 1360 (Fed.
Cir. 1996). Ignoring half of the votes of the six
Commissioners does not reflect a determination of “the
Commission.” Occasionally, even in the law, common
sense must prevail.
In any case, the legislative history of the statute
explicitly states that Congress, in conformity with the
United States’ international agreements, intended to
ensure that Commerce does not impose duties on
merchandise that enters during the provisional-measures
period “unless the final determination is that there is
material injury or threat of material injury which, but for
provisional measures, e.g., suspension of liquidation,
during the investigation, would have been material
injury.” See S. Rep. No. 96-249, at 59, 77 (1979), reprinted
in 1979 U.S.C.C.A.N. 381 at 445, 463. This purpose is
flouted when two-thirds of the ITC’s votes are
disregarded.
The Coalition also argues the word “finds” in the
statutes unambiguously requires Commerce to consider
only votes that contain actual declarations on the issue
16 WIND TOWER TRADE v. US
identified in the Rules. Appellant’s Br. 28 (“As becomes
clear from the text of the statute, the relevant issue here
is the meaning of the term ‘finds.’”). Because the word
“finds” is not defined in the Tariff Act, Appellant asserts it
should be defined to mean that only votes of the three
Commissioners who found affirmative material injury or
threat thereof should be considered for purposes of the
Special Rule: “Based on these votes, and these votes
alone, the only logical conclusion is that the affirmative
material injury votes outweigh the affirmative threat of
material injury vote, warranting application of the
General Rule.” Appellant’s Br. 31.
Appellee the United States has exposed the logical
fallacy of this argument:
If anything . . . [the Coalition’s] position
constitutes an unreasonable interpretation of the
statute’s plain language, because one can hardly
construe the ITC to have “found” material injury
when four of six commissioners explicitly rejected
that finding, whereas the ITC’s vote breakdown
entails at least a finding of threat of injury.
Indeed, Commerce in MBL espoused the
interpretation that [the Coalition] now asserts,
thereby ignoring the votes of half of the ITC
commissioners, and the [CIT] held the
interpretation to be unreasonable.
Appellee United States’ Br. 22 (citing MBL, 787 F. Supp.
at 208). There is no support for the proposition that the
word “finds” in §§ 1671e(b) and 1673e(b) prevents
Commerce from considering all of the ITC votes when
determining whether the General or the Special Rule
applies.
Finally, Appellant challenges Commerce’s reliance on
MBL, and insists that the rule from an earlier CIT case,
Metallverken Nederland B.V. v. United States, 728 F.
Supp. 730 (Ct. Int’l Trade 1989), should be applied. While
WIND TOWER TRADE v. US 17
MBL involved a voting pattern identical to that at issue
here, Metallverken involved a different pattern. To the
Coalition, however, reliance on Metallverken is warranted
as MBL’s “holding is flawed because it inappropriately
attributes affirmative threat findings and negative ‘but
for’ findings to three Commissioners who did not make
such determinations.” Appellant’s Br. 31.
Appellant’s argument fails for several reasons. 3 As an
initial matter, MBL is the only case addressing the ITC
voting pattern presented here. Second, the language from
Metallverken suggesting that the voting pattern in this
case may lead to the application of the General Rule is
dicta, as was recognized by the CIT in MBL. See MBL,
787 F. Supp. at 206 (recognizing that Metallverken “grew
out of an affirmative determination by the ITC” in which
the Commissioner voting for threat of injury made an
affirmative “but for” finding); see also Wind Tower Coal.,
904 F. Supp. 2d at 1357 (“Metallverken . . . did not involve
the same ITC voting pattern, nor did it involve
Commerce’s interpretation of an ITC final determination,
as Commerce was not a party to the action.”). Third, in
MBL itself the CIT undertook an extensive examination
of the Metallverken decision and found it to be of limited
persuasive weight on the question of the proper treatment
of provisional measures. See MBL, 787 F. Supp. at 206.
In sum, this court agrees with the CIT’s well-reasoned
conclusion that “Commerce’s application of the special
rule to the fragmented ITC voting pattern here . . . flows
reasonably from the specific statutory provisions, their
purposes, and the statute as a whole, as the court
3 Because this court finds Appellant’s arguments
regarding Metallverken unavailing, its additional
arguments based on examples of Commerce’s “practice”
cited in Metallverken are also unpersuasive.
18 WIND TOWER TRADE v. US
explained in MBL.” Wind Tower Trade Coal., 904 F.
Supp. 2d at 1356. Appellant has not undermined this
conclusion, and therefore has not demonstrated its
likelihood of success on the merits of its challenge to
Commerce’s application of the Special Rule.
V. Irreparable Injury
Regarding the second preliminary injunction factor,
the CIT observed that “parties tend to establish
irreparable injury fairly easily in trade cases because of
the negative consequences of liquidation. Here, the court
[below] believes that [the Coalition] has established such
injury because once the entries covered by the provisional
measures are liquidated, the court cannot provide any
meaningful relief.” Wind Tower Trade Coal., 904 F. Supp.
2d at 1358. No party has challenged this aspect of the
decision. The court notes, however, that a showing on one
preliminary injunction factor does not warrant injunctive
relief in light of a weak showing on other factors. Winter,
555 U.S. at 22 (citing Mazurek v. Armstrong, 520 U.S.
968, 972 (1997) (per curiam)) (“[I]njunctive relief [is] an
extraordinary remedy that may only be awarded upon a
clear showing that the plaintiff is entitled to such relief.”).
The CIT did not abuse its discretion in holding that the
Coalition’s showing of irreparable injury is outweighed by
its failure to demonstrate any likelihood of success on the
merits.
VI. Balance of the Equities
Based on its finding that there was little likelihood of
success on the merits of Appellant’s challenge, the CIT
expressed its concern “that issuance of preliminary
injunctions against liquidation here may be a misuse of
the court’s equitable power by keeping the provisional
measures in place beyond their prescribed 4-month period
[under 19 U.S.C. §§ 1671b(d), 1673b(d)] and by depriving
importers of the time value of their provisional cash
deposits.” Wind Tower Trade Coal., 904 F. Supp. 2d at
WIND TOWER TRADE v. US 19
1358–59. For these reasons, the CIT properly found that
the equities did not favor Appellant.
The Coalition, however, insists that the balance tips
in its favor because it will be irreparably injured in the
absence of preliminary injunctions, while the United
States will suffer no hardship. Appellant is mistaken.
First, it is notable that the Coalition will not suffer
concrete financial hardship in the absence of injunctions
because its members are not liable for paying duties and
have no right to recover any duties. Second, even if the
suspended entries are liquidated without assessment of
retrospective duties, the Coalition is protected by the
prospective assessment of duties under the Orders. In
addition, the Coalition will be able to obtain future
administrative and judicial review of the calculations of
such duties on any injurious post-Order entries.
Third, the United States has a cognizable interest in
administrating the trade laws in a fair, timely, and
effective manner. Under 19 U.S.C. §§ 1671b(d) and
1673b(d), provisional measures take effect when
Commerce issues a preliminary affirmative determination
and generally “may not remain in effect for more than 4
months.” An injunction postponing liquidation for the
pendency of the litigation would necessarily prolong the
provisional measures well beyond their statutory limit.
The CIT did not abuse its discretion in finding that, in
light of the weak showing of a likelihood of success on the
merits, the balance did not tip in Appellant’s favor. See
Winter, 555 U.S. at 23 (“[E]ven if plaintiffs have shown
irreparable injury . . . , any such injury is outweighed by
the public interest and the [balance of the equities].”).
VII. Public Interest
Finally, the CIT did not believe “it is in the public
interest to issue preliminary injunctions in actions where
there is no likelihood of success on the merits.” Wind
Tower Trade Coal., 904 F. Supp. 2d at 1359. Appellant
20 WIND TOWER TRADE v. US
contends, however, that “the public interest favors the
grant of preliminary injunctions, and the CIT, based
largely on its erroneous determination that the Coalition
failed to establish a likelihood of success on the merits,
abused its discretion in finding otherwise.” Appellant’s
Br. 51.
It was not an abuse of discretion for the CIT to find,
given the unlikelihood of the Coalition’s success on the
merits, that granting the preliminary injunctions would
not be in the public interest. Indeed, “‘[i]n exercising
their sound discretion, courts of equity should pay
particular regard for the public consequences in
employing the extraordinary remedy of injunction.’”
Winter, 555 U.S. at 24 (quoting Weinberger v. Romero–
Barcelo, 456 U.S. 305, 312 (1982)); see also FMC Corp. v.
United States, 3 F.3d 424, 427 (Fed. Cir. 1993) (“Absent a
showing that a movant is likely to succeed on the merits,
we question whether the movant can ever be entitled to a
preliminary injunction unless some extraordinary injury
or strong public interest is also shown.”) (emphases
added). Here, no strong public interest was demonstrated.
CONCLUSION
For the foregoing reasons, the CIT’s decision denying
Appellant’s motions for preliminary injunctions and
dissolving the TROs is affirmed.
AFFIRMED