Since Hardware (Guangzhou) Co. v. United States

Slip Op. 09-23
UNITED STATES COURT OF INTERNATIONAL TRADE
______________________________
:
SINCE HARDWARE (GUANGZHOU) :
CO., LTD., :
:
Plaintiff, :
:
v. : Court No. 09-00123
:
:
UNITED STATES, :
:
Defendant, :
:
and :
:
HOME PRODUCTS INTERNATIONAL, :
LTD., :
:
Def.-Ints. :
______________________________:
OPINION AND ORDER
[Plaintiff’s motion for preliminary injunction granted.]
Dated: March 27, 2009
Law Offices of Vincent Bowen (Vincent Bowen) for plaintiff.
Michael F. Hertz, Acting Assistant Attorney General; Jeanne
E. Davidson, Director, Franklin E. White, Jr., Assistant
Director, Commercial Litigation Branch, Civil Division, U.S.
Department of Justice (David S. Silverbrand) for defendant.
Blank Rome LLP (Frederick L. Ikenson) for defendant-
intervenor.
Eaton, Judge: Before the court is plaintiff’s motion for a
preliminary injunction, to which defendant consents, together
with defendant-intervenor’s opposition to plaintiff’s motion, and
Court No. 09-00123 Page 2
plaintiff’s reply to defendant-intervenor’s opposition. For the
reasons that follow, the court grants plaintiff’s motion.
Defendant-intervenor’s primary argument is that plaintiff
will not suffer irreparable harm if a preliminary injunction does
not issue. In support of this claim, defendant-intervenor argues
that plaintiff is a foreign manufacturer, and, because foreign
manufacturers pay no duties, they “are in a completely different
position [from importers]: they do not stand to be irreparably
injured by the liquidation of importers’ past entries and they
are not entitled to receive the exceptional injunctive relief
afforded by the Zenith decision.” Def.-Int.’s Opp. 9 (citing
Zenith Radio Corp. v. United States, 710 F.2d 806 (Fed. Cir.
1983)). The only other significant issue raised by defendant-
intervenor is that plaintiff has a low likelihood of success on
the merits, which “cannot be ignored” where, as is alleged here,
there is not a strong case of irreparable injury. Def.-Int.’s
Opp. 13.
This Court has recently considered arguments identical to
those presented by defendant-intervenor. See Qingdao Taifa Group
Co. v. United States, 32 CIT __, Slip Op. 08-118 (Nov. 4, 2008)
(not reported in the Federal Supplement) (“Qingdao Taifa”). In
denying a motion to set aside an injunction against liquidation,
the Qingdao Taifa Court found:
No extraordinary showing of irreparable harm
is required to obtain the injunction sought
Court No. 09-00123 Page 3
here. It has long been established that
liquidation of entries after a final
determination of duties for a particular
period, before the merits can be litigated,
is sufficient harm. See Zenith Radio Corp.
v. United States, 710 F.2d 806, 810 (Fed.
Cir. 1983) (granting domestic producer
injunction of liquidation during challenge to
periodic review determination). Also, one
need not be an importer to seek relief under
19 U.S.C. § 1516a(c)(3). See id. at 811.
Competitive concerns of the domestic producer
were one of the determining factors in
Zenith. See id. at 810-11. Competition is
no less a concern for a foreign producer or
exporter than it is for a domestic producer.
Therefore, Gleason’s argument based on
Taifa’s lack of its own imports is of no
consequence and, as a legal matter, Taifa has
established irreparable harm.
Qingdao Taifa, 32 CIT at __, Slip Op. 08-118 at 3.
Based on the reasoning in Qingdao Taifa, defendant-
intervenor’s argument with respect to plaintiff’s inability to
establish irreparable harm because of its status as a foreign
manufacturer fails.
With regard to defendant-intervenor’s likelihood of success
on the merits argument, it is well settled that “[t]he greater
the harm to the moving party, the lower the standard will be.”
Ugine-Savoie Imphy v. United States, 24 CIT 1246, 1251, 121 F.
Supp. 2d 684, 689 (2000) (citation omitted). It has also “long
been established that liquidation of entries after a final
determination of duties for a particular period, before the
merits can be litigated, is sufficient harm” for the entry of a
preliminary injunction. See Qingdao Taifa, 32 CIT at __, Slip
Court No. 09-00123 Page 4
Op. 08-118 at 3 (citation omitted). Thus, the standard for
demonstrating likelihood of success on the merits in this case is
relatively low.
Defendant-intervenor’s main argument with respect to success
on the merits is that there is an “overwhelming case against
plaintiff” based on the United States Department of Commerce’s
(“Commerce”) application of a total Adverse Facts Available
(“AFA”) antidumping duty rate. See Def.-Int.’s Opp. 13-14.
Plaintiff, on the other hand, asserts that
even if the Commerce Department’s finding of
a lack of full cooperation with respect to
sourcing of certain inputs is determined to
be supported by substantial evidence on the
record, this does [not] warrant the Commerce
Department’s revocation of Since Hardware’s
eligibility for separate rate status based on
its reported data and factors of production,
a status for which the Commerce Department
qualified Since Hardware in the preliminary
determination and in the two completed
administrative reviews.
Pl.’s Reply 6. For the court, plaintiff has set forth
substantial claims that justify it proceeding to litigation based
on its separate duty rate claim. Qingdao Taifa, 32 CIT at __,
Slip Op. 08-118 at 3 (“While the burden, as to this factor, is
not high in actions such as this when irreparable harm is
established, there still must be a substantial question for the
court to resolve.”) (citations omitted). Here, defendant-
intervenor’s assertion that “there can be no substantial question
because [plaintiff] received a total-adverse-facts-based rate of
Court No. 09-00123 Page 5
duty due to non-cooperation . . . does not resolve the matter.”
Id. at __, Slip Op. 08-118 at 4. The primary issue to be
litigated in this case is whether the application of total AFA
justified in law and fact Commerce’s actions. Although
plaintiff’s full case has not been presented to the court,
plaintiff’s claims form a sufficient basis to meet the low
standard of likelihood of success on the merits.
Finally, as in Qingdao Taifa,
There is also little doubt that the public
interest is served by permitting the court to
reach a considered decision regarding the
agency’s determination as to whether, and in
what amount, duties are owed, before
precluding the parties from litigating the
issue. No harm comes to either side by
preserving the status quo.
Qingdao Taifa, 32 CIT at __, Slip Op. 08-118 at 3.
Upon consideration of the motion, defendant-intervenor’s
opposition and plaintiff’s reply, and after due deliberation, it
is hereby
ORDERED that plaintiff’s motion for preliminary injunction
is granted; it is further
ORDERED that defendant United States, together with its
delegates, officers, agents, servants and employees of the United
States Department of Commerce and United States Customs and
Border Protection, shall be, and hereby are, enjoined during the
pendency of this action, including relevant appeals and remands,
from liquidating, or causing or permitting liquidation of, any
Court No. 09-00123 Page 6
unliquidated entries into the United States of floor-standing,
metal-top ironing tables and certain parts thereof from China
that:
(1) are subject to the antidumping duty administrative
review, the results of which were published as
Floor-Standing, Metal-Top Ironing Tables and
Certain Parts Thereof from the People’s Republic
of China: Final Results of Antidumping Duty
Administrative Review, 74 Fed. Reg. 11,085 (Dep’t
of Commerce Mar. 16, 2009) (“Final Results”);
(2) were produced and exported to the United States by
plaintiff, Since Hardware (Guangzhou) Co., Ltd.;
(3) were entered, or were withdrawn from warehouse,
for consumption on or after August 1, 2006 through
and including July 31, 2007; and
(4) remain unliquidated as of 5:00 p.m. E.D.T. on the
fifth business day after the day upon which copies
of the Order are served by hand by plaintiff upon
the following individuals and received by them or
by their delegates:
Ann Sebastian
Director APO United/Import Administration Docket Center
International Trade Administration
U.S. Department of Commerce
14th Street and Constitution Avenue, NW, Room 1870
Washington, DC 20230
Jayson P. Ahern
Acting Commissioner of U.S. Customs and Border
Protection
Attn: Alfonso Robles, Esq., Chief Counsel
U.S. Bureau of Customs and Border Protection
1300 Pennsylvania Avenue, NW, Room 4.4B
Washington, DC 20229
It is further
ORDERED that plaintiff shall file a certificate of service
within three (3) business days of serving the Order on the above-
Court No. 09-00123 Page 7
referenced individuals; and
ORDERED that this injunction shall expire upon entry of a
final and conclusive court decision in this litigation, including
all appeals and remand proceedings, as provided in 19 U.S.C.
§ 1516a(e).
/s/ Richard K. Eaton
Richard K. Eaton
Dated: March 27, 2009
New York, New York