Sunpreme Inc. v. United States, Slip Op. 16–2

CourtU.S. Court of International Trade
Writing for the CourtClaire R. Kelly, Judge
Citation145 F.Supp.3d 1271
Parties Sunpreme Inc., Plaintiff, v. United States, Defendant, and SolarWorld Americas, Inc., Defendant–Intervenor.
Decision Date08 January 2016
Docket NumberCourt No. 15–00315,Slip Op. 16–2

145 F.Supp.3d 1271

Sunpreme Inc., Plaintiff,
v.
United States, Defendant,
and
SolarWorld Americas, Inc., Defendant–Intervenor.

Slip Op. 16–2
Court No. 15–00315

United States Court of International Trade.

January 8, 2016


145 F.Supp.3d 1276

OPINION AND ORDER

Claire R. Kelly, Judge

This matter is before the court on: (1) Defendant's motion to dismiss Plaintiff's cause of action pursuant to USCIT Rule 12(b)(1) for lack of subject matter jurisdiction or, in the alternative, pursuant to USCIT Rule 12(b)(6)1 for failure to state a cause of action, see generally Mot. Dismiss Public Version, Dec. 18, 2015, ECF. No. 40

145 F.Supp.3d 1277

(“Mot.Dismiss”); and (2) Plaintiff Sunpreme Inc.'s (“Sunpreme”) motion for a preliminary injunction, see generally Pl.'s Appl. TRO and Mot. Prelim. Inj. and Mem. P. & A. in Supp. Public Version, Dec. 10, 2015, ECF. No. 23 (“Mot. TRO and PI”). Plaintiff brought this action to challenge a determination made by U.S. Customs and Border Protection (“CBP” or “Customs”) resulting in the collection of cash deposits on Plaintiff's merchandise and the suspension of liquidation, which Plaintiff alleges was beyond the scope of CBP's authority.2 See Public Compl. ¶¶ 13–16, 27, 41–44, 46–49, ECF No. 5, Dec. 3, 2015 (“Compl.”); see also generally Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled into Modules, From the People's Republic of China, 77 Fed.Reg. 73,018 (Dep't Commerce Dec. 7, 2012) (amended final determination of sales at less than fair value, and antidumping duty order) (“AD Order”) and Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled into Modules, from the People's Republic of China, 77 Fed.Reg. 73,017 (Dep't Commerce Dec. 7, 2012) (countervailing duty order) (“CVD Order”) (collectively “Orders”).

On December 9, 2015, Plaintiff filed an application for a temporary restraining order (“TRO”) and a motion for a preliminary injunction. See generally Mot. TRO and PI. That same day the court held a telephonic hearing with Plaintiff and Defendant and subsequently issued a scheduling order directing the Plaintiff to provide, by letter, estimates of anticipated cash deposits that Defendant would forego in the event the court issued a TRO suspending the payment of cash deposits for entries through January 11, 2016. See Scheduling Order, Dec. 9, 2015, ECF No. 14. Additionally, the court ordered Defendant to respond to Plaintiff's letter indicating whether it required an evidentiary hearing on the issue of whether Plaintiff would suffer irreparable harm if the court did not grant Plaintiff's application for a TRO. See id.

On December 10, 2015, after a motion to intervene brought by SolarWorld Americas, Inc. (“SolarWorld”), the court ordered the permissive intervention of SolarWorld as Defendant–Intervenor.3 See generally

145 F.Supp.3d 1278

Mem. and Order, Dec. 10, 2015, ECF No. 21.

On December 14, 2015, the court issued a memorandum and TRO finding that the Plaintiff had made an adequate showing under the applicable standard that: (1) “Plaintiff would suffer irreparable harm through continued collection of cash deposits” because “[t]he court is convinced that the collection of [ ] additional ... cash deposits within the period that the parties brief the jurisdictional issues may very well force Plaintiff out of business, or, at the very least, cause serious disruption to Plaintiff's business,” Am. Mem. and TRO Confidential Version 7, Dec. 16, 2016, ECF No. 35 (“Am.Conf.TRO”); (2) “[b]ecause the jurisdictional question raised by Defendant is not so clear-cut, the court would not decide this question before full briefing by the parties. Plaintiff has shown the grave potential financial risk it faces while the merits of this jurisdictional argument are fully briefed, and Plaintiff should not face such a substantial threat to its existence while its preliminary injunction motion and Defendant's motion to dismiss are decided,” Id. at 10; and (3) the public interest and balance of hardships favored preventing irreparable harm to Plaintiff while the jurisdictional question was decided “[p]articularly because the court can protect Defendant's interest in the cash deposits that would be foregone through a bond whose costs would put Plaintiff's financial position at less risk.” Id. Therefore, the court temporarily restrained Defendant from requiring Plaintiff to pay cash deposits on entries of solar modules containing bi-facial thin film cells made with amorphous silicon shipped from the People's Republic of China that are the subject of this action until December 28, 2015 and directed that Plaintiff “provide assurity that it will furnish a bond in the amount of [[redacted]] subject to the approval of the Clerk of the Court, to pay the costs or damages as may be incurred or suffered in the event of a finding that the Defendant has been wrongfully enjoined or restrained.” Id. at 13–14.

On December 18, 2015, Defendant filed its motion to dismiss Plaintiff's cause of action pursuant to USCIT Rule 12(b)(1) for lack of jurisdiction, or, in the alternative, pursuant to USCIT Rule 12(b)(6), arguing that Plaintiff fails to state a cause of action. See generally Mot. Dismiss. Plaintiff filed its response to Defendant's motion to dismiss on December 23, 2015. See generally Pl.'s Resp. Def.'s Mot. Dismiss Public Version, Dec. 23, 2015, ECF No. 45 (“Pl.'s Resp. Mot. Dismiss”). On December 28, 2015, finding that good cause existed to continue the TRO because all of the conditions that warranted granting the initial TRO remained while the court awaited final briefing from Defendant and Defendant–Intervenor on Defendant's motion to dismiss, the court extended the TRO to January 11, 2016. See generally Order Extending TRO Public Version, Dec. 30, 2015, ECF No. 52. Briefing on both Defendant's motion to dismiss and Plaintiff's motion for preliminary injunction concluded on December 30, 2015.

For the following reasons the court denies Defendant's motion to dismiss on both grounds and grants Plaintiff's motion for a preliminary injunction.

BACKGROUND

Plaintiff is a U.S. company based in Sunnyvale, California that imports solar modules produced by Jiawei Solarchina (Shenzhen) Co., Ltd. (“Jiawei Shenzen”) that are composed, in part, of solar cells Plaintiff designs, develops and tests at its facility in California. Compl. ¶ 1. Plaintiff avers that its cells “utilize thin-film amorphous silicon as the photovoltaic material that generates electricity in a symmetrical bifacial solar cell design.” Id. Plaintiff alleges the solar modules it imports are

145 F.Supp.3d 1279

“bi-facial double glass frameless solar modules with outputs of 280—370W, made of thin film solar cells using its proprietary technology called the Hybrid Cell Technology.” Id. Plaintiff also alleges that:

[a]ll of Sunpreme's solar modules in question consist of solar cells made with amorphous silicon thin films and are certified by the solar industry certification body as thin film products. Sunpreme's modules have received the TUV certification to IEC 61646: 2008 which covers “Thin film terrestrial photovoltaic (PV) modules. Design qualification and type approval.” TUV is a well-known international third party certification body whose certification process includes laboratory testing of the product, as well as factory inspection.

Compl. ¶ 16.

On December 7, 2012, the U.S. Department of Commerce (“Commerce”) published the Orders. The scope language of each of the AD Order and the CVD Order, which is identical, provides:

The merchandise covered by this order is crystalline silicon photovoltaic cells, and modules, laminates, and panels, consisting of crystalline silicon photovoltaic cells, whether or not partially or fully assembled into other products, including, but not limited to, modules, laminates, panels and building integrated materials.

This order covers crystalline silicon photovoltaic cells of thickness equal to or greater than 20 micrometers, having a p/n junction formed by any means, whether or not the cell has undergone other processing, including, but not limited to, cleaning, etching, coating, and/or addition of materials (including, but not limited to, metallization and conductor patterns) to collect and forward the electricity that is generated by the cell.

Excluded from the scope of this order are thin film photovoltaic products produced from amorphous silicon (a-Si), cadmium telluride (CdTe), or copper indium gallium selenide (CIGS).

CVD Order at 73,017, AD Order at 73,018. On December 11, 2012, Commerce notified CBP of the CVD Order by Message # 2346303, which incorporated the scope language from the CVD Order and instructed CBP to require cash deposits equal to the subsidy rates in effect at the time of entry. See Exs. Pl's Appl. TRO and Mot. Prelim. Inj. and Mem. P. & A. Supp. Thereof Public Version Attach. 1 at Ex. 4, Dec. 10, 2015, ECF No. 23–1–4 (“Exs. Mot. TRO & PI”). On December 21, 2012, Commerce notified CBP of the AD Order by Message # 2356306, which incorporated the scope language from the AD Order and instructing CBP, effective December 7, 2012, to require a cash deposit or the posting of a bond equal to the dumping margins in effect at the time of entry....

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12 practice notes
  • Sunpreme Inc. v. United States, Slip Op. 16-93
    • United States
    • U.S. Court of International Trade
    • 5 Octubre 2016
    ...or countervailing duties prior to April 2015. See Def.'s Resp. Br. 4; see alsoSunpreme Inc. v. United States, 40 CIT ––––, ––––, 145 F.Supp.3d 1271, 1279 (2016). CBP instructed Plaintiff to file its entries as type "03," the type of entries subject to antidumping and countervailing duties. ......
  • United States v. Great Am. Ins. Co. of N.Y., Slip Op. 17–61
    • United States
    • U.S. Court of International Trade
    • 18 Mayo 2017
    ...was unclear whether the goods at issue were within the scope of [the] orders"); cf. Sunpreme Inc. v. United States , 40 CIT ––––, ––––, 145 F.Supp.3d 1271, 1285 (2016) (CBP "acts beyond its authority" when it "attempts to determine whether a product falls within the scope based upon factual......
  • Sunpreme Inc. v. United States, Slip Op. 16–97
    • United States
    • U.S. Court of International Trade
    • 11 Octubre 2016
    ...entries until December 28, 2015.3 See Am. Mem. and TRO, Dec. 16, 2015, ECF No. 36; Sunpreme Inc. v. United States, 40 CIT ––––, ––––, 145 F.Supp.3d 1271, 1299 (2016).Plaintiff commenced this action pursuant to § 2631 of the Customs Court Act of 1980, as amended, 28 U.S.C. § 2631(i) (2012). ......
  • Sunpreme Inc. v. United States, 2018-1116
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • 7 Enero 2020
    ...Customs’ determination that Sunpreme’s solar modules are subject to the Orders. Sunpreme Inc. v. United States ("Sunpreme I PI "), 145 F. Supp. 3d 1271, 1282 (Ct. Int’l Trade 2016) (opinion granting preliminary injunction). In its final decision, the CIT found it undisputed that Sunpreme’s ......
  • Request a trial to view additional results
12 cases
  • Sunpreme Inc. v. United States, Slip Op. 16–97
    • United States
    • U.S. Court of International Trade
    • 11 Octubre 2016
    ...entries until December 28, 2015.3 See Am. Mem. and TRO, Dec. 16, 2015, ECF No. 36; Sunpreme Inc. v. United States, 40 CIT ––––, ––––, 145 F.Supp.3d 1271, 1299 (2016).Plaintiff commenced this action pursuant to § 2631 of the Customs Court Act of 1980, as amended, 28 U.S.C. § 2631(i) (2012). ......
  • Sunpreme Inc. v. United States, Slip Op. 16-93
    • United States
    • U.S. Court of International Trade
    • 5 Octubre 2016
    ...or countervailing duties prior to April 2015. See Def.'s Resp. Br. 4; see alsoSunpreme Inc. v. United States, 40 CIT ––––, ––––, 145 F.Supp.3d 1271, 1279 (2016). CBP instructed Plaintiff to file its entries as type "03," the type of entries subject to antidumping and countervailing duties. ......
  • United States v. Great Am. Ins. Co. of N.Y., Slip Op. 17–61
    • United States
    • U.S. Court of International Trade
    • 18 Mayo 2017
    ...was unclear whether the goods at issue were within the scope of [the] orders"); cf. Sunpreme Inc. v. United States , 40 CIT ––––, ––––, 145 F.Supp.3d 1271, 1285 (2016) (CBP "acts beyond its authority" when it "attempts to determine whether a product falls within the scope based upon factual......
  • Sunpreme Inc. v. United States, 2018-1116
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • 7 Enero 2020
    ...Customs’ determination that Sunpreme’s solar modules are subject to the Orders. Sunpreme Inc. v. United States ("Sunpreme I PI "), 145 F. Supp. 3d 1271, 1282 (Ct. Int’l Trade 2016) (opinion granting preliminary injunction). In its final decision, the CIT found it undisputed that Sunpreme’s ......
  • Request a trial to view additional results

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