Tianjin Wanhua Co. v. United States

Slip Op. 14-108
UNITED STATES COURT OF INTERNATIONAL TRADE
TIANJIN WANHUA CO. LTD.,
Before: Leo M. Gordon, Judge
Plaintiff,
Consol. Court No. 14-00183
v.
UNITED STATES,
Defendant.
MEMORANDUM and ORDER
[Plaintiff-Intervenors’ motions for preliminary injunction granted.]
Dated: September 18, 2014
David J. Craven, Riggle and Craven of Chicago, IL for Plaintiff Tianjin Wanhua Co.,
Ltd.
Peter J. Koenig, Squire Sanders (US) LLP, of Washington, DC for Plaintiff
Shaoxing Xiangyu Green Packing Co., Ltd.
John D. Greenwald, Jonathan M. Zielinski, and Thomas M. Beline, Cassidy, Levy,
Kent (USA) LLP, of Washington, DC, for Plaintiff-Intervenors, DuPont Teijin Films China
Ltd., DuPont Hongji Films Foshan Co., Ltd, and DuPont Teijin Films Hongji Ningbo, Co.
Ltd.
Jane C. Dempsey, Trial Attorney, Commercial Litigation Branch, Civil Division,
U.S. Department of Justice, of Washington, DC, for Defendant United States. With her
on the brief were Stuart F. Delery, Assistant Attorney General, Jeanne E. Davidson,
Director, Patricia M. McCarthy, Assistant Director.
Jeffrey I. Kessler, David M. Horn, Patrick J. McLain, and Ronald I. Meltzer, Wilmer
Hale, of Washington, DC for Defendant-Intervenors Mitsubishi Polyster Film, Inc., and
SKC, Inc.
J. Michael Taylor, Mark T. Wasden, and Stephen A. Jones, King & Spalding, LLP,
of Washington, DC for Defendant-Intervenor Terphane, Inc.
Consol. Court No. 14-00183 Page 2
Gordon, Judge: Pending before the court are Plaintiff-Intervenors Dupont Teijin
Films China Ltd., DuPont Hongii Films Foshan Co., Ltd., and DuPont Teijin Films Hongji
Ningbo, Co. Ltd.’s (collectively “DuPont”) partial consent motions for preliminary injunction
to enjoin Defendant United States from liquidating DuPont’s entries of polyethylene
terephthalate film, sheet, and strip (“PET”) subject to Polyethylene Terephthalate Film,
Sheet, and Strip from the People’s Republic of China, 79 Fed. Reg. 37,715 (Dep’t of
Commerce July 2, 2014) (final results admin. review) (“Final Results”) and accompanying
Issues and Decision Memorandum, A-570-924 (Dep’t of Commerce June 24, 2014),
available at http://enforcement.trade.gov/frn/summary/prc/2014-15574-1.pdf (last visited
this date). 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-Intervenors’ motions for
preliminary injunctive relief.
Commerce published the Final Results on July 2, 2014. Plaintiffs then commenced
separate actions, with Tianjin Wanhua Co., Ltd. (“Wanhua”) filing its summons on July 30,
2014 and its complaint on August 5, 2014 (Court No. 14-00183), and Shaoxing Xiangyu
Green Packing Co., Ltd. (“Green Packing”) filing its summons and complaint on August 1
and August 15, 2014, respectively (Court No. 14-00183). Wanhua raised three
substantive challenges to the Final Results, whereas Green Packing raised six
substantive challenges, two of which are identical to those of Wanhua. See Wanhua
Complaint, ECF No. 6; Green Packing Complaint, ECF No. 8. The court thereafter
Consol. Court No. 14-00183 Page 3
enjoined Defendant from liquidating both Wanhua and Green Packing’s entries of
merchandise subject to the Final Results.
On August 29, 2014, Plaintiff-Intervenors filed consent motions to intervene, which
the court granted. Along with its motions to intervene, DuPont filed the instant motions,
followed by requests for temporary restraining orders (“TRO’s”). The court issued the
TRO’s on September 4, 2014. Thereafter, upon consultation with the parties, the court
ordered consolidation of the two actions, Court Nos. 14-00183 and 14-00185, under
Consol. Court No. 14-00183. See Order, Sept. 5, 2014, ECF No. 34 (order of consol.)
Discussion
DuPont challenges the Final Results and seeks to enjoin Defendant from
liquidating certain entries of subject merchandise until after this matter is resolved,
including all appeals. “A plaintiff seeking a preliminary injunction must establish [1] that
he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the
absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that
an injunction is in the public interest.” Winter v. Natural Res. Def. Council, Inc., 555 U.S.
7, 20 (2008); Titan Tire Corp. v. Case New Holland, Inc., 566 F.3d 1372, 1375-1376 (Fed.
Cir. 2009). “In international trade cases, the [Court of International Trade] has authority
to grant preliminary injunctions barring liquidation in order to preserve a party's right to
challenge the assessed duties.” Qingdao Taifa Group Co. v. United States, 581 F.3d
1375, 1378 (Fed. Cir. 2009).
Defendant does not dispute DuPont’s eligibility for a preliminary injunction under
the four factor test. Rather the United States contends that the court lacks the authority
Consol. Court No. 14-00183 Page 4
to grant DuPont its requested relief. Defendant, relying on Laizhou Auto Brake Equip.
Co. v. United States, 31 CIT 212, 477 F. Supp. 2d 1298 (2007), argues that as Plaintiff-
Intervenors, DuPont, may not expand the issues in this consolidated action beyond those
identified in the underlying complaints by seeking to enjoin the liquidation of its entries.
Specifically, Defendant maintains that the granting of DuPont’s injunction would
impermissibly alter the nature of this action, i.e., enlarge the action, by enjoining entries
that that are not the subject of either Wanhua or Green Packing’s complaints. See Def.’s
Opp. to DuPont’s Mot. for Prelim. Inj. 3-4 (citing Vinson v. Washington Gas Light Co., 321
U.S. 489, 498 (1944); Laizhou Auto Brake Equip. Co.). Defendant further argues that
DuPont’s role in the litigation is confined to supporting the position of Plaintiffs in asserting
their own claims for relief.
The court disagrees. The 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.”
NSK Corp. v. United States, 32 CIT 161, 166, 547 F. Supp. 2d 1312, 1318 (2008) (citing
references omitted); see also Union Steel v. United States, 33 CIT 614, 617 F. Supp. 2d
1373 (2009) (“Union Steel I”); Union Steel v. United States, 34 CIT ___, 704 F. Supp. 2d
1348 (2010). Those circumstances are not present in this action. In its motions for
preliminary injunctive relief DuPont does not raise any substantive issues other than those
identified by Wanhua and Green Packing in their respective complaints. Here DuPont is
not introducing any new issues or legal theories into the litigation, rather they are seeking
to simply obtain for its entries the benefit of any affirmative relief that may inure to Wanhua
or Green Packing. See DuPont’s Partial Consent Mot. for Prelim. Inj. 3, 5-6, ECF No. 13
Consol. Court No. 14-00183 Page 5
(Court No. 14-00183); DuPont’s Partial Consent Mot. for Prelim. Inj. 3, 5-6, ECF No. 16
(Court No. 14-00185). Granting an injunction to DuPont will do “no more than allow the
final judicial determination resulting from this litigation to govern entries that already were
the subject of the [underlying] administrative review” and Final Results, and will “not, in
any meaningful sense, ‘compel an alteration of the nature of the proceeding.’” Union
Steel I, 33 CIT at 624, 617 F. Supp. 2d at 1382 (quoting Vinson, 321 U.S. at 498). To
deny DuPont’s motions for a preliminary injunction would be tantamount to providing
Plaintiff-Intervenors (as interested parties to the underlying administrative proceeding)
with a statutory right to participate in the litigation (via intervention under 28 U.S.C.
§ 2631(j)) without any chance for relief. The end result would in effect require all similarly
situated interested parties to file a summons and complaint challenging Commerce’s
determinations simply to bring the subject entries under the authority of the court, which
the court believes is needless and inefficient.
As to the four-factor test, DuPont’s success on the merits is intrinsically tied to that
of Plaintiffs. The court has already concluded that Plaintiffs have satisfied this factor, and
there is no reason to conclude otherwise for DuPont. DuPont also satisfies the irreparable
harm factor. See Zenith Radio Corp. v. United States, 710 F.2d 806 (Fed. Cir. 1983);
Qingdao Taifa, 581 F.3d at 1380 (absent “any other statutory framework or process to
challenge the duties, . . . an injunction [i]s the only way to preserve [a domestic interested
party’s] ability to challenge the applicable rates”). The public interest is served by the
issuance of a preliminary injunction enjoining the liquidation of DuPont’s entries to allow
the assessment of the accurate dumping margin to those entries in accordance with the
Consol. Court No. 14-00183 Page 6
court’s final judgment. See Smith-Corona Group v. United States, 1 CIT 89, 98, 507 F.
Supp. 1015, 1023 (1980).
Finally, the court believes the balance of the hardships favors Plaintiff-Intervenors.
U.S. Customs and Border Protection (“Customs”) already holds cash deposits for these
entries. A preliminary injunction will ensure that the accurate dumping duties ultimately
are assessed. If the final rate after judicial review differs from the Final Results, then
Customs will collect or refund, with interest, the correct dumping duties, ensuring that
domestic and foreign parties are protected under the law. The United States will not be
disadvantaged because granting DuPont’s requested relief will only postpone the
liquidation of the subject entries. Corus Staal BV v. United States, 31 CIT 826, 833, 493
F. Supp. 2d 1276, 1283 (2007). By contrast, absent a preliminary injunction, liquidation
would deprive DuPont of effective relief by precluding any revision of the dumping margin
in accordance with the court’s final judgment.
DuPont has therefore demonstrated its entitlement to preliminary injunctive relief.
Accordingly, it is hereby
ORDERED that DuPont’s motions for preliminary injunction are granted; it is
further
ORDERED that Defendant United States, together with the delegates, officers,
agents and employees of the International Trade Administration of the U.S. Department
of Commerce and U. S. Customs and Border Protection, shall be, and hereby are
enjoined pending a final and conclusive court decision in this litigation, including all
appeals and remand proceedings, from causing or permitting liquidation of unliquidated
Consol. Court No. 14-00183 Page 7
entries of polyethylene terephthalate film, sheet, and strip from the People’s Republic of
China that
(1) were entered, or withdrawn from warehouse, for consumption
during the period November 1, 2011 through October 31, 2012, inclusive;
(2) were the subject to the antidumping duty administrative review,
the final results of which were published as Polyethylene Terephthalate
Film, Sheet, and Strip from the People’s Republic of China, 79 Fed. Reg.
37,715 (Dep’t of Commerce July 2, 2014) (final results admin. review) and
accompanying Issues and Decision Memorandum, A-570-924 (Dep’t of
Commerce June 24, 2014), available at
http://enforcement.trade.gov/frn/summary/prc/2014-15574-1.pdf; and
(3) were exported by DuPont Teijin Films China Limited, DuPont
Hongji Films Foshan Co., Ltd., or DuPont Teijin Films Hongji Ningbo Co.,
Ltd.; and it is further
ORDERED that this injunction shall expire on entry of a final and conclusive court
decision in this litigation, including all appeals, as provided for in 19 U.S.C. § 1516a(e)
(2012).
/s/ Leo M. Gordon
Judge Leo M. Gordon
Dated: September 18, 2014
New York, New York