Fuyao Glass Industry Group Co. v. United States

27 Ct. Int'l Trade 1321
United States Court of International Trade·Decided September 2, 2003·No. Consol. Court No. 02-00282·Published

Opinion

MEMORANDUM OPINION

EATON, Judge:

Xinyi Automotive Glass (Shenzen) Co., Ltd. (“Applicant”), has submitted a second application (“Application”) for a preliminary injunction to enjoin liquidation of certain entries of Applicant’s automotive replacement glass windshields (the “Subject Merchandise”) pending a final decision on the merits in the underlying action.1 PPG Industries, Inc., Safelite Glass Corp., and Viracon/ Curvlite, a subsidiary of Apogee Enterprises, Inc. (“Defendant-intervenors”), object to the issuance of a preliminary injunction. The court has the authority to grant the requested relief. See 28 U.S.C. [1322]*1322§ 1585 (2000); 28 U.S.C. § 2643(c)(1) (2000); see also The All Writs Act, 28 U.S.C. § 1651(a) (2000). For the reasons set forth below, the court grants this Application.2

Background

In April 2003, Applicant timely requested that Commerce conduct an administrative review of its entries of Subject Merchandise for the period of review of September 19, 2001, through March 31, 2003. See Initiation of Antidumping and Countervailing Duty Administrative Reviews and Request for Revocation in Part, 68 Fed. Reg. 27,781 (ITAMay 21, 2003) (notice of initiation). Subsequent to that request, Applicant moved this court for a preliminary injunction contending that it met the four-prong test for such relief. See Fuyao Glass Indus. Group Co. v. United States, 27 C.I.T._, Slip Op. 03-99 (July 31, 2003) (“Fuyao II") (den. Applicant’s mot. prelim, inj.). Most importantly, Applicant argued that it would suffer immediate irreparable harm absent a preliminary injunction because were Applicant to rescind its request for an administrative review, Applicant’s entries of Subject Merchandise could be subject to immediate liquidation by the United States Customs Service (“Customs”).3 See id. at___, Slip Op. 03-99 at 4-5. The court found that Applicant had not satisfied its burden with respect to immediate irreparable harm because the cause of the potential injury complained of — Customs’s possible immediate liquidation of the Subject Merchandise — would not occur so long as the administrative review requested by Applicant was pending. See id. at_, Slip Op. 03-99 at 7 (citing S.J. Stile Assocs. v. Snyder, 626 F.2d 522, 525 (C.C.RA. 1981)) (“[T]the court finds that it cannot grant the requested relief simply because the prospect of irreparable harm is too speculative.”).

Thereafter, on July 31, 2002, Applicant timely rescinded its request for administrative review of its entries of Subject Merchandise. See Pl.’s Mem. P. & A. Supp. Mot. Prelim. Inj. (“Pl.’s Mem.”) Attach. (letter from law firm of White & Case to Evans of 7/31/2003) (“On behalf of Xinyi. . . we hereby withdraw our request that the Department conduct an administrative review of sales and entries of subject merchandise exported by Xinyi covered by the antidumping [1323]*1323duty order on Automotive Replacement Glass Windshields from the People’s Republic of China.”).

On August 4, 2003, Applicant renewed its request for a preliminary injunction. See Pl.’s Mot. Prelim. Inj. In support of its motion Applicant states that

[t]he Court’s denial of Xinyi’s first motion for preliminary injunction hinged on the premise that “so long as the administrative review of the Subject Merchandise stays its course the irreparable harm with which Applicant claims to be faced remains in check.” The administrative review is no longer on course because Xinyi has withdrawn its request for review. Xinyi no longer has any control over the administrative review and the suspension of liquidation from an ongoing review. The Department will rescind the administrative review for Xinyi in due course, unless this Court issues a preliminary in junction. Accordingly, the irreparable harm now facing Xinyi is no longer speculative and a mere possibility that is within Xinyi’s power to prevent. Now, having withdrawn its request for review, the Department may issue a notice rescinding the administrative review for Xinyi and instruct Customs to liquidate Xinyi’s entries, notwithstanding Xinyi’s appeal challenging the validity of the underlying antidumping order that resulted in antidump-ing duty deposits on Xinyi’s entries.

Pl.’s Mem. at 2-3. For the following reasons the court finds that Applicant has now satisfied its burden and grants the Application for preliminary injunction.

Discussion

Injunctive relief is an “extraordinary remedy” that is to be granted sparingly. Weinberger v. Romero-Barcelo, 456 U.S. 305, 312 (1982) (citing R.R. Comm’n of Tx. v. Pullman Co., 312 U.S. 496, 500 (1941)); FMC Corp. v. United States, 3 F.3d 424, 427 (Fed. Cir. 1993); PPG Indus., Inc. v. United States, 11 C.I.T. 5, 6 (1987) (citing Am. Air Parcel Forwarding Co. v. United States, 1 C.I.T. 293, 298, 515 F. Supp. 47, 52 (1981)). Applicant bears the burden of establishing that: (1) absent the requested relief, it will suffer immediate irreparable harm; (2) there exists in its favor a likelihood of success on the merits; (3) the public interest would be better served by the requested relief; and (4) the balance of the hardships on all parties tips in its favor. Zenith Radio Corp. v. United States, 710 F.2d 806, 809 (Fed. Cir. 1983) (citing S.J. Stile, 646 F.2d at 525; Va. Petroleum Jobbers Ass’n v. Federal Power Comm’n, 259 F.2d 921, 925 (D.C. Cir. 1958)); Corus Group PLC v. Bush, 26 C.I.T.._,_, 217 F. Supp. 2d 1347, 1353 (2002) (citing Zenith, 710 F.2d at 809). The court, in its analysis of these factors, employs a “sliding scale” and, consequently, need not assign to each factor equal weight. Corus, 26 C.I.T. at__, 217 F. [1324]*1324Supp. 2d at 1353-54 (citing Chilean Nitrate Corp. v. United States, 11 C.I.T. 538, 539 (1987)); id., 26 C.I.T. at_, 217 F. Supp. 2d at 1354 (quoting FMC, 3 F.3d at 427 (“If a preliminary injunction is granted by the trial court, the weakness of the showing regarding one factor may be overborne by the strength of the others. . . . [Conversely], the absence of an adequate showing with regard to any one factor may be sufficient, given the weight or lack of it assigned to other factors, to justify [its] denial.”)). Notwithstanding, the crucial element is that of irreparable injury. Id., 26 C.I.T. at_, 217 F. Supp. 2d at 1354 (citing Elkem Metals Co. v. United States, 25 C.I.T. _,__, 135 F. Supp.

Fuyao Glass Industry Group Co. v. United States, 27 Ct. Int'l Trade 1321 (cit 2003).

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