Wind Tower Trade Coal. v. United States

• Citation: 904 F.Supp.2d 1349
• Decision Date: 29 March 2013
• Docket Number: 13–00081,13–00082.,Slip Op. 13–44.,Court Nos. 13–00080
• Parties: WIND TOWER TRADE COALITION, Plaintiff, v. UNITED STATES, Defendant.
• Court: U.S. Court of International Trade

904 F.Supp.2d 1349

WIND TOWER TRADE COALITION, Plaintiff,

v.UNITED STATES, Defendant.

Slip Op. 13–44. Court Nos. 13–00080, 13–00081, 13–00082.

United States Court of International Trade.

March 29, 2013.

Alan H. Price, Daniel B. Pickard, Robert E. DeFrancesco, III, Lori E. Scheetz, and Derick Holt, Wiley Rein LLP of Washington, DC, for Plaintiff Wind Tower Trade Coalition.

Joshua E. Kurland, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, DC, for Defendant United States. With him on the brief were Stuart F. Delery, Principal Deputy Assistant Attorney General, Jeanne E. Davidson, Director, and Reginald T. Blades, Jr., Assistant Director. Of Counsel was Daniel J. Calhoun, Office of the Chief Counsel for Import Administration, U.S. Department of Commerce of Washington, DC.

Bruce M. Mitchell, Ned H. Marshak, Mark E. Pardo, Andrew B. Schroth, and Andrew T. Schutz, Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP, of New York, NY, for Defendant–Intervenors CS Wind China Co., Ltd., CS Wind Vietnam Co., Ltd., and CS Wind Corporation.

Bruce M. Mitchell, Ned H. Marshak, and Kavita Mohan, Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP, of

New York, NY, for Defendant–Intervenor Titan Wind Energy (Suzhou) Co., Ltd.

Mark D. Davis, Davis & Leiman P.C., of Washington, DC, for Defendant–Intervenor Chengxi Shipyard Co., Ltd.

Elliot J. Feldman and Michael S. Snarr, BakerHostetler, of Washington, DC, for Defendant–Intervenor Siemens Energy Inc.

OPINION and ORDER

GORDON, Judge:

These actions involve the administration of trade remedy provisional measures (cash deposits) pursuant to Sections 706(b) and 736(b) of the Tariff Act of 1930, as amended, 19 U.S.C. §§ 1671e(b) & 1673e(b),¹ by the U.S. Department of Commerce (“Commerce”) at the conclusion of the antidumping and countervailing duty investigations covering utility scale wind towers from the People's Republic of China (“China”) and the antidumping investigation covering that same merchandise from the Socialist Republic of Vietnam (“Vietnam”). Utility Scale Wind Towers from the People's Republic of China, 78 Fed. Reg. 11,146 (Dep't of Commerce Feb. 15, 2013) ( antidumping duty order); Utility Scale Wind Towers from the People's Republic of China, 78 Fed. Reg. 11,152 (Dep't of Commerce Feb. 15, 2013) (countervailing duty order); Utility Scale Wind Towers from the Socialist Republic of Vietnam, 78 Fed. Reg. 11,150 (Dep't of Commerce Feb. 15, 2013) (antidumping duty order) (collectively, “ Orders ”). In those investigations the U.S. International Trade Commission (“ITC”) found injury to the domestic industry in an evenly divided vote (3–3). Utility Scale Wind Towers from China and Vietnam, 78 Fed. Reg. 10,210 (Int'l Trade Comm'n Feb. 13, 2013); see also Utility Scale Wind Towers from China and Vietnam, USITC Inv. Nos. 701–TA–486 and 731–TA–1196 (Final), USITC Pub. 4372 (Feb. 2013); see also19 U.S.C. § 1677(11) (tie-breaking provision). Among the three affirmative votes, two Commissioners found material injury, with the third finding threat, but no material injury in the absence of provisional measures. 78 Fed. Reg. 10,210 at n. 2. Commerce, in turn, has said that it will instruct U.S. Customs and Border Protection (“Customs”) to release the cash deposits on subject merchandise entered before the date of the ITC's final determination in accordance with 19 U.S.C. §§ 1671e(b)(2) and 1673e(b)(2). See Orders.

Plaintiff seeks preliminary injunctions to (1) enjoin Commerce from terminating the suspension of liquidation and ordering the refund of cash deposits for entries of subject merchandise that were entered or withdrawn from warehouse for consumption prior to February 13, 2013; and (2) enjoin Customs during the pendency of this litigation before this court, including any subsequent remands and subsequent appeals, from discontinuing the suspension of liquidation and refunding cash deposits on the subject merchandise. Pl.'s Amend. Mot for Temporary Restraining Order & Prelim. Inj. at 1, ECF No. 15 (Court No. 13–00080).

The court initially denied Plaintiff's applications for temporary restraining orders (“TRO”) and preliminary injunctions because it believed Plaintiff had not made an adequate showing on the likelihood of success on the merits. Order Denying Temp. Restraining Order, Feb. 28, 2013, ECF No. 21 (Court No. 13–00080) (“Feb. 28 Order”). Plaintiff then submitted a supplementalresponse further explaining its position on its likelihood of success. Pl.'s Resp. to the Court's Mem. and Order, Mar. 1, 2013, ECF No. 22 (Court No. 13–00080) (“Pl.'s Supp. Br.”). Although the court still harbored doubts about Plaintiff's showing on the likelihood of success, the court entered a TRO to allow the other interested parties an opportunity to respond to Plaintiff's motions. Second Mem. and Order on Pl.'s Application for a TRO and Prelim. Inj., Mar. 4, 2013, ECF No. 23 (Court No. 13–00080) (“Mar. 4 Order”). Defendant and Defendant–Intervenors, CS Wind Corporation, CS Wind China Co., Ltd., and CS Wind Vietnam Co., Ltd. (collectively “CS Wind”), have since expressed their opposition. Def.–Intervenors' Opp'n to Pl.'s Mot. for Prelim. Inj., Mar. 8, 2013, ECF No. 25; Def.'s Opp'n to Pl.'s Mot. for Prelim. Inj., Mar. 15, 2013, ECF No. 38. For the reasons set forth below, the court will enter an order denying Plaintiff's motions.

I. Standard Governing Issuance of Preliminary Injunction

To prevail on a motion for a preliminary injunction, the movant must establish that (1) the movant is likely to succeed on the merits, (2) the movant is likely to suffer irreparable harm in the absence of preliminary relief, (3) the balance of equities tips movant's favor, and (4) an injunction is in the public interest. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008); American Signature, Inc. v. United States, 598 F.3d 816, 823 (Fed.Cir.2010).

In antidumping and countervailing duty cases preliminary injunctions against liquidation have become almost automatic due to the retrospective nature of U.S. trade remedies, see19 C.F.R. § 351.212.(a), the length of the judicial review process, and the cruciality of unliquidated entries for judicial review, see Zenith Radio Corp. v. United States, 710 F.2d 806, 810 (Fed.Cir.1983); SKF USA, Inc. v. United States, 512 F.3d 1326, 1329 (Fed.Cir.2008) (“The Zenith rule renders a court action moot once liquidation occurs.”); see also Qingdao Taifa Group Co. v. United States, 581 F.3d 1375, 1381–82 (Fed.Cir.2009) (“[T]he court ... recognizes that 19 U.S.C. § 1516a(c)(2) envisions the use of preliminary injunctions in the antidumping context to preserve proper legal options and to allow for a full and fair review of duty determination before liquidation.”). The court has managed the irreparability of liquidation by employing a sliding scale that requires a somewhat lower burden on the likelihood of success. Id. In most antidumping and countervailing duty cases, motions for preliminary injunctions are typically on consent. Cf. Ugine & Alz Belgium v. United States, 452 F.3d 1289, 1297 (Fed.Cir.2006) (reversing denial of preliminary injunction despite all parties consenting “to entry of a preliminary injunction prior to the trial court's ruling”). The other parties in this action have not consented to Plaintiff's motions.

Notwithstanding the near automaticity of preliminary injunctions in antidumping and countervailing duty cases, they are not awarded as of right. See Qingdao Taifa, 581 F.3d at 1382 (acknowledging Supreme Court's “emphasis on the importance of the likelihood of success in the preliminary injunction calculus” in Munaf v. Geren, 553 U.S. 674, 689–690, 128 S.Ct. 2207, 171 L.Ed.2d 1 (2008)). The movant must still demonstrate at least a fair chance of success on the merits. Id. (quoting U.S. Ass'n of Imps. of Textiles & Apparel v. Dep't of Commerce, 413 F.3d 1344, 1347 (Fed.Cir.2005)); FMC Corp. v. United States, 3 F.3d 424, 427 (Fed.Cir.1993) (“Absent a showing that a movant is likely to succeed on the merits, we question whether the movant can ever be entitledto a preliminary injunction unless some extraordinary injury or strong public interest is also shown.”).

II. Discussion

A. Background

Following a preliminary affirmative determination by Commerce, provisional measures take effect pursuant to 19 U.S.C. §§ 1671b(d)(2), 1673b(d)(2), which suspend liquidation and require cash deposits for entries of merchandise covered by the investigation. These remedies are provisional because at that point in the investigation only half of the trade remedy equation has been satisfied; the other half is the ITC's final injury determination, see19 U.S.C. §§ 1671(a)(2), 1673(2), which dictates whether the provisional cash deposits ripen into antidumping or countervailing duties, see19 U.S.C. §§ 1671e(b) and 1673e(b).

An ITC final injury determination comprises the votes of the six individual Commissioners, each of whom chooses from among a menu of statutorily defined choices (no injury, material injury, threat of material injury, or material retardation of establishment of industry). 19 U.S.C. §§ 1671d(b)(1), 1673d(b)(1), 1677(7); see also U.S. Steel Group v. United States, 96 F.3d 1352, 1360 (Fed.Cir.1996) (“The Commission makes its determinations by tallying the votes of the six individual commissioners.”). When a Commissioner votes for threat of material injury, that Commissioner must also make an additional finding about whether the domestic industry would have been materially injured in the absence of (or “but for”) the provisional measures. 19 U.S.C. §§ 1671d(b)(4)(B), 1673d(b)(4)(B). This additional finding correlates with sections 1671e(b) and 1673e(b), and depending on the other Commissioners' votes, may affect whether the cash deposits provisionally in place are refunded under the “special rule” or retained under the “general rule” (and applied...