Solarworld Ams., Inc. v. United States

• Decision Date: 21 December 2017
• Docket Number: Slip Op. 17–171,Consol. Court No. 17–00208
• Citation: 279 F.Supp.3d 1343
• Parties: SOLARWORLD AMERICAS, INC., Plaintiff, Sino–American Silicon Products Inc. and Solartech Energy Corp., Plaintiff–Intervenors, v. UNITED STATES, Defendant, and Kyocera Solar, Inc. and Kyocera Mexicana S.A. de C.V., Defendant–Intervenors.
• Court: U.S. Court of International Trade

279 F.Supp.3d 1343

SOLARWORLD AMERICAS, INC., Plaintiff,Sino–American Silicon Products Inc. and Solartech Energy Corp., Plaintiff–Intervenors,

v. UNITED STATES, Defendant,andKyocera Solar, Inc. and Kyocera Mexicana S.A. de C.V., Defendant–Intervenors.

Slip Op. 17–171

Consol. Court No. 17–00208

United States Court of International Trade.

Dated: December 21, 2017

Timothy C. Brightbill, Wiley Rein, LLP, of Washington, D.C., for Plaintiff. With him on brief was Usha Neelakantan, Wiley Rein, LLP, of Washington, D.C.

Jarrod Mark Goldfeder, Trade Pacific, PLLC, of Washington, D.C., for Consolidated Plaintiffs.

Joshua Ethan Kurland, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, D.C., for Defendant. Of counsel was Reza Karamloo, Attorney, Office of Chief Counsel for Trade Enforcement and Compliance, U.S. Department of Commerce, of Washington, D.C.

J. Kevin Horgan, deKieffer & Horgan, PLLC, of Washington, D.C., for Defendant–Intervenors. With him on brief was Alexandra H. Salzman, deKieffer & Horgan, PLLC, of Washington, D.C.

MEMORANDUM AND ORDER

Choe–Groves, Judge:

This case involves the judicial review of the final results in the first administrative review of the antidumping duty order on certain crystalline silicon photovoltaic products ("solar panels") from Taiwan. Upon the request of an interested party and upon a proper showing, the court may enjoin the liquidation of entries covered by an antidumping duty order of the United States Department of Commerce ("Commerce") pursuant to 19 U.S.C. § 1516a(c)(2). Entries of merchandise covered by a published determination of Commerce that are enjoined in accordance with § 1516a(c)(2)"shall be liquidated in accordance with the final court decision in the action." 19 U.S.C. § 1516a(e)(2) (2012).

Defendant–Intervenors Kyocera Solar, Inc. and Kyocera Mexicana S.A. de C.V. (collectively "Kyocera" or "Defendant–Intervenors") filed a Motion to Modify Preliminary Injunction, Oct. 31, 2017, ECF No. 37 ("Motion to Modify Statutory Injunction"),¹ requesting that the court modify its September 5, 2017 statutory injunction that enjoins, during the pendency of this litigation, the liquidation of certain entries of solar panels from Taiwan covered by an antidumping duty order. Kyocera requests that the court exercise its discretion to modify the statutory injunction to allow the liquidation of entries of subject solar panels assembled by Kyocera Mexicana S.A. de C.V. in Mexico and exported to the United States. Id. at 1. Plaintiff SolarWorld Americas, Inc. ("SolarWorld") opposes Kyocera's Motion to Modify the Statutory Injunction. See Opp'n Def.–Intervenor's Mot. Modify Prelim. Inj., Nov. 20, 2017, ECF No. 41 ("SolarWorld's Opp'n"). The issue presented is whether the court should exercise its discretion to modify the statutory injunction to allow liquidation of Kyocera's entries of solar panels prior to a final decision on the merits. For the foregoing reasons, the court denies the Motion to Modify the Statutory Injunction.

BACKGROUND

On December 23, 2014, Commerce issued its final antidumping determination that certain solar panel products from Taiwan were being sold, or were likely to be sold, in the United States at less than fair value. See Certain Crystalline Silicon Photovoltaic Products from Taiwan, 79 Fed. Reg. 76,966 (Dep't Commerce Dec. 23, 2014) (final determination of sales at less than fair value). Kyocera was assigned an all-others weighted-average dumping margin of 19.50 percent. Id. at 76,969. Commerce conducted an administrative review and issued its final results of the administrative review on July 7, 2017, assigning a final weighted-average dumping margin of 4.10 percent to Kyocera. See Certain Crystalline Silicon Photovoltaic Products from Taiwan, 82 Fed. Reg. 31,555, 31,556 (Dep't Commerce July 7, 2017) (final results of administrative antidumping duty review for 2014–2016) ("July 7, 2017 Final Order").

Plaintiff SolarWorld appealed the final results of Commerce's administrative review in this court. On September 1, 2017, Plaintiff SolarWorld filed a consent motion requesting that the court issue a statutory injunction order to enjoin liquidation of certain entries until the final resolution of this action, including entries that: (1) were covered by the July 7, 2017 Final Order; (2) were entered, or were withdrawn from warehouse for consumption, on or after July 31, 2014, through and including January 31, 2016; and (3) were produced and/or exported by any of the following exporters: Sino–American Silicon Products Inc./Solartech Energy Corp., Motech Industries, Inc., AU Optronics Corporation, EEPV CORP, E–TON Solar Tech. Co., Ltd., Gintech Energy Corporation, Inventec Energy Corporation, Inventec Solar Energy Corporation, Kyocera Mexicana S.A. de C.V., Sunengine Corporation Ltd., TSEC Corporation, and Win Win Precision Technology Co., Ltd. See Consent Mot. Prelim. Inj. 1–2, Sept. 1, 2017, ECF No. 13.

The court held a conference call with the parties on September 5, 2017 and issued a statutory injunction order the same day. See Teleconference, Sept. 5, 2017, ECF No. 16; Order, Sept. 5, 2017, ECF No. 17 ("Inj. Order"). The court's September 5, 2017 statutory injunction order directed that:

[D]efendant United States, together with its delegates, officers, agents, and employees of the International Trade Administration of the United States Department of Commerce and the United States Department of Homeland Security, and United States Customs and Border Protection, shall be, and hereby are ENJOINED immediately upon the entry of this Order and pending a final and conclusive court decision in this litigation, including all appeals and remand proceedings, from causing or permitting liquidation of unliquidated entries of certain crystalline silicon photovoltaic products from Taiwan....

Inj. Order at 2. Kyocera filed a Consent Motion to Intervene as Plaintiff–Intervenor and Defendant–Intervenor on October 2, 2017. See Consent Mot. Intervention, Oct. 2, 2017, ECF No. 28. This court granted the request on October 3, 2017. See Order, Oct. 3, 2017, ECF No. 33.

On October 31, 2017, Kyocera filed its Motion to Modify Statutory Injunction requesting modification of the court's September 5, 2017 statutory injunction. See Mot. Modify Prelim. Inj. Kyocera requests that the court modify the statutory injunction to allow the liquidation of entries of solar panels imported by Kyocera. Id. at 1. Kyocera argues that modification of the statutory injunction is warranted because: (1) the liquidation of entries of Kyocera's solar panels will not cause irreparable harm to SolarWorld; (2) there has been no showing that SolarWorld is likely to prevail on its claims in a manner that would impact the assessment of duties on Kyocera's entries; (3) the court's initial decision granting the injunction did not consider the hardship on Kyocera in its balance of hardships analysis; and (4) the public interest does not favor granting extraordinary relief in the form of a preliminary injunction delaying implementation of an administrative determination in the absence of either a strong showing of a likelihood of irreparable harm or a strong showing that the requesting party is likely to prevail on the merits of its claims. Id. at 1–2.

Plaintiff SolarWorld opposes Kyocera's Motion to Modify the Statutory Injunction. SolarWorld argues that modification of the statutory injunction is not justified because Kyocera "has offered no meaningful reasons for the Court to reverse its decision with respect to Kyocera's entries." SolarWorld's Opp'n at 3. SolarWorld contends that "the criteria for granting injunctive relief remain satisfied in this case, and as such, the Court should deny Defendant–Intervenor's motion." Id. According to Kyocera, Defendant United States opposes the Motion to Modify the Statutory Injunction, maintaining "that Kyocera's entries are covered by the underlying antidumping duty order and are properly included within the scope of the lawful injunction requested by SolarWorld, consented to by the Government, and issued by the Court." Mot. Modify Prelim. Inj. at 5. Kyocera indicated that "Counsel for Sino–American Silicon Products Inc., et al., states that, ‘without additional information regarding the scope of Kyocera's entries that would be subject to Kyocera's requested exclusion from the injunction including, but not limited to, the identity of the Taiwanese producers and/or exporters of the crystalline silicon photovoltaic cells, we are unable at this time to develop a position regarding Kyocera's motion.’ " Id.

DISCUSSION

A. Statutory Injunction

The relevant statutory language provides that:

If the cause of action is sustained in whole or in part by a decision of the United States Court of International Trade or of the United States Court of Appeals for the Federal Circuit—

...

(2) entries, the liquidation of which was enjoined under subsection (c)(2) of this section, shall be liquidated in accordance with the final court decision in the action.

19 U.S.C. § 1516a(e)(2) (2012). This court has recognized that modification of a statutory injunction is not justified prior to a final court decision that includes all appeals and remands. See Aimcor v. United States, 23 CIT 932, 937, 83 F.Supp.2d 1293, 1297 (1999) ("The statutory language is clear, it is undisputed that there has been no final decision in this case, and therefore, under the terms of the statute, liquidations remain enjoined until a final decision.").

In addition, the court's September 5, 2017 statutory injunction order directed that the United States and relevant agencies "shall be, and hereby are, ENJOINED immediately upon the entry of this Order and pending a final and conclusive court decision in this litigation, including all appeals and remand proceedings, from causing or permitting liquidation of unliquidated entries of certain crystalline silicon photovoltaic products from Taiwan...." Order at...