Shandong Huarong General Group Corp. v. U.S.

• Decision Date: 13 November 2000
• Docket Number: Slip Op. 00-149.,Court No. 00-08-00393.
• Citation: 122 F.Supp.2d 1367
• Parties: SHANDONG HUARONG GENERAL GROUP CORPORATION, Liaoning Machinery Import & Export Corporation, Plaintiffs, v. UNITED STATES, Defendant, and O. Ames Company, Defendant-Intervenor
• Court: U.S. Court of International Trade

122 F.Supp.2d 1367

SHANDONG HUARONG GENERAL GROUP CORPORATION, Liaoning Machinery Import & Export Corporation, Plaintiffs, v. UNITED STATES, Defendant, and O. Ames Company, Defendant-Intervenor

Slip Op. 00-149.

Court No. 00-08-00393.

United States Court of International Trade.

November 13, 2000.

Hume & Associates (Robert T. Hume), Washington, D.C., for Plaintiffs.

David W. Odgen, Assistant Attorney General; Kenneth S. Kessler, United States Department of Justice, Civil Division, Commercial Litigation Branch; John F. Koeppen, United States Department of Commerce, Office of Chief Counsel, for Defendant.

Wiley, Rein & Fielding (Charles Owen Verrill, Jr., Eileen P. Bradner, Timothy Brightbill, Nicholas A. Kessler), Washington, D.C., for Defendant-Intervenor.

MEMORANDUM OPINION

CARMAN, Chief Judge.

Shandong Huarong General Group Corporation (SHGC or Plaintiff)¹, moves this Court for a preliminary injunction to enjoin the collection of estimated antidumping duty cash deposits at either the 23.99% rate established by the United States Department of Commerce (Commerce) in Notice of Final Results and Partial Recission of Antidumping Administrative Reviews: Heavy Forged Hand Tools from the People's Republic of China, 65 Fed. Reg. 43,290 (July 13, 2000) (1998-1999 Final Results) or the 28.96% rate established in Amended Final Results of Antidumping Duty Administrative Reviews: Heavy Forged Hand Tools from the People's Republic of China, 65 Fed.Reg. 50,499 (August 18, 2000) (Amended Results). This injunction would cover future imports of bars over 18 inches in length, track tools and wedges exported by Plaintiff that are classified under the Harmonized Tariff Schedules of the United States subheading 8205.59.30., and would remain in effect until final judicial review of Plaintiff's underlying legal challenge. Defendant and Defendant-Intervenor object to the issuance of a preliminary injunction.

BACKGROUND

On February 19, 1991, Commerce imposed antidumping duty orders on heavy forged hand tools, finished or unfinished, with or without handles, from the People's Republic of China. See Heavy Forged Hand Tools from the People's Republic of China, 56 Fed.Reg. 6,622 (Feb. 19, 1991). On February 11, 1999, Commerce published notice of opportunity to request an administrative review of imports of merchandise entered between February 8, 1998 and January 31, 1999 subject to the relevant antidumping orders. (1998-1999 Administrative Review). See Opportunity to Request Administrative Review, 64 Fed.Reg. 6,878 (Feb. 11, 1999). Plaintiff and three other exporters of subject merchandise responded to Commerce's notice and requested that Commerce review their exports entered into the United States during the relevant time period.² In addition, Defendant-Intervenor responded and requested that Commerce conduct administrative reviews of each class of subject merchandise exported by the four respondents. On March 29, 1999, Commerce formally initiated an administrative review. See Heavy Forged Hand Tools from the People's Republic of China, 64 Fed.Reg. 14,860 (Mar. 29, 1999).

On July 13, 2000, Commerce published notice of its final results of the 1998-1999 Administrative Review applying a 23.99% antidumping duty deposit rate on Plaintiff's exports of subject merchandise. See 1998-1999 Final Results, 65 Fed.Reg. at 43,290. On July 17, 2000, pursuant to 19 C.F.R. § 351.224(e), Plaintiff requested that Commerce adjust its final results to correct a ministerial error caused by Commerce's failure to use surrogate value data for billets during the entire period of review. On August 18, 2000, Commerce corrected this error, altered Plaintiff's antidumping duty deposit rate to 28.96% and published notice of its amended results. See Amended Results, 65 Fed.Reg. at 50,500. Prior to the 1998-1999 Administrative Review, Plaintiff's exports were subject to an antidumping duty deposit rate of 1.27 percent.

On August 25, 2000, both of the Plaintiffs filed a complaint with this Court challenging Commerce's 1998-1999 Administrative Review final results.³ This complaint was followed by a consent motion for preliminary injunction to enjoin the liquidation of all entries of subject merchandise covered by the 1998-1999 Administrative Review final results. On September 5, 2000, this Court granted Plaintiffs' consent motion enjoining liquidation of all covered entries during the pendancy of Plaintiffs' legal challenge and any remand actions that might be necessary. Plaintiff SHGC now moves this Court for a preliminary injunction enjoining the United States from collecting estimated antidumping duty cash deposits at the rate established by Commerce during the 1998-1999 Administrative Review. Plaintiff SHGC seeks, during the pendancy of this litigation, to continue depositing estimated antidumping duties at the rate established by the seventh administrative review. Defendant and Defendant-Intervenor object.

DISCUSSION

This Court has jurisdiction over the Plaintiff's underlying litigation pursuant to 28 U.S.C. § 1581(c) and sections 516A(a)(2)(A)(i)(I) and (B)(iii) of the Tariff Act of 1930, as amended by 19 U.S.C. §§ 1516a(a)(2)(A)(i)(I) and (B)(iii). The Plaintiff's motion is properly before this Court pursuant to 28 U.S.C. § 2643(c)(1). See also 28 U.S.C. § 1585 ("The Court of International Trade shall possess all the powers in law and equity of, or as conferred by statute upon, a district court of the United States.")

The events precipitating this motion are clear. As a result of the 1998-1999 Administrative Review, Commerce adjusted the estimated antidumping duty deposit rates applicable to Plaintiff's exports of subject merchandise. This adjustment increased the deposit rate from 1.27% to 28.96% resulting, Plaintiff contends, in the cancellation of all existing and future orders by Plaintiff's "major" United States customer. Plaintiff initiated a lawsuit challenging Commerce's final determination in the 1998-1999 Administrative Review, and now seeks to preliminarily enjoin the collection of cash deposits at the challenged rate.

It is well settled that a preliminary injunction is an extraordinary remedy. Therefore, before the Plaintiff can be granted such relief it must establish: (1) in the absence of a preliminary injunction, it will suffer immediate and irreparable injury; (2) the balance of hardships tilts in its favor; (3) there is a likelihood of success on the merits; and (4) the grant of a preliminary injunction is not contrary to public interest. See FMC Corp. v. United States, 3 F.3d 424, 427 (Fed.Cir.1993); Zenith Radio Corp. v. United States, 710 F.2d 806, 809 (Fed.Cir.1983). If Plaintiff fails to prove any one of these factors, its motion must fail. See Shree Rama Enterprises v. United States, 983 F.Supp. 192, 194 (C.I.T.1997). For the reasons stated below, this Court finds that Plaintiff has failed to establish it will be immediately and irreparably injured in the absence of a preliminary injunction. Plaintiff's motion, therefore, fails.

Plaintiff argues it will suffer immediate and irreparable injury if it is required to make anticipated antidumping duty deposits at the "exorbitant" deposit rate established by Commerce in the 1998-1999 Administrative Review. Specifically, Plaintiff argues that the imposition of this antidumping duty deposit rate will result in the cancellation of existing and future orders by its "major" United States customer, thereby causing Plaintiff to go out of business. Plaintiff asserts that the "exhorbitant[ly]" high antidumping duty rates were imposed as a result of severe factual, legal, and procedural errors committed by Commerce during the 1998-1999 Administrative Review. These errors are alleged to have deprived Plaintiff of the procedural safeguards designed to ensure the fair and equitable administration of the antidumping laws. Plaintiff argues that if it is forced out of business as a result of these errors, it will suffer irreparable economic injury and will be deprived of its right to meaningful and effective judicial review.

To establish irreparable injury, Plaintiff bears an extremely heavy burden. See Queen's Flowers de Colombia v. United States, 947 F.Supp. 503, 506 (C.I.T.1996). Irreparable injury is a type of injury that is "serious" and "cannot be undone." Zenith, 710 F.2d at 809, quoting, S.J. Stile Assoc. Ltd. v. Snyder, 68 C.C.P.A. 27, 646 F.2d 522, 525 (CCPA 1981). It is not enough merely to establish a "possibility of injury, even where prospective injury is great. A presently existing, actual threat must be shown." Id.

As stated, Plaintiff alleges that, in the absence of a preliminary injunction, it will be forced out of business and will lose its right to effective and meaningful judicial review by the imposition of the challenged antidumping duty deposit rates. Courts have long recognized the irreparable injury that is attendant to the loss of effective and meaningful judicial review. See Zenith 710 F.2d at 810 (holding that liquidation of entries during the pendancy of litigation challenging an administrative review negates a plaintiff's right to meaningful judicial review and, thus, constitutes per se irreparable harm); NMB Singapore Ltd. v. United States, 120 F.Supp.2d 1135 (C.I.T.2000) (extending the Zenith rule to cases in which a party challenges an affirmative sunset review determination.) Nevertheless, Plaintiff has failed to establish that it would suffer irreparable injury by being forced out of business and thereby lose its ability to obtain effective and meaningful judicial review.

To support its argument, Plaintiff provides an affidavit from its "major" United States customer stating that it would be unable to continue importing Plaintiff's products as a result of the antidumping duty deposit rates and that all existing and future orders were to be immediately cancelled. This affidavit, however, proves little other than Plaintiff has lost one of its customers in...