Celik Halat ve Tel Sanayi A.S. v. United States

• Decision Date: 06 December 2020
• Docket Number: Court No. 20-03848,Slip Op. 20-176
• Citation: 483 F.Supp.3d 1370
• Parties: CELIK HALAT VE TEL SANAYI A.S., Plaintiff, v. UNITED STATES, Defendant, and Insteel Wire Products Company et al., Defendant-intervenors.
• Court: U.S. Court of International Trade

483 F.Supp.3d 1370

CELIK HALAT VE TEL SANAYI A.S., Plaintiff,

v.UNITED STATES, Defendant,andInsteel Wire Products Company et al., Defendant-intervenors.

Slip Op. 20-176

Court No. 20-03848

United States Court of International Trade.

December 6, 2020

Irene H. Chen, Chen Law Group, LLC, of Rockville, MD, for plaintiff.

Tara K. Hogan, Assistant Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, DC, for defendant. Also on the brief was Jeffrey Bossert Clark, Acting Assistant Attorney General, Jeanne E. Davidson, Director, and Reginald T. Blades, Jr., Assistant Director. Of counsel were Reza Karamloo and Jesus Saenz, Attorneys, Office of the Chief Counsel for Trade Enforcement & Compliance, U.S. Department of Commerce.

Brooke M. Ringel, Paul C. Rosenthal, Kathleen W. Cannon, R. Alan Luberda, and Joshua R. Morey, Kelley Drye & Warren, LLP, of Washington, DC, for defendant-intervenors Insteel Wire Products Company et al.

OPINION AND ORDER

Kelly, Judge:

Before the court is Plaintiff Celik Halat ve Tel Sanayi A.S.’s ("Celik" or "Plaintiff") motion for a temporary restraining order ("TRO") and preliminary injunction. See Pl.’s Mot. for [TRO] & Prelim. Injunction Confidential Version, Nov. 19, 2020, ECF No. 15 ("Pl.’s Mot."). Defendant opposes Plaintiff's motion. See Def.’s Resp. to Pl.’s Mots. for [TRO] & Prelim. Injunction, Dec. 4, 2020, ECF No. 20 ("Def.’s Resp."). For the following reasons, Plaintiff's motion is denied.

BACKGROUND

On May 6, 2020, the U.S. Department of Commerce ("Commerce") initiated its countervailing duty ("CVD") investigation of prestressed concrete steel wire ("PC Strand") from the Republic of Turkey ("Turkey"). See Compl. at ¶ 2, Nov. 19, 2020, ECF No. 2 ("Compl."); see also [PC Strand] from [Turkey], 85 Fed. Reg. 28,610, 28,612 (Dep't Commerce May 13, 2020) (initiation of [CVD] investigation). On June 25, 2020, Commerce selected Celik for individual examination. See Compl. at ¶ 3. That same day, Commerce issued a revised initial CVD questionnaire to the Turkish government and set a deadline of August 10, 2020 at 5:00 pm Eastern Daylight Time for filing the final business proprietary information ("BPI") and the public CVD questionnaire response. See id. at ¶¶ 3, 9.

Plaintiff states that on or about August 4, 2020, due in part to a medical situation of counsel, it filed a request for a one-week extension of the August 7, 2020 deadline to file its response to Section III of Commerce's CVD questionnaire, which Commerce declined. See id. at ¶ 7. On August 7, 2020, Plaintiff timely filed its BPI response. See id. at ¶ 8. However, on August 10, 2020, purportedly due to counsel's medical situation, Plaintiff overlooked the two-hour time difference between Mountain Daylight Time and Eastern Daylight Time when timing its submission, and submitted its response at 4:27 pm MDT (6:27 pm EDT) instead of 4:27 pm EDT. See id. at ¶¶ 10, 12.¹

On August 20, 2020, after learning that its CVD response was untimely submitted and rejected, Plaintiff requested reconsideration of Commerce's rejection. See id. at ¶¶ 11–14. Commerce declined and continued to reject Plaintiff's August 7, 2020 and August 10, 2020 filings of the BPI and public versions of its questionnaire responses. See id. at ¶¶ 15–16. In the concurrent antidumping duty ("ADD") investigation, Celik's counsel requested a meeting with Commerce to discuss its denial of the questionnaire responses in both the ADD and the CVD proceedings. See Pl.’s Mot. at 3. On September 4, 2020, Celik's counsel met with Commerce to discuss its denial of the responses. See id. at 3–4.

For its preliminary determination, Commerce applied adverse facts available with an adverse inference ("AFA") after finding that Celik significantly impeded its investigation, and assigned a CVD subsidy and cash deposit rate of 135.06 percent.² See [PC Strand] from [Turkey], 85 Fed. Reg. 59,287, 59,288 (Dep't Commerce Sept. 21, 2020) (prelim. affirmative [CVD] determination, prelim. affirmative critical circumstances determination, in part) ("Prelim. Results") and accompanying Decision Memo. for the [Prelim. Results ] at 9, C-489-843, (Sept. 14, 2020) available at https://enforcement.trade.gov/frn/summary/turkey/2020-20692-1.pdf (last visited Dec. 5, 2020). Moreover, Commerce determined that critical circumstances existed with respect to Celik's imports of subject merchandise, and, pursuant to section 703 and 733 of the Tariff Act of 1930, as amended 19 U.S.C. §§ 1671b(e)(2) and 1673b(e)(2) (2018),³ Commerce retroactively suspended liquidation of Celik's entries. See Prelim Results, 85 Fed. Reg. at 59,288.

On November 19, 2020, Plaintiff Celik initiated this action pursuant to 28 U.S.C. § 1581(i) (2018)⁴ by concurrently filing a summons and complaint. See Summons, Nov. 19, 2020, ECF No. 1; Compl. Shortly thereafter, Celik moved for a TRO and a preliminary injunction to enjoin Commerce from continuing to reject its untimely submitted questionnaire responses in the ongoing CVD investigation of certain PC Strand from Turkey. See generally Pl.’s Mot; see also Prelim. Results. Plaintiff also filed a motion to consolidate this case with Celik Halat ve Tel Sanayi A.S. v. United States, Ct. No. 20-03843, an action challenging Commerce's decision to reject Celik's untimely questionnaire responses in the ongoing ADD investigation of PC Strand from Turkey. See Pl.’s Mot. to Consolidate Cases, Nov. 19, 2020, ECF No. 6; see also Compl., Nov. 19, 2020, ECF No. 2 (from Dkt. No. 20-03843).

On November 20, 2020, the court held a telephonic conference with counsel for both parties for the purpose of establishing a briefing schedule for the motion for a TRO and a preliminary injunction. See Appearance Sheet, Nov. 20, 2020, ECF No. 10. During the telephone conference, Defendant indicated that the government would be filing a motion to dismiss the complaint for lack of subject matter jurisdiction. The court ordered a schedule providing for the Defendant to respond to Plaintiff's motion by December 4, 2020, and further providing for briefing of the motion to dismiss. See Scheduling Order, Nov. 20, 2020, ECF No. 11. The court also stayed the motion to consolidate pending resolution of the motion to dismiss. See id. In accordance with the court's order, Defendant filed its response to Plaintiff's request for a TRO and a preliminary injunction on December 4, 2020. See generally Def.’s Resp.

Defendant opposes Plaintiff's motion, arguing that Plaintiff is unlikely to succeed on the merits because this Court lacks jurisdiction and there has been no final agency action. See id. at 7–12. Further, Defendant argues that Plaintiff has not shown that it will suffer irreparable harm absent the injunction, nor has it shown that the public interest and balance of harms weigh in its favor. See id. at 12–19.

STANDARD OF REVIEW

U.S. Court of International Trade ("USCIT") Rule 65 permits the court to issue a preliminary injunction on notice to the adverse party. See USCIT R. 65(a). To obtain a preliminary injunction, Plaintiff must establish that (1) it is likely to succeed on the merits, (2) it is likely to suffer irreparable harm without a preliminary injunction, (3) the balance of the equities favors Plaintiff, and (4) the injunction is in the public interest. See Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008) ; Zenith Radio Corp. v. United States, 710 F.2d 806, 809 (Fed. Cir. 1983) (" Zenith Radio Corp."). In reviewing these factors, "no one factor, taken individually," is dispositive.

Ugine & ALZ Belg. v. United States, 452 F.3d 1289, 1292 (Fed. Cir. 2006) (citations omitted) (" Ugine & ALZ Belg."); FMC Corp. v. United States, 3 F.3d 424, 427 (Fed. Cir. 1993). However, each factor need not be given equal weight. See Ugine & ALZ Belg., 452 F.3d at 1293 ; Nken v. Holder, 556 U.S. 418, 434, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009) (" Nken"). Likelihood of success on the merits and irreparable harm are generally considered the most significant factors in evaluating a motion for injunctive relief. See Nken, 556 U.S. at 434, 129 S.Ct. 1749 ; Amazon.com, Inc. v. Barnesandnoble.com, Inc., 239 F.3d 1343, 1350 (Fed. Cir. 2001).

DISCUSSION

I. Likelihood of Success on the Merits

Plaintiff's likelihood of success on the merits depends upon whether: (a) the court has subject matter jurisdiction; (b) Plaintiff has challenged a reviewable final agency action ripe for review; and (c) Commerce abused its discretion in rejecting Plaintiff's questionnaire.

A. Subject Matter Jurisdiction

Defendant asserts that Plaintiff is unlikely to succeed on the merits because the court lacks subject matter jurisdiction over the complaint, and has indicated that it intends to file a motion to dismiss.⁵ The court concludes that it is likely that the court lacks subject matter jurisdiction over Plaintiff's claims.

The court cannot exercise jurisdiction under 28 U.S.C. § 1581(i) where another subsection "is or could have been available, unless the remedy provided under that other subsection would be manifestly inadequate." Miller & Co. v. United States, 824 F.2d 961, 963 (Fed. Cir. 1987). "While neither Congress nor the courts have provided a precise definition of the term ‘manifestly inadequate,’ given the clear Congressional preference expressed in [ 28 U.S.C. § 1581(i) ] for review in accordance with [ 19 U.S.C. § 1516a ], the Court must be careful not to interfere in ongoing proceedings absent a clear indication of the inadequacy of a [ 19 U.S.C. § 1581(c) ] review." Sahaviriya Steel Industries Public Co. Ltd. v. United States, 33 C.I.T. 140, 151, 601 F. Supp. 2d 1355, 1365 (2009) (citations omitted) (" Sahaviriya"). Moreover, "[a] party may not expand a court's jurisdiction by creative pleading." Sunpreme Inc. v. United States, 892 F.3d 1186, 1193 (Fed. Cir. 2018) (quoting Norsk Hydro Can., Inc. v. United States, 472 F.3d 1347, 1355 (Fed. Cir. 2006) ). Instead, the court must "look...