New Mexico Garlic Growers Coalition v. United States

Slip Op. 17-121
UNITED STATES COURT OF INTERNATIONAL TRADE
NEW MEXICO GARLIC GROWERS
COALITION, et al.,
Plaintiffs,
SHANDONG JINXIANG ZHENGYANG
IMPORT & EXPORT CO., LTD., et al.,
Plaintiff-Intervenors,
Before: Mark A. Barnett, Judge
v.
Consol. Court No. 17-00146
UNITED STATES,
Defendant,
ZHENGZHOU HARMONI SPICE CO.,
LTD., et al.,
Defendant-Intervenors.
OPINION AND ORDER
Barnett, Judge: Before the court is consolidated plaintiff-intervenors 1 Shandong
Jinxiang Zhengyang Import & Export Co., Ltd. (“Zhengyang”) and Jining Alpha Food
Co., Ltd.’s (“Alpha”) partial consent motion for a preliminary injunction to enjoin
defendant, the United States (“Defendant”), from liquidating certain of its entries of fresh
garlic from the People’s Republic of China. Partial Consent Mot. for a Prelim. Inj.
1 Court Nos. 17-00146 and 17-00166 have been consolidated under lead Court No. 17-
00146. See Docket Entry, ECF No. 31 (Court No. 17-00146). The instant motion was
filed in Court No. 17-00166 before consolidation. Accordingly, references to court filings
are to filings in Court No. 17-00166 unless otherwise stated.
Consol. Court No. 17-00146 Page 2
(“Mot.”). ECF No. 31. 2 Specifically, Zhengyang and Alpha (together, “Plaintiff-
Intervenors”) seek to enjoin liquidation of all of their unliquidated entries of fresh garlic
that were “entered or withdrawn from warehouse for consumption during the
administrative review period” covered by the administrative determination published as
Fresh Garlic from the People’s Republic of China, 82 Fed. Reg. 27,230 (Dep’t
Commerce, June 14, 2017) (final results and partial rescission of the 21st antidumping
duty admin. review; 2014-2015) (“Final Results”). Mot. at 2.
The court has jurisdiction pursuant to Section 516A(a)(2)(B)(iii) of the Tariff Act of
1930, as amended, 28 U.S.C. § 1581(c) (2012) and 19 U.S.C. § 1516a(c)(2) (2012).
For the reasons set forth below, Plaintiff-Intervenors' motion for a preliminary injunction
is granted.
BACKGROUND
Commerce published the Final Results on June 14, 2017. See Final Results, 82
Fed. Reg. at 27,230. On June 27, 2017, now-consolidated-plaintiff Qingdao Tiantaixing
Foods Co., Ltd. (“QTF”), a Chinese producer and exporter of fresh garlic, filed a
summons commencing Court No. 17-166 See Summons, ECF No. 1. On June 30,
2017, QTF filed is complaint challenging the Department of Commerce’s (“Commerce”)
application of adverse facts available and Commerce’s collapsing of QTF with several
2On September 6, 2017, the court granted Zhengyang and Alpha’s partial consent
motion to intervene as of right in Court No. 17-00166. See Docket Entry, ECF No. 36
(Court No. 17-00166). The court denied the motion to intervene with respect to
proposed plaintiff-intervenor Shenzhen Xinboda Industrial Co., Ltd. (“Xinboda”). See id.
Because injunctive relief is premised upon the court’s grant of intervention, see Mot. at
1, the court will deny the instant motion with respect to Xinboda.
Consol. Court No. 17-00146 Page 3
other entities. See Compl. ¶¶ 26-30, ECF No. 7. 3 On July 11, 2017, the court granted
QTF’s consent motion for a preliminary injunction. See Order (July 11, 2017), ECF No.
11.
Zhengyang and Alpha are separate rate respondents whose merchandise is also
subject to the Final Results. See Mot. at 2-3; Final Results, 82 Fed. Reg. at 27,232.
Zhengyang and Alpha received the same rate as Xinboda, which was the only
mandatory respondent with a calculated rate. See Final Results, 82 Fed. Reg. at
27,232. Soon after filing their motion to intervene, Plaintiff-Intervenors filed the instant
motion for a preliminary injunction. See Mot. Defendant opposes the motion. Def.’s
Opp’n to the Mot. for Prelim. Inj. of Proposed Pl.-Ints. Shenzhen Xinboda Industrial Co.,
Ltd., Shandong Jinxiang Zhengyang Import & Export Co., Ltd., and Jining Alpha Food
Co., Ltd. (“Opp’n”), ECF No. 32. 4
DISCUSSION
“In international trade cases, the [U.S. Court of International Trade (“USCIT”)]
has authority to grant preliminary injunctions barring liquidation in order to preserve a
party's right to challenge the assessed duties.” Qingdao Taifa Grp. Co., Ltd. v. United
States, 581 F.3d 1375, 1378 (Fed. Cir. 2009). “A preliminary injunction is an
extraordinary remedy never awarded as of right.” Winter v. Natural Res. Def. Council,
3 Commerce determined that QTF had failed to rebut the presumption of government
control and therefore had not demonstrated its entitlement to a separate rate. Final
Results, 82 Fed. Reg. at 27,232. Accordingly, Commerce assigned QTF the China-
wide rate of $4.71 per kilogram. Id.
4 QTF consented to the motion. Mot. at 6. Defendant-Intervenors informed Plaintiff-
Intervenors that they oppose the motion, id., but they did not file a formal response.
Consol. Court No. 17-00146 Page 4
Inc., 555 U.S. 7, 24 (2008). To prevail, Plaintiff-Intervenors must demonstrate (1) a
likelihood of success on the merits; (2) the likelihood of irreparable harm without
injunctive relief; (3) that the balance of equities favors Plaintiff-Intervenors; and (4) that
injunctive relief serves the public interest. Id. at 20; Zenith Radio Corp. v. United States,
710 F.2d 806, 809 (Fed. Cir. 198; Nexteel Co., Ltd. v. United States, 41 CIT ___, ___,
227 F. Supp. 3d 1323, 1327 (2017).
Pursuant to this court’s rules, “[a]n intervenor may also preserve its unliquidated
entries for eventual liquidation at the rates finally determined by the litigation by moving
for a preliminary injunction to bar the liquidation of those entries.” Fine Furniture
(Shanghai) Ltd. v. United States, 40 CIT ___, ___, 195 F. Supp. 3d 1324, 1328 (2016)
(citing USCIT Rule 56.2(a)). “[A]n ‘intervenor must file a motion for a preliminary
injunction no earlier than the date of filing of its motion to intervene and no later than 30
days after the date of service of the order granting intervention, or at such later time, but
only for good cause shown.’” Id. (quoting USCIT Rule 56.2(a)).
Defendant does not oppose Plaintiff-Intervenors’ motion on the basis of the four-
factor test for injunctive relief. Instead, Defendant contends that Plaintiff-Intervenors’
motion “should be denied because it seeks to enlarge the issues in the case, which an
intervenor may not do.” Opp’n at 4 (citing Vinson v. Washington Gas Light Co., 321
U.S. 489, 498 (1944); Laizhou Auto Brake Equip. Co. v. United States, 31 CIT 212, 477
F. Supp. 2d 1299-1301 (2007)). 5
5 Defendant also contends that Plaintiff-Intervenors were “not authorized” to request
injunctive relief before the court resolved their motion to intervene. Opp’n at 1, 3, 4.
Consol. Court No. 17-00146 Page 5
Laizhou relies on Vinson for the proposition that an intervenor “is admitted to a
‘proceeding as it stands, and in respect of the pending issues, but is not permitted to
enlarge those issues.’” 31 CIT at 214-15, 447 F. Supp. 2d at 1300-01 (quoting Vinson,
321 U.S. at 498) (declining to grant injunctive relief to an intervenor). As a general rule,
intervenors may not enlarge the pending substantive issues or “compel an alteration of
the nature of the proceeding.” Vinson, 321 U.S. at 498. However, the court is
persuaded by more recent cases in this court, which have consistently found that
granting an intervenor’s motion for injunctive relief does not expand the scope of the
action or change the nature of the proceeding. See, e.g., Fine Furniture, 195 F. Supp.
3d at 1328-30. Rather, granting injunctive relief to intervenors brings additional covered
entries into the action, thereby ensuring that the intervenors may obtain the benefits of a
favorable outcome to the litigation. See id. at 1330.
During a teleconference on the instant motion, Defendant also pointed to
language in Rule 56.2(a) that it contends supports its position. In particular, Defendant
relied on the following sentence: “Any motion for a preliminary injunction to enjoin the
liquidation of entries that are the subject of the action must be filed by a party to the
Defendant’s position is contrary to the court’s rules, which permit intervenors to seek
injunctive relief concurrent with filing a motion to intervene. See USCIT Rule 56.2(a).
That the court may not authorize injunctive relief until such time as a proposed
intervenor is permitted to intervene does not bar the proposed intervenor from seeking
injunctive relief. See id. Indeed, as Plaintiff-Intervenors note in their motion, “time is of
the essence” because Commerce has issued liquidation instructions for Zhengyang’s
and Alpha’s entries, the liquidation of which would remove those entries from the court’s
jurisdiction. Mot. at 3; SKF USA Inc. v. United States, 28 CIT 170, 174, 316 F. Supp. 2d
1322, 1327 (2004).
Consol. Court No. 17-00146 Page 6
action within 30 days after service of the complaint, or at such later time, for good cause
shown.” USCIT Rule 56.2(a) (emphasis added); see also Laizhou, 31 CIT at 214-15,
477 F. Supp. 2d at 1301 (quoting USCIT Rule 56.2(a)). Defendant contends that the
entries that are the “subject of the action” are those identified in the complaint; because
Plaintiff-Intervenors’ entries are not identified in the complaint, they are not entitled to
injunctive relief. Defendant’s reliance on Rule 56.2(a) is unavailing.
Further down, Rule 56.2(a) also states that “an intervenor must file a motion for a
preliminary injunction no earlier than the date of filing of its motion to intervene and no
later than 30 days after the date of service of the order granting intervention, or at such
later time, but only for good cause shown.” USCIT Rule 56.2(a). Read together, the
sentences provide the respective deadlines that govern plaintiffs’ and plaintiff-
intervenors’ motions for injunctive relief: generally speaking, plaintiffs must seek
injunctive relief within 30 days of service of the complaint, and plaintiff-intervenors must
seek injunctive relief within 30 days of the order granting intervention. The sentence
relied on by Defendant is not intended to limit the scope of injunctive relief a court may
grant. Indeed, denying injunctive relief would, in effect, provide intervenors “with a
statutory right to participate in the litigation” pursuant to 28 U.S.C. § 2631(j) 6 “without
6Section 2631(j) provides, with exceptions not relevant here, that “[a]ny person who
would be adversely affected or aggrieved by a decision in a civil action pending in the
Court of International Trade may, by leave of court, intervene in such action.” 28 U.S.C.
§ 2631(j).
Consol. Court No. 17-00146 Page 7
any chance for relief.” Fine Furniture, 195 F. Supp. 3d at 1330 (quoting Tianjin Wanhua
Co., Ltd. v. United States, 38 CIT ___, ___, 11 F. Supp. 3d 1286 (2014)). 7
The court further finds that Plaintiff-Intervenors have satisfied the requirements
for a preliminary injunction. “In reviewing the factors, the court employs a ‘sliding scale.’
Consequently, the factors do not necessarily carry equal weight. The crucial factor is
irreparable injury.” Belgium v. United States, 452 F.3d 1289, 1293 (Fed. Cir. 2006)
(citation omitted). Plaintiff-Intervenors will suffer irreparable harm absent injunctive
relief because liquidation of their entries would bar them from obtaining the benefits of a
favorable outcome to the litigation, i.e., a refund of any overpayment of anti-dumping
duties. Winter, 555 U.S. at 24; Mot. at 3-4. The court has determined that QTF has
demonstrated a sufficient likelihood of success on the merits, see Order (July 11, 2017),
ECF No. 11, and because Plaintiff-Intervenors’ likelihood of success on the merits is
tied to that of QTF’s, the court finds that this requirement is satisfied, see Fine Furniture,
7 The sentence in Rule 56.2(a) permitting injunctive relief by intervenors begins with the
words “Notwithstanding the first sentence of this paragraph, an intervenor must file a
motion for a preliminary injunction . . . .” USCIT Rule 56.2(a) (emphasis added). In the
current version of the court’s rules, the first sentence states that “[a]ny motion to
intervene as of right must be filed within the time and in the manner prescribed by Rule
24.” Id. However, when the section of the rule governing intervention and motions for
injunctive relief by intervenors first went into effect in 1995, the current first sentence
regarding motions to intervene pursuant to Rule 24 was set off in a preceding
paragraph, such that the first sentence related to motions for preliminary injunction by
parties to the action (i.e., the current second sentence was, in 1995, the first sentence).
See USCIT Rule 56.2(a) (effective Jan. 1, 1995). It thus appears to the court that the
phrase “[n]ot withstanding the first sentence of this paragraph” in the current rule
version should be construed as “notwithstanding the second sentence of this
paragraph.” Construing the rule in this way adds further support to the court’s finding
that injunctive relief is not limited to entries that are the “subject of the action.”
Consol. Court No. 17-00146 Page 8
195 F. Supp. 3d at 1333; Mot. at 5. The balance of equities favors Plaintiff-Intervenors
because they will suffer irreparable harm without injunctive relief and Defendant will
suffer no apparent hardship from the grant of injunctive relief. Winter, 555 U.S. at 24;
Mot. at 4-5. Finally, the public interest is served by the grant of injunctive relief. See
SKF USA, 28 CIT at 176, 316 F. Supp. 2d at 1329 (“As for the public interest, there can
be no doubt that it is best served by ensuring that [Commerce] complies with the law,
and interprets and applies our international trade statutes uniformly and fairly.”) (citation
omitted).
CONCLUSION AND ORDER
Accordingly, upon consideration of Plaintiff-Intervenors’ partial consent motion for
a preliminary injunction, and Defendant’s opposition thereto, it is hereby
ORDERED that Plaintiff-Intervenors’ partial consent motion for a preliminary
injunction is GRANTED as to Shandong Jinxiang Zhengyang Import & Export Co., Ltd.
and Jining Alpha Food Co., Ltd., and DENIED as to Shenzhen Xinboda Industrial Co.,
Ltd.; 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 from making or permitting liquidation of any unliquidated entries of fresh
garlic from the People’s Republic of China (Case No. A-570-831), which:
(1) were the subject of the administrative determination published as Fresh Garlic
from the People’s Republic of China: Final Results and Partial Rescission of the
Consol. Court No. 17-00146 Page 9
21st Antidumping Duty Administrative Review: 2014-2015, 82 Fed. Reg. 27,230
(June 14, 2017);
(2) were exported to the United States by Shandong Jinxiang Zhengyang Import
& Export Co., Ltd., or Jining Alpha Food Co., Ltd.;
(3) were entered or withdrawn from warehouse for consumption between
November 1, 2014 – October 31, 2015; and
(4) remain unliquidated as of 5:00 p.m. on the day the Court enters this order on
the docket in this case; and it is further
ORDERED that the entries covered by this injunction shall be liquidated in
accordance with the final and conclusive court decision in this matter, including all
appeals and remand proceedings.
/s/ Mark A. Barnett
Mark A. Barnett, Judge
Dated: September 7, 2017
New York, New York