International Brotherhood of Electrical Workers v. United States

SLIP OP . 05-11
UNITED STATES COURT OF INTERNATIONAL TRADE
BEFORE : RICHARD K. EATON , JUDGE
____________________________________
:
INTERNATIONAL BROTHERHOO D OF :
ELECTRICAL WORKERS , INDUST RIAL :
DIVISION OF THE COMMUNICATION :
WORKERS OF AMERICA (IUE-CWA), :
AND FIVE RIVERS ELECTRONICS :
INNOVATION, LLC, :
:
PLAINTIFFS , :
:
V. :
:
UNITED STATES , :
:
DEFENDANT, : CONSOL. COURT NO . 04-00270
:
AND :
:
KONKA GROUP CO ., :
PHILIPS ELECTRONICS NORTH AMERICA :
CORP ., PHILIPS CONSUMER :
ELECTRONICS CO OF SUZHOU LTD , :
WAL-MART STORES, INC., :
PRIMA TECHNOLOGY , INC., XIAMEN :
OVERSEAS CHINESE ELECTRONIC CO ., :
SICHUAN CHANGHONG ELECTRIC :
CO ., TCL CORP ., AND APEX DIGITAL, INC., :
:
DEF.-INTERVENO RS. :
:
____________________________________:
[Plaintiffs’ motion for preliminary injunction granted]
Dated: January 27, 2005
Collier, Shannon, Scott, PLLC (Mary Tuck Staley), for Plaintiffs International
Brotherhood of Electrical Workers, Industrial Division of the Communication Workers of
America (IUE-CWA), and Five Rivers Electronics Innovation, LLC.
CONSOL . COURT NO . 04-00270 PAGE 2
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 (Michael David Panzera), for Defendant United States.
White & Case, LLP (Adams C. Lee), for Defendant-Intervenor Konka Group Co.
Hunton & Williams, LLP (Richard P. Ferrin and William Silverman), for Defendant-
Intervenors Philips Electronics North America Corp. and Philips Consumer Electronics Co. of
Suzhou Ltd.
McDermott, Will & Emery, LLC (Raymond Paul Paretzky), for Defendant-Intervenor
TCL Corp.
Sonnenschein Nath & Rosenthal (Philip Steven Gallas), for Defendant-Intervenor Wal-
Mart Stores, Inc.
Willkie, Farr & Gallagher, LLP (Daniel Lewis Porter), for Defendant-Intervenors Prima
Technology, Inc. and Xiamen Overseas Chinese Electronic Co.
Wiley, Rein & Fielding, LLP (Charles Owen Verrill, Jr.), for Defendant-Intervenor
Sichuan Changhong Electric Co.
O’Melveny & Myers, LLP (Veronique Lanthier), for Defendant-Intervenor Apex Digital,
Inc.
MEMORANDUM OPINION
EATON , Judge: Before the court is the motion for a preliminary injunction of the International
Brotherhood of Electrical Workers, the Industrial Division of the Communication Workers of
America, and Five Rivers Electronics Innovations, LLC (“Plaintiffs”) seeking to enjoin
liquidation of certain entries of color television receivers from the People’s Republic of China
(the “Subject Merchandise”) entered within the 90-day period preceding the preliminary
determination in this matter. See Certain Color Television Receivers From the People’s
Republic of China, 68 Fed. Reg. 66,800, 66,808–10 (ITA Nov. 28, 2003) (prelim. determination)
(“Preliminary Critical Circumstances Determination”). Should the motion be granted, liquidation
CONSOL . COURT NO . 04-00270 PAGE 3
would be enjoined pending a final decision on the merits in the underlying antidumping action.
Defendant, the United States, on behalf of the Department of Commerce (“Commerce” or the
“Department”), does not object to the issuance of a preliminary injunction. Defendant-
Intervenors, Sichuan Changhong Electric Co, Ltd. (“Sichuan”), Wal-Mart Stores, Inc. (“Wal-
Mart”), and Apex Digital, Inc. (“Apex”), however, do object to the issuance of a preliminary
injunction, and urge denial of the motion.1 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); 28 U.S.C. §1651(a)(2000).2
For the reasons set forth below, the court grants Plaintiffs’ motion.
1
The other Defendant-Intervenors in this action, Konka Group Co., Philips
Electronics North America Corp., Philips Consumer Electronics Co. of Suzhou Ltd., TCL Corp.,
Prima Technology, Inc., and Xiamen Overseas Chinese Electronic Co., take no position with
respect to Plaintiffs’ motion.
2
Title 19 U.S.C. § 1516a(c)(2) grants this court the power to enjoin liquidation of
entries during litigation of antidumping and countervailing duty determinations.
In the case of a determination described in paragraph (2) of
subsection (a) of this section by the Secretary, the administering
authority, or the Commission, the United States Court of
International Trade may enjoin the liquidation of some or all
entries of merchandise covered by a determination of the Secretary,
the administering authority, or the Commission, upon a request by
an interested party for such relief and a proper showing that the
requested relief should be granted under the circumstances.
In addition, this court has broad injunctive power, as it “possesses all the powers in law
and equity of, or as conferred by statute upon, a district court of the United States. . . .” 28
U.S.C. § 1585; Borlem S.A.-Empreedimentos Industrias v. United States, 913 F.2d 933, 937
(Fed. Cir. 1990) (“[T]he legislative history of 28 U.S.C. § 1585 provides the Court of
International Trade ‘with all the necessary remedial powers in law and equity possessed by other
federal courts established under Article III of the Constitution.’”). Moreover, 28 U.S.C. §
2643(c)(1) authorizes the Court of International Trade to “order any other form of relief that is
appropriate in a civil action, including, but not limited to, declaratory judgments, orders of
remand, injunctions, and writs of mandamus and prohibition.”
CONSOL . COURT NO . 04-00270 PAGE 4
BACKGROUND
On May 29, 2003, following a petition by the Plaintiffs, Commerce conducted an
antidumping investigation of color television receivers from the People’s Republic of China
(“P.R.C.”).3 As part of that investigation, Commerce examined Plaintiffs’ claim for a critical
circumstances determination,4 and preliminarily concluded that critical circumstances existed.
See Preliminary Affirmative Critical Circumstances Determination, 68 Fed. Reg. at 66,808–09.
On final determination, however, Commerce found that the facts did not warrant a finding of
critical circumstances. See Certain Color Television Receivers from the P.R.C., 69 Fed. Reg.
20,594, 20,596 (ITA April 16, 2004) (final determination) (“Final Negative Critical
Circumstances Determination”). In the underlying action, among other things,5 Plaintiffs appeal
the Final Negative Critical Circumstances Determination to this court. Should Plaintiffs prevail
3
See Certain Color Television Receivers From Malaysia and the P.R.C., 68 Fed.
Reg. 32,013 (ITA May 29, 2003) (notice of initiation).
4
The critical circumstances statute was enacted to serve as a deterrent to “exporters
whose merchandise is subject to an investigation from circumventing the intent of the law by
increasing their exports to the United States during the period between initiation of an
investigation and a preliminary determination by the Authority.” H.R. REP. NO . 96-317 at 63
(1979); see Coal. for the Pres. of Am. Brake Drum & Rotor Aftermarket Mfrs. v. United States,
23 CIT 88, 112 n.38, 44 F. Supp. 2d 229, 252 n.38 (1999) (quoting S. REP. NO .103-412 at 38
(1994) “This provision is ‘designed to address situations where imports have surged as a result of
the initiation of an antidumping or countervailing duty investigation, as exporters and importers
seek to increase shipments of the merchandise subject to investigation into the importing country
before an antidumping or countervailing duty order is imposed.’”).
5
Although the final determination with respect to critical circumstances was
negative, the final determination with respect to dumping was affirmative. See Final Negative
Critical Circumstances Determination, 69 Fed. Reg. at 20,594. In addition to appealing the
critical circumstances determination, Plaintiffs appeal Commerce’s determination with respect to
the calculation of the dumping margins, an aspect of the antidumping final determination not
germane to the instant motion. See id., see also Certain Color Television Receivers from the
P.R.C., 69 Fed. Reg. 35,583 (ITA June 25, 2004) (am. final determination).
CONSOL . COURT NO . 04-00270 PAGE 5
in their appeal with respect to critical circumstances, any unliquidated Subject Merchandise
entered within 90 days prior to the Preliminary Affirmative Critical Circumstances
Determination would be liquidated with the ultimately determined antidumping duties. See 19
C.F.R. § 351.206(a) (2000); see also 19 U.S.C. § 1673d(c)(4)(A)–(B) (2000).6
DISCUSSION
Injunctive relief is an “extraordinary remedy” that is to be granted sparingly. Weinberger
v. Romero-Barcelo, 456 U.S. 305, 312 (1982); FMC Corp. v. United States, 3 F.3d 424, 427
(Fed. Cir. 1993) (not reported in the Federal Supplement); PPG Indus., Inc. v. United States, 11
6
This provision states:
If the determination of the administering authority under [19
U.S.C. § 1673d(a)(3)] is affirmative, then the administering
authority shall—
(A) in cases where the preliminary determinations by the
administering authority under [19 U.S.C. § 1673b(b), relating to
dumping, and (e)(1), relating to critical circumstances] were both
affirmative, continue the retroactive suspension of liquidation and
the posting of a cash deposit, bond, or other security previously
ordered under [19 U.S.C.§ 1673b(e)(2)];
(B) in cases where the preliminary determination by the
administering authority under [19 U.S.C. § 1673b(b)] was
affirmative, but the preliminary determination under [19 U.S.C. §
1673b(e)(1)] was negative, shall modify any suspension of
liquidation and security requirement previously ordered under [19
U.S.C. § 1673b(d)] to apply to unliquidated entries of merchandise
entered, or withdrawn from warehouse, for consumption on or after
the date which is 90 days before the date on which suspension of
liquidation was first ordered . . . .
19 U.S.C. § 1673d(c)(4)(A)–(B) (2000).
CONSOL . COURT NO . 04-00270 PAGE 6
CIT 5, 6 (1987) (citing Am. Air Parcel Forwarding Co. v. United States, 1 CIT 293, 298, 515 F.
Supp. 47, 52 (1981)). In order to prevail on a motion for a preliminary injunction, Plaintiffs must
show (1) that they will be immediately and irreparably injured; (2) that there is a likelihood of
success on the merits; (3) that the balance of hardship on all the parties favors Plaintiffs; and (4)
that the public interest would be better served by the relief requested. Am. Spring Wire Corp. v.
United States, 7 CIT 2, 3, 578 F. Supp. 1405, 1406 (1984).
A. Irreparable Injury
This motion presents the question of the applicability of the holding in Zenith Radio
Corp. v. United States, 710 F.2d 806 (Fed. Cir. 1983), to the Final Negative Critical
Circumstances Determination. Under Zenith, in the context of an annual review,7 irreparable
injury to domestic producers is presumed to result from the prospect of liquidation of the entries
at issue, since “liquidation would indeed eliminate the only remedy available . . . .” Id. at 810.
Plaintiffs argue that the facts of this case require the application of Zenith. For their part,
Defendant-Intervenors insist that the facts more closely resemble those present in American
7
Several changes were made to the provisions for administrative reviews pursuant
to the amendments made by the Uruguay Round Agreements Act in 1994. See Eugene T.
Rossides & Alexandra Maravel United States Import Trade Law, 41-12 (vol. 2 1997) (citing
Krupp Stahl A.G. v. United States, 15 CIT 169 (1991) (not reported in the Federal Supplement),
Interredec, Inc. v. United States, 11 CIT 45, 652 F. Supp. 1550 (1987)). Section 751 of the Tariff
Act of 1930 (19 U.S.C. § 1675(a)) was amended to conform to those changes, and now provides
for review, upon request, of (1) the dumping duty or net countervailable subsidy or (2)
compliance with a suspension agreement (and the net countervailable subsidy or margin) at least
once during each 12-month cycle beginning on the anniversary of the date of the issuance or a
notice of suspension pursuant to an agreement. Prior to these changes, section 751 contained
automatic review provisions. Thus, the administrative review in Zenith was automatic in nature.
See id; Title 19 U.S.C. § 1675(a) (2000).
CONSOL . COURT NO . 04-00270 PAGE 7
Spring Wire and, therefore, irreparable injury cannot be presumed, but must be actually
demonstrated.
According to Plaintiffs, absent the imposition of a preliminary injunction, they will suffer
irreparable injury, because the Subject Merchandise entered during the 90-day period prior to the
Preliminary Determination will be subject to liquidation. Should such liquidation take place, and
should Plaintiffs prevail on the merits with respect to their critical circumstances claim, they
insist that liquidation would eliminate the only remedy available to them, and thus they will be
irreparably harmed. Plaintiffs argue that their remedy would be eliminated because (1) the
entries would be liquidated free of any antidumping duty, and (2) there is no provision in law for
reliquidation of these entries with the finally-determined antidumping duty. See Zenith, 710 F.2d
at 810 (“Once liquidation occurs, a subsequent decision by the trial court on the merits of
[plaintiff’s] challenge can have no effect on the dumping duties assessed on entries of television
receivers during the . . . review period.”). Plaintiffs state:
Failure to enjoin liquidation of the entries at issue in the negative
critical circumstances determination would result in those entries
being liquidated by the Bureau of Customs and Border Protection
without the assessment of any antidumping duties. If entries from
Changhong are liquidated prior to a decision by this Court on the
merits of this appeal, plaintiffs will suffer irreparable harm . . . .
Plaintiffs will be irreparably harmed because if the entries are
liquidated without duties, the injury that the domestic industry
experienced as a result of those imports during the 90 days prior to
the Preliminary Affirmative Critical Circumstances Determination
will not be offset. Moreover, if liquidation of the entries subject to
this action is not enjoined, the parties’ and the Court’s efforts, and
any order the Court issues, effectively may be nullified, and
plaintiffs will be without recourse or remedy with respect to the
entries subject to this action should the Court eventually rule in its
favor on the merits of this action.
CONSOL . COURT NO . 04-00270 PAGE 8
Pls.’ Am. Consent Mot. at 3 (internal citation omitted).
As such, Plaintiffs claim that their situation is the same as that of the plaintiff in Zenith.
In Zenith, Commerce conducted an annual administrative review of an antidumping duty order
on television receivers from Japan. During the review, Commerce found de minimis dumping
margins, and directed liquidation of entries made during the review without antidumping duties.
Zenith challenged Commerce’s administrative review determination in this Court and moved for
a preliminary injunction. After its motion was denied, Zenith appealed to the United States
Court of Appeals for the Federal Circuit, which reversed and held that Zenith would suffer
irreparable injury if liquidation of the entries were not enjoined:
[L]iquidation 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 on Zenith’s
competitors in accordance with a correct margin on entries in the
‘79-‘80 review period. The result of liquidating the ‘79-‘80 entries
would not be economic only. In this case, Zenith’s statutory right
to obtain judicial review of the determination would be without
meaning for the only entries permanently affected by that
determination.
Zenith, 710 F.2d at 810.
Zenith has regularly been followed by this Court. See, e.g., SKF USA Inc. v. United
States, 28 CIT ___, 316 F. Supp. 2d 1322, 1327 (2004) (citing Zenith, 710 F.2d at 809–10); OKI
Elec. Indus. Co. v. United States, 11 CIT 624, 632, 669 F. Supp. 480, 486 (1987) (finding
liquidation and automatic assessment to cause irreparable harm, not only because of economic
loss, but also by deprivation of meaningful judicial review); and Ugine-Savoie Imphy v. United
States, 24 CIT 1246, 1250, 121 F. Supp. 2d 684, 688 (2000) (finding irreparable harm in a sunset
CONSOL . COURT NO . 04-00270 PAGE 9
review appeal).
For their part, Defendant-Intervenors claim that the facts of this case more closely
resemble those of American Spring Wire. American Spring Wire involved an application by
domestic manufacturers for a preliminary injunction following a final negative antidumping
determination. The domestic manufacturers produced no affidavits or other meaningful evidence
demonstrating actual irreparable injury. Rather, they relied on the Zenith holding of the year
before. The court in American Spring Wire, however, distinguished Zenith on the grounds that
Zenith involved judicial scrutiny of an annual review, not of a final determination. The court
found it important that administrative reviews focus on discrete periods of time, and affect finite
numbers of entries. Thus, the unique nature of an administrative review required the holding in
Zenith:
[I]f a court [examining an administrative review determination]
does not enjoin liquidation of entries pending resolution of
challenges to the section 751 [annual] review [(19 U.S.C. §
1675(a))] then under consideration, the practical effect will be to
moot the controversy and, at the same time, deprive appellants of
their right to judicial review of the agency’s section 751 [annual]
review determination.
Am. Spring Wire, 7 CIT at 5, 578 F. Supp. at 1407. However, the American Spring Wire court
found that the facts before it were different from those in Zenith:
[t]he unique aspect of section 751 [annual] administrative
reviews—their capacity for eluding judicial scrutiny because of
their periodic nature—is simply not present here. This action
centers on final negative injury determinations under 19 U.S.C. §§
1671d and 1673d (1982). Those determinations, unlike their
section 751 counterpart, are not transitory. They will, as a practical
matter, extend in futuro, unless upset by an intervening judicial
decision. And should this court ultimately reverse the
CONSOL . COURT NO . 04-00270 PAGE 10
Commission’s negative injury determinations, antidumping and
countervailing duties can still be assessed at that time on all
unliquidated as well as future entries pursuant to an affirmative
injury determination. Thus, unlike in the section 751 [annual]
review context, plaintiffs will unquestionably have meaningful
judicial review regardless of whether an injunction now issues.
Id.
Following American Spring Wire, this Court has limited Zenith to its facts, and required
an independent showing of the irreparable harm when a preliminary injunction against
liquidation is sought in litigation arising from a final antidumping or countervailing duty
determination. The Court has reached this result regardless of whether the determination is
affirmative or negative. For example, in Altx, Inc. v. United States, 26 CIT 735, 211 F. Supp. 2d
1378 (2002), the court denied an injunction sought during litigation of an International Trade
Commission (“ITC”) affirmative injury determination on the grounds that the moving party
would not suffer irreparable harm should the requested injunction be denied. “Zenith does not
apply here because the instant case involves an appeal of [an] injury determination in an
investigation, rather than an administrative review.” Id. at 737, 211 F. Supp. 2d at 1380. See
Bomont Indus. v. United States, 10 CIT 431, 435, 638 F. Supp. 1334, 1338 (1986) (declining to
enjoin liquidation in an action contesting a final determination because the applicant failed to
“prove irreparable injury along with the other requirements for such extraordinary relief”);
accord, Dupont Teijin Films USA v. United States, 27 CIT __, slip op. 03-157, at 4 (Dec. 4,
2003) (not reported in the Federal Supplement) (denying an injunction request made during
litigation of an affirmative less-than-fair-value (“LTFV”) determination on the same grounds;
“the court has repeatedly held that liquidation of entries alone does not constitute irreparable
CONSOL . COURT NO . 04-00270 PAGE 11
harm” even in the context of a negative LTFV determination where the Department reversed
itself on remand); Altx, 26 CIT at 737, 211 F. Supp. 2d at 1381. In Sandoz Chems. Corp. v.
United States, 17 CIT 1061, 1061 (1993) (not reported in the Federal Supplement), the court
declined to enjoin the liquidation of entries of sulfur dyes pending resolution of a judicial
challenge to a negative final injury determination, because the effects of the ITC’s determination
controlled liquidation of all future entries, and not just those of a discrete time period. The court
explained the difference between an administrative review and an affirmative or negative injury
determination:
An administrative review governs liquidation of entries made
during a discrete time period and does not necessarily control
liquidation of all future entries. Because the statute makes no
provision for reliquidation after a successful judicial challenge,
judicial review loses the greatest part of its effect once liquidation
of the entries at issue occurs. If liquidation is enjoined pending
judicial resolution of a dispute, the statute provides for liquidation
in accordance with the final court decision . . . . Unlike an annual
review, a negative injury determination affects liquidation of all
future entries, not just those made within a specific time period. In
such a situation, liquidation does not substantially curtail available
judicial remedies. . . . “Negative injury determinations . . . will, as
a practical matter, extend in futuro, unless upset by an intervening
judicial decision. And should this court ultimately reverse the
Commission’s negative injury determinations, antidumping and
countervailing duties can still be assessed at that time on all
unliquidated as well as future entries pursuant to an affirmative
injury determination.”
Id. at 1063 (internal citations omitted).
The court finds the facts of the instant case to be distinguishable from the facts of
American Spring Wire, and to more closely resemble those of Zenith. First, the critical
circumstances determination only affects entries made during a discreet period, i.e., the 90-day
CONSOL . COURT NO . 04-00270 PAGE 12
period prior to the Preliminary Affirmative Critical Circumstances Determination, and has no
effect in futuro. Second, if an injunction is not granted, and the entries made during the 90-day
period are liquidated, then those entries will elude judicial review because the entries will have
been liquidated without the ultimately-decided antidumping duties. Thus, absent an injunction,
should entries of the Subject Merchandise be liquidated without the application of the finally-
determined antidumping duties, Plaintiffs would lose the only remedy available to them should
they ultimately prevail on the issue of critical circumstances. Therefore, in accordance with
Zenith, Plaintiffs have established that, absent an injunction, they will be irreparably injured.
B. Likelihood of Success on the Merits
Although Zenith compels an affirmative finding with respect to irreparable harm, the
United States Court of Appeals for the Federal Circuit has made clear that irreparable injury
alone is not dispositive of the decision to grant an injunction. See FMC Corp., 3 F.3d at 430(stating that “[n]owhere in Zenith does it suggest that the harm suffered by FMC entitles FMC to
an injunction absent a showing of likelihood of success on the merits.”). Still, while it remains
the movant’s burden to demonstrate the likelihood that it will prevail on the merits of its case, the
magnitude of the demonstrated harm can lessen that burden. See Timken Co. v. United States, 6
CIT 76, 569 F. Supp. 65, (1983). The Court explained:
[Although] a showing that the moving party will be more severely
prejudiced by a denial of the injunction than the opposing party
would be by its grant does not remove the need to show some
probability of prevailing on the merits, it does lower the standard
that must be met. In such a circumstance it will ordinarily be
sufficient that the movant has raised questions which are “serious,
substantial, difficult and doubtful.”
CONSOL . COURT NO . 04-00270 PAGE 13
Id. at 80, 569 F. Supp. at 70 (internal citation omitted). As has been demonstrated, Plaintiffs
have made a strong showing with respect to irreparable injury. Thus, the requirement that
Plaintiffs demonstrate a likelihood of success on the merits will be satisfied by raising “‘serious,
substantial, difficult and doubtful’ questions that are the proper subject of litigation” in cases
“[w]here 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 . . . .” Ugine-Savoie
Imphy, 24 CIT at 1251, 121 F. Supp. 2d at 689 (quoting PPG Indus., Inc., 11 CIT at 8).
Here, Plaintiffs claim that they have satisfied this standard by disputing the Department’s
use of corrected information. Plaintiffs explain that:
After correction of clerical errors, the Department found that
Changhong had a margin that exceeded 25%, thereby meeting the
history of dumping criterion. Stated differently, although the
Department analyzed the volume of imports differently, the actual
import data were not materially different between the preliminary
and final determinations. Again, the only factual difference
between the preliminary and final determination was the size of the
dumping margins. Yet, when it issued its amended determination
to correct for clerical errors, the Department did not address the
significance of this change in light of the critical circumstances
finding. Given the importance of the size of the margin in its
preliminary affirmative finding of critical circumstances, the
Department should have reevaluated its final negative critical
circumstances finding in light of these new margin calculations.
The Department’s failure to undertake this analysis resulted in a
determination that was not supported by substantial evidence and
was not in accordance with law. This significant, unaddressed
change, could have resulted in an affirmative finding of critical
circumstances.
Pls.’ Mem. in Resp. to the Court’s Order at 4. In other words, Plaintiffs claim that adjustments
made to correct clerical errors should have been made, not only to the final determination, but
CONSOL . COURT NO . 04-00270 PAGE 14
also to the Final Negative Critical Circumstances Determination.
Defendant-Intervenors dispute Plaintiffs’ argument, claiming that “Commerce did not
base its final negative critical circumstances determination on Changhong’s margin, and the
change in the margin due to clerical error correction is irrelevant to Commerce’s negative
finding.” Wal-Mart’s Opp’n to Pls.’ Am. Consent Mot. for Prelim. Inj. (“Wal-Mart’s Opp’n”) at
8.
While it is clear that there is disagreement as to the validity of Plaintiffs’ argument, it is
equally clear that they raise a substantial question that goes to the heart of Plaintiffs’ critical
circumstances claim. Thus, Plaintiffs have raised sufficiently serious and difficult questions
regarding the validity of Commerce’s Final Negative Critical Circumstances Determination to
satisfy the likelihood of success on the merits requirement.
C. The Balance of Hardships
Before granting a preliminary injunction, the court must also “determine which party will
suffer the greatest adverse effects as a result of the grant or denial of the preliminary injunction”
in order to determine the balance of hardships. Ugine-Savoie Imphy, 24 CIT at 1250, 121 F.
Supp. 2d at 688. Plaintiffs have already demonstrated substantial hardship by their showing of
the irreparable harm that would result absent an injunction. See discussion supra, at 6–12; see
also Timken, 6 CIT at 82, 569 F. Supp. at 71 (holding that “hardship” to plaintiff is the “complete
CONSOL . COURT NO . 04-00270 PAGE 15
loss of its right to judicial review”).8
Defendant-Intervenors argue that Plaintiffs’ claim of potential hardship falls short of
tipping the balance of hardships in favor of Plaintiffs. See Sichuan’s Opp’n to Pls.’ Mot. for
Prelim. Inj. at 3; Wal-Mart’s Opp’n at 11.
Defendant-Intervenors assert that
Plaintiffs’ claim of “great hardship” is unfounded. . . . Further,
plaintiffs’ claim that an injunction would preserve the status quo is
incorrect. The status quo is that the entries are eligible for
liquidation. An injunction would deny liquidation of the entries,
thus imposing a hardship on importers such as Wal-Mart by
creating a disruptive open-ended contingency that would remain on
the importers’ books until the Court issues its final decision in this
action and any appeals from that decision are resolved. See
Elkem,9 135 F. Supp. 2d at 1335-36 (discussing the commercial
uncertainty resulting from suspension of liquidation).
Wal-Mart’s Opp’n at 11.
8
In consenting to this motion, Defendant, the United States, says “if [Plaintiffs]
were to prevail upon the merits [of this case], [Plaintiffs] would not have a remedy through either
Commerce or Customs administrative proceedings to compensate for the harm caused by the
absence of an injunction.” United States’ Mem. in Resp. to the Court’s Oct. 25, 2004 Order at 5.
9
Defendant-Intervenor’s reliance on Elkem to show that Wal-Mart and other
importers will suffer a hardship that outweighs Plaintiffs’ hardship is misplaced. Elkem
concerned an application for a preliminary injunction in the context of the reconsideration of a
final affirmative antidumping determination. Following the American Spring Wire line of cases,
Elkem held that “the failure . . . to [demonstrate] irreparable harm significantly raises the burden
imposed on [p]laintiff to prove a likelihood of success on the merits.” Elkem Metals Co. v.
United States, 25 CIT 186, 196, 135 F. Supp. 2d 1324, 1334–35 (2001). Here, the burden
imposed on Plaintiffs to prove a likelihood of success on the merits is less because, in accordance
with Zenith, irreparable harm is presumed.
CONSOL . COURT NO . 04-00270 PAGE 16
The Timken case is instructive in the consideration of these claims. Like Defendant-
Intervenors in this case, the Timken defendant-intervenors were importers claiming economic
loss as a hardship. The Timken plaintiffs, on the other hand, faced the loss of a judicial remedy if
the preliminary injunction were denied. See generally Timken, 6 CIT at 81–82, 569 F. Supp. at
71. The court granted the preliminary injunction holding that, when the economic loss claimed
by defendant-intervenors
[is] balanced against the hardship to Timken – complete loss of its
right to judicial review if the liquidation of these entries is not
enjoined – the balance of hardships tips decidedly in Timken’s
favor.
Id at 82, 569 F. Supp. at 71. Here, as in Timken, the court finds that the economic loss faced by
Defendant-Intervenors does not outweigh the prospect of the loss of their legal remedy faced by
Plaintiffs. As a result, the balance of hardships favors Plaintiffs.
D. The Public Interest
It is well-settled that the public interest is served by “ensuring that [Commerce] complies
with the law, and interprets and applies [the] international trade statutes uniformly and fairly.”
See, e.g., Ugine-Savoie Imphy, 24 CIT at 1252, 121 F. Supp. 2d at 690 (internal quotation
omitted). In addition, the public interest is best served when all parties can obtain effective
judicial review. See SKF, 28 CIT at __, 316 F. Supp. 2d at 1329 (stating “the public interest may
be best maintained by ‘the procedural safeguard of an injunction pendente lite to maintain the
status quo of the unliquidated entries until a final resolution of the merits.’”). “[G]ranting
Plaintiffs’ motion for preliminary injunction will ensure judicial review of Commerce’s
CONSOL . COURT NO . 04-00270 PAGE 17
determination and will further the public interest of an accurate assessment of antidumping
duties.” Id.Here, Plaintiffs are in a similar position to that described by the court in SKF. Plaintiffs
seek this preliminary injunction to ensure that the entries made 90 days prior to the Preliminary
Affirmative Critical Circumstances Determination are subject to any ultimately-determined
antidumping duties. Thus, the court finds Plaintiffs’ motion for preliminary injunction to ensure
judicial review of Commerce’s determination furthers the public interest of an accurate
assessment of antidumping duties.
CONCLUSION
As Plaintiffs have satisfied their burden of establishing that a preliminary injunction
enjoining the Bureau of Customs and Border Protection from liquidating its entries of Subject
Merchandise is proper, the court grants the Motion for a Preliminary Injunction. The parties
shall consult and submit a proposed joint Preliminary Injunction Order within ten days of the
filing of the order accompanying this Memorandum Opinion.
/s/Richard K. Eaton
Richard K. Eaton
Dated: January 27, 2005
New York, New York