Oman Fasteners, LLC v. United States

• Court: Court of Appeals for the Federal Circuit
• Decided: January 7, 2025
• Docket: 23-1661
• Status: Published

Opinion

Case: 23-1661 Document: 65 Page: 1 Filed: 01/07/2025

United States Court of Appeals for the Federal Circuit ______________________

OMAN FASTENERS, LLC, Plaintiff-Appellee

v.

UNITED STATES, Defendant

MID CONTINENT STEEL & WIRE, INC., Defendant-Appellant ______________________

2023-1661 ______________________

Appeal from the United States Court of International Trade in No. 1:22-cv-00348-MMB, Judge M. Miller Baker. ______________________

Decided: January 7, 2025 ______________________

MICHAEL R. HUSTON, Perkins Coie LLP, Phoenix, AZ, argued for plaintiff-appellee. Also represented by ANDREW CARIDAS, MICHAEL PAUL HOUSE, JONATHAN IRVIN TIETZ, Washington, DC; ANDREW DUFRESNE, SOPEN B. SHAH, Madison, WI.

ADAM H. GORDON, The Bristol Group PLLC, Washing- ton, DC, argued for defendant-appellant. Also represented by BENJAMIN JACOB BAY, JENNIFER MICHELE SMITH-VELUZ. ______________________ Case: 23-1661 Document: 65 Page: 2 Filed: 01/07/2025

Before MOORE, Chief Judge, SCHALL and TARANTO, Circuit Judges. TARANTO, Circuit Judge. Based on its 2015 antidumping-duty order covering certain steel nails from the Sultanate of Oman, the U.S. Department of Commerce conducted an administrative re- view under section 751 of the Tariff Act of 1930, 19 U.S.C. § 1675, of merchandise that was covered by the 2015 order and entered into the United States between July 1, 2020, and June 30, 2021 (the 2020–2021 administrative review). Oman Fasteners, LLC, a foreign producer and exporter of steel nails covered by the 2015 order, was the sole manda- tory respondent in the 2020–2021 administrative review. Commerce issued a detailed questionnaire to Oman Fas- teners, and on the day a response was due, counsel for Oman Fasteners submitted the response through Com- merce’s electronic filing system, but the system did not re- port acceptance of the submission (deemed necessary for completion) until 16 minutes after a deadline of 5:00 PM. The next day, as authorized by Commerce rules, counsel for Oman Fasteners made the final redactions for confiden- tial information. Oman Fasteners did not call its tardiness to the atten- tion of Commerce officials. Five weeks later, after certain Commerce personnel noticed the 16-minute delay, Com- merce rejected Oman Fasteners’ response. Commerce pro- ceeded to issue the final results of the review without considering any of the information in the response and in- stead applied an inference adverse to Oman Fasteners, un- der 19 U.S.C. § 1677e(b), to arrive at an antidumping-duty rate for Oman Fasteners of 154.33%. The ruling had the immediate effect of requiring the importer of all new en- tries of Oman Fasteners’ covered nails to make cash depos- its with the government of that amount. Previously, under Case: 23-1661 Document: 65 Page: 3 Filed: 01/07/2025

OMAN FASTENERS, LLC v. US 3

the 2019–2020 administrative review, the duty rate was 1.65% and therefore so was the cash-deposit rate. Oman Fasteners filed an action in the Court of Inter- national Trade (Trade Court) to challenge the final results, and it promptly sought a preliminary injunction against imposition of the 154.33% duty rate. Domestic steel-nail producer Mid Continent Steel & Wire, Inc. (Mid Conti- nent)—which had filed the petition that led to the 2015 an- tidumping-duty order and which had participated in the 2020–2021 administrative review—intervened as a defend- ant. After consolidating the preliminary-injunction pro- ceeding with a trial on the merits, the Trade Court held that Commerce abused its discretion and remanded to Commerce for recalculation consistent with its opinion—a nonfinal decision not subject to appeal to this court. But it also issued an injunction that barred Commerce from en- forcing the final results and from collecting cash deposits of 154.33% and limited the cash deposits to the pre-existing 1.65% rate. Oman Fasteners, LLC v. United States, No. 22- 00348, Slip Op. 23-17, 2023 WL 2233642 (Ct. Int’l Trade Feb. 15, 2023) (Trade Court Decision). Pursuant to 28 U.S.C. §§ 1292(c) and 1295(a)(5), Mid Continent filed an interlocutory appeal from the injunctive relief granted to Oman Fasteners. Oman Fasteners, in re- sponse, has defended the injunction, while also challenging Mid Continent’s standing and urging dismissal for moot- ness in light of the intervening Commerce determination of a 0.00% rate for Oman Fasteners in the succeeding (2021– 2022) administrative review (which set the going-forward cash-deposit rate). We now conclude that Mid Continent has standing and that this appeal is not moot, but we reject Mid Continent’s challenges and therefore affirm the in- junction on appeal. Case: 23-1661 Document: 65 Page: 4 Filed: 01/07/2025

I A Under the general legal framework relevant here, when Commerce finds that “foreign merchandise is . . . sold in the United States at less than its fair value” and the United States International Trade Commission determines that a domestic industry is, or is threatened to be, materi- ally injured, Commerce must impose an antidumping duty “equal to the amount by which the normal value exceeds the export price (or the constructed export price) for the [foreign] merchandise.” 19 U.S.C. § 1673; see also id. §§ 1677(7) (defining “material injury”), 1677(34) (defining “dumped”), 1677(35)(A) (defining “dumping margin”), 1677a (defining “export price” and “constructed export price”), 1677b (explaining the process for determining the normal value). Once such an order is in place, Commerce must determine what duties are owed for particular entries of goods subject to the order (subject merchandise). Under our laws’ “‘retrospective’ assessment system,” 19 C.F.R. § 351.212, Commerce does not finally determine the amount of antidumping duty owed for entries at the time of entry. Such final determinations occur later, and even- tually are put into effect by U.S. Customs and Border Pro- tection (Customs)—i.e., the entries are “liquidated.” 19 C.F.R. §§ 159.1, 351.212(a), 351.213(a). The usual process for finally determining the duty for (already-made) entries of subject merchandise is an admin- istrative review, which is conducted on an up-to-annual ba- sis, at least if requested by an “interested party,” such as a domestic producer like Mid Continent. 19 U.S.C. §§ 1675(a)(1), 1677(9) (defining “interested party”); 19 C.F.R. § 351.213(b); see 19 C.F.R. §§ 351.212(a), 351.213(a). Through such an administrative review (often called an “annual review”), Commerce is to calculate the proper an- tidumping duty for the entries made during the discrete review period (generally twelve months) in which the Case: 23-1661 Document: 65 Page: 5 Filed: 01/07/2025

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antidumping duty was in effect. 19 U.S.C. § 1675(a)(2)(B)(i), (iv); 19 C.F.R. § 351.213(e). Because facts that are key to the calculation of the dumping margin (e.g., sales prices, production costs) may change over time, periodic assessments through administrative reviews help Commerce fulfill its broad obligation to calculate accurate dumping margins. See, e.g., Dongtai Peak Honey Industry Co., Ltd. v. United States, 777 F.3d 1343, 1351 (Fed. Cir. 2015); Rhone Poulenc, Inc. v. United States, 899 F.2d 1185, 1191 (Fed. Cir. 1990). The temporal difference between entry and final deter- minations of duty for the entered merchandise gives rise to a requirement of cash deposits upon entry. When an anti- dumping-duty order is in effect, Commerce must instruct Customs to collect cash deposits from the importer of rec- ord on covered goods entered, the money to be held by the government until the final determination of the duty actu- ally owed. 19 U.S.C. §§ 1673d(c)(1)(B)(ii), 1673e(a), 1673g; 19 C.F.R. § 351.211(a), (b)(1)–(2); see Trade Court Decision, at *1 n.2 (“This requirement is intended as security for the eventual payment of antidumping duties.”). The cash-de- posit rate for entries generally is the applicable antidump- ing-duty rate most recently determined—in the original antidumping-duty order or, later, in the most recently con- cluded administrative review. See 19 U.S.C. §§ 1673d(c)(1)(B)(ii), 1675(a)(2)(C); 19 C.F.R. § 351.212(a). Once the duty for a particular entry is finally determined, the importer is to pay to the government any excess of that duty over the cash deposit made upon entry and the gov- ernment is to pay a refund if the cash deposit exceeded that duty. 19 U.S.C. §§ 1505(b), 1673f, 1677g (providing for in- terest on overpayments or underpayments); see 19 C.F.R. § 351.212. Commerce, lacking subpoena power, generally must rely on the parties for information crucial to its determina- tion. The “burden of creating an adequate record lies with interested parties and not with Commerce.” BMW of N Case: 23-1661 Document: 65 Page: 6 Filed: 01/07/2025

America LLC v. United States, 926 F.3d 1291, 1295 (Fed. Cir. 2019) (citations omitted). During an administrative review like the one here, Commerce may request infor- mation through “questionnaires requesting factual infor- mation” to determine the antidumping duty. 19 U.S.C. § 1677b(b)(2)(A)(ii); 19 C.F.R. § 351.221(b)(2). Under 19 U.S.C. § 1677e(a), “[i]f a respondent fails to provide re- quested information by the deadlines for submission,” Commerce must “fill in the gaps” using information other- wise available to it. BMW, 926 F.3d at 1295 (citations omit- ted). “Separately,” under 19 U.S.C. § 1677e(b), “if Commerce determines that an interested party has ‘failed to cooperate by not acting to the best of its ability to comply’ with a request for information, it may use an adverse in- ference in selecting a rate from” the information otherwise available to it. Id. (quoting § 1677e(b)). B Commerce initiated an antidumping investigation of certain steel-nail products imported from the Sultanate of Oman, and certain other places, based on a petition filed by Mid Continent, and Commerce subsequently deter- mined that Oman Fasteners was dumping certain steel nails. Certain Steel Nails From the Sultanate of Oman: Fi- nal Determination of Sales at Less Than Fair Value, 80 Fed. Reg. 28972 (May 20, 2015). Commerce issued an an- tidumping-duty order on July 13, 2015, imposing a 9.10% duty on Oman Fasteners. Certain Steel Nails From the Re- public of Korea, Malaysia, the Sultanate of Oman, Taiwan, and the Socialist Republic of Vietnam: Antidumping Duty Orders, 80 Fed. Reg. 39994, 39996 (July 13, 2015). 1 Each

1 After years of litigation, Commerce’s initial anti- dumping-duty rate has been reduced to 4.22%. See Mid Continent Steel & Wire, Inc. v. United States, 941 F.3d 530 Case: 23-1661 Document: 65 Page: 7 Filed: 01/07/2025

OMAN FASTENERS, LLC v. US 7

year since, Commerce has conducted an administrative re- view, and the Commerce-determined rates for Oman Fas- teners preceding the present review were (in chronological order) 0.63%, 0.00%, 0.00%, 0.00%, and 1.65%. Trade Court Decision, at *8 & n.12 (citing decisions for 2014– 2016, 2016–2017, 2017–2018, 2018–2019, and 2019– 2020). 2 On September 7, 2021, Commerce initiated an admin- istrative review for the period of review spanning July 1, 2020, to June 30, 2021. Initiation of Antidumping and Countervailing Duty Administrative Reviews, 86 Fed. Reg. 50034, 50037 (Sept. 7, 2021). Oman Fasteners responded to Commerce’s supplemental questionnaire on December 10, 2021. J.A. 3553–54. On January 24, 2022, in accord- ance with 19 U.S.C. § 1677m(d), Commerce informed Oman Fasteners that the submission was deficient and gave Oman Fasteners ten days to respond to “37 separately numbered questions, plus additional sub-questions, for a total of 48 separate requests for information, clarifications and/or data covering a wide variety of subjects” pertaining to Oman Fasteners’ U.S. sales. J.A. 101, 141, 2484–91, 2783–84. At Oman Fasteners’ request, Commerce ex- tended the deadline to February 14, 2022, which by

(Fed. Cir. 2019); Mid Continent Steel & Wire, Inc. v. United States, 586 F. Supp. 3d 1349, 1353 (Ct. Int’l Trade 2022). Today, we reject Oman Fasteners’ effort to reduce it even further, and we affirm the 4.22% rate. Mid Continent Steel & Wire, Inc. v. Oman Fasteners, LLC, No. 23-1039 (Fed. Cir. Jan. 7, 2025). 2 In the administrative review for 2021–2022, which is the period following the review period at issue here (2020–2021), Commerce adopted a 0.00% rate for Oman Fasteners. Certain Steel Nails From the Sultanate of Oman: Final Results of Antidumping Duty Administrative Review; 2021–2022, 88 Fed. Reg. 85878 (Dec. 11, 2023). Case: 23-1661 Document: 65 Page: 8 Filed: 01/07/2025

regulation meant by 5:00 PM Eastern Time that day, 19 C.F.R. § 351.303(b)(1), but Commerce warned that it did not “anticipate providing any additional extension.” J.A. 118–19, 2493–94, 2498–99, 2501–03, 2505–06. On February 14, counsel for Oman Fasteners, in pre- paring to submit its response electronically, pre-screened the files for submission-impairing errors by using the “check file” feature on Commerce’s electronic filing system ACCESS. J.A. 2513. The “check file” identified no prob- lem. Id. Although prior submissions by counsel had taken between 9 and 32 minutes, J.A. 144, counsel began upload- ing the files about 50 minutes before the 5:00 PM deadline. J.A. 2514. Despite the clean “check file” results, counsel received a notification that the first file was rejected 8 minutes after submitting it, and counsel received a similar notification 9 minutes after resubmitting the file. J.A. 2514, 2527–30. Counsel for Oman Fasteners reformatted and resubmitted the response narrative and a supporting PDF (Portable Document Format) document, receiving electronic confirmation of receipt by 4:46 PM. J.A. 2514– 15, 2529–30. Counsel then began uploading additional files, which were in a different computer format and con- tained mostly (but not entirely) the same information al- ready submitted successfully by 4:46 PM—but the last of those files were not accepted (or, therefore, successfully submitted) until 5:16 PM. J.A. 2514–16, 2531–36, 2655– 65, 2670, 2893, 2895. 3 Counsel for Oman Fasteners did not

3 Regarding the files in a different format from that of the already-submitted files—i.e., what Oman Fasteners characterizes as certain “back-up files”—Oman Fasteners later argued that the submission of such files was volun- tary, not required. J.A. 145–46. Commerce rejected the argument, stating that those files constituted the required “copy of the computer program/spreadsheet/worksheet . . . Case: 23-1661 Document: 65 Page: 9 Filed: 01/07/2025

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send Commerce any “notification . . . of filing difficulties or an additional request for extension of the deadline.” J.A. 120, 2669. The files submitted on February 14th had business pro- prietary information and were marked as such, with the marking properly indicating that the markings could be corrected within one day. J.A. 2651–65; 19 C.F.R. § 351.303(d)(2)(v) (authorizing the respondent to bracket such information and mark the document with the warning that “Bracketing of Business Proprietary Information Is Not Final for One Business Day After Date of Filing” at the top of each page containing such information). Pursuant to Commerce’s “one-day lag rule,” 19 C.F.R. §§ 351.303(c), 351.303(d)(2)(v)–(vi), 351.304(c), counsel for Oman Fasten- ers submitted the final business confidential submission with confidential information bracketed and a public ver- sion with confidential information redacted by 5:00 PM the next business day. J.A. 2516, 2558–66, 2892. Those ver- sions differed from the February 14th submissions only in the information bracketed or redacted and in the removal of the February 14th version’s warning that the bracketing was not final. 19 C.F.R. § 351.303(c)(2)(ii). Commerce notified counsel for Oman Fasteners on March 22, 2022, that it was rejecting the tardy submission and would not consider it part of the record for the proceed- ing. J.A. 120–21 (citing 19 C.F.R. §§ 351.303(b)(1), 351.302(d)(i)); see also 19 U.S.C. § 1677m(d). Counsel for Oman Fasteners requested that Commerce reconsider the rejection and grant an extension. J.A. 138–51, 240–55.

used to calculate the prices, expenses, and adjustments.” J.A. 265; see Issues and Decision Memorandum for the Fi- nal Results of the 2020–2021 Administrative Review of An- tidumping Duty Order on Certain Steel Nails from the Sultanate of Oman at 20 (Dep’t of Commerce Dec. 16, 2022). Case: 23-1661 Document: 65 Page: 10 Filed: 01/07/2025

Commerce rejected the request, explaining that (1) Oman Fasteners had not requested an extension before the dead- line or demonstrated extraordinary circumstances justify- ing an extension, (2) the late submissions were important for “calculat[ing] an accurate [dumping] margin,” and (3) Commerce “does not bear the burden of demonstrating it or an interested party was impeded or prejudiced by a late submission to justify its rejection,” and such a requirement would impede its “ability to manage its proceedings and ad- minister its statutory mandate.” J.A. 263–66. In July 2022, Commerce issued its preliminary results for the administrative review and found a dumping margin of 154.33% for the 2020–2021 Oman Fasteners entries. Certain Steel Nails From the Sultanate of Oman: Prelimi- nary Results of Antidumping Duty Administrative Review and Preliminary Determination of No Shipments; 2020– 2021, 87 Fed. Reg. 43240, 43241 (July 20, 2022) (Prelim. Results). In its accompanying decision memorandum, Commerce reasoned: “Oman Fasteners failed to provide necessary U.S. sales information by the deadline for sub- mission of that information and failed to demonstrate that any extraordinary circumstances caused the untimely filed extensions request and submission”; “necessary infor- mation [was] not available on the record”; and it should turn to information otherwise in the record under 19 U.S.C. § 1677e(a). Decision Memorandum for the Preliminary Re- sults of the Antidumping Duty Administrative Review of Certain Steel Nails from the Sultanate of Oman; 2020-2021 at 6–10 (Dep’t of Commerce July 1, 2022) (Prelim. Results Dec. Mem.). Commerce then concluded that because Oman Fasteners “failed to cooperate to the best of its ability,” it would use an inference adverse to the interests of Oman Fasteners, under 19 U.S.C. § 1677e(b)(1), in selecting from among the facts otherwise available in the record. Prelim. Results, 87 Fed. Reg. at 43241; see Prelim. Results Dec. Mem., at 10–11. Specifically, it selected “the highest dump- ing margin alleged in [Mid Continent’s 2014] Petition”— Case: 23-1661 Document: 65 Page: 11 Filed: 01/07/2025

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154.33%. Prelim. Results Dec. Mem., at 11–12; see Prelim. Results, 87 Fed. Reg. at 43241. Oman Fasteners asked Commerce to extend the dead- line for its issuance of the administrative review’s final re- sults and to postpone, pending judicial review, its issuance to Customs of the cash-deposit instructions based on this new rate (if it was adopted in the final results) because, Oman Fasteners alleged, failure to do so would result in “irreparable harm” to Oman Fasteners. J.A. 2748–64. Commerce refused those requests. J.A. 2878–79. On December 22, 2022, Commerce issued its final re- sults, adopting the 154.33% rate. Certain Steel Nails From the Sultanate of Oman: Final Results of Antidumping Duty Administrative Review; 2020–2021, 87 Fed. Reg. 78639 (Dec. 22, 2022) (Final Results). In its accompanying mem- orandum, Commerce stated that “Oman Fasteners did not provide a convincing explanation for why its submission was late” and “did not notify Commerce of its error in not filing the complete submission, or attempt to remedy it.” Issues and Decision Memorandum for the Final Results of the 2020-2021 Administrative Review of the Antidumping Duty Order on Certain Steel Nails from the Sultanate of Oman at 19–20 (Dep’t of Commerce Dec. 16, 2022) (Final Results Dec. Mem.). Commerce reasoned that the statute authorizes it to adopt any dumping margin “including the highest such rate or margin” and that, on the record here, although “calculated margins” ranged “from 0.63 percent to 9.10 percent,” it was “appropriate to assign Oman Fas- teners the Petition rate of 154.33 percent [from the petition initiating the underlying antidumping investigation] based on [Oman Fasteners’] failure to cooperate, because it is a rate on the record which would confer an adverse inference and induce cooperation.” Id. (emphasis added). Commerce added that the statute “does not require that Commerce demonstrate that the . . . rate used reflects an alleged com- mercial reality of an interested party,” so it was “not Case: 23-1661 Document: 65 Page: 12 Filed: 01/07/2025

required to consider whether such a rate reasonably re- flects the commercial reality of Oman Fasteners.” Id. at 19. C The next day, Oman Fasteners, an “interested party” under 19 U.S.C. §§ 1516a(f)(3), 1677(9), brought suit in the Trade Court under 19 U.S.C. § 1516a(a)(2)(A)(i)(I) and (B)(iii) and 28 U.S.C. § 1581(c), to challenge Commerce’s decision. Arguing that Commerce erred in rejecting the re- sponse to the supplemental questionnaire, applying an ad- verse inference to “select the wholly discredited and punitive 154.33% petition rate,” and refusing to postpone implementation of the cash-deposit rate, Oman Fasteners sought a remand to Commerce for a redetermination. J.A. 1673–91. A few days later, Oman Fasteners moved for a preliminary injunction. J.A. 2360–441. The Trade Court ordered that the government, in its opposition brief, should address whether preliminary-injunction proceedings should be consolidated under Court of International Trade Rule 65(a)(2) with a trial on the merits—more specifically, with consideration of judgment on the agency record under Rule 56.2. J.A. 48, ECF No. 26. The Trade Court also granted Mid Continent’s motion to intervene as a defend- ant as a matter of right under 28 U.S.C. § 2631(j)(1)(B). J.A. 49, ECF No. 37. After a confidential hearing, which the Trade Court in- structed the parties to treat as a trial on the merits, J.A. 52, ECF No. 78; J.A. 3655–56, 3671, the Trade Court issued a judgment on the agency record on February 15, 2023, Trade Court Decision, at *13. Stating that “this is not a close case,” id. at *4, the Trade Court concluded that Com- merce abused its discretion in denying the retroactive ex- tension and applying an adverse inference to select the “draconian sanction” of the 154.33% antidumping duty, id. at *7–8. “Because Commerce’s challenged actions here are the very definition of abuse of discretion,” the Trade Court Case: 23-1661 Document: 65 Page: 13 Filed: 01/07/2025

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remanded the case to Commerce for further proceedings consistent with the court’s opinion. Id. at *2. Moreover, because Oman Fasteners had met “the requirements for obtaining injunctive relief, including showing irreparable injury, the [Trade C]ourt enjoin[ed] the government to col- lect cash deposits at the previous rate of 1.65 percent pend- ing further order of the [Trade C]ourt.” Id. The United States declined to appeal from the injunc- tion, but Mid Continent timely filed an interlocutory ap- peal to this court on March 23, 2023. 4 In January 2024,

4 After the present appeal was filed, Commerce, in the remand ordered by the Trade Court, recalculated the dumping margin for the 2020–2021 administrative review using the previously disregarded information, and it ar- rived at a 0.00% rate, which the Trade Court sustained on January 5, 2024. Oman Fasteners, LLC v. United States, No. 22-00348, Slip Op. 24-1, 2024 WL 163368, at *1 (Ct. Int’l Trade Jan. 5, 2024) (affirming Final Results of Rede- termination Pursuant to Court Remand, Case No. A-523- 808, Slip Op. 23-17 (Dep’t of Commerce July 17, 2023)). That ruling is still in litigation, because Mid Continent (not the government) appealed the Trade Court’s decision. Oman Fasteners v. United States, No. 24-1350 (Fed. Cir. appeal docketed Jan. 12, 2024), ECF No. 1. When Mid Con- tinent moved to stay that appeal pending decision in the present case, Mot. to Stay Further Proceedings in this Ap- peal or, in the Alternative, to Consolidate with Related Ap- peal, Oman Fasteners, No. 24-1350, ECF No. 11 (Jan. 29, 2024), the government informed the court that it did not “intend to either challenge or defend the trial court’s deter- mination that Commerce abused its discretion by applying an adverse inference to Oman Fasteners,” which it “un- derst[oo]d . . . to be the sole issue in dispute in th[e] appeal” of the Trade Court’s 2024 results-sustaining decision, Case: 23-1661 Document: 65 Page: 14 Filed: 01/07/2025

Oman Fasteners filed a motion to dismiss the appeal as moot. Appellee’s Mot. to Dismiss Appeal as Moot, ECF No. 48 (Oman’s Motion to Dismiss). We have jurisdiction under 28 U.S.C. §§ 1292(c)(1) and 1295(a)(5). II

Before turning to the merits of Mid Continent’s appeal, we first address Oman Fasteners’ arguments that Mid Continent lacked standing to bring this interlocutory ap- peal, Oman Fasteners Response Br. at 33–38, and that this appeal is now moot, Oman’s Motion to Dismiss at 15–22. “Article III of the Constitution grants the Judicial Branch authority to adjudicate ‘Cases’ and ‘Controver- sies.’” Already, LLC v. Nike, Inc., 568 U.S. 85, 90 (2013). To demonstrate Article III standing to pursue its appeal, a party invoking the Article III judicial power “must have al- ready suffered or be imminently threatened with a con- crete, particularized injury, that is fairly traceable to the challenged conduct, and that is likely to be redressed by a favorable court ruling.” Shenyang Yuanda Aluminum In- dustry Engineering Co., Ltd. v. United States, 918 F.3d 1355, 1364 (Fed. Cir. 2019); see Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016); Already, 568 U.S. at 90; Lujan v. De- fenders of Wildlife, 504 U.S. 555, 560–561 (1992). In apply- ing those standards, we generally assume that Mid Continent is right about its claim on the merits. See Rocky Mountain Helium, LLC v. United States, 841 F.3d 1320, 1325 (Fed. Cir. 2016). The term “standing” also covers non-

Def.’s Resp. to Mot. to Stay, Oman Fasteners, No. 24-1350, ECF No. 14 (Feb. 8, 2024). See also Docketing Statement, Oman Fasteners, No. 24-1350, ECF No. 15 (Feb. 12, 2024) (government’s docketing statement, checking box labeled “None/Not Applicable” for “Relief sought on appeal”). We granted the requested stay. Order Granting Mot. to Stay, Oman Fasteners, No. 24-1350, ECF No. 18 (Mar. 25, 2024). Case: 23-1661 Document: 65 Page: 15 Filed: 01/07/2025

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constitutional “prudential” inquiries—including, as rele- vant here, an inquiry into whether a plaintiff’s “interests fall within the zone of interests protected by the law in- voked,” which, though called “statutory standing,” is an in- quiry into whether the plaintiff has a statutory right of action. Lexmark International, Inc. v. Static Control Com- ponents, Inc., 572 U.S. 118, 125–128 (2014) (internal quo- tations marks and citation omitted); see, e.g., United States v. Windsor, 570 U.S. 744, 756–58 (2013); Bank of America Corp. v. City of Miami, Fla., 581 U.S. 189, 196–97 (2017). After a case (including an appeal) has been initiated, it “becomes moot—and therefore no longer a ‘Case’ or ‘Con- troversy’ for purposes of Article III—‘when the issues pre- sented are no longer “live” or the parties lack a legally cognizable interest in the outcome.’’’ Already, 568 U.S. at 91 (citing Murphy v. Hunt, 455 U.S. 478, 481 (1982)); see id. at 90–91 (explaining that “an ‘actual controversy’ must exist not only ‘at the time the complaint is filed,’ but through ‘all stages’ of the litigation”) (quoting Alvarez v. Smith, 558 U.S. 87, 92 (2009)). “[A] case becomes moot only when it is impossible for a court to grant any effectual relief whatever to the prevailing party.” Chafin v. Chafin, 568 U.S. 165, 172 (2013) (internal quotation marks omitted). The mootness inquiry goes to “Article III jurisdiction[,] . . . not to the merits of the case.” Arizonans for Official Eng- lish v. Arizona, 520 U.S. 43, 66–67 (1997); see also Chafin, 568 U.S. at 174 (explaining that it is improper to “confuse[] mootness with the merits”). A Oman Fasteners argues that “Mid Continent lacks Ar- ticle III standing to challenge this injunction against the government.” Oman Fasteners Response Br. at 33–38. We assume for this inquiry that (as Mid Continent argues on the merits) the Trade Court committed reversible error in displacing the 154.33% duty on entries during the 2020―2021 period and enjoining use of that rate to set the Case: 23-1661 Document: 65 Page: 16 Filed: 01/07/2025

cash deposit for entries starting from Commerce’s Decem- ber 22, 2022 ruling. We conclude that Mid Continent has Article III standing as well as “statutory” standing. The challenged dramatic reduction in the government- imposed burden on Oman Fasteners effected by the Trade Court’s injunction caused competitive economic injuries to Mid Continent, the domestic steel-nail manufacturer that has taken the lead, in its own name, in requesting the an- tidumping-duty investigation initially and in opposing Oman Fasteners, year after year, in litigation and admin- istrative reviews. See Food and Drug Administration v. Al- liance for Hippocratic Medicine, 602 U.S. 367, 383–84 (2024) (recognizing competitive injury for standing); cf. McKinney v. U.S. Department of Treasury, 799 F.2d 1544, 1554–55 (Fed. Cir. 1986) (explaining that “allegations of competitive injury” can confer standing but not in circum- stances, unlike the present case, where the alleged injury is not tied to specific companies). Mid Continent asserts that “ordering Commerce to use a cash deposit rate of 1.65% rather than 154.33%” led to significant “real-world consequences” such as “lost sales and lost revenue by virtue of improperly facilitated import competition.” Mid Conti- nent Opening Br. at 75. That commonsensical assertion is materially undisputed. According to Oman Fasteners it- self, when Commerce imposed a 154.33% cash-deposit rate in late December 2022, Oman Fasteners “had no choice but to cease all U.S. imports of the subject merchandise,” as “[i]t could neither raise prices to offset the rate nor pay the sky-high deposits for more than a couple months before de- pleting its cash reserves.” Oman Fasteners Response Br. at 15; see also Trade Court Decision, at *10, *12–13. And it is undisputed that, when the Trade Court’s February 2023 injunction reduced the cash-deposit rate to 1.65%, Oman Fasteners resumed its entry of substantial volumes of its nails, causing competitive harm to Mid Continent. See, e.g., Oral Arg. at 4:45–6:00. Mid Continent has thus Case: 23-1661 Document: 65 Page: 17 Filed: 01/07/2025

OMAN FASTENERS, LLC v. US 17

adequately established harm to its sales traceable to the challenged Trade Court decision in February 2023. We also find the redressability requirement of standing to be met. In its merits briefs, Mid Continent argues that, if we reverse the injunction, the proper remedy is for this court to “order retroactive imposition of the 154.33% cash deposit rate on imports of steel nails by or from [Oman Fas- teners] effective on and after December 22, 2022,” the date of Commerce’s Final Results. Mid Continent Opening Br. at 76; id. at 19; see also Mid Continent Reply Br. at 12–13; 87 Fed. Reg. at 78639. A variant of that position would be a reversal of the injunction and a remand for the Trade Court to decide whether to order a retroactive collection of cash deposits. Here, it suffices for us to make a very lim- ited point—that, on the arguments presented by the par- ties, we have no sufficient basis for declaring such retroactive collection to be unavailable, generally or in this case, as a matter of law. That limited conclusion suffices for redressability here because the results for the 2020―2021 administrative review have not achieved final- ity in court, see supra n.4, and we cannot, in the present appeal, rule out the possibility of a rate for that review pe- riod above the 1.65% collected since the February 2023 in- junction was issued. On those bases, we conclude that a reversal of the injunction could lead to redress for Mid Con- tinent of the competitive harm at issue through retroactive collection of cash deposits. See Oral Arg. at 22:50–24:10; 25:02–25:52. In addition, we conclude that Mid Continent has met “prudential” or “statutory” standing requirements. See, e.g., Lexmark, 572 U.S. at 125–26. Mid Continent’s inter- locutory appeal of the injunction seeks protection of an in- terest that is within the “zone of interests” protected by the antidumping-duty provisions of the Tariff Act of 1930 (as amended). See id. at 127 (relying on “zone of interests” for- mulation); Canadian Lumber Trade Alliance v. United States, 517 F.3d 1319, 1335 (Fed. Cir. 2008) (same). Case: 23-1661 Document: 65 Page: 18 Filed: 01/07/2025

“[I]mposed to protect [domestic] industries against unfair trade practices,” Canadian Wheat Board v. United States, 641 F.3d 1344, 1351 (Fed. Cir. 2011), an antidumping duty is the result of proceedings that, Congress has provided, can be initiated by a petition filed by a domestic-industry manufacturer “to address harm to domestic manufacturing from foreign goods sold at an unfair price,” United States v. Eurodif S.A., 555 U.S. 305, 310–11 (2009); 19 U.S.C. §§ 1673a(b)(1), 1677(9)(C). Mid Continent, a domestic manufacturer of steel nails, exercised its right to that pro- cess by filing a petition for, and then participating in, an antidumping investigation, which resulted in the 2015 an- tidumping order that covers Oman Fasteners. Mid Continent then had an undisputed right to inter- vene in Oman Fasteners’ court challenge to the final re- sults of the administrative review because it would be “adversely affected or aggrieved by [the Trade Court’s] de- cision,” 28 U.S.C. § 2631(j)(1), as it is a manufacturer of a “domestic like product,” 19 U.S.C. § 1677(9)(C), and thus an “interested party,” 19 U.S.C. § 1516a(f)(3). Oman Fas- teners does not dispute that Mid Continent may appeal the final judgment of the Trade Court sustaining Commerce’s 2023 redetermination on remand of the antidumping duty, see supra n.4; in fact, Oman Fasteners argues that Mid Continent could and should raise in such an appeal some of the arguments Mid Continent makes here. Oman Fas- teners Response Br. at 31, 33, 36–37. Accordingly, the stat- ute plainly authorizes a member of the domestic industry like Mid Continent to challenge antidumping-duty deci- sions and Trade Court rulings about such decisions (if it becomes a party) as mistakenly too lax. For zone-of-inter- ests purposes, we see no reason it should make a difference that the particular remedial device used by the Trade Court was an injunction. That injunction lowered the an- tidumping-duty and cash-deposit rate, producing recom- mencement of imports by Oman Fasteners, with an evident impact on the interest of Mid Continent that is legally Case: 23-1661 Document: 65 Page: 19 Filed: 01/07/2025

OMAN FASTENERS, LLC v. US 19

protected by a statutory right to seek redress before the agency and in court. We therefore reject Oman Fasteners’ challenge to Mid Continent’s standing. B We also reject Oman Fasteners’ argument that this ap- peal became moot after it was filed, an argument that rests on the assertion that, because of an intervening develop- ment, “[t]he relief that Mid Continent seeks through this [interlocutory] appeal—to reverse or vacate the injunc- tion—would have no effect on Oman Fasteners’ cash de- posit rate.” Oman’s Motion to Dismiss at 3, 22. Oman Fasteners points to the issuance by Commerce on Decem- ber 11, 2023, of its decision setting the final calculated an- tidumping duty (at 0.00%) for the 2021–2022 administrative review, covering entries from July 1, 2021, through June 30, 2022, the review period following the pe- riod at issue here. See supra n.2. By law, Oman Fasteners says, that rate governs the cash deposits required for en- tries after the December 2023 decision, see supra p. 5, and therefore a decision by this court in the present case to set aside the injunction before us, as Mid Continent requests, could not result in reinstatement of the 154.33% cash de- posit. Oman’s Motion to Dismiss at 12–13. We do not agree. Mid Continent retains a “concrete in- terest, however small,” Chafin, 568 U.S. at 172, in our re- versal or vacatur of the Trade Court’s injunction because Mid Continent could benefit from such a result, depending on what occurs in other proceedings not now before us. See Gilda Industries, Inc. v. United States, 446 F.3d 1271, 1279 (Fed. Cir. 2006) (explaining that standing can exist when overturning the challenged action would provide an other- wise-foreclosed opportunity to secure relief, depending on decisions not yet made). Specifically, for imports subject to the 2020―2021 administrative review itself, still-active proceedings might produce an ultimate duty assessed at Case: 23-1661 Document: 65 Page: 20 Filed: 01/07/2025

liquidation higher than the 0.00% rate that Commerce de- termined on remand from the Trade Court’s ruling now be- fore us. See supra n.4 (appeal of Trade Court’s affirmance of Commerce’s remand rate of 0.00% stayed in this court). And for imports by Oman Fasteners made while the injunc- tion was in effect but covered by other administrative re- views, other proceedings might produce a cash-deposit rate and actual duty higher than 1.65%. 5 We cannot determine here whether Mid Continent will succeed in its separate appeal of the remand redetermina- tion in the 2020–2021 administrative review or what rates will ultimately be found proper for imports addressed in

5 The 2022–2023 administrative review (for entries from July 1, 2022, through June 30, 2023) will establish the actual duty for entries made between December 22, 2022, through June 30, 2023, which would have been subject to the 154.33% cash-deposit rate in the absence of the injunc- tion before us. Commerce issued preliminary results for the 2022–2023 administrative review on August 12, 2024, preliminarily adopting an actual antidumping duty of 0.00%. Certain Steel Nails From the Sultanate of Oman: Preliminary Results and Rescission, in Part, of Antidump- ing Duty Administrative Review; 2022–2023, 89 Fed. Reg. 65593, 65594 (Aug. 12, 2024). Commerce adopted the same 0.00% rate in the final results. Certain Steel Nails From the Sultanate of Oman: Final Results of Antidumping Duty Administrative Review; 2022-2023, 89 Fed. Reg. 106428 (Dec. 30, 2024). The recently initiated 2023–2024 admin- istrative review (covering entries from July 1, 2023, through June 30, 2024), see Initiation of Antidumping and Countervailing Duty Administrative Reviews, 89 Fed. Reg. 66035, 66038–39 (Aug. 14, 2024), will establish the actual duty for other entries—made from July 1, 2023, through December 11, 2023—that also would have been subject to the 154.33% cash deposit in the absence of the injunction. Case: 23-1661 Document: 65 Page: 21 Filed: 01/07/2025

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other administrative reviews but covered by the cash-de- posit rate set by Commerce in December 2022 and then the drastically reduced rate set by the Trade Court’s injunction in February 2023. Above, we concluded that, on the argu- ments presented to us, we cannot rule out the possibility of a retroactive collection of cash deposits if Mid Continent wins on the merits here (as we must assume for the moot- ness analysis, Chafin, 568 U.S. at 174). Reflecting that conclusion, we determine here only that, if Mid Continent wins here, it might—to its benefit—be put into a position it would have been in had the injunction never been issued through a requirement of retroactive cash deposits cover- ing entries not yet subject to a final, no longer appealable, determination of the actual duty rate. See, e.g., Oral Arg. at 9:46–12:24, 18:38–21:20. That is enough for us to reject Oman Fasteners’ assertion of mootness. See Chafin, 568 U.S. at 177 (explaining that “even the availability of a ‘par- tial remedy’ is ‘sufficient to prevent [a] case from being moot’” where the relief available is “not [] ‘fully satisfac- tory’” (quoting Calderon v. Moore, 518 U.S. 149, 150 (1996))); Campbell-Ewald Co. v. Gomez, 577 U.S. 153, 160– 61 (2016). III On the merits of Mid Continent’s appeal, we affirm the Trade Court’s injunction. Mid Continent argues that the Trade Court abused its discretion in enjoining Commerce from implementing the 154.33% antidumping-duty and cash-deposit rate and also challenges the Trade Court’s consolidation of the hearing on the preliminary injunction with a trial on the merits (which led to the issuance of the injunction). We reject both contentions. We first address the merits of the Trade Court’s granting of its injunction and then its procedure in doing so. A plaintiff seeking a permanent injunction must demonstrate “(1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary Case: 23-1661 Document: 65 Page: 22 Filed: 01/07/2025

damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction.” eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006). “The standard for a preliminary injunction is essentially the same as for a permanent in- junction with the exception that the plaintiff [for a prelim- inary injunction] must show a likelihood of success on the merits rather than actual success.” Amoco Production Co. v. Village of Gambell, AK, 480 U.S. 531, 546 n.12 (1987); see, e.g., Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 20–21 (2008). We review the Trade Court’s grant of an injunction for abuse of discretion. eBay, 547 U.S. at 391; Wind Tower Trade Coalition v. United States, 741 F.3d 89, 95 (Fed. Cir. 2014); Apple Inc. v. Samsung Electronics Co., Ltd., 735 F.3d 1352, 1359 (Fed. Cir. 2013). An abuse of discretion may be established by showing that the Trade Court “made a clear error of judgment in weigh- ing the relevant factors or exercised its discretion based on an error of law or clearly erroneous fact findings.” Wind Tower Trade Coalition, 741 F.3d at 95 (citation omitted). To the extent the Trade Court’s decision to grant or deny an injunction ‘‘hinges on questions of law,’’ this court re- views those determinations without deference. Id. “We review Commerce’s decision using the same stand- ard of review applied by the Trade Court, while carefully considering that court’s analysis. We decide legal issues de novo and uphold factual determinations if they are sup- ported by substantial evidence.” Mid Continent Steel & Wire, Inc. v. United States, 941 F.3d 530, 537 (Fed. Cir. 2019) (citations omitted); 19 U.S.C. § 1516a(b)(1)(B)(i); 28 U.S.C. § 2640(b). We have applied the review standard of the Administrative Procedure Act (APA), 5 U.S.C. § 706, to Commerce decisions like this one covered by 19 U.S.C. § 1516a(b)(1)(B)(i). SolarWorld Americas, Inc. v. United States, 962 F.3d 1351, 1359 n.2 (Fed. Cir. 2020). The APA Case: 23-1661 Document: 65 Page: 23 Filed: 01/07/2025

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provides for setting aside an agency decision if, for exam- ple, it is “an abuse of discretion,” 5 U.S.C. § 706(2)(A), and we have reviewed decisions like the one here for an abuse of discretion, see Goodluck India Ltd. v. United States, 11 F.4th 1335, 1342–44 (Fed. Cir. 2021) (citing cases). When discretion is granted by Congress, it “should be exercised in light of the considerations underlying the grant of that discretion.” Halo Electronics, Inc. v. Pulse Electronics, Inc., 579 U.S. 93, 103 (2016) (internal quotation marks and ci- tation omitted). Discretion is abused if, for example, its ex- ercise rests on “‘a clear error of judgment’” in the “‘consideration of the relevant factors.’” Weyerhaeuser Co. v. United States Fish & Wildlife Service, 586 U.S. 9, 25 (2018) (quoting Judulang v. Holder, 565 U.S. 42, 53 (2011)). The Trade Court, like all trial courts, has “broad dis- cretion to manage [its] docket[].” Proctor & Gamble Co. v. Kraft Foods Global, Inc., 549 F.3d 842, 848–49 (Fed. Cir. 2008). Exercise of that inherent power requires judgment and “weigh[ing] competing interests and maintain[ing] an even balance.” Landis v. North American Co., 299 U.S. 248, 254–55 (1936). We thus review management decisions by trial courts under the abuse-of-discretion standard. See id. at 253–57; U.S. Steel Corp. v. United States, 730 F.2d 1465, 1468 (Fed. Cir. 1984); Jazz Photo Corp. v. United States, 439 F.3d 1344, 1349 (Fed. Cir. 2006). A We conclude that the Trade Court did not abuse its dis- cretion by enjoining Commerce from enforcing the 154.33% antidumping-duty and cash-deposit rate. We first address the Trade Court’s conclusion that Commerce reversibly erred in imposing that rate, which is the heart of the pub- lic-interest element of the injunction analysis. We then ad- dress the elements of irreparable injury, inadequacy of remedies available at law, and balance of hardships. Case: 23-1661 Document: 65 Page: 24 Filed: 01/07/2025

1 The Trade Court’s determination that “[i]njunctive re- lief here will not disserve the public interest” rested on its conclusion that the “154.33 percent duty rate set by Com- merce is unlawful.” Trade Court Decision, at *13. The court explained that “the government has no legitimate in- terest in collecting cash deposits at that rate” and an in- junction would not “undermine the statute’s remedial purposes, because Oman has no liability to pay 154.33 per- cent duties.” Id. The Trade Court reasoned that Com- merce abused its discretion in denying Oman Fasteners a retroactive extension of time as well as in applying an ad- verse inference to select the 154.33% rate. Id. at *4–9. It suffices for our affirmance of the injunction for us to con- clude, as we do, that applying an adverse inference to select the 154.33% rate was unsupported by the required sub- stantial evidence and was an abuse of discretion, consider- ing the rate selected and the facts surrounding the slightly tardy completion of the submission at issue. 6

6 We need not separately address the Trade Court’s conclusion that Commerce erred when deciding to disre- gard Oman Fasteners’ February 14, 2022 submission in the first place. After the Trade Court set aside Commerce’s December 2022 final results and remanded (on a ground we uphold here), Commerce decided to accept and consider that submission, without protesting that it disagreed with the Trade Court on the submission-rejection point, and Commerce, upon consideration of the submission, adopted a 0.00% rate. See supra n.4. When Mid Continent chal- lenged the remand redetermination in the Trade Court, the government urged affirmance, without qualification and without preserving a challenge to the Trade Court’s earlier conclusion on the threshold submission-rejection point. See Def.’s Resp. to Comments on Remand Case: 23-1661 Document: 65 Page: 25 Filed: 01/07/2025

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Commerce invoked the adverse-inference authority and made the necessary threshold finding that respondent Oman Fasteners “failed to cooperate by not acting to the best of its ability to comply with a request for information,” 19 U.S.C. § 1677e(b)(1). See Prelim. Results, 87 Fed. Reg. at 43241; Prelim. Results Dec. Mem., at 10–11; Final Re- sults, 87 Fed. Reg. at 78639. To make such a determina- tion, Commerce must “examine respondent’s actions and assess the extent of respondent’s abilities, efforts, and co- operation in responding to Commerce’s requests for infor- mation.” Nippon Steel Corp. v. United States, 337 F.3d 1373, 1382 (Fed. Cir. 2003). If, based on such an examina- tion, the prerequisite is met, Commerce then has authority, but is not compelled, to adopt an adverse inference. Com- merce “may use an inference that is adverse to the inter- ests of [the respondent] in selecting from” available facts to arrive at a rate, § 1677e(b)(1)(A), without being “required” to make “assumptions” about what the information, if properly submitted, would establish, § 1677e(b)(1)(B). That “may use” grant of discretion, like any grant of discretion, must be exercised within the constraints of the statute and record. See Weyerhaeuser, 586 U.S. at 25.

Redetermination, Oman Fasteners, LLC v. United States, No. 1:22-cv-00348 (Ct. Int’l Trade), ECF No. 120 (Sept. 22, 2023). Then, after the Trade Court affirmed the remand redetermination and Mid Continent appealed, the govern- ment told this court that it does not plan to challenge the Trade Court’s earlier submission-rejection or § 1677e con- clusions. See supra n.4. We do not decide whether those filings by Commerce make clear that it has chosen or would choose to exercise discretion to accept the submission (as it certainly could do) even if not compelled by the Trade Court to do so or whether for such a reason the Trade Court’s spe- cific conclusion that rejection was improper might no longer be material to the final rate adopted. Case: 23-1661 Document: 65 Page: 26 Filed: 01/07/2025

Importantly, regarding the specific rates Commerce may adopt through this discretion, we have long held that “the ‘inference’ that Commerce ‘may use’ in ‘selecting from among the facts otherwise available’ must ‘be a reasonably accurate estimate of the respondent’s actual rate, albeit with some built-in increase intended as a deterrent to non- compliance.’” Diamond Sawblades Manufacturers’ Coali- tion v. United States, 986 F.3d 1351, 1367 (Fed. Cir. 2021) (quoting F.lli de Cecco di Filippo Fara S. Martino S.p.A. v. United States, 216 F.3d 1027, 1032 (Fed. Cir. 2000)) (first citing Essar Steel Ltd. v. United States, 678 F.3d 1268, 1276 (Fed. Cir. 2012); and then citing Gallant Ocean (Thai- land) Co. v. United States, 602 F.3d 1319, 1324 (Fed. Cir. 2010)); see also F.lli de Cecco di Filippo Fara S. Martino S.p.A., 216 F.3d at 1032 (“[T]he purpose of section 1677e(b) is to provide respondents with an incentive to cooperate, not to impose punitive, aberrational, or uncorroborated margins.”). That well-established standard, focusing on ac- curacy but allowing a departure for deterrence, takes due account not only of the overall statutory regime but also of particular statutory guides—that Commerce is not “re- quired” to “estimate” what the rate “would have been” if the relevant party “had cooperated” or to “demonstrate” that the rate chosen “reflects an alleged commercial reality of the interested party,” 19 U.S.C. § 1677e(d)(3), and that Commerce “may apply any of the . . . dumping margins . . . based on the evaluation by [Commerce] of the situation that resulted in [Commerce] using an adverse inference in select- ing among the facts otherwise available,” id. § 1677e(d)(2) (emphasis added). Under the governing standard, we conclude—relying on the combination of considerations we discuss—that the reasoning by Commerce and the evidence before it cannot support the 154.33% result it reached. Most strikingly, Commerce’s decision to use the adverse-inference author- ity to select a 154.33% rate, based on a 16-minute delay in submitting the requested information, is a gross departure Case: 23-1661 Document: 65 Page: 27 Filed: 01/07/2025

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from the established principle that Commerce, when apply- ing the adverse-inference provision, must pursue accuracy, with any departure limited to what is needed to deter non- compliance with Commerce rules and orders. As we have noted, the Commerce-determined rates for Oman Fasten- ers preceding the present review were 0.63%, 0.00%, 0.00%, 0.00%, and 1.65% (after the original investigation had adopted a 9.10% rate, which had been reduced to 4.22% by early August 2022). See supra pp. 6–7 & n.1. Even be- fore Commerce, when considering the initially excluded in- formation, recalculated the rate for the present administrative review as 0.00%, see supra n.4, a rate of 154.33% stood out as highly implausible as an accurate fig- ure for Oman Fasteners’ dumping margin for the 2020– 2021 administrative-review period. Commerce did not es- tablish a basis for reasonably finding, in light of its past findings or of the evidence in the record in this case, that the 154.33% was even remotely close to an accurate amount by which the normal value of the steel nails at is- sue exceeded the export price. See J.A. 1670–71; 19 U.S.C. §§ 1673, 1677(35)(A); Diamond Sawblades, 986 F.3d at 1367. We need not decide what if any circumstances could justify such a result. A logical implication of our precedent on the governing constraints, quote supra, is that a neces- sary condition would be the establishment of a particularly strong need to deter non-compliance, which would have to rest on a particularly serious failure to cooperate—consid- ering, e.g., such common factors as intent, consequences for Commerce’s processes and ability to carry out its statutory mandate, and recidivism. The record here cannot support any such characterization. In its preliminary decision, Commerce devoted just two paragraphs to explaining why it proposed to apply an ad- verse inference under § 1677e(b). The first paragraph re- states the general law and practice of Commerce, and the second states simply that Oman Fasteners failed to “act to Case: 23-1661 Document: 65 Page: 28 Filed: 01/07/2025

the best of its ability” by submitting its response by the deadline and “fail[ing] to demonstrate that extraordinary circumstances existed that would warrant” granting of an untimely filed extension request. Prelim. Results Dec. Mem., at 10–11. In its final decision, Commerce included just one sentence on this issue (as part of a longer discus- sion about the threshold issue about missing information, under § 1677e(a)), stating only that “because Oman Fas- teners failed to cooperate by not acting to the best of its ability when it failed to provide information to Commerce within established deadlines, we are applying an adverse inference when selecting from the facts available.” Final Results Dec. Mem., at 15. Explaining the selection of the 154.33% figure based on its “evaluation . . . of the situation that resulted in” the application of the adverse inference, Commerce merely declared, in conclusory fashion, that Oman Fasteners’ failure to “act to the best of its ability . . . greatly inhibited Commerce’s ability to calculate an accu- rate dumping margin based on the respondent’s own data.” Id. at 19. That discussion fails to address facts relevant to as- sessing the character of the actions at issue under the gov- erning standard. See Hitachi Energy USA Inc. v. United States, 34 F.4th 1375, 1385–86 (Fed. Cir. 2022) (determin- ing that applying an adverse inference was unsupported by substantial evidence in the record because Commerce failed to provide a reasonable justification for why it re- fused information and applied an adverse inference). As discussed supra, counsel began the filing process as far in advance of the deadline as he had found sufficient when making previous filings. J.A. 143–44 (certain prior submis- sions took 9 to 32 minutes). He used the “check file” feature in the electronic filing system and got a positive indication that the files would be accepted. J.A. 2513, 2894–95. When the system nevertheless rejected files, counsel immediately reformatted and began to resubmit the files, and some were accepted before the deadline and the rest were accepted Case: 23-1661 Document: 65 Page: 29 Filed: 01/07/2025

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just 16 minutes after the deadline. J.A. 2514–16, 2527–36, 2894–96. Counsel then complied with the “one-day lag rule” by submitting the final redacted versions and public versions the next day before the 5:00 PM deadline. J.A. 2516, 2558–66, 2892. And the record does not reveal that the 16-minute delay in completion of the initial filing inter- fered in any way with Commerce’s review processes, except for the interference that resulted in Commerce’s own deci- sion to reject the response and limit the record available for its calculation. We have explained that the “best of its ability” stand- ard of § 1677e(b)(1) “does not require perfection and recog- nizes that mistakes sometimes occur.” Nippon Steel Corp., 337 F.3d at 1382. Even considering counsel’s failure to no- tify Commerce officials of the delay, Commerce has not ex- plained why the evidence here establishes more than the kind of mistake that falls short of failure to cooperate—or, what is crucial, a serious failure to cooperate that would be necessary (we do not say sufficient) to justify the rate se- lected. The evidence here contrasts, rather than aligns, with the evidence in other cases discussing a failure to co- operate. For example, Oman Fasteners’ late submission was not the result of “intentional conduct, such as deliber- ate concealment or inaccurate reporting.” Id. at 1383. Nor is this a case of simply not providing requested infor- mation, Maverick Tube Corp. v. United States, 857 F.3d 1353, 1361 (Fed. Cir. 2017), or of a party’s failure to “(a) take reasonable steps to keep and maintain full and com- plete records[;] . . . (b) have familiarity with all of [its] rec- ords[;] . . . and (c) conduct prompt, careful, and comprehensive investigations of all relevant records,” Nip- pon Steel Corp., 337 F.3d at 1382. Nor, further, are the facts like those addressed in Dongtai Peak Honey Industry, where Commerce excluded responses filed 10 days after the deadline and the party knew several days before the dead- line that it was not going to meet it and yet filed no timely extension request. 777 F.3d at 1351. Here, Commerce got Case: 23-1661 Document: 65 Page: 30 Filed: 01/07/2025

the information 16 minutes after it was due, without hav- ing to prompt Oman Fasteners, which was diligently pur- suing completion in circumstances that suggest nothing more than failure to build in temporal leeway beyond what had been needed in earlier filings. And recidivism has not been found. Commerce has itself treated the kind of slight tardi- ness at issue here as more suitable for a warning than for the harsh treatment meted out in this matter. First, Com- merce has stated (but not codified) a policy under which, if a party facing a 5:00 PM deadline seeks an extension be- fore that time, but Commerce is “not able to notify the party requesting the extension of the disposition of the request by 5:00 p.m,” Commerce treats the deadline as extended automatically until the start of the next business day. Ex- tension of Time Limits, 78 Fed. Reg. 57790, 57792 (Sept. 20, 2013); see Trade Court Decision, at *5. Oman Fasten- ers’ counsel was apparently unaware of the policy, but it appears that, had he sent in an extension request at 4:55 PM, he would have automatically had an extension until 8:30 AM the next morning—long after the 5:16 PM time when the submission was actually completed. Treat- ing the 16-minute delay here as a failure to cooperate that triggers an adverse inference (and supports a punishingly high duty and cash-deposit rate) is in considerable tension with Commerce’s policy. Second, Commerce has stated in other proceedings that it has a policy of “leniency” toward law firms that miss a deadline for the first time, promptly contact Commerce, and adopt better practices for the fu- ture. See Trade Court Decision, at *6. It appears that this policy applied here except for the fact that Oman Fasteners did not notify Commerce about the delay. Id.; J.A. 241–44, 310. Perhaps that fact, as Commerce suggested, J.A. 306, makes the policy inapplicable even when the information was fully submitted within 16 minutes of the deadline, but the policy itself undermines any conclusion that any Case: 23-1661 Document: 65 Page: 31 Filed: 01/07/2025

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failure-to-cooperate determination on the record here could support the harsh result reached. In short, the 154.33% duty rate is very far from an ac- curate antidumping duty. There is no adequate basis on this record for finding the type of failure to cooperate that could (if any could) justify such a gross departure from ac- curacy. For those reasons, we hold that the Trade Court correctly ruled that the 154.33% rate could not stand, and it was therefore in the public interest to enjoin enforcement of that rate, including through its use as the cash-deposit rate. 2 The Trade Court did not abuse its discretion in holding that Oman Fasteners had established a “viable threat of serious harm which cannot be undone.” Trade Court Deci- sion, at *9 (quoting Zenith Radio Corp. v. United States, 710 F.2d 806, 809 (Fed. Cir. 1983)). The Trade Court cited four different irreparable harms: (1) insolvency from run- ning out of cash due to a dramatic loss of revenue after the December 2022 Commerce ruling, either from ceasing its imports, id. at *10–11, or from losing customers by raising its prices to try to recoup part of or all the cash deposits, id. at *12–13, (2) an immediate risk of insolvency through de- fault with lenders, id. at *11, (3) damage to its customer relationships resulting from its inability to sell nails to cur- rent customers, id. at *11, and (4) disruption to its business as a result of employee terminations it had made, and would need to make, in the absence of an injunction, id. at *11–12. Although Mid Continent contests whether the an- tidumping duty of 154.33% would have necessarily led to, or been the main reason for, Oman Fasteners’ insolvency, Mid Continent Opening Br. at 65–69, Mid Continent does not demonstrate that the Trade Court erred in its findings regarding the layoffs and damage to goodwill, which are independently sufficient to establish irreparable harm. Case: 23-1661 Document: 65 Page: 32 Filed: 01/07/2025

See, e.g., AstraZeneca LP v. Apotex, Inc., 633 F.3d 1042, 1061–63 (Fed. Cir. 2010). 3 Given the readily affirmed finding of irreparable in- jury, we see no substantial issue concerning the inade- quacy of remedies at law for the injuries, an element of the justification for a permanent injunction. The Trade Court noted that there was no other remedy at law against the government, which is the party that committed the as- serted wrong. Trade Court Decision, at *9 n.14. Mid Con- tinent cites no authority or factual basis in this record for treating a potential recovery from third parties (e.g., Oman Fasteners’ law firm or its insurer) as establishing an ade- quate remedy at law for the government adjudicated wrong, and for all the harm suffered, including the irrepa- rable consequences. That is enough for the injunction on appeal, but we also note the Trade Court’s observation that, in the present context, the “permanent” injunction is temporally similar to a preliminary injunction, in that it is in effect before there is a final appealable judgment— which occurs (as it has in the present case, see supra n.4) when Commerce completes its work on remand and the dis- pute returns to the Trade Court. Id. at *9 n.13. If the in- junction is viewed as a preliminary injunction, the requirement of a likelihood of success on the challenge to the 154.33% duty is established by the Trade Court’s deter- mination that the challenge is actually meritorious. Trade Court Decision, at *13. [A37–38] 4 The Trade Court determined that the balance of hard- ships was “lopsidedly” in Oman Fasteners’ favor because it faced “catastrophe” “[a]bsent injunctive relief,” while “[t]he harm to the government . . . [was] minimal to non-exist- ent.” Trade Court Decision, at *13. Oman Fasteners stopped importing nails in response to the 154.33% anti- dumping duty, so the government would very likely not Case: 23-1661 Document: 65 Page: 33 Filed: 01/07/2025

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have received any cash deposits in the absence of an injunc- tion. Although Mid Continent argues on appeal that the Trade Court “failed to consider the balance of equities as it relates to Mid Continent, a party to this litigation,” Mid Continent Opening Br. at 74, Mid Continent never argued to the Trade Court that it would suffer any hardships, in- stead focusing on the balance of hardships between Oman Fasteners and the government. J.A. 3116–17; Oman Fas- teners Response Br. at 54–55. In any event, the merits de- termination that the 154.33% cash deposit was unlawful weakens or nullifies any assertion by Mid Continent of cog- nizable harm from being deprived of the competitive bene- fit that cash deposit would confer on it and makes certain Mid Continent has identified no harm to it that compares with the irreparable injury to Oman Fasteners. We see no reversible error in this element of the Trade Court’s injunc- tion analysis. B We conclude by addressing Mid Continent’s challenge to the Trade Court’s decision to grant a permanent injunc- tion after consolidating Oman Fasteners’ motion for a pre- liminary injunction with a trial on the merits. We have already noted that the legal effect of the permanent injunc- tion here is similar to that of a preliminary injunction, a similarity that weakens Mid Continent’s challenge as a theoretical matter. But in any event, the Trade Court fol- lowed the procedure that the Supreme Court in University of Texas v. Camenisch identified as appropriate for decid- ing a permanent injunction where an expedited decision on the merits is appropriate. 451 U.S. 390, 395–96 (1981). On December 28, 2022, before Mid Continent intervened and before the parties briefed the motion for the preliminary Case: 23-1661 Document: 65 Page: 34 Filed: 01/07/2025

injunction that had been filed, 7 the Trade Court ordered the government to address, in its response, the merits of consolidating the proceedings under Rule 65(a) and treat- ing the motion for preliminary injunction as a motion for judgment on the agency record under Rule 56.2. J.A. 48, ECF No. 26. That order provided clear notice “before the hearing commence[d] or at a time which . . . still afford[ed] the parties a full opportunity to present their respective cases.” University of Texas, 451 U.S. at 395 (quotations omitted); see also id. at 395–96 (suggesting that the issu- ance of a permanent injunction, instead of a preliminary injunction, may save a case from becoming moot). And Mid Continent has not established that it suffered concrete, identifiable, material harm from any lack of a necessary opportunity to present its case and challenge Oman Fas- teners’ case. We thus see no reversible error in the Trade Court’s grant of a permanent injunction after exercising its discretion to consolidate the motion for a preliminary in- junction with a trial on the merits. IV For the foregoing reasons, we affirm the Court of Inter- national Trade’s injunction. AFFIRMED

7 Oman Fasteners filed its initial (public) motion for preliminary injunction on December 26, 2022, but filed its amended motion on December 30, 2022, after the court’s order. J.A. 47, ECF No. 15; J.A. 49, ECF No. 38. Mid Con- tinent intervened on December 30, 2022, J.A. 48, ECF No. 32, and filed its (public) response to the motion for a preliminary injunction on January 10, 2023, J.A. 50, ECF No. 46. The government filed its (public) response to the motion for a preliminary injunction on January 11, 2023. J.A. 50, ECF No. 48.