Fuyao Glass Industry Group Co. v. United States

SLIP OP . 03-99
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. :
____________________________________:
[Xinyi Automotive Glass (Shenzen) Co., Ltd.’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.
Garvey, Schubert & Barer (William E. Perry and John C. Kalitka), for plaintiffs
CONSOL. COURT NO . 02-00282 PAGE 2
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 Fuyao Glass Industry Group Co., Ltd., and Greenville Glass
Industries, Inc., which motion was denied in an opinion of this court dated July 31, 2003. See
Fuyao Glass Indus. Group Co. v. United States, 27 C.I.T. __, Slip Op. 03-98 (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.
Xinyi Automotive Glass (Shenzen) Co., Ltd. (“Applicant”), moves for a preliminary
injunction to enjoin liquidation of certain entries of Applicant’s 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 Viracon/Curvlite, a subsidiary of Apogee
Enterprises, Inc. (“Defendant-Intervenors”), object to the issuance of a preliminary injunction.
CONSOL. COURT NO . 02-00282 PAGE 3
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 Applicant’s 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)). Applicant bears the burden of
establishing that: (1) absent the requested relief, it will suffer immediate irreparable harm; (2)
there exists in its 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 its
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. Federal
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 Applicant, along with 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
(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 Applicant has not established a
clear showing that it is entitled to the requested relief.
A. Irreparable harm
As in Fuyao, Applicant advances a sole ground for a finding of irreparable injury:
CONSOL. COURT NO . 02-00282 PAGE 5
On April 30, 2003, Xinyi requested administrative review of the
antidumping order of Xinyi’s entries. No other party requested an
administrative review of Xinyi’s entries. The Department
published notice of the initiation of the administrative review on
May 21, 2003. Although Xinyi requested an administrative
review, Xinyi is re-evaluating its decision to request the
administrative review, pursuant to 19 C.F.R. § 351.213(d)(1). If
Xinyi withdraws its request for review, Xinyi’s entries would
suffer irreparable harm without the existence of a preliminary
injunction because Xinyi’s entries that are subject to the first
administrative review would be immediately liquidated at the
original dumping duty deposit rates without regard to this Court’s
final decision once the Department publishes the notice of
rescission of the administrative review for Xinyi’s entries.[2]
Pl.’s Mem. of Points and Auths. in Supp. of its Partial Consent Mot. for a Prelim. Inj. (Pl.’s
Mem.) at 3; see 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) (“The
Department has received timely requests . . . for administrative reviews of various antidumping
and countervailing duty orders and findings with April anniversary dates . . . . [W]e are initiating
administrative reviews of the following antidumping and countervailing duty orders and
findings. . . . The P.R.C.: Automotive Replacement Glass Windshields A-570-867 . . . Xinyi
Automotive Glass (Shenzhen) Co., Ltd. . . . .”). Thus, Applicant insists that it has satisfied its
burden with respect to irreparable harm by claiming that, in the event it should abandon its
request for an administrative review, entries subject to that review would be available for
immediate liquidation. Id. at 3. (“[Applicant] is re-evaluating its decision to request the
2
This unusual state of affairs seems to have been the result of Applicant’s delay in
filing its preliminary injunction motion. Pursuant to USCIT R. 56.2(a) “[a]ny motion for a
preliminary injunction to enjoin liquidation of entries that are the subject of the action shall be
filed by a party to the action within 30 days after the date of service of the complaint, or at such
later time, for good cause shown.” Applicant filed its complaint on June 6, 2002, and filed the
instant motion on June 27, 2003.
CONSOL. COURT NO . 02-00282 PAGE 6
administrative review . . . . If [Applicant] withdraws its request for review, [Applicant]’s entries
would suffer irreparable harm without the existence of a preliminary injunction.”).3 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
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
3
Pursuant to statute:
(1) Liquidation in accordance with determination. Unless such
liquidation is enjoined by the court under paragraph (2) of this
subsection, entries of merchandise of the character covered by a
determination of [Commerce] . . . contested under [19 U.S.C. §
1516a(a)] shall be liquidated in accordance with the determination
of [Commerce] . . . if they are entered, or withdrawn from
warehouse, for consumption on or before the date of publication in
the Federal Register by [Commerce] . . . of a notice of a decision of
the United States Court of International Trade, or of the United
States Court of Appeals for the Federal Circuit, not in harmony
with that determination. Such notice of a decision shall be
published within ten days from the date of the issuance of the court
decision.
(2) Injunctive relief. In the case of a determination described in
[19 U.S.C. § 1516a(a)(2)] by [Commerce] . . . the United States
Court of International Trade may enjoin the liquidation of some or
all entries of merchandise covered by a determination of
[Commerce] . . . upon a request by an interested party for such
relief and a proper showing that the requested relief should be
granted under the circumstances.
19 U.S.C. § 1516a(c).
CONSOL. COURT NO . 02-00282 PAGE 7
recent prior period or, if no review has been completed, the cash
deposit rate applicable at the time merchandise was entered.
19 C.F.R. § 351.212(a). Thus, the Subject Merchandise covered by the administrative review is
not subject to liquidation until the review is complete, i.e., liquidation is suspended during an
administrative review pending the review’s final determination. As a result, so long as the
administrative review of the Subject Merchandise stays its course the irreparable harm with
which Applicant claims to be faced remains in check. Furthermore, since no other party
requested administrative review of the Subject Merchandise, the decision as to whether or not the
review continues is entirely in Applicant’s hands. See 19 C.F.R. § 351.213(d)(1) (“The Secretary
will rescind an administrative review under this section, in whole or in part, if a party that
requested a review withdraws the request within 90 days of the date of publication of notice of
initiation of the requested review.”). In other words, the possibility of “irreparable harm” to
Applicant rests solely on Applicant’s own action or inaction. As such, the irreparable harm
Applicant claims it must suffer absent an injunction is more in the way of a possibility than a
present threat, and the eventuality of such harm is wholly within Applicant’s power to prevent.
This being the case, the court finds that it cannot grant the requested relief simply because the
prospect of irreparable harm is too speculative. See S.J. Stile, 826 F.2d at 525, quoted in Zenith,
710 F.2d at 809 (“Only a viable threat of serious harm which cannot be undone authorizes
exercise of a court’s equitable power to enjoin before the merits are fully determined. A
preliminary injunction will not issue simply to prevent a mere possibility of injury, even where
prospective injury is great. A presently existing, actual threat must be shown.” (internal citation
CONSOL. COURT NO . 02-00282 PAGE 8
omitted)).4
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 it is in danger of immediate
irreparable harm, cannot satisfy its showing as to a likelihood of success on the merits merely by
“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
4
See also Elkem, 25 C.I.T. at __, 135 F. Supp. 2d at 1332 (citing Techsnabexport,
Ltd. v. United States, 16 C.I.T. 420, 428, 795 F. Supp. 428, 437 (1992); Nat’l Hand Tool, 14
C.I.T. at 66)) (“While Petitioners arguably present a claim of past and even present financial
losses, as to the future such statements are speculative and conclusory, and cannot provide the
basis for a finding of irreparable injury.”). This is not to say, however, that what is now based on
speculation cannot become based in reality. Applicant may have reason to abandon its request
for review due to considerations quite apart from those dealing with a suspension of liquidation.
Should it take such action, it would be in a position more akin to those found in Zenith and its
progeny, i.e., those in which relief by way of an injunction was justified. See Zenith, 710 F.2d at
809 (holding “that liquidation would indeed eliminate the only remedy available to Zenith for an
incorrect review determination by depriving the trial court of the ability to assess dumping
duties . . . .”); Shinyei Corp. of Am. v. United States, 27 C.I.T. __, __, 248 F. Supp. 2d 1350,
1355 (2003) (citing Zenith, 710 F.2d at 810); Ugine-Savoie Imphy v. United States, 24 C.I.T.
1246, 1251, 121 F. Supp. 2d 684, 688 (citing Zenith, 710 F.2d at 810); NMB Singapore Ltd. v.
United States, 24 C.I.T. __, __, 120 F. Supp. 2d 1135, 1139 (2000) (citing Zenith, 710 F.2d at
810). At this juncture, however, the facts do not demonstrate that Applicant will, absent an
injunction, suffer immediate irreparable harm, indicating the necessity of the court granting the
“extraordinary remedy” Applicant seeks.
CONSOL. COURT NO . 02-00282 PAGE 9
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. 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 . . . .’”). Applicant’s complaint does, in
fact, raise serious issues, including questions regarding Commerce’s determinations underlying
the antidumping order with respect to its “reason to believe or suspect” finding, its selection of
the proper surrogate values, as well as its calculations based on the selected surrogate values. See
Compl. ¶¶ 8, 13, 16, 22, 25, 28. In support of its contention that the success on the merits factor
weighs in its favor, Applicant directs the court’s attention to two cases now on remand from this
court. See Pl.’s Mem. at 5 (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)). An examination of these cases, however, does not
demonstrate that they are necessarily dispositive in Applicant’s case. 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, 16 C.I.T. at 429, 795 F. Supp. at 437; 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.”).
CONSOL. COURT NO . 02-00282 PAGE 10
C. The public interest
Applicant claims that the public interest favors its motion since “(i) preservation of this
Court’s authority [will] ensure that antidumping duties are assessed at the proper rate, and (ii) [it
will ensure] uniform and fair application of the international trade statutes.” Pl.’s Mem. at 6. It
is in fact the case that the public interest in these matters lies in “the fair and efficient operation
of the antidumping laws, and this factor is in lock step with the merits.” Chilean Nitrate, 11
C.I.T. at 540; see also Ugine-Savoie, 24 C.I.T. at 1252 (quoting PPG Indus., 11 C.I.T. at 9)
(“[T]he public interest is served by ‘ensuring that the ITA complies with the law, and interprets
and applies [the] international trade statutes uniformly and fairly.’” (bracketing in original)).
Were there no suspension of liquidation resulting from the request for administrative review, the
public interest would undoubtedly favor the granting of an injunction and, thus, weigh heavily
toward Applicant. See Zenith, 710 F.2d at 811 (“A second factor important to our discussion is
the desire for the effective enforcement of the antidumping laws. . . .”); id. (“A conclusion that
no irreparable harm is shown when that judicial review is rendered ineffective by depriving the
interested party of the only meaningful correction for the alleged errors, would be inconsistent
with the actions taken by Congress to correct deficiencies in prior enforcement activity under the
antidumping laws.”); PPG Indus., 11 C.I.T. at 6 (citing Zenith, 710 F.2d at 811) (“Although the
Zenith Court stated that one of the factors affecting its decision was the existence of actual injury,
the Court made clear that at least one other factor was important to its decision. The second
factor relied upon by the Zenith Court was the desire for effective enforcement of the
antidumping laws.”). So long as the suspension resulting from the request for administrative
review is in effect, however, the subject merchandise covered by the review will be liquidated in
CONSOL. COURT NO . 02-00282 PAGE 11
accordance with 19 U.S.C. § 1675(a)(2)(C) and Applicant will have an adequate remedy
consistent with the effective enforcement of the antidumping laws. Thus, under these facts, the
public interest factor does not favor Applicant.
D. Balance of the hardships
With respect to the relative hardships on the parties should the injunction be granted,
Applicant insists that
any hardship to Defendant caused by continued suspension of
liquidation of entries subject to the contested determination is
outweighed by the potential[5] harm to [Applicant] that would
result if liquidation were to occur. . . . [I]n the event that injunctive
relief is denied, [Applicant] loses its right to have any antidumping
duties assessed.
Pl.’s Mem. at 4. However, just as the prospect of irreparable harm is only a possibility absent
Applicant abandoning its request for an administrative review, so too is the prospect of
Applicant’s hardship. In the event Applicant were actually to abandon its request for
administrative review this factor would likely be weighed in favor of Applicant. Under these
facts, however, Applicant has failed to demonstrate that this factor should be weighed in its
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 Applicant has failed to meet its burden with
5
It is worth noting that at this point Applicant appears to recognize its harm to be
potential.
CONSOL. COURT NO . 02-00282 PAGE 12
respect to each of the four prongs of the test for preliminary injunctive relief. Accordingly,
Applicant’s motion for preliminary injunction is denied.
______________________________
Richard K. Eaton, Judge
Dated: July 31, 2003
New York, New York