Fuyao Glass Industry Group Co. v. United States , 27 Ct. Int'l Trade 1160 ( 2003 )

SLIP OP . 03-98
UNITED STATES COURT OF INTERNATIONAL TRADE
BEFORE : RICHARD K. EATON , JUDGE
____________________________________
:
FUYAO GLASS INDUSTRY GROUP CO ., LTD ., :
GREENVILLE GLASS INDUSTRIES, INC., :
SHENZHEN BENXUN AUTOMOTIVE GLASS :
CO ., LTD ., TCG INTERNATIONAL, INC., :
CHANGCHUN PILKINGTON SAFETY GLASS :
CO ., LTD ., GUILIN PILKINGTON SAFETY :
GLASS CO ., LTD ., WUHAN YAOHUA :
PILKINGTON SAFETY GLASS CO ., LTD ., AND :
XINYI AUTOMOTIVE GLASS (SHENZHEN) :
CO ., LTD ., :
:
PLAINTIFFS , :
:
V. : CONSOL. COURT NO . 02-00282
:
UNITED STATES , :
:
DEFENDANT, :
:
AND :
:
PPG INDUSTRIES, INC., SAFELITE GLASS :
CORPORATION , AND VIRACON /CURVLITE, A :
SUBSIDIARY OF APOGEE ENTERPRISES, INC ., :
:
DEF.-INTERVENO RS. :
____________________________________:
[Fuyao Glass Industry Group Co., Ltd. and Greenville Glass Industries, Inc.’s motion for
preliminary injunction denied.]
Decided: July 31, 2003
Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt, LLP (Bruce M. Mitchell and
Jeffrey S. Grimson), for plaintiffs Fuyao Glass Industry Group Co., Ltd., and Greenville Glass
Industries, Inc.
CONSOL. COURT NO . 02-00282 PAGE 2
Garvey, Schubert & Barer (William E. Perry and John C. Kalitka), for plaintiffs
Shenzhen Benxun Automotive Glass Co., Ltd., and TCG International, Inc.
Pepper Hamilton,LLP (Gregory C. Dorris), for plaintiffs Changchun Pilkington Safety
Glass Co., Ltd., Guilin Pilkington Safety Glass Co., Ltd., and Wuhan Yaohua Pilkington Safety
Glass Co., Ltd.
White & Case (William J. Clinton and Adams C. Lee), for plaintiff Xinyi Automotive
Glass (Shenzen) Co., Ltd.
Peter D. Keisler, Assistant Attorney General, Civil Division, United States Department of
Justice; David M. Cohen, Director, Commercial Litigation Branch, Civil Division, United States
Department of Justice (A. David Lafer), for defendant United States.
Stewart & Stewart (Terence P. Stewart, Alan M. Dunn, and Eric P. Salonen), for
defendant-intervenors PPG Industries, Inc., Safelite Glass Corporation, and Viracon/Curvlite, a
subsidiary of Apogee Enterprises, Inc.
OPINION
EATON , JUDGE: This motion shares some of the issues and facts with the motion for a
preliminary injunction made by Xinyi Automotive Glass (Shenzen) Co., Ltd., which motion was
denied in an opinion of this court dated July 31, 2003. See Xinyi Automotive Glass, (Shenzen)
Co. v. United States, 27 C.I.T. __, Slip Op. 03-99 (July 31, 2003). As such, much of each
opinion repeats the other. The factual situations are sufficiently different, however, that for
purposes of clarity the court is issuing two separate opinions.
Fuyao Glass Industry Group Co., Ltd. and Greenville Glass Industries, Inc.
(“Applicants”), move for a preliminary injunction to enjoin liquidation of certain entries of
automotive replacement glass windshields (the “Subject Merchandise”) pending a final decision
on the merits in the underlying action. PPG Industries, Inc., Safelite Glass Corp., and
CONSOL. COURT NO . 02-00282 PAGE 3
Viracon/Curvlite, a subsidiary of Apogee Enterprises, Inc. (“Defendant-Intervenors”), object to
the issuance of a preliminary injunction. The court has the authority to grant the requested relief.
See 28 U.S.C. § 1585 (2000); 28 U.S.C. § 2643(c)(1) (2000); see also The All Writs Act, 28
U.S.C. § 1651(a) (2000). For the reasons set forth below, the court denies Applicants’ motion.1
DISCUSSION
Injunctive relief is an “extraordinary remedy” that is to be granted sparingly. Weinberger
v. Romero-Barcelo, 456 U.S. 305, 312 (1982) (citing R.R. Comm’n of Tx. v. Pullman Co., 312
U.S. 496, 500 (1941)); FMC Corp. v. United States, 3 F.3d 424, 427 (Fed. Cir. 1993); PPG
Indus., Inc. v. United States, 11 C.I.T. 5, 6 (1987) (citing Am. Air Parcel Forwarding Co. v.
United States, 1 C.I.T. 293, 298, 515 F. Supp. 47, 52 (1981)). Applicants bear the burden of
establishing that: (1) absent the requested relief, they will suffer immediate irreparable harm; (2)
there exists in their favor a likelihood of success on the merits; (3) the public interest would be
better served by the requested relief; and (4) the balance of the hardships on all parties tips in
their favor. Zenith Radio Corp. v. United States, 710 F.2d 806, 809 (Fed. Cir. 1983) (citing S.J.
Stile Assocs. v. Snyder, 646 F.2d 522, 525 (C.C.P.A. 1981); Va. Petroleum Jobbers Ass’n v. Fed.
Power Comm’n, 259 F.2d 921, 925 (D.C. Cir. 1958)); Corus Group PLC v. Bush, 26 C.I.T. __,
__, 217 F. Supp. 2d 1347, 1353 (2002) (citing Zenith, 710 F.2d at 809). The court in its analysis
1
In the action underlying this motion Applicants, along with Shenzhen Benxun
Automotive Glass Co., Ltd., TCG International, Inc., Changchun Pilkington Safety Glass Co.,
Ltd., Guilin Pilkington Safety Glass Co., Ltd., Wuhan Yaohua Pilkington Safety Glass Co., Ltd.,
and Xinyi Automotive Glass (Shenzen) Co., Ltd., challenge certain aspects of the United States
Department of Commerce’s (“Commerce” or “Department”) antidumping order covering
automotive replacement glass windshields. See Auto. Replacement Glass Windshields from the
P.R.C., 67 Fed. Reg. 16,087 (ITA Apr. 4, 2002) (antidumping duty order).
CONSOL. COURT NO . 02-00282 PAGE 4
of these factors employs a “sliding scale” and, consequently, need not assign to each factor equal
weight. Corus, 26 C.I.T. at __, 217 F. Supp. 2d at 1353–54 (citing Chilean Nitrate Corp. v.
United States, 11 C.I.T. 538, 539 (1987)); id., 26 C.I.T. at __, 217 F. Supp. 2d at 1354 (quoting
FMC Corp., 3 F.3d at 427) (“If a preliminary injunction is granted by the trial court, the
weakness of the showing regarding one factor may be overborne by the strength of the
others . . . . [Conversely], the absence of an adequate showing with regard to any one factor may
be sufficient, given the weight or lack of it assigned to other factors, to justify [its] denial.”).
Notwithstanding, the crucial element is that of irreparable injury. Id., 26 C.I.T. at __, 217 F.
Supp. 2d at 1354 (citing Elkem Metals Co. v. United States, 25 C.I.T. __, __, 135 F. Supp. 2d
1324, 1329 (2001); Nat’l Hand Tool Corp. v. United States, 14 C.I.T. 61, 65 (1990)); see also
Beacon Theatres, Inc, v. Westover, 359 U.S. 500, 506–07 (1959) (“The basis of injunctive relief
in the federal courts has always been irreparable harm and inadequacy of legal remedies.”);
Bomont Indus. v. United States, 10 C.I.T. 431, 437, 638 F. Supp. 1334, 1340 (1986) (citing Nat’l
Corn Growers Ass’n. v. Baker, 9 C.I.T. 571, 585, 623 F. Supp. 1262, 1275 (1985); Am. Air
Parcel Forwarding Co. v. United States, 6 C.I.T. 146, 152, 573 F. Supp. 117, 122 (1983))
(“Failure of an applicant to bear its burden of persuasion on irreparable harm is ground to deny a
preliminary injunction, and the court need not conclusively determine the other criteria.”). The
court, having considered the requisite factors, concludes that Applicants have not established a
clear showing that they are entitled to the requested relief.
A. Irreparable harm
Applicants advance a sole ground for a finding of irreparable harm which, set forth in its
CONSOL. COURT NO . 02-00282 PAGE 5
entirety, reads:
Plaintiffs contest certain factual findings and legal conclusions in
the final determination of the antidumping duty investigation of
automotive replacement glass windshields from the People’s
Republic of China (Case No. A-570-867). Unless this Court grants
an injunction to prevent liquidation, some or all of the subject
entries could be liquidated with substantial antidumping duties
assessed in the event that no administrative review is requested of
FYG’s exports and entries during the first “anniversary month” of
the Antidumping Order (April 2003).[2] Such liquidations prior to
this Court’s final decision would constitute “irreparable injury” to
plaintiffs.
Pls.’ Mem. Supp. Mot. Prelim. Inj. ¶ 1 (“Pls.’ Mem.”) (emphasis added) (citing Zenith, 710 F.2d
at 811). Thus, Applicants’ entire motion is based on the notion that “in the event that no
administrative review is requested of FYG’s exports and entries,” then “some or all of the subject
entries could be liquidated with substantial antidumping duties assessed . . . .” Id. Here, it is not
necessary for the court to determine what validity this claim might have, based on the eventuality
that no administrative review were requested, because Applicants themselves requested such a
review. On April 7, 2003, Commerce published a notice of opportunity to request administrative
review of the antidumping duty order covering the Subject Merchandise. See Antidumping or
Countervailing Duty Order, Finding, or Suspended Investigation, 68 Fed. Reg. 16,761, 16,761
(ITA Apr. 7, 2003) (opportunity to request admin. rev.) (“In accordance with section 351.213(b)
of the regulations, an interested party . . . may request in writing that the Secretary conduct an
administrative review.”). By letter dated April 30, addressed to Donald L. Evans, Secretary of
Commerce, International Trade Administration, counsel for Applicants advised that
2
19 U.S.C. § 1675(a) (2000) provides for periodic review of the amount of an
antidumping duty, upon request.
CONSOL. COURT NO . 02-00282 PAGE 6
[o]n behalf of Fuyao Glass Industry Group Company, Ltd.
(“FYG”), we hereby request, in accordance with the Department’s
notice published in the Federal Register ,that the Department
conduct an administrative review of sales and entries of subject
merchandise exported by FYG covered by the antidumping duty
order on Automotive Replacement Glass Windshields from the
People’s Republic of China. For FYG, the period of review should
be September 19, 2001 through March 31, 2003[.]
See Opp’n of Def.-Intervenors to Pl. FYG’s Mot. Prelim. Inj. Ex. 1 at 1 (citation omitted).3 On
May 21, a notice of initiation was published in the Federal Register which reads, in relevant part:
The Department has received timely requests, in accordance with
19 CFR 351.213(b) (2002), for administrative reviews of various
antidumping and countervailing duty orders and findings with
April anniversary dates . . . .
Initiation of Reviews
In accordance with section 19 CFR 351.221(c)(1)(i), we are
initiating administrative reviews of the following antidumping and
countervailing duty orders and findings. . . .
The People’s Republic of China: Automotive Replacement Glass
Windshields A-570-867 . . . , Fuyao Glass Industry Group
Company, Ltd. . . . .
Initiation of Antidumping and Countervailing Duty Admin. Revs. and Request for Revocation in
Part, 68 Fed. Reg. 27,781, 27,781 (ITA May 21, 2003) (notice) (footnote omitted).
By statute, “[t]he determination [resulting from the review] shall be the basis for the
assessment of countervailing or antidumping duties on entries of merchandise covered by the
3
Applicants themselves did not alert the court to the existence of this letter.
Indeed, as Applicants’ motion was filed with this court after their letter was sent to Commerce it
would appear that the “allegations and other factual contentions” contained the motion do not
have the requisite “evidentiary support” required by the rules of this Court. See USCIT R.
11(b)(3).
CONSOL. COURT NO . 02-00282 PAGE 7
determination . . . .” 19 U.S.C. § 1675(a)(2)(C). As stated in Commerce’s regulations:
Unlike 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. If a review is not requested, duties are assessed at
the rate established in the completed review covering the most
recent prior period or, if no review has been completed, the cash
deposit rate applicable at the time merchandise was entered.
See 19 C.F.R. § 351.212(a) (2003). Thus, because Applicants’ sole claim with respect to
“immediate irreparable harm” has been mooted by Applicants’ own action in requesting an
administrative review, they have not sustained their burden of proof as to this factor. Zenith, 710
F.2d at 809.
B. Likelihood of success on the merits
“The failure . . . to establish irreparable harm significantly raises the burden imposed on
[p]laintiff to prove a likelihood of success on the merits.” Shandong Huarong Gen. Group Corp.
v. United States, 24 C.I.T. 1286, 1292, 122 F. Supp. 2d 143, 148 (2000) (citing FMC Corp., 3
F.3d at 427). Put differently, a movant that fails to establish the danger of immediate irreparable
harm cannot satisfy its showing as to a likelihood of success on the merits by merely “rais[ing]
questions going to the merits so serious, substantial, difficult and doubtful, as to make them a fair
ground for litigation and thus for more deliberate investigation.” Am. Air Parcel, 1 C.I.T. at 298,
515 F. Supp. at 52 (quoting Wash. Metro. Area Transit Comm’n v. Holiday Tours, Inc., 559 F.2d
841, 844 (D.C. Cir. 1977)); see also Ugine-Savoie Imphy v. United States, 24 C.I.T. 1246, 1251,
121 F. Supp. 2d 684, 690 (2000) (citing PPG Indus., 11 C.I.T. at 8; Floral Trade Council v.
CONSOL. COURT NO . 02-00282 PAGE 8
United States, 17 C.I.T. 1022, 1023 (1993)) (“Where it is clear that the moving party will suffer
substantially greater harm by the denial of the preliminary injunction than the non-moving party
would by its grant, it will ordinarily be sufficient that the movant has raised ‘serious, substantial,
difficult and doubtful questions . . . .’”). Applicants’ complaint does, in fact, raise serious issues,
including questions regarding Commerce’s Final Determination in its antidumping duty
investigation with respect to its “reason to believe or suspect” finding, as well as an allegation
that Commerce engaged in inappropriate ex parte communications. See Compl. ¶¶ 11, 13, 15,
18. Nonetheless, other than directing the court’s attention to two recent cases remanded by this
Court, see Pls.’ Mem. at 3 (citing China Nat’l Mach. Imp. & Exp. Corp. v. United States, 27
C.I.T. __, Slip Op. 03-16 (Feb. 13, 2003); Luoyang Bearing Factory v. United States, 27 C.I.T.
__, Slip Op. 03-41 (Apr. 14, 2003)), Applicants make no showing tending to demonstrate that
this factor should favor them. Indeed, Applicants make no effort, either by argument, or by
establishing facts by affidavit or otherwise, demonstrating their entitlement to relief based on this
factor. Thus, “[t]his is not a case where a decision in plaintiff[s’] favor on the merits can be
predicted.” Chilean Nitrate, 11 C.I.T. at 540. Given the absence of a showing of irreparable
injury it would be particularly “inappropriate to resolve [these questions] . . . according to a
likelihood of success on the merits standard.” Techsnabexport, Ltd. v. United States, 16 C.I.T.
420, 429, 795 F. Supp. 428, 437 (1992); see also Bomont, 10 C.I.T. at 434, 638 F. Supp. at 1340(“[T]he court is not persuaded now that the plaintiff is so likely to succeed on the merits as to
make the showing of irreparable harm a conceptual formality.”). Thus, this factor does not favor
Applicants.
CONSOL. COURT NO . 02-00282 PAGE 9
C. The public interest
Applicants claim that the public interest favors their motion since “the injunction will
preserve the serious questions raised by plaintiffs with respect to the appropriate liquidation of
plaintiffs’ entries.” Pls.’ Mem. at 4. Here too Applicants’ own actions have tended to defeat
their claim as they have requested the review that will halt liquidation. Unlike the Applicant in
Xinyi, see Xinyi, 27 C.I.T. at __, Slip Op. 03-99 at 4–5, Applicants make no argument with
respect to injury that might result were its request for the administrative review withdrawn.
Here, Applicants’ prayer for relief relies solely on the injury that might occur should no request
for an administrative review be made. This request having been made, any arguments Applicants
might have made with respect to the public policy factor have been rendered moot together with
their arguments with respect to irreparable harm.
D. Balance of the hardships
With respect to the relative hardships on the parties, Applicants reiterate their claims
made with respect to irreparable injury. Pls.’ Mem. at 2–3. However, just as the prospect of
such injury has been mooted by Applicants’ own actions, so too has the possibility of Applicants’
hardship. Therefore, Applicants have failed to demonstrate that this factor should be weighed in
their favor. See Techsnabexport, 16 C.I.T. at 429, 795 F. Supp. at 437 (“As plaintiffs have the
burden on this issue, the hardships are presumed to balance.”).
CONCLUSION
For the foregoing reasons, the court finds that Applicants have failed to meet their burden
CONSOL. COURT NO . 02-00282 PAGE 10
with respect to each of the four prongs of the test for preliminary injunctive relief. Accordingly,
Applicants’ motion for preliminary injunction is denied.
______________________________
Richard K. Eaton, Judge
Dated: July 31, 2003
New York, New York