26 F.Supp.3d 1363 (CIT. 2014), 14-00213, International Fresh Trade Corp v. United States

Docket Nº14-00213
Citation26 F.Supp.3d 1363
Opinion JudgePogue, Senior Judge:
Party NameINTERNATIONAL FRESH TRADE CORP., Plaintiff, v. UNITED STATES, Defendant
AttorneyNo. 14-00213 Robert T. Hume and Carol Wyzinski, Hume & Associates LLC, of Ojai, CA, for the Plaintiff. Tara K. Hogan, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, DC, for the Defendant. Also on the brief were Joyce R. Branda, Actin...
Judge PanelBefore: Donald C. Pogue, Senior Judge.
Case DateNovember 10, 2014
CourtUnited States Customs Court

Page 1363

26 F.Supp.3d 1363 (CIT. 2014)

INTERNATIONAL FRESH TRADE CORP., Plaintiff,

v.

UNITED STATES, Defendant

No. 14-00213

United States Court of International Trade

November 10, 2014

Page 1364

preliminary injunction denied.

Robert T. Hume and Carol Wyzinski, Hume & Associates LLC, of Ojai, CA, for the Plaintiff.

Tara K. Hogan, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, DC, for the Defendant. Also on the brief were Joyce R. Branda, Acting Assistant Attorney General, Jeanne E. Davidson, Director, and Patricia M. McCarthy, Assistant Director. Of counsel was Chi Choy, Attorney, Office of Assistant Chief Counsel, U.S. Customs and Border Protection, of New York, NY.

Before: Donald C. Pogue, Senior Judge.

Page 1365

OPINION and ORDER

Pogue, Senior Judge:

In this action, Plaintiff International Fresh Trade Corp. (" IFTC" ) moves to enjoin U.S. Customs and Border Protection (" Customs" or " CBP" ) from imposing a single transaction bond requirement on Plaintiff's entries of fresh garlic from the People's Republic of China (" PRC" ). Pl.'s Appl. for a TRO & Mot. for a Prelim. Inj., ECF No. 7 (" Pl.'s Br." ), at 1. Plaintiff's entries are subject to an antidumping duty order (A-570-831). Id. Customs' enhanced bond requirement would equal Plaintiff's potential antidumping duty liability as calculated at the PRC-wide rate ($4.71/kg) rather than the expected $0.24/kg cash deposit rate otherwise applicable to Plaintiff's combination of exporter (Jining Yongjia Trade Co., Ltd. (" Yongjia" )) and producer (Jinxiang County Shanfu Frozen Co., Ltd. (" Shanfu" )). Id. at 1-2; Am. Compl., ECF No. 16, at ¶ 1. As Plaintiff has not established its entitlement to a preliminary injunction, its motion is denied.

BACKGROUND

In 1994, the U.S. Department of Commerce (" Commerce" ) issued an antidumping duty order on fresh garlic from the PRC (A-570-831). Fresh Garlic from the [PRC], 59 Fed. Reg. 59,209 (Dep't Commerce Nov. 16, 1994) (antidumping duty order). This order set the PRC-wide rate at 376.67 percent (which translates to a cash deposit rate of $4.71/kg). Id. at 59,210; Ex. 3 to Pl.'s Br. (Undated Port of San Francisco Information Notice), ECF No. 7-1 (" Information Notice" ).1 This rate is still in use today. Information Notice, ECF No. 7-1. In 2006, Yongjia began shipping fresh garlic from the PRC to the United States. See Fresh Garlic from the [PRC], 73 Fed. Reg. 56,550, 56,552 (Dep't Commerce Sept. 29, 2008) (final results and rescission, in part, of twelfth new shipper reviews) (" Twelfth NSR" ). Yongjia requested a new shipper rate (" NSR" ) from Commerce, and, following investigation, was granted a combination rate with its producer, Shanfu,2 of 18.88 percent (which translates to a cash deposit rate of $0.24/kg) (" Yongjia/Shanfu NSR" ). Id.; App. to Mem. Supp. Def.'s Opp'n to [Pl.'s Appl.] for TRO & [Mot.] for Prelim. Inj. (" Def.'s App." ) (CBP Cash Deposit Instructions for Fresh Garlic from China, A-570-831 (Oct. 15, 2008)), ECF No. 24-1, at A4.3 Yongjia did not export fresh garlic to the United States again until 2014,4 with

Page 1366

Plaintiff as importer. Ex. 4 to Pl.'s Br. (Decl. of Hung Nam Huynh, Vice President of IFTC), ECF No. 7-1 (" Huynh Decl." ), at ¶ ¶ 4-6. Because of what appeared to be discrepant information in the imports' phytosanitary certificates, Customs requested further documentation to verify the identity of the producer and shipper of the entries. Def's App. (Decl. of Marc Dolor, Senior Import Specialist, Area Port of San Francisco, CBP), ECF No. 24-1 at A83 (" Dolor Decl." ), at ¶ ¶ 6-16. The documents indicated that the producer, Shanfu, had undergone changes, including restructuring, that potentially rendered it a different entity and ineligible for the Yongjia/Shanfu NSR. Id. at ¶ ¶ 18-21; Def's App. (Decl. of Richard J. Edert, International Trade Specialist, National Targeting and Analysis Group, Office of International Trade, CBP), ECF No. 24-1 at A72 (" Edert Decl." ), at ¶ ¶ 8-9. Because of this uncertainty, Customs has denied entry until Plaintiff posts additional bonding to make its cash deposit rate commensurate with its potential antidumping duty liability (the $4.71/kg PRC-wide rate). Dolor Decl., ECF No 24-1 at A83, at ¶ 22; Edert Decl., ECF No. 24-1 at A72, at ¶ 10; Information Notice, ECF No. 7-1 at Ex. 3 (providing Plaintiff with notice that " [t]o ensure entries are filed correctly and to protect [the] revenue [of the United States]," Customs may require that the importer provide an " additional single transaction bond [for each entry] to cover antidumping duties" at the PRC-wide rate of $4.71/kg). Plaintiff challenges this determination as arbitrary and capricious, asserting jurisdiction under 28 U.S.C. § 1581(i) (2012).5 See Pl.'s Br., ECF No. 7, at 1; Am. Compl., ECF No. 16.

Plaintiff sought a temporary restraining order (" TRO" ) and preliminary injunction to prevent Customs from imposing the heightened bonding requirement. Pl.'s Br., ECF No. 7, at 1. The court held an evidentiary hearing on October 1, 2014, see Hr'g, ECF No. 29, and subsequently denied Plaintiff's request for a TRO, Conf. Tr. of Hr'g, ECF No. 31, at 64:15-16.

DISCUSSION

" A preliminary injunction is an extraordinary remedy never awarded as of right." Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008) (citation omitted). To obtain a preliminary injunction, the Plaintiff 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 Plaintiff, and (4) the injunction is in the public interest. Id. at 20; Zenith Radio Corp. v. United States, 710 F.2d 806, 809 (Fed. Cir. 1983). No one factor is dispositive, FMC Corp. v. United States, 3 F.3d 424, 427 (Fed. Cir. 1993), but likelihood of success and irreparable harm are " [c]entral to the [Plaintiff's] burden." Sofamor Danek Grp., Inc. v. DePuy-Motech, Inc., 74 F.3d 1216, 1219

Page 1367

(Fed. Cir. 1996). The court evaluates a request for a preliminary injunction on a " sliding scale" -- " the more the balance of irreparable harm inclines in the plaintiff's favor, the smaller the likelihood of prevailing on the merits [it] need show" to get the injunction. Qingdao Taifa Grp. Co. v. United States, 581 F.3d 1375, 1378-79 (Fed. Cir. 2009) (quotation marks and citation omitted).

I. Plaintiff Has Not Established a Clear Threat of Irreparable Harm.

" Plaintiff bears an extremely heavy burden" to establish irreparable harm. Shandong Huarong Gen. Grp. Corp. v. United States, 24 CIT 1279, 1282, 122 F.Supp.2d 1367, 1369 (2000) (citation omitted). Harm is only irreparable when there is no adequate remedy at law, see Morales v. Trans World Airlines, Inc., 504 U.S. 374, 381, 112 S.Ct. 2031, 119 L.Ed.2d 157 (1992), when " no damages payment, however great," can address it, Celsis In Vitro, Inc. v. CellzDirect, Inc., 664 F.3d 922, 930 (Fed. Cir. 2012) (citations omitted). Further, the threat of irreparable harm must be immediate and viable -- " [a] preliminary injunction will not issue simply to prevent a mere possibility of injury, even where prospective injury is great." Zenith Radio, 710 F.2d at 809 (quotation marks and citation omitted).6 Plaintiff has not met this burden.

Plaintiff alleges inability to pay the required cash deposit,7 and, in the absence of a preliminary injunction, continued denied entry, mounting demurrage and storage charges,8 loss of...

To continue reading

Request your trial