SolarWorld Americas, Inc. v. United States , 2017 CIT 171 ( 2017 )

Slip Op. 17
UNITED STATES COURT OF INTERNATIONAL TRADE
SOLARWORLD AMERICAS, INC.
Plaintiff,
SINO-AMERICAN SILICON
PRODUCTS INC. and SOLARTECH
ENERGY CORP.,
Plaintiff-Intervenors,
v. Before: Jennifer Choe-Groves, Judge
UNITED STATES, Consol. Court No. 17-00208
Defendant,
and
KYOCERA SOLAR, INC. and
KYOCERA MEXICANA S.A. DE
C.V.,
Defendant-Intervenors.
MEMORANDUM AND ORDER
[Defendant-Intervenors’ motion to modify preliminary injunction is denied.]
Dated: December 21, 2017
Timothy C. Brightbill, Wiley Rein, LLP, of Washington, D.C., for Plaintiff. With him on brief was Usha
Neelakantan, Wiley Rein, LLP, of Washington, D.C.
Jarrod Mark Goldfeder, Trade Pacific, PLLC, of Washington, D.C., for Consolidated Plaintiffs.
Joshua Ethan Kurland, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of
Washington, D.C., for Defendant. Of counsel was Reza Karamloo, Attorney, Office of Chief Counsel for
Trade Enforcement and Compliance, U.S. Department of Commerce, of Washington, D.C.
Consol. Court No. 17-00208 Page 2
J. Kevin Horgan, deKieffer & Horgan, PLLC, of Washington, D.C., for Defendant-Intervenors. With him
on brief was Alexandra H. Salzman, deKieffer & Horgan, PLLC, of Washington, D.C.
Choe-Groves, Judge: This case involves the judicial review of the final results in the first
administrative review of the antidumping duty order on certain crystalline silicon photovoltaic
products (“solar panels”) from Taiwan. Upon the request of an interested party and upon a
proper showing, the court may enjoin the liquidation of entries covered by an antidumping duty
order of the United States Department of Commerce (“Commerce”) pursuant to 19 U.S.C. §
1516a(c)(2). Entries of merchandise covered by a published determination of Commerce that are
enjoined in accordance with § 1516a(c)(2) “shall be liquidated in accordance with the final court
decision in the action.” 19 U.S.C. § 1516a(e)(2) (2012).
Defendant-Intervenors Kyocera Solar, Inc. and Kyocera Mexicana S.A. de C.V.
(collectively “Kyocera” or “Defendant-Intervenors”) filed a Motion to Modify Preliminary
Injunction, Oct. 31, 2017, ECF No. 37 (“Motion to Modify Statutory Injunction”), 1 requesting
that the court modify its September 5, 2017 statutory injunction that enjoins, during the pendency
of this litigation, the liquidation of certain entries of solar panels from Taiwan covered by an
antidumping duty order. Kyocera requests that the court exercise its discretion to modify the
statutory injunction to allow the liquidation of entries of subject solar panels assembled by
Kyocera Mexicana S.A. de C.V. in Mexico and exported to the United States. Id. at 1. Plaintiff
SolarWorld Americas, Inc. (“SolarWorld”) opposes Kyocera’s Motion to Modify the Statutory
Injunction. See Opp’n Def.-Intervenor’s Mot. Modify Prelim. Inj., Nov. 20, 2017, ECF No. 41
(“SolarWorld’s Opp’n”). The issue presented is whether the court should exercise its discretion
1
This court will refer to a preliminary injunction under 19 U.S.C. § 1516a(c)(2) as a statutory
injunction.
Consol. Court No. 17-00208 Page 3
to modify the statutory injunction to allow liquidation of Kyocera’s entries of solar panels prior
to a final decision on the merits. For the foregoing reasons, the court denies the Motion to
Modify the Statutory Injunction.
BACKGROUND
On December 23, 2014, Commerce issued its final antidumping determination that
certain solar panel products from Taiwan were being sold, or were likely to be sold, in the United
States at less than fair value. See Certain Crystalline Silicon Photovoltaic Products from Taiwan,
79 Fed. Reg. 76,966 (Dep’t Commerce Dec. 23, 2014) (final determination of sales at less than
fair value). Kyocera was assigned an all-others weighted-average dumping margin of 19.50
percent. Id. at 76,969. Commerce conducted an administrative review and issued its final results
of the administrative review on July 7, 2017, assigning a final weighted-average dumping margin
of 4.10 percent to Kyocera. See Certain Crystalline Silicon Photovoltaic Products from Taiwan,
82 Fed. Reg. 31,555, 31,556 (Dep’t Commerce July 7, 2017) (final results of administrative
antidumping duty review for 2014–2016) (“July 7, 2017 Final Order”).
Plaintiff SolarWorld appealed the final results of Commerce’s administrative review in
this court. On September 1, 2017, Plaintiff SolarWorld filed a consent motion requesting that the
court issue a statutory injunction order to enjoin liquidation of certain entries until the final
resolution of this action, including entries that: (1) were covered by the July 7, 2017 Final Order;
(2) were entered, or were withdrawn from warehouse for consumption, on or after July 31, 2014,
through and including January 31, 2016; and (3) were produced and/or exported by any of the
following exporters: Sino-American Silicon Products Inc./Solartech Energy Corp., Motech
Industries, Inc., AU Optronics Corporation, EEPV CORP, E-TON Solar Tech. Co., Ltd., Gintech
Energy Corporation, Inventec Energy Corporation, Inventec Solar Energy Corporation, Kyocera
Consol. Court No. 17-00208 Page 4
Mexicana S.A. de C.V., Sunengine Corporation Ltd., TSEC Corporation, and Win Win Precision
Technology Co., Ltd. See Consent Mot. Prelim. Inj. 1–2, Sept. 1, 2017, ECF No. 13.
The court held a conference call with the parties on September 5, 2017 and issued a
statutory injunction order the same day. See Teleconference, Sept. 5, 2017, ECF No. 16; Order,
Sept. 5, 2017, ECF No. 17 (“Inj. Order”). The court’s September 5, 2017 statutory injunction
order directed that:
[D]efendant United States, together with its delegates, officers, agents, and employees of
the International Trade Administration of the United States Department of Commerce
and the United States Department of Homeland Security, and United States Customs and
Border Protection, shall be, and hereby are ENJOINED immediately upon the entry of
this Order and pending a final and conclusive court decision in this litigation, including
all appeals and remand proceedings, from causing or permitting liquidation of
unliquidated entries of certain crystalline silicon photovoltaic products from Taiwan….
Inj. Order at 2. Kyocera filed a Consent Motion to Intervene as Plaintiff-Intervenor and
Defendant-Intervenor on October 2, 2017. See Consent Mot. Intervention, Oct. 2, 2017, ECF
No. 28. This court granted the request on October 3, 2017. See Order, Oct. 3, 2017, ECF No.
33.
On October 31, 2017, Kyocera filed its Motion to Modify Statutory Injunction requesting
modification of the court’s September 5, 2017 statutory injunction. See Mot. Modify Prelim. Inj.
Kyocera requests that the court modify the statutory injunction to allow the liquidation of entries
of solar panels imported by Kyocera. Id. at 1. Kyocera argues that modification of the statutory
injunction is warranted because: (1) the liquidation of entries of Kyocera’s solar panels will not
cause irreparable harm to SolarWorld; (2) there has been no showing that SolarWorld is likely to
prevail on its claims in a manner that would impact the assessment of duties on Kyocera’s
entries; (3) the court’s initial decision granting the injunction did not consider the hardship on
Kyocera in its balance of hardships analysis; and (4) the public interest does not favor granting
Consol. Court No. 17-00208 Page 5
extraordinary relief in the form of a preliminary injunction delaying implementation of an
administrative determination in the absence of either a strong showing of a likelihood of
irreparable harm or a strong showing that the requesting party is likely to prevail on the merits of
its claims. Id. at 1–2.
Plaintiff SolarWorld opposes Kyocera’s Motion to Modify the Statutory Injunction.
SolarWorld argues that modification of the statutory injunction is not justified because Kyocera
“has offered no meaningful reasons for the Court to reverse its decision with respect to
Kyocera’s entries.” SolarWorld’s Opp’n at 3. SolarWorld contends that “the criteria for
granting injunctive relief remain satisfied in this case, and as such, the Court should deny
Defendant-Intervenor’s motion.” Id. According to Kyocera, Defendant United States opposes
the Motion to Modify the Statutory Injunction, maintaining “that Kyocera’s entries are covered
by the underlying antidumping duty order and are properly included within the scope of the
lawful injunction requested by SolarWorld, consented to by the Government, and issued by the
Court.” Mot. Modify Prelim. Inj. at 5. Kyocera indicated that “Counsel for Sino-American
Silicon Products Inc., et al., states that, ‘without additional information regarding the scope of
Kyocera’s entries that would be subject to Kyocera’s requested exclusion from the injunction
including, but not limited to, the identity of the Taiwanese producers and/or exporters of the
crystalline silicon photovoltaic cells, we are unable at this time to develop a position regarding
Kyocera’s motion.’” Id.DISCUSSION
A. Statutory Injunction
The relevant statutory language provides that:
Consol. Court No. 17-00208 Page 6
If the cause of action is sustained in whole or in part by a decision of the United States
Court of International Trade or of the United States Court of Appeals for the Federal
Circuit--
…
(2) entries, the liquidation of which was enjoined under subsection (c)(2) of this
section, shall be liquidated in accordance with the final court decision in the
action.
19 U.S.C. § 1516a(e)(2) (2012). This court has recognized that modification of a statutory
injunction is not justified prior to a final court decision that includes all appeals and remands.
See Aimcor v. United States, 23 CIT 932, 937, 83 F. Supp. 2d 1293, 1297 (1999) (“The statutory
language is clear, it is undisputed that there has been no final decision in this case, and therefore,
under the terms of the statute, liquidations remain enjoined until a final decision.”).
In addition, the court’s September 5, 2017 statutory injunction order directed that the
United States and relevant agencies “shall be, and hereby are, ENJOINED immediately upon the
entry of this Order and pending a final and conclusive court decision in this litigation, including
all appeals and remand proceedings, from causing or permitting liquidation of unliquidated
entries of certain crystalline silicon photovoltaic products from Taiwan….” Order at 2.
Under the statute and the express terms of the statutory injunction order, liquidation of
subject entries shall be enjoined until resolution of the final and conclusive court decision in this
litigation, including all appeals and remand proceedings. The pending litigation in this court is
in the early stages of the proceedings, and no final and conclusive court decision has yet been
rendered. After this court issues its dispositive decision, the parties will have an opportunity to
appeal the court’s decision that may lead to a final and conclusive court decision. It is well
settled that “19 U.S.C. § 1516a(c)(2) envisions the use of preliminary injunctions in the
antidumping context to preserve proper legal options and to allow for a full and fair review of
duty determinations before liquidation.” Qingdao Taifa Group Co. v. United States, 581 F.3d
Consol. Court No. 17-00208 Page 7
1375, 1382 (Fed. Cir. 2009); see also Ad Hoc Shrimp Trade Action Comm. v. United States, 34
CIT 1275, 1277, 724 F. Supp. 2d 1373, 1380 (2010).
For the foregoing reasons, the court concludes that it is premature to modify the statutory
injunction order to allow liquidation of Kyocera’s entries before a final and conclusive court
decision in this litigation. Modification of the statutory injunction is denied.
B. Changed Circumstances
An examination of the “changed circumstances” test establishes an additional basis to
deny Kyocera’s request for a modification of the statutory injunction. This court has the
authority to modify a statutory injunction when it finds that there is a sufficient change of
circumstances. Aimcor, 23 CIT at 938, 83 F. Supp. 2d at 1299 (citing Sys. Fed’n No. 91 v.
Wright, 364 U.S. 642, 647 (1961)). In order to obtain a modification of a statutory injunction,
“Defendant-Intervenor must establish a change in circumstances of the parties from the time the
injunction was issued that would make the modification necessary. Additionally, the party
seeking to modify a [statutory] injunction bears the burden of establishing a change in
circumstances that would make continuation of the original [statutory] injunction inequitable.”
Ad Hoc Shrimp Trade Action Comm. v. United States, 32 CIT 666, 670, 562 F. Supp. 2d 1383,
1388 (2008) (citing SNR Roulements v. United States, 31 CIT 1762, 1764, 521 F. Supp. 2d
1395, 1398 (2007)); see also Aimcor, 23 CIT at 938, 83 F. Supp. 2d at 1299 (“[A] party moving
for modification bears the burden of showing that changed circumstances, legal or factual, make
the continuation of the injunction inequitable.”).
Kyocera’s Motion to Modify Statutory Injunction fails to mention the applicable changed
circumstances test. Kyocera does not set forth any facts or legal arguments to show a change in
circumstances that would make continuation of the original statutory injunction inequitable.
Consol. Court No. 17-00208 Page 8
Because Kyocera, as the movant, did not make a sufficient showing under the applicable legal
standard of changed circumstances, the court denies the Motion to Modify Statutory Injunction.
C. Defendant-Intervenor’s Arguments
Kyocera fails to address the applicable changed circumstances test in its motion, and
instead argues that the court’s September 5, 2017 statutory injunction order should not have been
granted. Kyocera urges the court to reexamine the four-part statutory injunction test, which
requires a party to show that: (1) it will be immediately and irreparably injured; (2) there is a
likelihood of success on the merits; (3) the public interest would be better served by the relief
requested; and (4) the balance of hardships on all the parties favors the petitioner. Zenith Radio
Corp. v. United States, 710 F.2d 806, 809 (Fed. Cir. 1983).
Kyocera argues in its motion that the statutory injunction is improper because: (1) the
liquidation of entries of Kyocera’s solar panels will not cause irreparable harm to SolarWorld;
(2) there has been no showing that SolarWorld is likely to prevail on its claims in a manner that
would impact the assessment of duties on Kyocera’s entries; (3) the court’s initial decision
granting the injunction did not consider the hardship on Kyocera in its balance of hardships
analysis; and (4) the public interest does not favor granting extraordinary relief in the form of a
preliminary injunction delaying implementation of an administrative determination in the
absence of either a strong showing of a likelihood of irreparable harm or a strong showing that
the requesting party is likely to prevail on the merits of its claims. Mot. Modify Prelim. Inj. at 1–
2.
Kyocera fails to convince the court that it should reexamine the four-part statutory
injunction test or that it should partially dissolve the statutory injunction to allow the liquidation
of Kyocera’s entries of solar panels prior to final resolution of the litigation. To the contrary,
Consol. Court No. 17-00208 Page 9
“dissolution of the preliminary injunction may eviscerate the remedial effects conferred” by the
antidumping duty statute and “the potential for a dissolution prior to a final decision to cause
irreparable harm to plaintiffs is obvious.” Aimcor, 23 CIT at 939, 83 F. Supp. 2d at 1299. It is
clear that § 1516a(c)(2) contemplates that the statutory injunction should preserve the status quo
pending the final and conclusive disposition of the litigation. “Liquidation of a party’s entries is
the final computation or ascertainment of duties accruing on those entries. Once liquidation
occurs, it permanently deprives a party of the opportunity to contest Commerce’s results for the
administrative review by rendering the party’s cause of action moot.” SFK USA Inc. v. United
States, 28 CIT 170, 173, 316 F. Supp. 2d 1322, 1327 (2004) (citations omitted). As noted
earlier, the court has explained that, “19 U.S.C. § 1516a(c)(2) envisions the use of preliminary
injunctions in the antidumping context to preserve proper legal options and to allow for a full and
fair review of duty determinations before liquidation.” Ad Hoc Shrimp Trade Action Committee
v. United States, 34 CIT 1275,at 1277, 724 F. Supp. 2d 1373,at 1376 (2010) (quoting Qingdao
Taifa, 581 F.3d at 1382).
Similarly, in order to preserve proper legal options and to allow for a full and fair review
of Commerce’s antidumping duty determinations, the court will continue to enjoin the
liquidation of subject entries under the September 5, 2017 statutory injunction pending the final
and conclusive court decision in this litigation.
Consol. Court No. 17-00208 Page 10
CONCLUSION
Upon consideration of the motion and all other papers and proceedings herein, it is
hereby
ORDERED that Defendant-Intervenor’s motion is denied.
/s/ Jennifer Choe-Groves
Jennifer Choe-Groves, Judge
Dated: December 21, 2017
New York, New York