NEXTEEL Co. v. United States

Slip Op. 17-59
UNITED STATES COURT OF INTERNATIONAL TRADE
NEXTEEL CO., LTD.,
Plaintiff,
and
HUSTEEL CO., LTD. and
HYUNDAI STEEL COMPANY,
Before: Claire R. Kelly, Judge
Plaintiff-Intervenors,
Court No. 17-00091
v.
UNITED STATES,
Defendant,
and
TMK IPSCO ET AL.,
Defendant-Intervenors.
OPINION AND ORDER
[Granting Plaintiff-Intervenor’s motion for a preliminary injunction.]
Dated: May 15, 2017
Donald Bertrand Cameron, Julie Clark Mendoza, Rudi Will Planert, Brady Warfield Mills,
Mary Shannon Hodgins, Eugene Degnan, Sarah Suzanne Sprinkle, and Henry Nelson
La Salle Smith, Morris, Manning & Martin, LLP, of Washington, DC, for Plaintiff-Intervenor
Husteel Co., Ltd.
Hardeep K. Josan, Trial Attorney, Civil Division, Commercial Litigation Branch, U.S.
Department of Justice, of New York, NY, for Defendant. With him on the brief were Chad
A. Readler, Acting Assistant Attorney General, Jeanne E. Davidson, Director, and Claudia
Burke, Assistant Director.
Court No. 17-00091 Page 2
Kelly, Judge: Pending before the court is Plaintiff-Intervenor Husteel Co., Ltd.’s
(“Husteel”) partial consent motion 1 for preliminary injunction to enjoin Defendant United
States from liquidating Husteel’s entries of certain oil country tubular goods (“OCTG”)
from the Republic of Korea (“Korea”) that were produced and/or exported by Husteel and
that are subject to the U.S. Department of Commerce’s (“Commerce”) final results of the
administrative review of the antidumping duty order on OCTG from Korea covering the
period July 18, 2014 to August 31, 2015. Certain Oil Country Tubular Goods from the
Republic of Korea, 82 Fed. Reg. 18,105 (Dep’t Commerce Apr. 17, 2017) (final results of
antidumping duty administrative review; 2014–2015) (“Final Results”), and accompanying
Issues and Decision Memorandum for the Final Results of the 2014–2015 Administrative
Review of the Antidumping Duty Order on Certain Oil Country Tubular Goods from the
Republic of Korea (Apr. 10, 2017), available at http://ia.ita.doc.gov/frn/summary/korea-
south/2017-07684-1.pdf (last visited May 15, 2017). The court has jurisdiction pursuant
to Section 516A(a)(2)(B)(iii) of the Tariff Act of 1930, as amended, 19 U.S.C. §
1516a(a)(2)(B)(iii) (2012) and 28 U.S.C. § 1581(c). For the reasons set forth below, the
court grants Plaintiff-Intervenor’s motion for preliminary injunctive relief.
1
Prior to filing its motion for a preliminary injunction, Plaintiff-Intervenor Husteel consulted all
parties in the action at that time to seek consent. See Partial Consent Mot. for Prelim. Injunction
2, May 8, 2017, ECF No. 24; USCIT R. 7(f). Plaintiff NEXTEEL Co., Ltd. consented to the motion,
Defendant-Intervenors TMK IPSCO, Vallourec Star, L.P., and Welded Tube USA Inc. took no
position on the motion, and Defendant opposed the motion. See id.; see also Def.’s Resp. Opp.’n
to Husteel Co., Ltd.’s Mot. Prelim. Injunction, May 12, 2017, ECF No. 32. On May 12, 2017, prior
to Defendant’s filing of its brief in opposition, Hyundai Steel Company joined the action as Plaintiff-
Intervenor. See Consent Mot. to Intervene as of Right, May 11, 2017, ECF No. 27; Order, May
12, 2017, ECF No. 31. On May 15, 2017, Hyundai Steel Company indicated to the Court via email
that it consents to Husteel’s motion.
Court No. 17-00091 Page 3
BACKGROUND
Commerce published the Final Results on April 17, 2017. Final Results, 82 Fed.
Reg. at 18,105. Plaintiff NEXTEEL Co., Ltd. (“NEXTEEL”), a selected mandatory
respondent, commenced this action on April 27, 2017, contesting the Final Results. See
Summons, Apr. 27, 2016, ECF No. 1. Plaintiff’s complaint made four substantive
challenges to Commerce’s Final Results, arguing that the Final Results were neither
supported by substantial evidence nor in accordance with law. Complaint, Apr. 28, 2017,
ECF No. 7. The court granted NEXTEEL’s motion for a preliminary injunction, enjoining
the liquidation of its entries on May 3, 2017. See Consent Mot. for Prelim. Injunction, May
2, 2017, ECF No. 14; Order, May 3, 2017, ECF No. 16.
Husteel, a producer and exporter of OCTG from Korea subject to the Final Results,
moved to intervene in the present action on May 2, 2017. Consent Mot. to Intervene as
of Right, May 2, 2017, ECF No. 9. Husteel was not selected for individual examination
by Commerce in this review, and thus is subject to the “non-examined company”
antidumping duty rate based on the average of the rates calculated for the mandatory
respondents. See Final Results, 82 Fed. Reg. at 18,106, 18,108. The court granted
Husteel’s motion to intervene on May 3, 2017. Order, May 3, 2017, ECF No. 15. Husteel
then filed the instant motion for a preliminary injunction on May 8, 2017. Partial Consent
Mot. for Prelim. Injunction, May 8, 2017, ECF No. 24. Defendant opposes Husteel’s
motion. Def.’s Resp. Opp.’n to Husteel Co., Ltd.’s Mot. Prelim. Injunction, May 12, 2017,
ECF No. 32.
DISCUSSION
“In international trade cases, the CIT has authority to grant preliminary injunctions
barring liquidation in order to preserve a party’s right to challenge the assessed duties.”
Court No. 17-00091 Page 4
Qingdao Taifa Grp. Co., Ltd. v. United States, 581 F.3d 1375, 1378 (Fed. Cir. 2009). To
obtain the extraordinary relief of a preliminary injunction, the movant must establish that
(1) it is likely to suffer irreparable harm without a preliminary injunction, (2) it is likely to
succeed on the merits, (3) the balance of the equities favors the movant, and (4) the
injunction is in the public interest. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7,
20 (2008); Zenith Radio Corp. v. United States, 710 F.2d 806, 809 (Fed. Cir. 1983).
Defendant does not oppose Husteel’s motion on the basis of the four factor test of
eligibility for injunctive relief. Defendant argues instead that Husteel’s motion for
preliminary injunction should be denied because the motion seeks to enlarge the issues
in the case by requesting an injunction for entries not the subject of Plaintiff’s complaint.
Def.’s Br. 2–7. Defendant contends that that court lacks the authority to grant Husteel its
requested relief, see id. at 6, and that granting Husteel’s motion would impermissibly alter
the nature of the action by enjoining entries not included in NEXTEEL’s complaint. Id. at
4. Defendant additionally contends that, as a Plaintiff-Intervenor, Husteel’s role in the
litigation is inherently limited to supporting Plaintiff’s positions in advancing Plaintiff’s own
claims. Id. at 2.
Defendant’s arguments are unpersuasive. As explained by this Court in prior
opinions, “[t]he concept of enlargement is one that is best ‘reserved for situations in which
an intervenor adds new legal issues to those already before the court.’” Tianjin Wanhua
Co. Ltd, v. United States, 38 CIT __, __, 11 F. Supp. 3d 1283, 1285 (2014), quoting NSK
Corp. v. United States, 32 CIT 161, 166, 547 F. Supp. 2d 1312, 1318 (2008); see also
Fine Furniture (Shanghai) Limited v. United States, 40 CIT __, __, 195 F. Supp. 3d 1324,
1329–30 (2016); Union Steel v. United States, 33 CIT 614, 624, 617 F. Supp. 2d 1373,
Court No. 17-00091 Page 5
1382 (2009); Union Steel v. United States, 34 CIT 567, 570–72, 704 F. Supp. 2d 1348,
1350–52 (2010). A Plaintiff-Intervenor’s motion for a preliminary injunction which does
not raise additional substantive issues does not enlarge the Plaintiff’s complaint, since it
simply ensures that the judicial opinion resulting from the present litigation will govern
entries that are already covered by the administrative review and subject to the Final
Results being challenged. There is no indication in Husteel’s motion for preliminary
injunction that Husteel is introducing new substantive issues into the litigation that were
not raised in NEXTEEL’s complaint. See Partial Consent Mot. for Prelim. Injunction, May
8, 2017, ECF No. 24. Husteel’s motion for a preliminary injunction does “not, in any
meaningful sense, ‘compel an alteration of the nature of the proceeding.’” Union Steel,
33 CIT at 624, 617 F. Supp. 2d at 1382, quoting Vinson v. Washington Gas Light Co.,
321 U.S. 489, 498 (1944).
Defendant relies upon Vinson, 321 U.S. at 498, and Laizhou Auto Brake Equip.
Co. v. United States, 31 CIT 212, 213–15, 477 F. Supp. 2d 1298, 1299–1301 (2007), to
support its position that an intervenor may not expand the case in which it has intervened.
Def.’s Br. 2. In Vinson the Supreme Court held that an intervenor may not enlarge the
issues pending before a court in the action. Vinson, 321 U.S. at 498. The court agrees
with the prior holdings of this Court that have found that “that a grant under 19 U.S.C. §
1516a(c)(2) of an injunction against the liquidation of entries does not violate the principle,
expressed by the Supreme Court in [Vinson] that an intervenor may not enlarge the
already-pending issues or compel an alteration of the nature of the proceeding.” Union
Steel, 33 CIT at 624, 617 F. Supp. 2d at 1382, quoting NSK Corp., 32 CIT at 166, 547 F.
Supp. 2d at 1318; see also Fine Furniture (Shanghai) Limited, 40 CIT at __, 195 F. Supp.
Court No. 17-00091 Page 6
3d at 1329–30; Tianjin Wanhua Co. Ltd, v. United States, 38 CIT at __, 11 F. Supp. 3d at
1285–86; Union Steel, 34 CIT at 570–72, 704 F. Supp. 2d at 1350–52.
Upon consideration of Plaintiff-Intervenor Husteel Co., Ltd.’s Partial Consent
Motion for Preliminary Injunction and all other papers and proceedings herein, and upon
due deliberation, it is hereby
ORDERED that Plaintiff-Intervenor’s motion is GRANTED; and it is further
ORDERED that Defendant, United States, together with its delegates, officers,
agents, and servants, including employees of the U.S. Customs and Border Protection
and the U.S. Department of Commerce, is enjoined during the pendency of this litigation,
including any appeals and remands, from issuing instructions to liquidate or making or
permitting liquidation of any entries of certain oil country tubular goods from the Republic
of Korea that:
(i) were produced and/or exported by Husteel Co., Ltd.;
(ii) were the subject of the administrative determination published as Certain Oil
Country Tubular Goods from the Republic of Korea, 82 Fed. Reg. 18,105 (Dep’t
Commerce Apr. 17, 2017) (final results of antidumping duty administrative review; 2014–
2015); and
(iii) were entered, or withdrawn from warehouse, for consumption on or after July
18, 2014 up to and including August 31, 2015; and
(iv) remain unliquidated as of the date on which this Order is entered; and it is
further
Court No. 17-00091 Page 7
ORDERED that the entries subject to this injunction shall be liquidated in
accordance with the final court decision in this action, including all appeals and remand
proceedings, as provided in 19 U.S.C. § 1516a(e).
/s/ Claire R. Kelly
Claire R. Kelly, Judge
Dated:May 15, 2017
New York, New York