Comm. Overseeing Action for Lumber Int'l Trade Investigations or Negotiations v. United States , 2019 CIT 96 ( 2019 )

Slip Op. 19-96
UNITED STATES COURT OF INTERNATIONAL TRADE
COMMITTEE OVERSEEING ACTION
FOR LUMBER INTERNATIONAL TRADE
INVESTIGATIONS OR NEGOTIATIONS,
Plaintiff,
v.
Before: Mark A. Barnett, Judge
UNITED STATES,
Court No. 19-00122
Defendant,
and
FONTAINE INC., ET AL.,
Defendant-Intervenors.
OPINION AND ORDER
[Vacating the temporary restraining order entered on July 15, 2019 and denying
Plaintiff’s motion for a preliminary injunction.]
Dated: July 26, 2019
Sophia J.C. Lin, Picard Kentz & Rowe LLP, of Washington, DC, argued for Plaintiff
Commmittee Overseeing Action for Lumber International Trade Investigations or
Negotiations. With her on the brief were Lisa W. Wang, Andrew W. Kentz, David A.
Yocis, Nathanial M. Rickard, Heather N. Doherty, and Zachary J. Walker.
Patricia M. McCarthy, Assistant Director, Commercial Litigation Branch, Civil Division,
U.S. Department of Justice, of Washington, DC, argued for Defendant United States.
With her on the brief were Joseph H. Hunt, Assistant Attorney General, Jeanne E.
Davidson, Director, and Stephen C. Tosini, Senior Trial Counsel. Of counsel on the
brief were Jessica DiPietro and Nikki Kalbing.
Elliot J. Feldman, Baker & Hostetler, LP, of Washington, DC, argued for Defendant-
Intervenor Fontaine, Inc. With him on the brief were Michael S. Snarr, John J. Burke,
Mark B. Lehnardt, Lindita V. Ciko Torza, and Jake R. Frischknecht.
Court No. 19-00122 Page 2
Lynn G. Kamarck, Hughes Hubbard & Reed LLP, of Washington, DC, argued for
Defendant-Intervenor the Government of Canada. With her on the brief were Joanne E.
Osendarp, Dean A. Pinkert, Alan G. Kashdan, Daniel M. Witkowski, and Stephen R.
Halpin, III.
Jonathan M. Zielinski, Cassidy Levy Kent (USA) LLP, of Washington, DC, argued for
Defendant-Intervenor Scierie Alexandre Lemay & Fils Inc. With him on the brief were
Yohai Baisburd, Myles S. Getlan, and James E. Ransdell.
Barnett, Judge: Plaintiff, Committee Overseeing Action for Lumber International
Trade Investigations or Negotiations (“the Coalition” or “Plaintiff”) challenges the final
results of the countervailing duty expedited review of certain softwood lumber products
from Canada. Compl. ¶¶ 1-2, ECF No. 2; 1 Certain Softwood Lumber Products From
Canada, 84 Fed. Reg. 32,121 (Dep’t Commerce July 5, 2019) (final results of
countervailing duty expedited review) (“Final Results of Expedited Review”), and
accompanying Issues and Decision Mem. (“I&D Mem.”), C-122-858 (June 28, 2019),
available at https://enforcement.trade.gov/frn/summary/canada/2019-14338-1.pdf (last
accessed July 26, 2019).
This matter is now before the court on Plaintiff’s motion for a temporary
restraining order (“TRO”) and preliminary injunction. Pl.’s Mot. for Temporary
1 Plaintiff invokes the court’s jurisdiction pursuant to 28 U.S.C. § 1581(i)(4) or,
alternatively, 28 U.S.C. § 2581(c). Compl. ¶¶ 3, 6. Pursuant to 28 U.S.C. § 1581(i)(4),
“the Court of International Trade shall have exclusive jurisdiction of any civil action
commenced against the United States, its agencies, or its officers, that arises out of any
law of the United States providing for . . . administration and enforcement with respect
to the matters referred to in paragraphs (1)-(3) of this subsection and subsections (a)-
(h) of this section.” 28 U.S.C. § 1581(i)(4). Pursuant to 28 U.S.C. § 1581(c), “[t]he
Court of International Trade shall have exclusive jurisdiction of any civil action
commenced under section 516A or 517 of the Tariff Act of 1930,” 19 U.S.C. §§ 1516a,
1517. 28 U.S.C. § 1581(c).
Court No. 19-00122 Page 3
Restraining Order and for Prelim. Inj. (“Pl.’s Mot.”), ECF No. 6. On July 15, 2019, prior
to assignment to the undersigned, the court entered an order granting Plaintiff’s motion
for a TRO. See Temporary Restraining Order (July 15, 2019), ECF No. 10. Pursuant to
Rule 65 of the rules of the U.S. Court of International Trade (“USCIT”), the TRO will
expire on July 29, 2019. See USCIT Rule 65(b)(2). Plaintiff now seeks to enjoin,
“pending a final and conclusive court decision in this litigation, and any appeals
therefrom,” “Defendant United States, together with its delegates, officers, agents,
servants, and employees of the International Trade Administration of the U.S.
Department of Commerce and U.S. Customs and Border Protection” from: (1)
liquidating “any unliquidated entries of softwood lumber from Canada that” were subject
to the Final Results of Expedited Review, entered on or after April 28, 2017, and were
produced or exported by seven of the eight companies that received de minimis or
reduced rates in the review; (2) revoking the relevant countervailing duty order on five
companies that received de minimis rates in the review; and (3) collecting cash deposits
at the rates established in the Final Results of Expedited Review on entries made on or
after July 5, 2019 and which were produced or exported by the eight companies subject
to the review. [Proposed] Order, ECF No. 6.
Defendant, United States (“the Government”), and several Defendant-Intervenors
oppose Plaintiff’s motion. See Def.’s Mot. to Dismiss and Opp’n to Pl.’s Mot. for a
Prelim. Inj. (“Def.’s MTD & Opp’n”), ECF No. 21; Opp’n of Def.-Int., Fontaine Inc., to
Pl.’s Mot. for Temporary Restraining Order and for Prelim. Inj. (“Fontaine’s Opp’n”), ECF
No. 26; Opp’n of Def.-Int. Gov’t of Canada to Pl.’s Mot. for Temporary Restraining Order
Court No. 19-00122 Page 4
and for Prelim. Inj. (“Gov’t of Canada’s Opp’n”), ECF No. 67; Resp. of Def.-Int. Scierie
Alexandre Lemay & Fils Inc. Opp’n to Pl.’s Mot. for Temporary Restraining Order and
for Prelim. Inj. and in Supp. of Def.’s Mot. to Dismiss (“Lemay’s Opp’n”), ECF No. 68. 2
Fontaine, Inc. (“Fontaine”) has also moved to modify the TRO. See Mot. to Modify
Temporary Restraining Order (“Fontaine’s Mot.”), ECF No. 22. On July 25, 2019, the
court heard oral argument on Plaintiff’s motion. Docket Entry, ECF No. 69. For the
reasons discussed herein, the court will vacate the TRO as having been improvidently
granted and deny Plaintiff’s motion for a preliminary injunction. 3 Accordingly, the court
will deny as moot Fontaine’s motion to modify the TRO.
BACKGROUND
“A ‘final determination’ in an antidumping or countervailing duty investigation
constitutes a final decision by the [U.S. Department of Commerce (“Commerce” or “the
agency”)] as to whether dumping or countervailable subsidization is occurring.” 19
C.F.R. § 351.210(a). When the determination is affirmative, Commerce must determine
2 Defendant has moved to dismiss Plaintiff’s complaint for lack of subject matter
jurisdiction. See Def.’s MTD & Opp’n to Inj. at 6-8. Responses to this motion are due
on August 21, 2019.
3 The court will defer ruling on Defendant’s motion to dismiss for lack of subject matter
jurisdiction until briefing is complete. See U.S. Ass’n of Importers of Textiles and
Apparel v. United States, 413 F.3d 1344, 1348 (Fed. Cir. 2005) (reviewing the trade
court’s entry of a preliminary injunction and concluding that the court did not abuse its
discretion in delaying consideration of the defendant’s motion to dismiss for lack of
subject matter jurisdiction until briefing was completed). While the appellate court held
that the USCIT erred in failing to consider the jurisdictional issue as part of its
consideration of the plaintiff’s likelihood of success on the merits, see id., as discussed
herein, the court does not reach that issue because the Coalition has failed to establish
irreparable harm. The court is effectively returning the matter to the pre-TRO status quo
ante.
Court No. 19-00122 Page 5
an estimated individual countervailable subsidy rate or weighted average dumping
margin, as the case may be, for each exporter and producer individually investigated as
well as an “estimated all-others rate for all exporters and producers not individually
investigated.” 19 U.S.C. §§ 1671d(c)(1)(B)(i)(I), 1673d(c)(1)(B)(i)(I)-(II). Commerce
must then “order the posting of a cash deposit, bond, or other security . . . for each entry
of the subject merchandise in an amount based on the estimated individual
countervailable subsidy rate, the estimated all-others rate, or the estimated country-
wide subsidy rate,” id. § 1671d(c)(1)(B)(ii), or, in antidumping proceedings, “in an
amount based on the estimated weighted average dumping margin or the estimated all-
others rate,” id. § 1673d(c)(1)(B)(ii). In the event of a negative determination, the
investigation will be terminated, and any suspension of liquidation will be ended. 19
C.F.R. § 351.207(d)-(e).
Relevant here, an exporter that Commerce did not select for individual
examination in a countervailing duty investigation may, within 30 days of the date of
publication of the relevant order, request an expedited review of the cash deposit rate.
19 C.F.R. § 351.214(k). The period of review is the period of investigation used in the
original investigation. Id. § 351.214(k)(3)(i). This enables the agency to use data from
that investigation in order to expedite the review. See Antidumping Duties;
Countervailing Duties, 62 Fed. Reg. 27,296, 27,321 (Dep’t Commerce May 19, 1997)
(final rule) (“Preamble”). While the final results of an expedited review “will not be the
basis for the assessment of countervailing duties,” Commerce “may exclude from the
countervailing duty order in question any exporter for which the [agency] determines an
Court No. 19-00122 Page 6
individual net countervailable subsidy rate of zero or de minimis.” 19 C.F.R.
§ 351.214(k)(3)(iv).
Final duty liability typically is determined in an administrative review of an order
pursuant to 19 U.S.C. § 1675(a)(1). See 19 C.F.R. § 351.213(a); cf. 19 C.F.R.
§ 351.11(b)(1) (explaining that, upon publication of an antidumping or countervailing
duty order, Commerce will instruct CBP “to assess antidumping duties or countervailing
duties (whichever is applicable) on the subject merchandise, in accordance with the
Secretary's instructions at the completion of” either an administrative review, new
shipper review, or expedited antidumping review). 4 Interested parties may request an
administrative review “during the anniversary month of the publication of an antidumping
or countervailing duty order.” Id. § 351.213(b). If no review is requested (or when all
requests for review are withdrawn), Commerce will, “without additional notice,” instruct
CBP to assess antidumping duties or countervailing duties at the cash deposit rates. Id.
§ 351.212(c).
4 Commerce’s regulations recognize that,
[u]nlike the systems of some other countries, the United States uses a
‘retrospective’ assessment system under which final liability for
antidumping and countervailing duties is determined after merchandise is
imported. Generally, the amount of duties to be assessed is determined in
a review of the order covering a discrete period of time.
KYD, Inc. v. United States, 35 CIT 475, 480, 779 F. Supp. 2d 1361, 1368, 35 C.I.T. 475,
480 (2011) (quoting 19 C.F.R. § 351.212(a)). “[T]he absence of certainty regarding the
dumping margins and final assessment of antidumping duties is a characteristic of
the retrospective system of administrative reviews designed by Congress.” SKF USA
Inc. v. United States, 31 CIT 951, 960, 491 F. Supp. 2d 1354, 1363 (2007)
(quoting Abitibi–Consol. Inc. v. United States, 30 CIT 714, 724, 437 F. Supp. 2d 1352,
1361 (2006)).
Court No. 19-00122 Page 7
In November 2017, Commerce issued final affirmative determinations in its
countervailing duty (“CVD”) and antidumping duty (“AD”) investigations of certain
softwood lumber products from Canada. See Certain Softwood Lumber Products From
Canada, 82 Fed. Reg. 51,814 (Dep’t Commerce Nov. 8, 2017) (final aff. countervailing
duty determination and final negative determination of critical circumstances); Certain
Softwood Lumber Products From Canada, 82 Fed. Reg. 51,806 (Dep’t Commerce No.
8, 2017) (final aff. determination of sales at less than fair value and aff. final
determination of critical circumstances). 5 On January 3, 2018, Commerce published the
CVD and AD orders. See Certain Softwood Lumber Products From Canada, 83 Fed.
Reg. 347 (Dep’t Commerce Jan. 3, 2018) (am. final aff. countervailing duty
determination and countervailing duty order) (“CVD Order”); Certain Softwood Lumber
Products From Canada, 83 Fed. Reg. 350 (Dep’t Commerce Jan. 3, 2018) (antidumping
duty order and partial am. final determination) (“AD Order”).
On March 8, 2018, in response to requests filed by certain Canadian producers,
Commerce initiated an expedited review of the CVD Order. See Certain Softwood
Lumber Products From Canada, 83 Fed. Reg. 9,833 (Dep’t Commerce March 8, 2018)
(initiation of expedited review of the countervailing duty order) (“Initiation Notice”); 19
5 Commerce issued preliminary affirmative determinations in its CVD and AD
investigations on April 28, 2017 and June 30, 2017, respectively. Certain Softwood
Lumber Products From Canada, 82 Fed. Reg. 19,657 (Dep’t Commerce Apr. 28, 2017)
(prelim. aff. countervailing duty determination, and alignment of final determination with
final antidumping duty determination); Certain Softwood Lumber Products From
Canada, 82 Fed. Reg. 29,833 (Dep’t Commerce June 30, 2017) (prelim. aff.
determination of sales at less than fair value).
Court No. 19-00122 Page 8
C.F.R. § 351.214(k). The companies subject to the expedited review (and their
affiliates) were not selected for individual examination during the investigation and had
been assigned the “all-others” rate of 14.19 percent. CVD Order, 83 Fed. Reg. at 348.
The “period of review” for the expedited review ran from January 1, 2015, through
December 31, 2015. Initiation Notice, 83 Fed. Reg. at 9,833.
On July 5, 2019, Commerce issued the Final Results of Expedited Review in
which the agency calculated reduced or de minimis rates for the eight companies as
follows: (1) Les Produits Forestiers D&G Ltée and its cross-owned affiliates (“D&G”):
0.21 percent; (2) Marcel Lauzon Inc. and its cross-owned affiliates (“MLI”): 0.42 percent;
(3) North American Forest Products Ltd. and its cross-owned affiliates (“NAFP”): 0.17
percent; (4) Roland Boulanger & Cie Ltée and its cross-owned affiliates (“Roland”): 0.31
percent; (5) Scierie Alexandre Lemay & Fils Inc. and its cross-owned affiliates
(“Lemay”): 0.05 percent; (6) Fontaine and its cross-owned affiliates: 1.26 percent; (7)
Mobilier Rustique (Beauce) Inc. and its cross-owned affiliates (“Rustique”): 1.99
percent; and (8) Produits Matra Inc. and Sechoirs de Beauce Inc. and their cross-owned
affiliate (“Matra”): 5.80 percent. Final Results of Expedited Review, 84 Fed. Reg. at
32,122.
The rates calculated for D&G, MLI, NAFP, Roland, and Lemay are considered de
minimis, therefore, Commerce stated it would instruct U.S. Customs and Border
Protection (“CBP”) “to discontinue the suspension of liquidation and the collection of
cash deposits of estimated countervailing duties on all shipments of softwood lumber
produced and exported by” those companies that were entered on or after July 5, 2019;
Court No. 19-00122 Page 9
“liquidate, without regard to countervailing duties, all suspended entries of shipments of
softwood lumber produced and exported by” those companies; and “refund all cash
deposits of estimated countervailing duties collected on all such shipments.” Id. As to
the companies receiving a lower—but not de minimis—rate (Fontaine, Rustique, and
Matra), Commerce stated it would instruct CBP “to collect cash deposits of estimated
countervailing duties” at the rates calculated for the Final Results of Expedited Review.
Id.
DISCUSSION
“A preliminary injunction is an extraordinary remedy never awarded as of
right.” Winter v. Nat’l Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). To obtain a
preliminary injunction, a party must demonstrate “(1) likelihood of success on the merits,
(2) irreparable harm absent immediate relief, (3) the balance of interests weighing in
favor of relief, and (4) that the injunction serves the public interest.” Silfab Solar, Inc. v.
United States, 892 F.3d 1340, 1345 (Fed. Cir. 2018) (citing Winter, 555 U.S. at 20).
“Although preliminary injunctions against liquidation have become almost automatic in
antidumping and countervailing duty cases, they are an extraordinary remedy never
awarded as of right.” Sumecht NA, Inc. v. United States, 923 F.3d 1340, 1345 (Fed.
Cir. 2019) (internal quotation marks and citation omitted).
“In evaluating [irreparable] harm, the court must consider ‘the magnitude of the
injury, the immediacy of the injury, and the inadequacy of future corrective relief.’” Shree
Rama Enter. v. United States, 21 CIT 1165, 1167, 983 F. Supp. 192, 194 (1997)
(quoting Queen’s Flowers de Colombia v. United States, 20 CIT 1122, 1125, 947 F.
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Supp. 503, 506 (1996). Of these three factors, “immediacy [of the injury] and the
inadequacy of future corrective relief” may be weighed more heavily than magnitude of
harm. Nat’l Juice Prods. Ass’n v. United States, 10 CIT 48, 53, 628 F. Supp. 978, 984
(1986) (citations omitted). 6 Critically, irreparable harm may not be speculative, see Am.
Inst. for Imported Steel, Inc. v. United States, 8 CIT 314, 318, 600 F. Supp. 204, 209
(1984), or determined by surmise, Elkem Metals Co. v. United States, 25 CIT 186, 192,
135 F. Supp. 2d 1324, 1331 (2001) (citation omitted). “It is not enough to establish ‘a
mere possibility of injury, even where prospective injury is great. A presently existing,
actual threat must be shown.’” Shree Rama, 21 CIT at 1167, 983 F. Supp. at 194–
95 (quoting Zenith Radio Corp. v. United States, 710 F.2d 806, 809 (1983)). Failure as
to this factor is grounds for denying injunctive relief. See, e.g., Sumecht, 923 F.3d at
1348.
A. Parties’ Contentions
Plaintiff presents three arguments as to why it will be irreparably harmed without
an injunction. First, Plaintiff argues that its claims will be rendered moot and judicial
review will be “a meaningless exercise” if the unliquidated entries of subject
merchandise produced or exported by the five companies assigned a de minimis rate
are liquidated before the conclusion of this case. Pl.’s Mot. at 12-13. Plaintiff
acknowledges that liquidation of entries made on or after June 30, 2017 remains
6National Juice Products has since been superseded by statute, but the change does
not relate to the proposition for which it is being cited herein. See CannaKorp, Inc. v.
United States, 41 CIT __, __, 234 F. Supp. 3d 1345, 1352 (2017).
Court No. 19-00122 Page 11
suspended by operation of the AD Order and pending administrative reviews thereof.
Id. at 13. Nevertheless, Plaintiff argues, it will be harmed by liquidation of entries that
entered between April 28, 2017 and June 30, 2017 and those that entered after June
30, 2017 due to “developments regarding the AD Order before the [c]ourt reaches a
conclusion in this case.” Id. at 13-14. Second, Plaintiff argues that it will be harmed by
the liquidation of Rustique’s and Fontaine’s entries at the rates established in the Final
Results of Expedited Review because Rustique and Fontaine have withdrawn their
requests to be included in the first administrative review of the CVD Order and no
additional requests have been maintained. Id. at 16-18. Third, Plaintiff argues that
revocation of the CVD Order as to the five companies with de minimis rates and
reduced cash deposit rates for the three other companies increases the possibility of
circumvention of the CVD Order, which will “further injure Plaintiff and the domestic
industry.” Id. at 19.
Defendant and Defendant-Intervenors argue that Plaintiff’s motion must fail for
lack of proof of irreparable harm; Plaintiff will not be harmed by liquidation, revocation,
or changes to cash deposit rates; and its assertions regarding circumvention of the CVD
Order are speculative. See Def.’s MTD and Opp’n to Inj. at 9-11; Fontaine’s Opp’n at 4-
6; Gov’t of Canada’s Opp’n at 1-2, 3-4; Lemay’s Opp’n at 6-8. Fontaine further argues
that any harm Plaintiff incurs respecting liquidation of Fontaine’s and Rustique’s entries
“is of [its] own making” because the Coalition withdrew its request for an administrative
review of those companies. Fontaine’s Opp’n at 5; see also id., Attach. 2 (the
Coalition’s withdrawal of its request for an administrative review).
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B. Plaintiff Has Not Met its Burden of Proving Irreparable Harm
Plaintiff’s assertions of harm arising from liquidation, revocation, or changes in
the cash deposit rates are unsupported and unpersuasive.
First, Plaintiff has not shown that it will incur irreparable harm in connection with
liquidation of entries without regard to countervailing duties for D&G, MLI, NAFP,
Roland, and Lemay. Plaintiff attempts to analogize the effect of liquidation on the
Coalition to the effect of liquidation during the pendency of a challenge to an
administrative review. See Pl.’s Mot. at 12 (citing, inter alia, Zenith, 710 F.2d at 810).
Challenges to administrative reviews differ from challenges to investigations, however,
because they address dumping margins calculated on entries of subject merchandise
for a specific period of review. See Zenith, 710 F.2d at 808. For that reason, the Zenith
court concluded that liquidation constituted irreparable harm because the plaintiff, a
domestic producer, would lose the “only remedy available to [it] for an incorrect review
determination.” Id. at 810 (noting that liquidation would prevent the trial court from
assessing duties on the covered entries “in accordance with a correct margin”).
“The emphasis throughout Zenith is on the liquidation of entries for a specific
review period and the potential loss of plaintiff's remedy, i.e., the right to have the
administrative determination reviewed, with respect to that specific period.” FMC Corp.
v. United States, 3 F.3d 424, 431 (Fed. Cir. 1993). In contrast, the cash deposit rates
established in an investigation are prospective because they affect future entries, “not
just those made within a specific time period.” NSK Corp. v. United States, 31 CIT
1962, 1965 (2007) (citation omitted). Accordingly, liquidation of entries—without
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more—generally does not constitute irreparable harm in a challenge brought by a
domestic producer to an investigation determination. See Trent Tube Div., Crucible
Materials Corp. v. United States, 14 CIT 587, 588, 744 F. Supp. 1177, 1179 (1990)
(citing cases finding that liquidation is insufficient to find irreparable harm in challenges
by domestic producers to negative injury or dumping determinations, and finding same
in the context of a request for an injunction by a domestic producer challenging an
affirmative determination); Altx, Inc. v. United States, 26 CIT 735, 737, 211 F. Supp. 2d
1378, 1380 (2002) (discussing Trent Tube and denying motion for preliminary injunction
filed by domestic producers challenging an affirmative injury determination).
The purpose of an expedited review “is to provide a noninvestigated exporter
with its own cash deposit rate prior to the arrival of the first anniversary month of the
order, at which point the exporter may request an administrative review,” Preamble, 62
Fed. Reg. at 27,321, therefore, the results of an expedited review are akin to a final
investigation determination. If Plaintiff prevails in this case, the five companies
excluded from the order by the expedited review would be reinstated in the CVD Order
with the concomitant collection of cash deposits and suspension of liquidation. Thus,
liquidation of entries during the interim period would not moot Plaintiff’s claims and,
absent evidence demonstrating specific, irreparable harm from liquidation of those
entries, Plaintiff is not entitled to an injunction barring liquidation of such entries. 7
7 Plaintiff cites to the court’s opinion in Husteel Co., Ltd. v. United States, 38 CIT __, __.
34 F. Supp. 3d 1355, 1360 (2014), as an example of the court enjoining liquidation in
the context of a challenge to an investigation determination. Pl.’s Mot. at 15 (citing
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Plaintiff also has not demonstrated harm arising from the liquidation of Rustique’s
and Fontaine’s entries. Assuming, arguendo, that Rustique’s and Fontaine’s entries will
liquidate at the reduced rate established in the Final Results of Expedited Review, 8
Plaintiff has not demonstrated irreparable harm. As noted by Fontaine, any harm that
arises is self-inflicted as a result of Plaintiff’s withdrawal of its requests for administrative
reviews of those companies, maintenance of which would have continued the
suspension of liquidation pending Commerce’s final assessment of duties in the
administrative review. See Fontaine’s Opp’n at 5. Thus, Plaintiff is left asserting that
liquidation at one estimated deposit rate rather than another estimated deposit rate
constitutes irreparable harm, without any evidence of actual harm and without regard to
Plaintiff’s actual withdrawal of its request to have the actual subsidy rate for these
entries determined by review.
Plaintiff’s attempt to analogize this case to the circumstances underlying the
court’s grant of a preliminary injunction in Fuyao Glass Industry Group Co., Ltd. v.
United States, 27 CIT 1321, 1323 (2003), is unpersuasive. Pl.’s Mot. at 17-18. In
Husteel, 34 F. Supp. 3d at 1358-64). Husteel is distinguishable in that movants were
the foreign producers and exporters of subject merchandise, not domestic producers of
the foreign like product, and maintained that they should have received a de minimis
rate in the investigation, been excluded from the order, and not required to go through
administrative reviews. See Compl. ¶¶ 13, 21, Husteel Co., Ltd., et al. v. United States,
et al., No. 14-cv-00215 (Ct. Int’l Trade Aug. 2, 2016). Such circumstances distinguish
Husteel from the present case.
8 Plaintiff avers that Commerce’s automatic assessment provision requires liquidation at
the all-others rate established in the investigation, but that it is unclear whether
Commerce will interpret the regulation to require liquidation at the rates established in
the Final Results of Expedited Review. Pl.’s Mot. at 17; see also 19 C.F.R.
§ 351.212(c).
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Fuyao, the court found irreparable harm on the basis of liquidation when an exporter
withdrew its own request for an administrative review subsequent to the initial
determination. 27 CIT at 1321; cf. OKI Elec. Industry Co., Ltd. v. United States, 11 CIT
624, 631, 669 F. Supp. 480, 485 (1987) (finding irreparable harm to plaintiff/importer of
subject merchandise and enjoining liquidation of entries at the challenged rate from the
investigation when the plaintiff had withdrawn its request for an administrative review).
Fuyao and OKI are distinguishable because the movants—importers/exporters of
subject merchandise—had a direct financial stake in the rate at which entries would be
liquidated. In contrast, here, the Coalition consists of domestic producers who have not
provided any evidence of any harm from, or stake in, the liquidation of the entries at an
allegedly erroneous rate. Moreover, judicial relief will continue to be available to Plaintiff
if it prevails because future entries would be subject to the all-others rate established in
the CVD Order pending a subsequent review. 9 Accordingly, Plaintiff has not
demonstrated that it would incur irreparable harm from the liquidation of Rustique’s and
Fontaine’s entries.
Lastly, Plaintiff has not shown that it will be irreparably harmed by revocation of
the order and the implementation of reduced cash deposit rates due to the potential for
circumvention of the CVD Order. Put simply, Plaintiff’s speculative circumvention
9Because the court finds the absence of irreparable harm even if Rustique’s and
Fontaine’s entries liquidate at the rates established in the Final Results of Expedited
Review, the court need not decide whether any potential harm would have been
mitigated by the continued suspension of liquidation in place in connection with the first
administrative review of the AD Order (albeit excepting the two months between the
CVD and AD preliminary determinations, see supra, note 5).
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concerns do not present the type of “immediate and viable threat of irreparable harm”
necessary for an injunction to issue. Otter Prods., LLC v. United States, 38 CIT __, __,
37 F. Supp. 3d 1306, 1315 (2014) (internal quotation marks and citation omitted).
Plaintiff has not provided evidence demonstrating that circumvention is likely, or that
Coalition members would be irreparably harmed by circumvention. Plaintiff also
contends that because Commerce has found Matra to be uncreditworthy, there is an
increased risk that CBP will not be able to collect duties owed if Plaintiff prevails. Pl.’s
Mot. at 20. Besides being speculative, Plaintiff does not explain why Matra’s inability to
pay duties harms the Coalition specifically, given that it is not the recipient of the duties.
In sum, Plaintiff has failed to offer persuasive arguments or any evidence
demonstrating that it would be irreparably harmed in the absence of the temporary
restraining order or preliminary injunction. For this reason, the court will vacate the
temporary restraining order, finding that it was improvidently granted, and deny
Plaintiff’s request for injunctive relief. See Sumecht, 923 F.3d at 1348 (affirming court’s
denial of injunctive relief when the movant failed to demonstrate irreparable harm).
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CONCLUSION & ORDER
For the reasons discussed herein, the court VACATES the Temporary
Restraining Order entered on July 15, 2019 (ECF No. 10) and DENIES Plaintiff’s motion
for a preliminary injunction (ECF No. 6). Fontaine’s motion to modify the temporary
restraining order (ECF No. 22) is DENIED AS MOOT.
/s/ Mark A. Barnett
Mark A. Barnett, Judge
Dated: July 26, 2019
New York, New York