CS Wind Vietnam Co. v. United States , 2017 CIT 53 ( 2017 )

Slip Op. 17-53
UNITED STATES COURT OF INTERNATIONAL TRADE
CS WIND VIETNAM CO., LTD., and CS
WIND CORPORATION,
Plaintiffs,
Before: Jane A. Restani, Judge
v.
Court No. 13-00102
UNITED STATES,
Defendant,
WIND TOWER TRADE COALITION,
Defendant-Intervenor.
OPINION
[Motion for an injunction of liquidation granted in part.]
Dated: April 28, 2017
Bruce M. Mitchell, Ned H. Marshak, Andrew B. Schroth, and Dharmendra N.
Choudhary, Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt, LLP, of New York, NY, for
plaintiffs.
Joshua E. Kurland, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S.
Department of Justice, of Washington, DC, for the defendant. With him on the brief were Chad
A. Readler, Acting Assistant Attorney General, Jeanne E. Davidson, Director, and Reginald T.
Blades, Jr., Assistant Director. Of counsel on the brief was Emily R. Beline, Attorney, Office of
the Chief Counsel for Trade Enforcement and Compliance, U.S. Department of Commerce, of
Washington, DC.
Alan H. Price, Daniel B. Pickard, Robert E. DeFrancesco, III, and Derick G. Holt, Wiley
Rein, LLP, of Washington, DC, for defendant-intervenor.
Restani, Judge: This matter is before the court on plaintiffs CS Wind Vietnam Co., Ltd.
and CS Wind Corporation (collectively “CS Wind”)’s “Consent Motion for Preliminary
Court No. 13-00102 Page 2
Injunction,” ECF No. 121 (“Mot. for Prelim. Inj.”). 1 The court has jurisdiction pursuant to 28
U.S.C. § 1581(c). For the following reasons, the court grants the injunction of liquidation.
BACKGROUND
CS Wind is a producer and exporter of utility scale wind towers from Vietnam. Such
merchandise is subject to an antidumping (“AD”) duty order. See Utility Scale Wind Towers
from the Socialist Republic of Vietnam: Amended Final Determination of Sales at Less Than
Fair Value and Antidumping Duty Order, 78 Fed. Reg. 11,150, 11,150 (Dep’t Commerce Feb.
15, 2013) (“AD Order”); Utility Scale Wind Towers from the Socialist Republic of Vietnam:
Final Determination of Sales at Less Than Fair Value, 77 Fed. Reg. 75,984 (Dep’t Commerce
Dec. 26, 2012) (“Final Determination”). CS Wind challenged this Final Determination for the
investigatory stage of the proceedings in CS Wind Vietnam Co. v. United States, 971 F. Supp. 2d
1271, 1275 (CIT 2014). Following multiple remands and appeal to the Court of Appeals for the
Federal Circuit (“Federal Circuit”), CS Wind Vietnam Co. v. United States, 832 F.3d 1367 (Fed.
Cir. 2016), the U.S. Department of Commerce (“Commerce”) concluded that the estimated AD
duty margin on CS Wind’s towers was now 0.00 percent. Final Results of [Third]
Redetermination Pursuant to Ct. Order 20, ECF No. 104-1 (“Post-Appeal Remand Results”).
After the Post-Appeal Remand Results and prior to the court’s decision on those results, CS
Wind moved for an injunction suspending liquidation of unliquidated subject merchandise
entered on or after February 13, 2013, until this matter is finally resolved, including all appeals.
Mot. for Prelim. Inj. at 1. The court sustained the Post-Appeal Remand Results in CS Wind
1
Although CS Wind entitled its motion a “Consent Motion,” the government opposes the
motion. See Def.’s Resp. in Opp’n to Pls.’ Mot. for Prelim. Inj., ECF No. 124 (“Gov’t Resp.”).
Defendant-intervenor the Wind Tower Trade Coalition (“WTTC”) takes no position on the
motion. Mot. for Prelim. Inj. at 12.
Court No. 13-00102 Page 3
Vietnam Co. v. United States, Slip Op. 17-26, 2017 WL 1032646, at *1 (CIT Mar. 16, 2017)
(“CS Wind V”), essentially resulting in CS Wind eventually being excluded from coverage by
the AD duty order. Defendant-intervenor the Wind Tower Trade Coalition (“WTTC”) appealed
the court’s latest decision to the Federal Circuit. Notice of Appeal, ECF No. 126.
In its motion, CS Wind argues that entries of subject merchandise made during the first
and fourth periods of review may be liquidated prior to the resolution of this case, 2 and that there
is a possibility that the final review rates may be other than zero. Mot. for Prelim. Inj. at 4, 6.
CS Wind contends that such liquidation would cause irreparable injury, that the government will
not suffer material harm from any delay in liquidation, that CS Wind is likely to succeed on the
merits because Commerce found a weighted-average dumping margin of 0.00 percent in the
Post-Appeal Remand Results, and that the public interest would be best served by granting the
injunction. Id. at 7–11. In addition, CS Wind contends that “good cause” exists for its
“untimely” motion because no reason existed for seeking an injunction of liquidation at the time
the U.S. Court of International Trade Rule 56.2(a) 30-day deadline ran. Id. at 2–3. The
government responds that any potential harm is not “immediate” because all of CS Wind’s
unliquidated entries are either enjoined or administratively suspended from liquidation, and are
currently subject to a 0.00 percent AD duty rate or duty deposit rate as a result of the first
2
The second and third periodic reviews were rescinded. See Utility Scale Wind Towers from
the Socialist Republic of Vietnam: Notice of Rescission of Antidumping Duty Administrative
Review; 2015–2016, 81 Fed. Reg. 72,776, 72,776 (Dep’t Commerce Oct. 21, 2016); Utility
Scale Wind Towers from the Socialist Republic of Vietnam Notice of Rescission of
Antidumping Duty Administrative Review; 2014–2015, 80 Fed. Reg. 60,880, 60,880 (Dep’t
Commerce Oct. 8, 2015). CS Wind retained a zero duty rate from the first administrative review.
Utility Scale Wind Towers from the Socialist Republic [sic] Vietnam: Final Results of
Antidumping Duty Administrative Review; 2013–2014, 80 Fed. Reg. 55,333, 55,334 (Dep’t
Commerce Sept. 15, 2015). Thus, as far as an exact rate of duty is involved, for the purpose of
collecting cash deposits, this action is moot. It continues for the purpose of CS Wind’s inclusion
or exclusion from the AD order.
Court No. 13-00102 Page 4
administrative review. Def.’s Resp. in Opp’n to Pls.’ Mot. for Prelim. Inj. 1, 4–5, 7–10, ECF No.
124 (“Gov’t Resp.”). The government further argues that the other factors do not support an
injunction. Id. at 10–11. Lastly, the government contends that “good cause” does not exist for
the court to consider CS Wind’s “untimely” motion. Id. at 6–7.
DISCUSSION
Normally, injunction prior to the conclusion of litigation is extraordinary relief, which
may be awarded when the movant establishes: “(1) that it will be immediately and irreparably
injured; (2) that there is a likelihood of success on the merits; (3) that the public interest would
be better served by the relief requested; and (4) that the balance of hardship on all the parties
favors the [movant].” Zenith Radio Corp. v. United States, 710 F.2d 806, 809 (Fed. Cir. 1983);
see FMC Corp. v. United States, 3 F.3d 424, 427 (Fed. Cir. 1993). No one factor is dispositive
and the court typically applies a “sliding scale” approach to this determination, whereby the
“weakness of the showing regarding one factor may be overborne by the strength of the others.”
See Ugine & ALZ Belg. v. United States, 452 F.3d 1289, 1292–93 (Fed. Cir. 2006) (first quoting
Corus Grp. PLC v. Bush, 26 CIT 937, 942, 217 F. Supp. 2d 1347, 1353 (2002); then quoting
FMC Corp., 3 F.3d at 427). 3
As a preliminary matter, this is not the usual statutory injunction case. CS Wind has
already succeeded on the merits before this court and few arguments that plausibly could be
3
“Good cause” exists for the seeking of this injunction even though more than 30 days have
passed since CS Wind filed its complaint, on April 9, 2013. See Compl., ECF No. 9. At that
time, liquidation was suspended because, until the proceedings for the first administrative review
were completed, liquidation would not occur. 19 U.S.C. § 1673e(a)–(b). In addition, the
circumstances giving rise to CS Wind seeking this injunction—Commerce adjusting CS Wind’s
rate in the Final Determination from a positive margin to 0.00 percent—did not occur until
December 9, 2016. Post-Appeal Remand Results at 20.
Court No. 13-00102 Page 5
made on appeal to the Federal Circuit remain. See CS Wind V, 2017 WL 1032646, at *4–8.
There are no public interest issues that are not coextensive with the other factors. There are no
balance of hardship issues because the government does not allege that any harm would be
caused by the injunction and the WTTC’s indifference evidences its view that no harm would
befall it.
That leaves the issue of whether irreparable harm will occur in the absence of the
injunction sought. The government agrees that once entries are liquidated the court, cannot in
the normal course, compel changes to AD duties and effective judicial review may be foreclosed.
See Zenith Radio Corp., 710 F.2d at 810; Gov’t Resp. at 4. Instead, it argues that any threat of
irreparable harm to CS Wind is not “immediate” because unliquidated entries are either currently
enjoined or suspended from liquidation,4 and the cash deposit rate on unliquidated entries is 0.00
percent. Accordingly, the issue is whether CS Wind is already protected from the irreparable
harm of premature liquidation.
As well-summarized by the late Judge Donald Pogue in Snap-on, Inc. v. United States,
949 F. Supp. 2d 1346, 1352 (CIT 2013), the statutory scheme works as follows:
In general, when a dumping margin established in a CVD [or AD] investigation or
review is challenged in this court, a preliminary injunction is entered suspending
4
Liquidation of entries during the first period of review were first administratively suspended
pursuant to Commerce’s instructions, AD Order, 78 Fed. Reg. at 11,152, and then enjoined by
the court on October 9, 2015, pending resolution of challenges to the first administrative review.
Order, Wind Tower Trade Coal. v. United States, Ct. No. 15-00276 (Oct. 19, 2015), ECF No. 14.
Resolution of that case remains ongoing. CS Wind and the WTTC both filed requests for review
of CS Wind’s entries made during the period covered by the fourth review. Utility Scale Wind
Towers from the Socialist Republic of Vietnam: Req. for Administrative Review at 2, A-552-
814, POR 02/01/16–01/31/17, (Feb. 28, 2017) (ACCESS bar code 3547324-01) (WTTC); Req.
for Administrative Review: Utility Scale Wind Towers from the Socialist Republic of Vietnam at
1, A-552-814, POR 02/01/16–01/31/17, (Feb. 28, 2017) (ACCESS bar code 3546989-01) (CS
Wind). The government avers that because an administrative review is pending entries made
during the fourth period of review, February 1, 2016, to January 1, 2017, are suspended and will
liquidate at the zero rate if review is rescinded.
Court No. 13-00102 Page 6
liquidation of entries subject to the challenged margin. See 19 U.S.C.
§ 1516a(c)(2); SKF USA Inc. v. United States, 28 C.I.T. 170, 316 F. Supp. 2d 1322
(2004). If litigation results in court approval of a revised rate, all entries for which
liquidation was suspended pursuant to court order and section 1516a(c)(2), and all
entries that occur after publication of notice of the court decision in the Federal
Register, are subject to liquidation at the revised rate. See 19 U.S.C. § 1516a(e).
The same is not true, however, for other entries prior to notice of the court decision.
Rather, the statute specifically provides that “[u]nless liquidation is enjoined by the
court under [§ 1516a(c)(2) ] entries of merchandise . . . shall be liquidated in
accordance with the determination of [Commerce], if they are entered . . . on or
before the date of publication in the Federal Register by [Commerce] of a notice of
a decision of the [CIT] . . . not in harmony with that determination.” 19 U.S.C.
§ 1516a(c)(1).
(internal footnotes omitted) (second through sixth alterations in original).
Here, two Timken 5 notices, to which Judge Pogue refers, were issued—one prior to the
first appeal to the Federal Circuit, Utility Scale Wind Towers from the Socialist Republic of
Vietnam: Notice of Court Decision Not in Harmony with the Final Determination of Less Than
Fair Value Investigation and Notice of Amended Final Determination of Investigation, 80 Fed.
Reg. 30,211, 20,211 (Dep’t Commerce May 27, 2015), and one after this court’s last decision,
Utility Scale Wind Towers from the Socialist Republic of Vietnam: Notice of Court Decision
Not in Harmony with the Final Determination of Less Than Fair Value Investigation and Notice
of Amended Final Determination of Investigation, 82 Fed. Reg. 15,493, 15,494 (Dep’t
Commerce Mar. 29, 2017). Thus, liquidation is suspended until the completion of this action,
including all appeals. If plaintiff maintains a zero rate in the investigatory stage, it will be
excluded from the AD order and all of its entries suspended after the first Timken order should
be liquidated at zero.
5
Timken Co. v. United States, 893 F.2d 337, 341 (Fed. Cir. 1990) (holding that, under
§ 1516a(e), Commerce must publish notice of a court decision that is “not in harmony” with the
agency’s determination and must suspend liquidation of subsequent entries pending a
“conclusive” court decision).
Court No. 13-00102 Page 7
That leaves the one entry made before the first Timken notice. As indicated, liquidation
of that entry was suspended and enjoined by an order of the court on October 19, 2015. See
Order, Wind Tower Trade Coal. v. United States, Ct. No 15-00276 (Oct. 19, 2015), ECF No. 14.
There remains an issue, however, as to whether that entry could be liquidated at other than zero
despite the result of this litigation. A zero rate was set in the first administrative review but, as
noted, that rate has been judicially challenged. Furthermore, both 19 U.S.C. § 1516a(c) and (e)
and also the court injunction require liquidation, when it is permitted, only in accordance with
the outcome of that litigation. So, what happens if that litigation results in a positive margin and
this litigation results in exclusion? Or, what happens if the litigation as to the first review ends
first and with a positive margin?
As to the first question, Judge Pogue has answered it:
Thus, the court has consistently held that when a party secures a right to a revised
rate through judicial review, all unliquidated entries of that party which are subject
to the revised rate must be liquidated at that rate regardless of whether entry
occurred before or after judicial review. Furthermore, as noted above, a
determination that is found to be contrary to law cannot be the basis of a duty
assessment with respect to the prevailing litigant
Snap-on, 949 F. Supp. 2d at 1353–54. The court does not know if Commerce considers itself
bound by this view of the law and will proceed accordingly. As to the second, the court does not
know what will transpire if the first review litigation ends before the instant litigation.
Thus, given the lack of harm to anyone but CS Wind and the uncertainty of harm to it, the
court will grant an injunction covering the first entry. If the government agrees that the court’s
Court No. 13-00102 Page 8
understanding that the first Timken notice fully protects CS Wind as to the fourth review period
and thereafter, an open ended injunction is not needed. 6
Accordingly, the court will issue the limited injunction if the government gives the
requested assurance or the government may decide to consent to the broader injunction. The
latter action is likely what it should have done from the outset, given the lack of harm.
CONCLUSION
For the foregoing reasons, the court (1) grants CS Wind’s motion for an injunction of
liquidation in part; and (2) orders that by May 5, 2017, the government shall advise the court of
its view of the effect of the first Timken notice and, relatedly, on whether it now consents to the
injunction proposed by CS Wind. The court will then issue an appropriate injunction.
/s/ Jane A. Restani
Jane A. Restani
Judge
Dated: April 28, 2017
New York, New York
6
The government did not brief the effect of the first Timken notice. If the fourth review period
entries are not protected, failure here to grant an injunction covering them may encourage
litigation just to obtain an injunction for that review period.