Gpx International Tire Corp. v. U.S.
| Decision Date | 12 November 2008 |
| Docket Number | Court No. 08-00285.,Court No. 08-00287.,Slip Op. 08-121.,Court No. 08-00286. |
| Citation | 587 F.Supp.2d 1278 |
| Parties | GPX INTERNATIONAL TIRE CORPORATION and Hebei Starbright Tire Co., Ltd., Plaintiffs, v. UNITED STATES, Defendant, and Bridgestone Americas Holding,: Inc., Bridgestone Firestone: North American Tire, LLC, Titan: Tire Corporation, and United: Steel, Paper and Forestry,: Rubber, Manufacturing, Energy,: Allied Industrial and Service: Workers International Union,: AFL-CIO-CLC, Defendant-Intervenors. |
| Court | U.S. Court of International Trade |
Winston & Strawn, LLP (Daniel L. Porter, James Durling, and Matthew P. McCullough); Washington, DC, Hinckley Allen & Snyder LLP (Eric F. Eisenberg), Boston, MA, Orrick, Herrington & Sutcliffe LLP (John A. Jurata, Jr.), Philadelphia, PA, for Plaintiffs.
Gregory G. Katsas, Assistant Attorney General; Jeanne E. Davidson, Director, Franklin E. White, Jr., Assistant Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice (John J. Todor and Loren M. Preheim); Irene H. Chen and Matthew D. Walden, Office of the Chief Counsel for Import Administration, U.S. Department of Commerce, of counsel; James M. Lyons, General Counsel, Andrea C. Casson, Assistant General Counsel, U.S. International Trade Commission (Rhonda M. Hughes and Peter L. Sultan), for defendant.
King & Spalding, LLP (Joseph W. Dorn, Christopher T. Cloutier, Daniel L. Schneiderman, J. Michael Taylor, and Kevin M. Dinan); Stewart and Stewart (Wesley K. Caine, Elizabeth A. Argenti, Elizabeth J. Drake, Eric P. Salonen, Geert M. De Prest, Terence P. Stewart, and William A. Fennell), Washington, DC, for defendant-intervenors.
Before: Jane A. Restani, Chief Judge.
This matter is before the court on the motion of plaintiffs GPX International Tire Corporation ("GPX") and Hebei Starbright Tire Co., Ltd. ("Starbright") (collectively "plaintiffs") for a temporary restraining order and preliminary injunction to prevent collection of full antidumping duty ("AD") and countervailing duty ("CVD") deposits. GPX, a domestic importer of certain off-the-road ("OTR") tires, and Starbright, a foreign producer and exporter of certain OTR tires, seek immediate relief from the near 44% cash deposit requirement, which they allege would impose such financial hardship as to cause permanent and irreparable harm to GPX. This motion is opposed by the Department of Commerce ("Commerce") and the International Trade Commission ("ITC") (collectively "defendants"), as well as defendant-intervenors Bridgestone Americas Holding, Inc., Bridgestone Firestone North American Tire, LLC, Titan Tire Corporation, and United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO-CLC (collectively "defendant-intervenors").
Commerce initiated AD and CVD investigations on July 30, 2007 for certain pneumatic OTR tires from the People's Republic of China ("PRC") for the period of October 1, 2006 through March 31, 2007.1 See Initiation of Antidumping Duty Investigation Certain New Pneumatic Off-the-Road Tires From the People's Republic of China, 72 Fed.Reg. 43,591 (Dep't Commerce Aug. 6, 2007); Certain New Pneumatic Off-the-Road Tires From the People's Republic of China: Initiation of Countervailing Duty Investigation, 72 Fed.Reg. 44,122 (Dep't Commerce Aug. 7, 2007).
On July 15, 2008, Commerce published its final AD and CVD determinations with respect to the subject merchandise from the PRC. See Certain New Pneumatic Off-The-Road Tires from the People's Republic of China: Final Affirmative Determination of Sales at Less Than Fair Value and Partial Affirmative Determination of Critical Circumstances, 73 Fed.Reg. 40,485 (Dep't Commerce July 15, 2008); CVD Final Determination, 73 Fed.Reg. at 40,480. On September 4, 2008, Commerce published an amended AD final determination and AD order and a CVD order. See AD Final Determination, 73 Fed.Reg. at 51,624; Certain New Pneumatic Off-the-Road Tires from the People's Republic of China: Countervailing Duty Order, 73 Fed.Reg. 51,627 (Dep't Commerce Sept. 4, 2008). In the final determinations, Commerce calculated for Starbright an AD rate of 29.93% and a CVD rate of 14%. AD Final Determination, 73 Fed.Reg. at 51,625; CVD Final Determination, 73 Fed.Reg. at 40,483. The International Trade Commission ("ITC") published its affirmative injury determination on September 5, 2008. See Certain Off-the-Road Tires from China; Determination, 73 Fed. Reg. 51,842 (ITC Sept. 5, 2008).
On September 9, 2008, plaintiffs filed three complaints with the court, contesting the CVD determination (No. 08-00285), the AD determination (No. 08-00286), and the ITC's injury determination (No. 08-00287). Plaintiffs then filed a motion for a temporary restraining order and a preliminary injunction to prevent the collection of the cash deposits while the merits of these three cases are decided.
As a preliminary matter, contrary to the position of defendants, the court has the power to grant injunctive relief to postpone the immediate collection of the full cash deposits established by Commerce. Congress provided for judicial review of AD and CVD investigative proceedings that set deposit rates and it is these deposit rates themselves that are being reviewed here. It is not necessary to wait for a later phase of the case or for a later periodic administrative review proceeding before commencing judicial review with its attendant remedies. 19 U.S.C. § 1516a(a)(2)(B)(i). Further, the court has been granted broad injunctive powers and therefore, the ordinary remedies provided under 19 U.S.C. § 1516a(c)(2) and (e) do not limit the court's power to grant injunctions in extraordinary circumstances. See 28 U.S.C. § 2643(c)(1) (); see also 28 U.S.C. § 1585 ().
This conclusion is consistent with the jurisprudence of this Court and the Court of Appeals for the Federal Circuit ("Court of Appeals"). As Decca Hospitality Furnishings, LLC v. United States, 427 F.Supp.2d 1249 (CIT 2006), explained, NTN Bearing Corp. of America v. United States, 892 F.2d 1004 (Fed.Cir.1989), on which Commerce so heavily relies, focused on lack of a "final" decision in rejecting injunctive relief, but it appears that at the time the Court of Appeals was referring to lack of a final decision in the Court of International Trade case. Decca Hospitality, 427 F.Supp.2d at 1261 n. 19; see also NTN Bearing, 892 F.2d at 1006. Now we know that under the ordinary operation of the statutory scheme, suspended entries are not to be liquidated and estimated duties returned until a conclusively final decision, i.e., no appeal or certiorari petition denied. See Yancheng Baolong Biochem. Prods. Co. v. United States, 406 F.3d 1377, 1381-82 (Fed.Cir.2005). NTN Bearing did not discuss remedies under USCIT Rule 65 because apparently the Court of International Trade neither labeled its decision an injunction nor provided any analysis of the factors warranting such an injunction. See NTN Bearing, 892 F.2d at 1006 n. 2. Decca Hospitality also was not a USCIT Rule 65 case and does not resolve the issue here. See Decca Hospitality, 427 F.Supp.2d at 1257 n. 14. NTN Bearing specifically addresses what are appropriate remedies under the statutory scheme when an administrative error is found and a remand is ordered, but the case is not yet concluded in the Court of International Trade. NTN Bearing, 892 F.2d at 1006. It is clear that return of duties at this phase was particularly troubling to the Court. Id. NTN Bearing does not hold that no matter how wrong the agency decision might be, irreparable harm cannot be prevented until certiorari is denied. The court did not reach such a draconian conclusion in Queen's Flowers de Colombia v. United States, 947 F.Supp. 503 (CIT 1996) (), and the court does not now apply NTN Bearing in such an overly broad manner.
In any case, what is clear is that this is not an NTN Bearing situation. The court would not be entering a partial judgment or a remand order and ordering a new deposit rate and return of duties. The court is not asked to void the estimated duty rate, but rather to allow plaintiffs to post some security instead of full cash deposits in order to prevent irreparable harm, until litigation in this case or an administrative review alters the situation.2
Plaintiffs, however, have "an extremely heavy burden" to meet and "[i]t is only in the rarest of instances that this form of injunctive relief will be granted." See Queen's Flowers, 947 F.Supp. at 506. In order to obtain a preliminary injunction, plaintiffs must establish the following four factors: (1) the threat of immediate irreparable harm; (2) the likelihood of success on the merits; (3) the public interest would be better served by the relief requested; and (4) the balance of hardship on all the parties favors plaintiffs. Zenith Radio Corp. v. United States, 710 F.2d 806, 809 (Fed.Cir.1983). Congress provided for the collection of cash deposits for estimated duties, see 19 U.S.C. §§ 1671e(a)(3), 1673e(a)(3), and the court can act and grant temporary relief only if plaintiffs have satisfied the full four-factor test.
To address the four factors relevant to a preliminary injunction motion the parties chose to present their arguments and evidence to the court in essentially two ways. First, issues related to the likelihood of plaintiffs' success on the merits were addressed in...
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