Mid Continent Steel & Wire, Inc. v. United States

Decision Date07 February 2020
Docket NumberConsol. Court No. 15-00213,Slip Op. 20-16
Citation427 F.Supp.3d 1375
Parties MID CONTINENT STEEL & WIRE, INC. et al., Plaintiff and Consolidated Plaintiffs, v. UNITED STATES, Defendant, and PT Enterprise Inc. et al., Defendant-Intervenors and Consolidated Defendant-Intervenor.
CourtU.S. Court of International Trade

Adam Henry Gordon and Ping Gong, The Bristol Group PLLC, of Washington, DC, for plaintiff and consolidated defendant-intervenor Mid Continent Steel & Wire, Inc.

Ned Herman Marshak and Andrew Thomas Schutz, Grunfeld Desiderio Lebowitz Silverman & Klestadt, LLP, of New York, NY, and Washington, DC, for consolidated plaintiffs and defendant-intervenors PT Enterprise Inc., Pro-Team Coil Nail Enterprise Inc., Unicatch Industrial Co., Ltd., WTA International Co., Ltd., Zon Mon Co., Ltd., Hor Liang Industrial Corporation, President Industrial Inc., and Liang Chyuan Industrial Co., Ltd.

Mikki Cottet, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, DC, for defendant. With her on the brief were Joseph H. Hunt, Assistant Attorney General, Jeanne E. Davidson, Director, and Patricia M. McCarthy, Assistant Director. Of counsel on the brief was Vania Wang, Attorney, Office of the Chief Counsel for Trade Enforcement and Compliance, U.S. Department of Commerce, of Washington, DC.

MEMORANDUM AND ORDER

Claire R. Kelly, Judge Kelly, Judge: Before the court is Plaintiffs' PT Enterprise Inc. ("PT"), Pro-Team Coil Nail Enterprise Inc. ("Pro-Team"), Unicatch Industrial Co., Ltd. ("Unicatch"), WTA International Co., Ltd. ("WTA International"), Zon Mon Co., Ltd. ("Zon Mon"), Hor Liang Industrial Corp. ("Hor Liang"), President Industrial Inc., and Liang Chyuan Industrial Co., Ltd ("Liang Chyuan") (collectively "Taiwan Plaintiffs") motion for a preliminary injunction to enjoin liquidation of entries of certain steel nails subject to the antidumping duty ("ADD") order in Certain Steel Nails From the Republic of Korea, Malaysia, the Sultanate of Oman, Taiwan, and the Socialist Republic of Vietnam, 80 Fed. Reg. 39,994 (Dep't Commerce July 13, 2015) ( [ADD] orders) ("ADD Order"). See Taiwan Plaintiffs' Mot. Prelim. Inj., Jan. 10, 2020, ECF No. 136 ("Pls.' Br."). Taiwan Plaintiffs specifically seek an injunction, pursuant to U.S. Court of International Trade Rule ("USCIT") Rules 56.2(a) and 65(a) and Section 516A(c)(2) of the Tariff Act of 1930,1 as amended, 19 U.S.C. § 1516a(c)(2) (2012),2 that covers unliquidated entries, subject to the ADD Order, produced or exported by Taiwan Plaintiffs, and entered, or withdrawn from warehouse, for consumption into the United States on or after May 20, 2015. See Pls.' Br. at 1, Proposed Order. Defendant partially opposes Taiwan Plaintiffs' motion and does not consent to the proposed "indefinite and open-ended" injunction. Def.'s Partial Opp'n [Pls.' Br.] at 1–2, Jan. 31, 2020, ECF No. 138 ("Def.'s Br."). Instead, Defendant requests that any injunction entered by the court be limited to the period May 20, 2015 to June 30, 2018, the end of which corresponds to the conclusion of the third period of review. Id. at 2. Defendant-Intervenor Mid Continent Steel & Wire, Inc. ("Mid Continent")3 opposes Taiwan Plaintiffs' motion, and requests that the court either deny the motion in full or set June 30, 2018 as the end-date to the proposed injunction. See [Mid Continent's] Resp. Opp'n [Pls.' Br.] at 1, Jan. 31, 2020, ECF No. 137 ("Def.-Intervenor's Br."). For the reasons that follow, this court grants Taiwan Plaintiffs' motion for injunctive relief for unliquidated entries of subject merchandise, subject to the ADD Order, entered or withdrawn from warehouse for consumption, on and after May 20, 2015.

BACKGROUND

On May 20, 2015, Commerce published its final determination in its less-than-fair-value ("LTFV") investigation of certain steel nails from the Republic of Korea, Malaysia, the Sultanate of Oman, Taiwan, and the Socialist Republic of Vietnam. See Certain Steel Nails from Taiwan, 80 Fed. Reg. 28,959 (Dep't Commerce May 20, 2015) (final determination of sales at [LTFV] ) ("Final Results") and accompanying Issues and Decisions Memo. for the [Final Results ], A-583-854, (May 13, 2015), available at https://enforcement.trade.gov/frn/summary/taiwan/2015-12247-1.pdf (last visited Feb. 6, 2020). Commerce instructed Customs and Border Protection ("CBP") to suspend liquidation of entries subject to the ADD investigation. See Final Results, 80 Fed. Reg. at 28,961. Following an affirmative injury determination, Commerce issued an ADD order, where it directed CBP to continue to suspend liquidation from the publication date of its final determination, May 20, 2015, and to collect cash deposits on subject merchandise. See ADD Order, 80 Fed. Reg. at 39,996.

Mid Continent and Taiwan Plaintiffs commenced separate actions challenging various aspects of the Final Results, which were later consolidated. See Summons, Aug. 6, 2015, ECF No. 1; Compl., Sept. 4, 2015, ECF No. 9; see also Order, Nov. 19, 2015, ECF No. 20 (consolidating Ct. Nos. 15-00213 and 15-00220 under Ct. No. 15-00213). The court remanded in part Commerce's final determination in Mid Continent Steel & Wire, Inc. v. United States, 41 CIT ––––, ––––, 219 F. Supp. 3d 1326, 1351 (2017) (" Mid Continent I"), and, following Commerce's redetermination, this court sustained Commerce's remand results. Mid Continent Steel & Wire, Inc. v. United States, 41 CIT ––––, ––––, 273 F. Supp. 3d 1161, 1170 (2017) (" Mid Continent II"). Mid Continent and Taiwan Plaintiffs appealed the court's decision. The Court of Appeals for the Federal Circuit ("Court of Appeals") affirmed in part, and vacated and remanded in part, Commerce's final determination concerning PT's margin. Mid Continent Steel & Wire, Inc. v. United States, 940 F.3d 662, 675 (Fed. Cir. 2019) (" Mid Continent III"). Commerce's remand results are expected March 16, 2020. Scheduling Order, Dec. 11, 2019, ECF No. 135.

Concurrent with litigation surrounding Commerce's LTFV determination, Commerce concluded its first and second annual reviews. On February 13, 2018, Commerce published the final results in the first administrative review ("AR 1") covering entries for the period of review May 20, 2015 to June 30, 2016 ("POR 1"). See Certain Steel Nails from Taiwan, 83 Fed. Reg. 6,163 (Dep't Commerce Feb. 13, 2018) (final results of [ADD] admin. review and partial rescission of admin. review; 20152016). PT, Pro-Team, Unicatch, Hor Liang, and Romp Coil Nails Industries Inc. ("Romp") obtained injunctions for those entries, pending judicial review of Commerce's AR 1 final determination. See Order, Feb. 23, 2018, ECF No. 12, from associated docket Ct. No. 18-00027; see also Order, Feb. 28, 2018, ECF No. 15, from associated docket Ct. No. 18-00028. On March 27, 2019, Commerce published the final results in the second administrative review ("AR 2"), covering the entries for the period of review July 1, 2016 to June 30, 2017 ("POR 2"). See Certain Steel Nails from Taiwan, 84 Fed. Reg. 11,506 (Dep't Commerce Mar. 27, 2019) (final results of [ADD] admin. review and partial rescission of admin. review; 20162017).

Unicatch obtained an injunction on entries for the period of review, pending judicial review of the AR 2 final determination. See Order, Apr. 17, 2019, ECF No. 10, from associated docket Ct. No. 19-00052.

The final results in the third administrative review ("AR 3"), covering the period of review July 1, 2017 to June 30, 2018 ("POR 3"), are pending. See Certain Steel Nails from Taiwan, 84 Fed. Reg. 48,116 (Dep't Commerce Sept. 12, 2019) (prelim. results of [ADD] admin. review; 20172018). Pursuant to Commerce's liquidation instructions to CBP, liquidation for entries for Liang Chyuan, PT, Pro-Team, Unicatch, Hor Liang, and Romp, i.e., companies that requested review, remain suspended. See Certain Steel Nails from Taiwan, 84 Fed. Reg. 6,361 (Dep't Commerce Feb. 27, 2019) (partial rescission of [ADD] admin. review; 20172018).

The fourth administrative review ("AR 4"), covering the period of review July 1, 2018 to June 30, 2019 ("POR 4"), is also pending. See Initiation of Antidumping and Countervailing Duty Admin. Reviews, 84 Fed. Reg. 47,242, 47,247 –48 (Dep't Commerce Sept. 9, 2019). Given that all Taiwan Plaintiffs, except for WTA International, requested review, liquidation for those companies' entries is administratively suspended.

JURISDICTION AND STANDARD OF REVIEW

The Court continues to have jurisdiction pursuant to Section 516a(a)(2)(B)(i) of the Tariff Act of 1930, as amended, 19 U.S.C. § 1516a(a)(2)(B)(i), and 28 U.S.C. § 1581(c) (2012), which grant the court authority to review actions contesting the final determination in an investigation of an ADD order.

Section 1516a(c)(2) authorizes the Court to enjoin liquidation "upon a request by an interested party for such relief and a proper showing that the requested relief should be granted under the circumstances." 19 U.S.C. § 1516a(c)(2). To obtain the relief of an injunction, a plaintiff carries the burden to establish that: (1) it is likely to suffer irreparable harm without the injunction; (2) it is likely to succeed on the merits; (3) the balance of equities favors plaintiff; and, (4) granting the injunction will not run counter to the public's interest. See Ugine & Alz Belgium v. United States, 452 F.3d 1289, 1292 (Fed. Cir. 2006) ; see also Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). No one factor is dispositive, and "the weakness of the showing regarding one factor may be overborne by the strength of the others." FMC Corp. v. United States, 3 F.3d 424, 427 (Fed. Cir. 1993) ; see also Qingdao Taifa Group Co., Ltd. v. United States, 581 F.3d 1375, 1378–79 (Fed. Cir. 2009). "Whether to grant a preliminary injunction is a matter within the trial court's discretion." Ugine, 452 F.3d at 1292. The purpose of an injunction is to preserve the...

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    ...can have no effect on the dumping duties assessed on [subject] entries."6 Id. ; cf. Mid Continent Steel & Wire, Inc. v. United States , 44 CIT ––––, ––––, 427 F. Supp. 3d 1375, 1382–84 (2020) (in litigation regarding the final determination in an investigation in which success on the merits......
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    ...AD or CVD order. See Pls. Br. at 5, 7; Pls. Reply Br. at 7-8, 10-12. Plaintiffs argue that three decisions of this Court — Husteel , Mid Continent and Mosaic — support their interpretation of a "presently existing" threat. Husteel , 38 CIT 1887, 34 F. Supp. 3d 1355 ; Mid Continent Steel & W......
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    ...actions challenging Commerce's final affirmative determination. See generally Mid Continent Steel & Wire, Inc. v. United States , 44 CIT ––––, ––––, 427 F. Supp. 3d 1375, 1379–80 (2020) (reviewing the extensive history of the Mid Continent Litigation ).In September 2018, Commerce initiated ......
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