Zhejiang Native Produce & Animal By-Products Import & Export Corp. v. United States

• Decision Date: 27 April 2015
• Docket Number: Slip Op. 15–39.,Court No. 02–00064.
• Parties: ZHEJIANG NATIVE PRODUCE & ANIMAL BY–PRODUCTS IMPORT & EXPORT CORP. et al., Plaintiffs, v. UNITED STATES, Defendant, and Sioux Honey Association and American Honey Producers Association, Defendant–Intervenors.
• Court: U.S. Court of International Trade

61 F.Supp.3d 1358

ZHEJIANG NATIVE PRODUCE & ANIMAL BY–PRODUCTS IMPORT & EXPORT CORP. et al., Plaintiffs

v.UNITED STATES, DefendantandSioux Honey Association and American Honey Producers Association, Defendant–Intervenors.

Slip Op. 15–39.

Court No. 02–00064.

United States Court of International Trade.

April 27, 2015.

Bruce M. Mitchell, Ned H. Marshak, and Andrew T. Schutz, Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP, of New York, NY, for plaintiffs.

Michael J. Coursey and R. Alan Luberda, Kelley Drye & Warren LLP, of Washington, D.C., for defendant-intervenors.

OPINION and ORDER

EATON, Judge:

Before the court is the motion for a preliminary injunction of plaintiffs Zhejiang Native Produce & Animal By–Products Import & Export Corp., Kunshan Foreign Trade Co., China (Tushu) Super Food Import & Export Corp., High Hope International Group Jiangsu Foodstuffs Import & Export Corp., National Honey Packers & Dealers Association, Alfred L. Wolff, Inc., C.M. Goettsche & Co., China Products North America, Inc., D.F. International (USA) Inc., Evergreen Coyle Group Inc., Evergreen Produce Inc., Pure Sweet Honey Farm Inc., and Sunland International Inc. (“plaintiffs”), seeking to enjoin liquidation of any unliquidated entries subject to the antidumping duty order on honey from the People's Republic of China (“PRC”) until the final resolution of all appellate review proceedings in this action,¹ which challenges certain aspects of the International Trade Commission's (“ITC”) affirmative material injury determination.² See Partial Consent Mot. for Prelim. Inj. 1–2 (ECF Dkt. No. 36) (“Pls.' Mot.”); Honey From the PRC, 66 Fed.Reg. 63,670 (Dep't of Commerce Dec. 10, 2001) (notice of amended final determination of sales at less than fair value and antidumping duty order). Defendant, the United States, the party that will receive whatever duties are assessed at the close of this litigation, consents to plaintiffs' motion. See Pls.' Mot. 8. Defendant-intervenors, Sioux Honey Association and American Honey Producers Association (“defendant-intervenors”), however, object to the issuance of a preliminary injunction and urge denial of the motion. See Def.-ints.' Opp'n to Pls.' Partial Consent Mot. for Prelim. Inj. 1–2 (ECF Dkt. No. 41) (“Def.-ints.' Br.”). For the reasons that follow, the court grants plaintiffs' motion.

BACKGROUND

In August 2000, the suspension agreement for the less-than-fair-value (“LTFV”) investigation of honey from the PRC expired, and the United States Department of Commerce (“Commerce” or the “Department”) and the ITC resumed its previously suspended investigations.³ See Termination of Suspended Antidumping Duty Investigation on Honey From the PRC, 65 Fed.Reg. 46,426, 46,426 (Dep't of Commerce July 28, 2000) ; Zhejiang Native Produce & Animal By–Products Imp. & Exp. Corp. v. United States, 27 CIT 1827, 1828–31, 2003 WL 23015952 (2003). On December 10, 2001, as a result of the affirmative findings resulting from the ITC's investigation, and following its own investigation and resulting determination of sales at LTFV, the Department issued an antidumping duty order on honey from the PRC. See Honey From the PRC, 66 Fed.Reg. at 63,670 –72. The antidumping duty order set rates ranging between of 25.88 percent and 183.80 percent on plaintiffs' subject merchandise. See Honey From the PRC, 66 Fed.Reg. at 63,672. Plaintiffs separately appealed the Department's final LTFV determination and the ITC's final affirmative injury determination. On May 16, 2002, this case was stayed, pending the final disposition of Nippon Steel Corp. v. United States International Trade Commission, Court No. 01–00103. Order to Stay Further Proceedings (ECF Dkt. No. 25). On January 30, 2008, following the final decision in Nippon Steel and the lifting of the stay, the court subsequently stayed the action pending the final disposition of Zhejiang Native Produce & Animal By–Products Import & Export Corp. v. United States, Court No. 02–00057, which was plaintiffs' appeal challenging Commerce's LTFV determination regarding imports of honey from the PRC. See Order (ECF Dkt. No. 27).

In court number 02–00057 (the LTFV case), plaintiffs, with the consent of all parties, obtained a preliminary injunction on March 10, 2003, enjoining liquidation of entries of honey from the PRC that were imported by plaintiffs into the United States and that were subject to the antidumping duty order. See Order, Zhejiang, Ct. No. 02–00057, ECF Dkt. No. 36. On August 26, 2004, the Zhejiang Court issued its ruling in court number 02–00057, sustaining the Department's final results of redetermination, thereby extinguishing the preliminary injunction. See Zhejiang Native Produce & Animal By–Products Imp. & Exp. Corp. v. United States, 28 CIT 1427, 1437, 2004 WL 1918933 (2004), rev'd and remanded, 432 F.3d 1363 (Fed.Cir.2005). Thereafter, plaintiffs obtained a second preliminary injunction, enjoining liquidation of the subject merchandise, pending their appeal in court number 02–00057 to the Federal Circuit. See Order, Zhejiang, Ct. No. 02–00057, ECF Dkt. No. 51. On October 10, 2014, a final decision was issued by the Federal Circuit in court number 02–00057 (the LTFV case), and a mandate was subsequently issued on December 1, 2014, as a result of which the second preliminary injunction was lifted. See Zhejiang Native Produce & Animal By–Products Imp. & Exp. Corp. v. United States, 580 Fed.Appx. 906 (Fed.Cir.2014) ; Mandate, Zhejiang, Ct. No. 02–00057, ECF Dkt. No. 135. In addition, because of the final disposition in court number 02–00057, the stay that had been issued in this action, which challenges the ITC's final affirmative material injury determination, was also lifted. Following plaintiffs' motion for a preliminary injunction in the now active ITC case, the court, on its own motion, temporarily restrained the United States Customs and Border Protection Agency from liquidating any unliquidated entries of subject merchandise until the court rendered its decision on plaintiffs' motion. See Order (ECF Dkt. No. 44).

DISCUSSION

I. Legal Framework

The purpose of a preliminary injunction is to keep the status quo while an action is pending, and this Court and the Federal Circuit have observed that, “[i]n antidumping and countervailing duty cases preliminary injunctions against liquidation have become almost automatic due to the retrospective nature of U.S. trade remedies, the length of the judicial review process, and the cruciality of unliquidated entries for judicial review.”Wind Tower Trade Coal. v. United States, 741 F.3d 89, 95–96 (Fed.Cir.2014) (alteration in original) (citations omitted) (quoting Wind Tower Trade Coal. v. United States, 37 CIT ––––, ––––, 904 F.Supp.2d 1349, 1352 (2013) ) (internal quotation marks omitted). “The purpose and effect of granting such an injunction is to preserve the status quo during the pendency of the judicial proceedings in order to ultimately provide parties any relief the court grants.” Husteel Co. v. United States, 38 CIT ––––, ––––, 34 F.Supp.3d 1355, 1358–59 (2014) (citing 19 U.S.C. § 1516a(e)(2) ; Belgium v. United States, 452 F.3d 1289, 1297 (Fed.Cir.2006) ).

In deciding whether to grant a motion for a preliminary injunction and thus enjoin liquidation, the court must consider the following factors: (1) whether the movant “is likely to suffer irreparable harm in the absence of preliminary relief”; (2) whether the movant “is likely to succeed on the merits”; (3) whether “the balance of equities tips in ... favor” of the movant; and (4) whether “an injunction is in the public interest.” Wind Tower, 741 F.3d at 95 (quoting Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008) ) (internal quotation marks omitted). This Court “has traditionally applied a ‘sliding scale’ approach to this determination, whereby no single factor will be treated as necessarily dispositive, and the weakness of the showing on one factor may be overcome by the strength of the showing on the others.” Husteel, 38 CIT at ––––, 34 F.Supp.3d at 1359 (citing Belgium, 452 F.3d at 1292–93 ; Corus Grp. PLC v. Bush, 26 CIT 937, 942, 217 F.Supp.2d 1347, 1353–54 (2002) ); see also Qingdao Taifa Grp. Co. v. United States, 581 F.3d 1375, 1378 (Fed.Cir.2009) (“A request for a preliminary injunction is evaluated in accordance with a ‘sliding scale’ approach.” (quoting Kowalski v. Chicago Tribune Co., 854 F.2d 168, 170 (7th Cir.1988) ) (internal quotation marks omitted)). Further, this Court has also explained that, where, as here, “the irreparable harm factor tilts decidedly in favor of the movant, the burden of showing likelihood of success on the merits is lessened.” Husteel, 38 CIT at ––––, 34 F.Supp.3d at 1362 (citing Qingdao, 581 F.3d at 1378–79 ; Belgium, 452 F.3d at 1292–93 ). In like manner, the Federal Circuit has found that, “the more the balance of irreparable harm inclines in the plaintiff's favor, the smaller the likelihood of prevailing on the merits he need show in order to get the injunction.” Qingdao, 581 F.3d at 1378–79 (quoting Kowalski, 854 F.2d at 170 ) (internal quotation marks omitted).

II. Timeliness of Plaintiffs' Motion for a Preliminary Injunction

As an initial matter, defendant-intervenors object to plaintiffs' motion for a preliminary injunction on the grounds that it is untimely. Def.-ints.' Br. 10. The merchandise at issue was entered on or after May 11, 2001, i.e., the date of publication of Commerce's preliminary LTFV determination in the Federal Register, in which it found that critical circumstances existed with respect to plaintiffs' imports of honey. See Honey From the PRC, 66 Fed.Reg. 24,101, 24,107 –08 (Dep't of Commerce May 11, 2001) (notice of preliminary determination of sales at LTFV); Pls.' Mot. 1–2.

The domestic producers maintain that, pursuant to USCIT Rule 56.2(a), a motion to enjoin liquidation of entries must be filed within thirty days after service of the complaint. Def.-ints.' Br....