Int'l Fresh Trade Corp. v. United States

• Decision Date: 10 November 2014
• Docket Number: Slip Op. 14–131.,Court No. 14–00213.
• Citation: 26 F.Supp.3d 1363
• Parties: INTERNATIONAL FRESH TRADE CORP., Plaintiff, v. UNITED STATES, Defendant.
• Court: U.S. Court of International Trade

26 F.Supp.3d 1363

INTERNATIONAL FRESH TRADE CORP., Plaintiff

v.UNITED STATES, Defendant.

Slip Op. 14–131.

Court No. 14–00213.

United States Court of International Trade.

Nov. 10, 2014.

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.

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 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, 129 S.Ct. 365 ; 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 (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 reputation amongst customers (including threatened litigation for failure to deliver), financial inability to re-export, and loss of the imports themselves (as the garlic is spoiling pending release). Huynh Decl., ECF No. 7–1 at Ex. 4, at ¶¶ 10–13; Add. Huynh Decl., ECF Nos. 10 & 10–1, at ¶¶ 6–9, 11–13. All this, Plaintiff claims, threatens to “virtually put both the [Plaintiff] and [Yongjia] out of business.” Add. Huynh Decl., ECF Nos. 10 & 10–1, at ¶ 9. While these harms are potentially irreparable,⁹ Plaintiff has failed to prove that they are immediate and viable: Plaintiff's evidence on irreparable harm consists solely of two affidavits from its vice president. Huynh Decl., ECF No. 7–1 at Ex. 4; Add. Huynh Decl., ECF Nos. 10 & 10–1. Without more, affidavits from interested parties may be considered “weak evidence, unlikely to justify a preliminary injunction.” Shree Rama Enters. v. United States, 21 CIT 1165, 1167, 983 F.Supp. 192, 195 (1997).¹⁰ Plaintiff has produced neither independent evidence nor witnesses for cross examination to support its affidavits. Plaintiff also has not provided financial statements to prove lack of necessary capital reserves, and Plaintiff has not shown that it sought and was denied financing to meet its enhanced bonding obligations. See Shandong Huarong, 24 CIT at 1290–91, 122 F.Supp.2d at 147 (citing Chilean Nitrate Corp. v. United States, 11 CIT 538, 541, 1987 WL 15089 (1987) (not reported in the Federal Supplement).¹¹ Further, Plaintiff has failed to adequately explain why it did not use the available and appropriate administrative remedy—a Department of Commerce changed circumstances review, see infra Section II—to address the matter raised here. Accordingly, Plaintiff has not established a clear threat of irreparable harm.¹²

II. Plaintiff Has Not Established a Sufficient Likelihood of Success on the Merits.

Even assuming, arguendo, that Plaintiff had produced the requisite evidence to make a strong showing of irreparable harm, it would still need to establish some chance of success on the merits, FMC Corp., 3 F.3d at 427, by raising, at the very least, questions that are “serious, substantial, difficult and doubtful.” Timken Co. v. United States, 6 CIT 76, 80, 569 F.Supp. 65, 70 (1983) (internal quotation marks and citations omitted). Plaintiff has not done so here.

On the merits, Plaintiff challenges Customs' determination that it must provide enhanced bonding. Am. Compl., ECF No. 16, at ¶ 1. Plaintiff again faces a high burden. Customs has broad authority to protect the revenue of the United States, see 19 U.S.C. §...