Slip Op. 20-16
UNITED STATES COURT OF INTERNATIONAL TRADE
MID CONTINENT STEEL & WIRE, INC. ET AL.,
Plaintiff and Consolidated Plaintiffs,
v.
UNITED STATES, Before: Claire R. Kelly, Judge
Defendant, Consol. Court No. 15-00213
and
PT ENTERPRISE INC. ET AL.,
Defendant-Intervenors and Consolidated Defendant-Intervenor.
MEMORANDUM AND ORDER
[Granting Plaintiffs’ motion for injunctive relief.]
Dated: February 7, 2020
Adam Henry Gordon and Ping Gong, The Bristol Group PLLC, of Washington, DC, for plaintiff and consolidated defendant-intervenor Mid Continent Steel & Wire, Inc.
Ned Herman Marshak and Andrew Thomas Schutz, Grunfeld Desiderio Lebowitz Silverman & Klestadt, LLP, of New York, NY, and Washington, DC, for consolidated plaintiffs and defendant-intervenors PT Enterprise Inc., Pro-Team Coil Nail Enterprise Inc., Unicatch Industrial Co., Ltd., WTA International Co., Ltd., Zon Mon Co., Ltd., Hor Liang Industrial Corporation, President Industrial Inc., and Liang Chyuan Industrial Co., Ltd.
Mikki Cottet, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, DC, for defendant. With her on the brief were Joseph H. Hunt, Assistant Attorney General, Jeanne E. Davidson, Director, and Patricia M. McCarthy, Assistant Director. Of counsel on the brief was Vania Wang, Attorney, Office of the Chief Counsel for Trade Enforcement and Compliance, U.S. Department of Commerce, of Washington, DC. Consol. Court No. 15-00213 Page 2
Kelly, Judge: Before the court is Plaintiffs’ PT Enterprise Inc. (“PT”), Pro-Team
Coil Nail Enterprise Inc. (“Pro-Team”), Unicatch Industrial Co., Ltd. (“Unicatch”), WTA
International Co., Ltd. (“WTA International”), Zon Mon Co., Ltd. (“Zon Mon”), Hor Liang
Industrial Corp. (“Hor Liang”), President Industrial Inc., and Liang Chyuan Industrial Co.,
Ltd (“Liang Chyuan”) (collectively “Taiwan Plaintiffs”) motion for a preliminary injunction
to enjoin liquidation of entries of certain steel nails subject to the antidumping duty (“ADD”)
order in Certain Steel Nails From the Republic of Korea, Malaysia, the Sultanate of Oman,
Taiwan, and the Socialist Republic of Vietnam, 80 Fed. Reg. 39,994 (Dep’t Commerce
July 13, 2015) ([ADD] orders) (“ADD Order”). See Taiwan Plaintiffs’ Mot. Prelim. Inj., Jan.
10, 2020, ECF No. 136 (“Pls.’ Br.”). Taiwan Plaintiffs specifically seek an injunction,
pursuant to U.S. Court of International Trade Rule (“USCIT”) Rules 56.2(a) and 65(a) and
Section 516A(c)(2) of the Tariff Act of 1930, 1 as amended, 19 U.S.C.
§ 1516a(c)(2) (2012), 2 that covers unliquidated entries, subject to the ADD Order,
produced or exported by Taiwan Plaintiffs, and entered, or withdrawn from warehouse,
for consumption into the United States on or after May 20, 2015. See Pls.’ Br. at 1,
Proposed Order. Defendant partially opposes Taiwan Plaintiffs’ motion and does not
consent to the proposed “indefinite and open-ended” injunction. Def.’s Partial Opp’n [Pls.’
Br.] at 1–2, Jan. 31, 2020, ECF No. 138 (“Def.’s Br.”). Instead, Defendant requests that
any injunction entered by the court be limited to the period May 20, 2015 to June 30,
1 Taiwan Plaintiffs seek an injunction based upon 19 U.S.C. § 1516a(c)(2), which provides that “the United States Court of International Trade may enjoin the liquidation of some or all entries of merchandise covered by a determination of the Secretary, the administering authority, or the Commission, upon a request by an interested party for such relief and a proper showing that the requested relief should be granted under the circumstances.” 2 Further citations to the Tariff Act of 1930, as amended, are to the relevant provisions of Title 19 of the U.S. Code, 2012 edition. Consol. Court No. 15-00213 Page 3
2018, the end of which corresponds to the conclusion of the third period of review. Id. at
2. Defendant-Intervenor Mid Continent Steel & Wire, Inc. (“Mid Continent”) 3 opposes
Taiwan Plaintiffs’ motion, and requests that the court either deny the motion in full or set
June 30, 2018 as the end-date to the proposed injunction. See [Mid Continent’s] Resp.
Opp’n [Pls.’ Br.] at 1, Jan. 31, 2020, ECF No. 137 (“Def.-Intervenor’s Br.”). For the
reasons that follow, this court grants Taiwan Plaintiffs’ motion for injunctive relief for
unliquidated entries of subject merchandise, subject to the ADD Order, entered or
withdrawn from warehouse for consumption, on and after May 20, 2015.
BACKGROUND
On May 20, 2015, Commerce published its final determination in its less-than-fair-
value (“LTFV”) investigation of certain steel nails from the Republic of Korea, Malaysia,
the Sultanate of Oman, Taiwan, and the Socialist Republic of Vietnam. See Certain Steel
Nails from Taiwan, 80 Fed. Reg. 28,959 (Dep’t Commerce May 20, 2015) (final
determination of sales at [LTFV]) (“Final Results”) and accompanying Issues and
Decisions Memo. for the [Final Results], A-583-854, (May 13, 2015), available at
https://enforcement.trade.gov/frn/summary/taiwan/2015-12247-1.pdf (last visited Feb. 6,
2020). Commerce instructed Customs and Border Protection (“CBP”) to suspend
liquidation of entries subject to the ADD investigation. See Final Results, 80 Fed. Reg.
at 28,961. Following an affirmative injury determination, Commerce issued an ADD order,
where it directed CBP to continue to suspend liquidation from the publication date of its
3 Mid Continent is also a plaintiff in this proceeding. See Summons, Aug. 6, 2015, ECF No. 1; Compl., Sept. 4, 2015, ECF No. 9. Consol. Court No. 15-00213 Page 4
final determination, May 20, 2015, and to collect cash deposits on subject merchandise.
See ADD Order, 80 Fed. Reg. at 39,996.
Mid Continent and Taiwan Plaintiffs commenced separate actions challenging
various aspects of the Final Results, which were later consolidated. See Summons, Aug.
6, 2015, ECF No. 1; Compl., Sept. 4, 2015, ECF No. 9; see also Order, Nov. 19, 2015,
ECF No. 20 (consolidating Ct. Nos. 15-00213 and 15-00220 under Ct. No. 15-00213).
The court remanded in part Commerce’s final determination in Mid Continent Steel &
Wire, Inc. v. United States, 41 CIT __, __, 219 F. Supp. 3d 1326, 1351 (2017) (“Mid
Continent I”), and, following Commerce’s redetermination, this court sustained
Commerce’s remand results. Mid Continent Steel & Wire, Inc. v. United States, 41 CIT
__, __, 273 F. Supp. 3d 1161, 1170 (2017) (“Mid Continent II”). Mid Continent and Taiwan
Plaintiffs appealed the court’s decision. The Court of Appeals for the Federal Circuit
(“Court of Appeals”) affirmed in part, and vacated and remanded in part, Commerce’s
final determination concerning PT’s margin. Mid Continent Steel & Wire, Inc. v. United
States, 940 F.3d 662, 675 (Fed. Cir. 2019) (“Mid Continent III”). Commerce’s remand
results are expected March 16, 2020. Scheduling Order, Dec. 11, 2019, ECF No. 135.
Concurrent with litigation surrounding Commerce’s LTFV determination,
Commerce concluded its first and second annual reviews. On February 13, 2018,
Commerce published the final results in the first administrative review (“AR 1”) covering
entries for the period of review May 20, 2015 to June 30, 2016 (“POR 1”). See Certain
Steel Nails from Taiwan, 83 Fed. Reg. 6,163 (Dep’t Commerce Feb. 13, 2018) (final
results of [ADD] admin. review and partial rescission of admin. review; 2015–2016). PT,
Pro-Team, Unicatch, Hor Liang, and Romp Coil Nails Industries Inc. (“Romp”) obtained Consol. Court No. 15-00213 Page 5
injunctions for those entries, pending judicial review of Commerce’s AR 1 final
determination. See Order, Feb. 23, 2018, ECF No. 12, from associated docket Ct. No.
18-00027; see also Order, Feb. 28, 2018, ECF No. 15, from associated docket Ct. No.
18-00028. On March 27, 2019, Commerce published the final results in the second
administrative review (“AR 2”), covering the entries for the period of review July 1, 2016
to June 30, 2017 (“POR 2”). See Certain Steel Nails from Taiwan, 84 Fed. Reg. 11,506
(Dep’t Commerce Mar. 27, 2019) (final results of [ADD] admin. review and partial
rescission of admin. review; 2016–2017). Unicatch obtained an injunction on entries for
the period of review, pending judicial review of the AR 2 final determination. See Order,
Apr. 17, 2019, ECF No. 10, from associated docket Ct. No. 19-00052.
The final results in the third administrative review (“AR 3”), covering the period of
review July 1, 2017 to June 30, 2018 (“POR 3”), are pending. See Certain Steel Nails
from Taiwan, 84 Fed. Reg. 48,116 (Dep’t Commerce Sept. 12, 2019) (prelim. results of
[ADD] admin. review; 2017–2018). Pursuant to Commerce’s liquidation instructions to
CBP, liquidation for entries for Liang Chyuan, PT, Pro-Team, Unicatch, Hor Liang, and
Romp, i.e., companies that requested review, remain suspended. See Certain Steel Nails
from Taiwan, 84 Fed. Reg. 6,361 (Dep’t Commerce Feb. 27, 2019) (partial rescission of
[ADD] admin. review; 2017– 2018).
The fourth administrative review (“AR 4”), covering the period of review July 1,
2018 to June 30, 2019 (“POR 4”), is also pending. See Initiation of Antidumping and
Countervailing Duty Admin. Reviews, 84 Fed. Reg. 47,242, 47,247–48 (Dep’t Commerce
Sept. 9, 2019). Given that all Taiwan Plaintiffs, except for WTA International, requested
review, liquidation for those companies’ entries is administratively suspended. Consol. Court No. 15-00213 Page 6
JURISDICTION AND STANDARD OF REVIEW
The Court continues to have jurisdiction pursuant to Section 516a(a)(2)(B)(i) of the
Tariff Act of 1930, as amended, 19 U.S.C. § 1516a(a)(2)(B)(i), and 28 U.S.C. § 1581(c)
(2012), which grant the court authority to review actions contesting the final determination
in an investigation of an ADD order.
Section 1516a(c)(2) authorizes the Court to enjoin liquidation “upon a request by
an interested party for such relief and a proper showing that the requested relief should
be granted under the circumstances.” 19 U.S.C. § 1516a(c)(2). To obtain the relief of
an injunction, a plaintiff carries the burden to establish that: (1) it is likely to suffer
irreparable harm without the injunction; (2) it is likely to succeed on the merits; (3) the
balance of equities favors plaintiff; and, (4) granting the injunction will not run counter to
the public’s interest. See Ugine & Alz Belgium v. United States, 452 F.3d 1289, 1292
(Fed. Cir. 2006); see also Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).
No one factor is dispositive, and “the weakness of the showing regarding one factor may
be overborne by the strength of the others.” FMC Corp. v. United States, 3 F.3d 424, 427
(Fed. Cir. 1993); see also Qingdao Taifa Group Co., Ltd. v. United States, 581 F.3d 1375,
1378–79 (Fed. Cir. 2009). “Whether to grant a preliminary injunction is a matter within
the trial court’s discretion.” Ugine, 452 F.3d at 1292. The purpose of an injunction is to
preserve the status quo during the pendency of judicial proceedings so to provide the
parties with any relief the court ultimately grants. See 19 U.S.C.
§ 1516a(c)(2); Ugine, 452 F.3d at 1297. Consol. Court No. 15-00213 Page 7
DISCUSSION
Taiwan Plaintiffs request the court to enjoin liquidation of entries entered, or
withdrawn from warehouse, for consumption into the United States on and after May 20,
2015. See Pls.’ Br. at 1, Proposed Order. Taiwan Plaintiffs explain that liquidation would
deprive them of a remedy to recover duties paid, should Commerce ultimately determine,
following its remand redetermination ordered by the Court of Appeals, that all margins in
the final determination are de minimis, resulting in revocation of the ADD Order. See Pls.’
Br. at 4, 9–10, 12–14. Defendant partially opposes the motion, countering that there is
no immediate threat of liquidation until the end of an administrative review (“AR”), or
where review has not been requested, until liquidation instructions issue. See Def.’s Br.
at 1–2. Insofar as Taiwan Plaintiffs request an “indefinite and open-ended” injunction,
Defendant opposes Taiwan Plaintiffs’ motion; however, Defendant consents to an
injunction with an end date corresponding to the end of POR 3. Id. at 2. Mid Continent
opposes Taiwan Plaintiffs’ motion and requests the court to either deny the motion or
partially grant the motion by limiting the period of injunctive relief to correspond to the end
of POR 3, i.e., June 30, 2018. See Def.-Intervenor’s Br. at 1. For the reasons that follow,
the court grants Taiwan Plaintiffs’ motion to enjoin liquidation of entries made on and after
May 20, 2015, because Taiwan Plaintiffs have demonstrated that there is a present risk
that entries subject to AR 1 and subsequent reviews may liquidate prior to judicial
resolution of this proceeding and that they will suffer irreparable harm should their entries
liquidate. Balancing this concern along with the other factors, i.e., likelihood of success Consol. Court No. 15-00213 Page 8
on the merits, the balance of equities, and the public interest, favors the injunctive relief
sought. 4
An antidumping proceeding begins with an investigation. By statute, Commerce is
directed, in making a final determination that imports of subject merchandise are being
sold, or likely to be sold, at LTFV, to disregard de minimis margins. See 19 U.S.C.
§ 1673d(a)(4); see also id. at § 1673b(b)(3) (defining a de minimis margin as “less than 2
percent ad valorem or the equivalent specific rate”). If, however, an LTFV investigation
yields affirmative findings, and the International Trade Commission also issues an
affirmative injury finding, Commerce will publish an ADD order that imposes antidumping
duties on subject merchandise. See id. at § 1673e(a).
Once the ADD order is in place, Commerce conducts administrative reviews of the
rates set forth in the order, and parties must provide cash deposits to secure any duties
that are ultimately assessed. See id. at §§ 1673e(a), 1675(a). 5 Because the U.S. has a
retroactive system of duties, Commerce is required to look back at a period of review
(“POR”) during an administrative proceeding to determine the extent of those duties. See
19 C.F.R. § 351.212(a) (2014). While Commerce conducts an AR, it administratively
suspends liquidation of entries for all entities subject to its review, so that it will ultimately
4 Taiwan Plaintiffs move for an injunction pursuant to USCIT Rule 56.2(a), which provides that “[a]ny motion for a statutory injunction to enjoin the liquidation of entries that are the subject of the action must be filed by a party to the action within 30 days after service of the complaint, or at such later time, for good cause shown.” USCIT R. 56.2(a). “Good cause” exists for this injunction, even though more than 30 days have passed since Taiwan Plaintiffs filed their complaint on September 4, 2015. See generally Compl. At that time, entries were not susceptible to liquidation. Since then, the change in circumstances that gives rise to Taiwan Plaintiffs’ request for injunctive relief, namely the passage of time allowing for several PORs and the Court of Appeals’ remand order for Commerce to reconsider the Final Results, constitutes good cause. See generally Midwest III, 940 F.3d, and subsequent ARs concluded. 5 Interested parties may request administrative review “during the anniversary month of the publication of an antidumping or countervailing duty order.” 19 C.F.R. § 351.213(b)(1). Consol. Court No. 15-00213 Page 9
be able to assess any antidumping duties. See id. at §§ 351.212(b), 351.213(a)–(b); see
also 19 U.S.C. §§ 1675, 1673e(a). If no review is requested, or requests for review are
withdrawn, Commerce will issue automatic liquidation instructions for CBP to assess
antidumping duties at the cash deposit rates in effect at the time of entry. 19 C.F.R.
§ 351.212(c); see also 19 U.S.C. § 1504(d). Following completion of an AR, Commerce
issues instructions to CBP lifting suspension of liquidation for that POR, unless parties
seek judicial review and obtain an injunction. 19 U.S.C. § 1516a(c)(1)–(2) (authorizing
liquidation of entries in accordance with Commerce’s original determination, unless
liquidation is enjoined). Injunctions are generally issued on consent and remain in effect
for the duration of the court proceeding including all appeals. See id. at § 1516a(e).
Otherwise, if there is no court-ordered injunction, Commerce issues instructions to CBP
to lift suspension of liquidation, and CBP will liquidate, within six months, entries made
during the POR at the cash deposit rate in effect at the time of entry. Id. at § 1504(d).
Here, Taiwan Plaintiffs have established a “presently existing, actual threat” of
irreparable harm for entries subject to AR 1 and subsequent administrative reviews. See
Zenith Radio Corp. v. United States, 710 F.2d 806, 809 (Fed. Cir. 1983) (quoting S.J.
Stile Associated Ltd. v. Snyder, 646 F2d 522, 525 (C.C.P.A. 1981) (internal quotations
omitted)). Taiwan Plaintiffs challenge before this court Commerce’s Final Results, which
resulted in the ADD Order that serves as the basis for subsequent ARs. If, following
completion of judicial review, Commerce ultimately determines all weighted average
dumping margins are de minimis, that finding effectively nullifies an affirmative LTFV Consol. Court No. 15-00213 Page 10
determination 6 and, therefore, cannot serve as the basis for an ADD order to impose
duties, see 19 U.S.C. § 1673 (providing that antidumping duties may only be assessed
when there is a valid determination of dumping), or for subsequent administrative reviews.
All unliquidated entries are subject to liquidation at that revised zero rate, irrespective of
date of entry. See id. at § 1516a(e). Given that there is no provision, by statute, that
permits reliquidation, see Zenith, 710 F.2d at 810, the liquidation of entries constitutes
irreparable harm. Therefore, securing the full benefits of judicial review of the Final
Results, which may result in the revocation of the ADD Order, requires an injunction to
forestall liquidation prior to the completion of judicial review and ensure liquidation in
conformity with the court’s final decision.
The danger of liquidation pending judicial review of an investigation constitutes
irreparable harm. As explained in Husteel Co., Ltd. v. United States, 38 CIT __, 34 F.
Supp. 3d 1355 (2014), the procedural complexities in the administration of antidumping
and countervailing duty orders renders the threat of irreparable harm sufficiently imminent
to warrant injunctive relief in connection with judicial review of an investigation. Id., 38
CIT at __, 34 F. Supp. 3d 1359-63. In that case, movants sought an injunction on entries
covered by a final determination, arguing that liquidation would moot their challenge. Id.
38 CIT __, 34 F. Supp. 3d at 1358. Focusing on irreparable harm, the court noted that
final ADD rates are not settled until the completion of the AR, and, that if a party does not
request review, entries are liquidated without notice at the cash deposit rate. Id. 38 CIT
at __, 34 F. Supp. 3d at 1360. Although Commerce administratively suspends liquidation
6 If Commerce’s final LTFV determination is negative, the investigation terminates, and Commerce will publish notice of the negative determination. It will also terminate suspension of liquidation and refund any cash deposits collected pursuant to 19 U.S.C. § 1673b(d)(1)(B). Consol. Court No. 15-00213 Page 11
of entries during ARs, not all entities seek AR. Id. Moreover, an administrative
suspension of liquidation may terminate during judicial review. The court explained that
issuing the injunction was “proper at this time, even if the threat of injury is not ‘imminent’
in the same sense it is following an administrative review[,]” because it would ensure that
movants would receive the “full benefit” of their judicial challenge and possibly “obviate”
the need for future administrative reviews. Id.
The danger of liquidation becomes sufficiently imminent when an ADD order is
published. Pursuant to section 1673e(a), Commerce, in an ADD order, directs Customs
to, inter alia, assess antidumping duties “after the date on which [Commerce] receives
satisfactory information upon which the assessment may be based.” 19 U.S.C.
§ 1673e(a). Commerce will, if requested, conduct an annual review under section
1675(a)(1) to determine the amount of ADD, which will be the duty assessed on entries
during the POR. Id. at § 1675(a)(1); see also 19 C.F.R. § 351.212(a)–(b). Courts have
long recognized that “[t]he necessary implication of reading section 1673e(a) together
with section 1675, in pari materia, is that the suspension of liquidation of an entry must
remain in effect throughout an administrative review by Commerce.” 7 See American
Power Pull Corp. v. United States, 40 CIT __, __, 121 F. Supp. 3d 1296, 1301 (2016)
(citing Ambassador Div. of Florsheim Shoe v. United States, 748 F.2d 1560, 1565 (Fed.
Cir. 1984)). When Commerce publishes the final results of the AR, Customs has six
7 Additionally, section 1673d(c)(1)(B)(3) requires Commerce suspend liquidation in cases where the preliminary determination by the administering authority was negative and the final determination was affirmative. See 19 U.S.C. § 1673d(c)(1)(B)(3). Such was the case here. See Certain Steel Nails from Taiwan, 79 Fed. Reg. 78,053 (Dep’t Commerce Dec. 29, 2014) (negative prelim. determination of sales at [LTFV] and postponement of final determination). However, entries which are not subject to AR will be subject to automatic liquidation. 19 C.F.R. § 351.212(c). Consol. Court No. 15-00213 Page 12
months to liquidate entries covered by the POR. 19 U.S.C. § 1504(d). If, however, an
entity does not request administrative review, its entries are subject to automatic
liquidation. 19 C.F.R. § 351.212(c).
Defendant’s objection to Taiwan Plaintiffs’ proposed injunction stems from its view
that, because ARs are still in progress, the threat of harm is not sufficiently imminent.
See Def.’s Br. at 7–13. Likewise, Mid Continent views any injunction as duplicative
because of the suspensions of liquidation stemming from the ARs. 8 See Def.-Intervenor’s
Br. at 1–2. Both Defendant and Mid Continent fail to acknowledge the threat of harm that
flows from the fact that the suspensions of liquidation for the ARs may be lifted with little
notice while judicial review of the investigation remains pending. 9 Here, most, but not all,
Taiwan Plaintiffs have or are currently participating in ARs 1–4. If, following Commerce’s
remand redetermination, the ADD Order is revoked, Taiwan Plaintiffs that have not
participated in the ARs, or those that choose not to challenge the final results of an AR,
will have no recourse to reimbursement for duties paid on liquidated entries. Likewise, if
8 Mid Continent would have Taiwan Plaintiffs take the “correct course of action” and seek extensions of current injunctions, as well as administrative suspensions of liquidation for entries under review. Def.-Intervenor’s Br. at 2–3. Mid Continent argues that injunctions only issue to prevent presently existing and actual threats of injury, none of which exist here. Id. at 2. 9 Defendant contends that “[w]hen another mechanism such as an administrative review or statutory injunction prevents liquidation, the irreparable harm from which the applicant seeks immediate relief is absent,” and cites to Sumecht NA, Inc. v. United States, 923 F.3d 1340 (Fed. Cir. 2019), as support. See Def.’s Br. at 9. Therefore, according to Defendant, an administrative injunction on entries from July 1, 2018 forward would not support a injunctive relief. Id. However, Defendant’s reliance on Sumecht is misplaced. In Sumecht, the Court of Appeals agreed with the CIT that plaintiff Sumec had not demonstrated irreparable harm, because Sumec had obtained an injunction in a countervailing duty case covering the same entries in the ADD case. Id. at 1346–47. The Court of Appeals did not find Sumec’s citations to other CIT cases persuasive, because none “require[] such overlapping injunctions.” Id. at 1346. However, the Court of Appeals declined to “constrain the CIT’s discretion by imposing this type of acontextual rule,” and narrowly held that, “[u]nder these circumstances, Sumec’s entries are currently protected from liquidation due to the Statutory Injunction.” Id. at 1346–47. Consol. Court No. 15-00213 Page 13
judicial review of an AR concludes without an injunction in the investigation, entries will
be subject to liquidation in short order. Securing the full benefits of judicial review of the
Final Results should not require participation in each AR. Otherwise, Taiwan Plaintiffs
who fail to seek review will continue to face the risk that their entries will be liquidated at
a rate that ultimately proves to be wrongful. See Laclede Steel Co. v. United States, 20
CIT 712, 717, 928 F. Supp. 1182, 1187 (1996). Requiring Taiwan Plaintiffs to traverse
this route would not only risk denying Taiwan Plaintiffs the full benefits of judicial review,
it would create perverse incentives to challenge, and seek judicial review of, each of
Commerce’s AR determinations. A litigant without a good faith basis to believe that an
agency’s AR determination was unreasonable on the record would be hard-pressed not
to challenge the determination in court in order to fully preserve the remedy that would
flow from a successful challenge to the initial investigation. True, a respondent could seek
an injunction against liquidation after it decides not to seek judicial review of an AR, but
the court fails to see why doing so should be required. The potential harm flows from the
results of the investigation, not from the decision to forgo judicial review of an AR.
Indeed, the purpose of an injunction is to preserve the status quo during the
pendency of judicial proceedings so as to provide the parties with any relief the court
ultimately grants. See 19 U.S.C. § 1516a(c)(2); Ugine, 452 F.3d at 1297. The harm is
immediate in light of the purpose behind the injunction, which is to secure judicial remedy
in the instant case; failure to grant this remedy may deprive Taiwan Plaintiffs of that
remedy, and the harm will be irreparable. Preserving the status quo until conclusion of
this dispute demands enjoining liquidation of any Taiwan Plaintiffs’ entries within the Consol. Court No. 15-00213 Page 14
scope of the challenged order. Therefore, an injunction against liquidation should apply
to all entries from AR 1 going forward, until conclusion of the dispute.
Moreover, the remaining three factors that guide a court’s evaluation of whether to
grant an injunction also support Taiwan Plaintiffs request. 10 Regarding likelihood of
success on the merits, numerous cases have explained that “[w]hen the irreparable harm
factor tilts decidedly in favor of the movant, the burden of showing likelihood of success
is lessened.” See Husteel, 38 CIT __, 34 F. Supp. 3d at 1362 (citing Qingdao, 581 F.3d
at 1378–79; Ugine, 452 F.3d at 1292–93). Taiwan Plaintiffs have raised a number of
substantial questions concerning the Final Results. See id. at 1362 (citing NMB Sing. v.
United States, 24 CIT 1239, 1245, 120 F. Supp. 2d 1135, 1140 (2000) (When a movant
demonstrates irreparable harm, “it will ordinarily be sufficient that the movant has raised
serious, substantial, difficult and doubtful questions that are the proper subject of
litigation.”) (internal quotations omitted)). Taiwan Plaintiffs commenced this action to
contest, inter alia, Commerce’s choice of methodology that supported its affirmative LTFV
determination and led to the issuance of the ADD Order. See generally Compl. Following
litigation before this court and appeal concerning this issue, Commerce, on remand, may
determine that all margins are de minimis. Without opining on the correct reading and
probative value of the Court of Appeals’ decision in Mid Continent III, which Defendant
10 The court traditionally applies a “sliding scale” approach, where no single factor is dispositive, and the strength of one factor may overcome the weakness of another. See Ugine, 452 F.3d at 1292–93 (quoting Corus Grp. PLC v. Bush, 26 CIT 937, 942, 217 F. Supp. 2d 1347, 1353–54 (2002). Given that the risk of irreparable harm is generally considered the most crucial, see, e.g., Corus, 26 CIT at 942, 217 F. Supp. 2d at 1354 (collecting cases), the burden to make a showing of the remaining three factors diminishes. Consol. Court No. 15-00213 Page 15
contests, see Def.’s Br. at 13–14, 11 its remand order is sufficient to show that Taiwan
Plaintiffs have at least a fair chance of success on the merits.
Further, the balance of equities favors an injunction. 12 As noted, Taiwan Plaintiffs
face an immediate threat of irreparable harm, as entries could liquidate prior to the
completion of judicial review in this case, leaving Taiwan Plaintiffs without remedy. By
contrast, Defendant and Mid Continent have not provided an explanation of any prejudice
that the government or Mid Continent would suffer if the court grants the injunction as
requested. Despite Defendant’s and Mid Continent’s contentions to the contrary, such
an injunction would not be “open ended” or “indefinite.” The injunction against liquidation
would tie to the judicial proceeding, such that the injunction would expire once this
proceeding concludes. Even if one adopts the characterization of “open-ended” or
11 Defendant contends that Taiwan Plaintiffs have not demonstrated a likelihood of success on the merits, because the Court of Appeals upheld Commerce’s methodology and, in its remand instructions to Commerce, requested Commerce to further explain that choice. Def.’s Br. at 13– 14. Defendant implies that because Taiwan Plaintiffs have not demonstrated threat of irreparable harm, they must demonstrate more than a minimal likelihood of success. See Defs.’ Br. at 13– 14 (citing Fuyao Glass Indus. Grp. Co. v. United States, 27 CIT 1166, 1171 (2003)). However, for the reasons discussed above, Taiwan Plaintiffs have made a sufficient showing of immediate irreparable harm. Therefore, Defendant’s argument that Taiwan Plaintiffs must demonstrate a “high” likelihood of success on the merits is misplaced. Def.’s Br. at 13–14. 12 Defendant limits its discussion of this factor to a scenario where the court issues an “open- ended” preliminary injunction, arguing that “a broader injunction covering such future entries is not necessary to maintain the status quo.” Def.’s Br. at 14–15. Defendant seems concerned that if the court were to grant the injunction Taiwan Plaintiffs seek that parties would routinely seek preemptive relief in the form of a request for an injunction in a case challenging an investigation. Id. at 15. But as the statutory and regulatory scheme make clear, in most cases suspension of liquidation will flow from the AR process such that litigants will not need to incur the expense of obtaining an injunction in connection with an investigation. However, even if parties were to make such preemptive motions, Congress specifically provided for injunctions to protect against liquidation in 19 U.S.C. § 1516a(c). The harm that flows from liquidation is irreparable; there seems to be no harm at all to the government or domestic parties stemming from an injunction on liquidation; and, ultimately, ensuring duties are imposed only when warranted is within the public’s interest. Consol. Court No. 15-00213 Page 16
“indefinite” put forth by Defendant and Mid Continent, it is unclear how either party would
suffer harm. Therefore, the balance of equities favors injunctive relief.
Finally, the public interest is served by the proposed injunction. Preventing
liquidation maintains the status quo until the final resolution of this case and ensures that
Commerce properly administers antidumping laws. See, e.g., Husteel, 38 CIT at __, 34
F. Supp. 3d at 1363. Here, an injunction not only safeguards Taiwan Plaintiffs’ interests
and may even obviate the need for future ARs, it also helps to ensure that duties will only
be imposed when warranted, which is in the public interest.
CONCLUSION
On balance, the factors support granting an injunction. Therefore, it is
ORDERED that Taiwan Plaintiffs’ Motion for Preliminary Injunction is granted; and
it is further
ORDERED that Defendant, United States, together with the delegates, officers,
agents and employees of the International Trade Administration of the United States
Department of Commerce and the U.S. Customs and Border Protection, shall be, and
hereby are, enjoined, pending a final and conclusive court decision in this litigation,
including all appeals and remand proceedings, from issuing instructions to liquidate or
otherwise causing or permitting liquidation of unliquidated entries of subject merchandise
from Taiwan that:
(1) are subject to antidumping duty order on certain steel nails from Taiwan published as Certain Steel Nails From the Republic of Korea, Malaysia, the Sultanate of Oman, Taiwan, and the Socialist Republic of Vietnam, 80 Fed. Reg. 39,994 (Dep’t Commerce July 13, 2015) (antidumping duty orders);
(2) were produced and/or exported by PT Enterprise Inc., Pro-Team Coil Nail Enterprise Inc., Unicatch Industrial Co., Ltd., WTA International Co., Consol. Court No. 15-00213 Page 17
Ltd., Zon Mon Co., Ltd., Hor Liang Industrial Corp., President Industrial Inc., and Liang Chyuan Industrial Co., Ltd.;
(3) were entered, or withdrawn from warehouse, for consumption into the United States on and after May 20, 2015;
(4) remain unliquidated the day upon which this Order is granted; and it is further
ORDERED that the entries covered by this injunction shall be liquidated in
accordance with the final court decision in this action, including all appeals and remand
proceedings, as provided for in section 516A of the Tariff Act of 1930, as amended, 19
U.S.C. § 1516a(e).
/s/ Claire R. Kelly Claire R. Kelly, Judge
Dated:February 7, 2020 New York, New York