SolarWorld Americas, Inc. v. United States

2017 CIT 171

Opinion

Slip Op. 17

UNITED STATES COURT OF INTERNATIONAL TRADE

SOLARWORLD AMERICAS, INC.

Plaintiff,

SINO-AMERICAN SILICON PRODUCTS INC. and SOLARTECH ENERGY CORP.,

Plaintiff-Intervenors,

v. Before: Jennifer Choe-Groves, Judge

UNITED STATES, Consol. Court No. 17-00208

Defendant,

and

KYOCERA SOLAR, INC. and KYOCERA MEXICANA S.A. DE C.V.,

Defendant-Intervenors.

MEMORANDUM AND ORDER

[Defendant-Intervenors’ motion to modify preliminary injunction is denied.]

Dated: December 21, 2017

Timothy C. Brightbill, Wiley Rein, LLP, of Washington, D.C., for Plaintiff. With him on brief was Usha Neelakantan, Wiley Rein, LLP, of Washington, D.C.

Jarrod Mark Goldfeder, Trade Pacific, PLLC, of Washington, D.C., for Consolidated Plaintiffs.

Joshua Ethan Kurland, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, D.C., for Defendant. Of counsel was Reza Karamloo, Attorney, Office of Chief Counsel for Trade Enforcement and Compliance, U.S. Department of Commerce, of Washington, D.C. Consol. Court No. 17-00208 Page 2

J. Kevin Horgan, deKieffer & Horgan, PLLC, of Washington, D.C., for Defendant-Intervenors. With him on brief was Alexandra H. Salzman, deKieffer & Horgan, PLLC, of Washington, D.C.

Choe-Groves, Judge: This case involves the judicial review of the final results in the first

administrative review of the antidumping duty order on certain crystalline silicon photovoltaic

products (“solar panels”) from Taiwan. Upon the request of an interested party and upon a

proper showing, the court may enjoin the liquidation of entries covered by an antidumping duty

order of the United States Department of Commerce (“Commerce”) pursuant to 19 U.S.C. §

1516a(c)(2). Entries of merchandise covered by a published determination of Commerce that are

enjoined in accordance with § 1516a(c)(2) “shall be liquidated in accordance with the final court

decision in the action.” 19 U.S.C. § 1516a(e)(2) (2012).

Defendant-Intervenors Kyocera Solar, Inc. and Kyocera Mexicana S.A. de C.V.

(collectively “Kyocera” or “Defendant-Intervenors”) filed a Motion to Modify Preliminary

Injunction, Oct. 31, 2017, ECF No. 37 (“Motion to Modify Statutory Injunction”), 1 requesting

that the court modify its September 5, 2017 statutory injunction that enjoins, during the pendency

of this litigation, the liquidation of certain entries of solar panels from Taiwan covered by an

antidumping duty order. Kyocera requests that the court exercise its discretion to modify the

statutory injunction to allow the liquidation of entries of subject solar panels assembled by

Kyocera Mexicana S.A. de C.V. in Mexico and exported to the United States. Id. at 1. Plaintiff

SolarWorld Americas, Inc. (“SolarWorld”) opposes Kyocera’s Motion to Modify the Statutory

Injunction. See Opp’n Def.-Intervenor’s Mot. Modify Prelim. Inj., Nov. 20, 2017, ECF No. 41

(“SolarWorld’s Opp’n”). The issue presented is whether the court should exercise its discretion

1 This court will refer to a preliminary injunction under 19 U.S.C. § 1516a(c)(2) as a statutory injunction. Consol. Court No. 17-00208 Page 3

to modify the statutory injunction to allow liquidation of Kyocera’s entries of solar panels prior

to a final decision on the merits. For the foregoing reasons, the court denies the Motion to

Modify the Statutory Injunction.

BACKGROUND

On December 23, 2014, Commerce issued its final antidumping determination that

certain solar panel products from Taiwan were being sold, or were likely to be sold, in the United

States at less than fair value. See Certain Crystalline Silicon Photovoltaic Products from Taiwan,

79 Fed. Reg. 76,966 (Dep’t Commerce Dec. 23, 2014) (final determination of sales at less than

fair value). Kyocera was assigned an all-others weighted-average dumping margin of 19.50

percent. Id. at 76,969. Commerce conducted an administrative review and issued its final results

of the administrative review on July 7, 2017, assigning a final weighted-average dumping margin

of 4.10 percent to Kyocera. See Certain Crystalline Silicon Photovoltaic Products from Taiwan,

82 Fed. Reg. 31,555, 31,556 (Dep’t Commerce July 7, 2017) (final results of administrative

antidumping duty review for 2014–2016) (“July 7, 2017 Final Order”).

Plaintiff SolarWorld appealed the final results of Commerce’s administrative review in

this court. On September 1, 2017, Plaintiff SolarWorld filed a consent motion requesting that the

court issue a statutory injunction order to enjoin liquidation of certain entries until the final

resolution of this action, including entries that: (1) were covered by the July 7, 2017 Final Order;

(2) were entered, or were withdrawn from warehouse for consumption, on or after July 31, 2014,

through and including January 31, 2016; and (3) were produced and/or exported by any of the

following exporters: Sino-American Silicon Products Inc./Solartech Energy Corp., Motech

Industries, Inc., AU Optronics Corporation, EEPV CORP, E-TON Solar Tech. Co., Ltd., Gintech

Energy Corporation, Inventec Energy Corporation, Inventec Solar Energy Corporation, Kyocera Consol. Court No. 17-00208 Page 4

Mexicana S.A. de C.V., Sunengine Corporation Ltd., TSEC Corporation, and Win Win Precision

Technology Co., Ltd. See Consent Mot. Prelim. Inj. 1–2, Sept. 1, 2017, ECF No. 13.

The court held a conference call with the parties on September 5, 2017 and issued a

statutory injunction order the same day. See Teleconference, Sept. 5, 2017, ECF No. 16; Order,

Sept. 5, 2017, ECF No. 17 (“Inj. Order”). The court’s September 5, 2017 statutory injunction

order directed that:

[D]efendant United States, together with its delegates, officers, agents, and employees of the International Trade Administration of the United States Department of Commerce and the United States Department of Homeland Security, and United States Customs and Border Protection, shall be, and hereby are ENJOINED immediately upon the entry of this Order and pending a final and conclusive court decision in this litigation, including all appeals and remand proceedings, from causing or permitting liquidation of unliquidated entries of certain crystalline silicon photovoltaic products from Taiwan….

Inj. Order at 2. Kyocera filed a Consent Motion to Intervene as Plaintiff-Intervenor and

Defendant-Intervenor on October 2, 2017. See Consent Mot. Intervention, Oct. 2, 2017, ECF

No. 28. This court granted the request on October 3, 2017. See Order, Oct. 3, 2017, ECF No.

33.

On October 31, 2017, Kyocera filed its Motion to Modify Statutory Injunction requesting

modification of the court’s September 5, 2017 statutory injunction. See Mot. Modify Prelim. Inj.

Kyocera requests that the court modify the statutory injunction to allow the liquidation of entries

of solar panels imported by Kyocera. Id. at 1. Kyocera argues that modification of the statutory

injunction is warranted because: (1) the liquidation of entries of Kyocera’s solar panels will not

cause irreparable harm to SolarWorld; (2) there has been no showing that SolarWorld is likely to

prevail on its claims in a manner that would impact the assessment of duties on Kyocera’s

entries; (3) the court’s initial decision granting the injunction did not consider the hardship on

Kyocera in its balance of hardships analysis; and (4) the public interest does not favor granting Consol. Court No. 17-00208 Page 5

extraordinary relief in the form of a preliminary injunction delaying implementation of an

administrative determination in the absence of either a strong showing of a likelihood of

irreparable harm or a strong showing that the requesting party is likely to prevail on the merits of

its claims. Id. at 1–2.

Plaintiff SolarWorld opposes Kyocera’s Motion to Modify the Statutory Injunction.

SolarWorld argues that modification of the statutory injunction is not justified because Kyocera

“has offered no meaningful reasons for the Court to reverse its decision with respect to

Kyocera’s entries.” SolarWorld’s Opp’n at 3. SolarWorld contends that “the criteria for

granting injunctive relief remain satisfied in this case, and as such, the Court should deny

Defendant-Intervenor’s motion.” Id. According to Kyocera, Defendant United States opposes

the Motion to Modify the Statutory Injunction, maintaining “that Kyocera’s entries are covered

by the underlying antidumping duty order and are properly included within the scope of the

lawful injunction requested by SolarWorld, consented to by the Government, and issued by the

Court.” Mot. Modify Prelim. Inj. at 5. Kyocera indicated that “Counsel for Sino-American

Silicon Products Inc., et al., states that, ‘without additional information regarding the scope of

Kyocera’s entries that would be subject to Kyocera’s requested exclusion from the injunction

including, but not limited to, the identity of the Taiwanese producers and/or exporters of the

crystalline silicon photovoltaic cells, we are unable at this time to develop a position regarding

Kyocera’s motion.’” Id.

DISCUSSION

A. Statutory Injunction

The relevant statutory language provides that: Consol. Court No. 17-00208 Page 6

If the cause of action is sustained in whole or in part by a decision of the United States Court of International Trade or of the United States Court of Appeals for the Federal Circuit-- … (2) entries, the liquidation of which was enjoined under subsection (c)(2) of this section, shall be liquidated in accordance with the final court decision in the action.

19 U.S.C. § 1516a(e)(2) (2012). This court has recognized that modification of a statutory

injunction is not justified prior to a final court decision that includes all appeals and remands.

See Aimcor v. United States, 23 CIT 932, 937, 83 F. Supp. 2d 1293, 1297 (1999) (“The statutory

language is clear, it is undisputed that there has been no final decision in this case, and therefore,

under the terms of the statute, liquidations remain enjoined until a final decision.”).

In addition, the court’s September 5, 2017 statutory injunction order directed that the

United States and relevant agencies “shall be, and hereby are, ENJOINED immediately upon the

entry of this Order and pending a final and conclusive court decision in this litigation, including

all appeals and remand proceedings, from causing or permitting liquidation of unliquidated

entries of certain crystalline silicon photovoltaic products from Taiwan….” Order at 2.

Under the statute and the express terms of the statutory injunction order, liquidation of

subject entries shall be enjoined until resolution of the final and conclusive court decision in this

litigation, including all appeals and remand proceedings. The pending litigation in this court is

in the early stages of the proceedings, and no final and conclusive court decision has yet been

rendered. After this court issues its dispositive decision, the parties will have an opportunity to

appeal the court’s decision that may lead to a final and conclusive court decision. It is well

settled that “19 U.S.C. § 1516a(c)(2) envisions the use of preliminary injunctions in the

antidumping context to preserve proper legal options and to allow for a full and fair review of

duty determinations before liquidation.” Qingdao Taifa Group Co. v. United States, 581 F.3d Consol. Court No. 17-00208 Page 7

1375, 1382 (Fed. Cir. 2009); see also Ad Hoc Shrimp Trade Action Comm. v. United States, 34

CIT 1275, 1277, 724 F. Supp. 2d 1373, 1380 (2010).

For the foregoing reasons, the court concludes that it is premature to modify the statutory

injunction order to allow liquidation of Kyocera’s entries before a final and conclusive court

decision in this litigation. Modification of the statutory injunction is denied.

B. Changed Circumstances

An examination of the “changed circumstances” test establishes an additional basis to

deny Kyocera’s request for a modification of the statutory injunction. This court has the

authority to modify a statutory injunction when it finds that there is a sufficient change of

circumstances. Aimcor, 23 CIT at 938, 83 F. Supp. 2d at 1299 (citing Sys. Fed’n No. 91 v.

Wright, 364 U.S. 642, 647 (1961)). In order to obtain a modification of a statutory injunction,

“Defendant-Intervenor must establish a change in circumstances of the parties from the time the

injunction was issued that would make the modification necessary. Additionally, the party

seeking to modify a [statutory] injunction bears the burden of establishing a change in

circumstances that would make continuation of the original [statutory] injunction inequitable.”

Ad Hoc Shrimp Trade Action Comm. v. United States, 32 CIT 666, 670, 562 F. Supp. 2d 1383,

1388 (2008) (citing SNR Roulements v. United States, 31 CIT 1762, 1764, 521 F. Supp. 2d

1395, 1398 (2007)); see also Aimcor, 23 CIT at 938, 83 F. Supp. 2d at 1299 (“[A] party moving

for modification bears the burden of showing that changed circumstances, legal or factual, make

the continuation of the injunction inequitable.”).

Kyocera’s Motion to Modify Statutory Injunction fails to mention the applicable changed

circumstances test. Kyocera does not set forth any facts or legal arguments to show a change in

circumstances that would make continuation of the original statutory injunction inequitable. Consol. Court No. 17-00208 Page 8

Because Kyocera, as the movant, did not make a sufficient showing under the applicable legal

standard of changed circumstances, the court denies the Motion to Modify Statutory Injunction.

C. Defendant-Intervenor’s Arguments

Kyocera fails to address the applicable changed circumstances test in its motion, and

instead argues that the court’s September 5, 2017 statutory injunction order should not have been

granted. Kyocera urges the court to reexamine the four-part statutory injunction test, which

requires a party to show that: (1) it will be immediately and irreparably injured; (2) there is a

likelihood of success on the merits; (3) the public interest would be better served by the relief

requested; and (4) the balance of hardships on all the parties favors the petitioner. Zenith Radio

Corp. v. United States, 710 F.2d 806, 809 (Fed. Cir. 1983).

Kyocera argues in its motion that the statutory injunction is improper because: (1) the

liquidation of entries of Kyocera’s solar panels will not cause irreparable harm to SolarWorld;

(2) there has been no showing that SolarWorld is likely to prevail on its claims in a manner that

would impact the assessment of duties on Kyocera’s entries; (3) the court’s initial decision

granting the injunction did not consider the hardship on Kyocera in its balance of hardships

analysis; and (4) the public interest does not favor granting extraordinary relief in the form of a

preliminary injunction delaying implementation of an administrative determination in the

absence of either a strong showing of a likelihood of irreparable harm or a strong showing that

the requesting party is likely to prevail on the merits of its claims. Mot. Modify Prelim. Inj. at 1–

2.

Kyocera fails to convince the court that it should reexamine the four-part statutory

injunction test or that it should partially dissolve the statutory injunction to allow the liquidation

of Kyocera’s entries of solar panels prior to final resolution of the litigation. To the contrary, Consol. Court No. 17-00208 Page 9

“dissolution of the preliminary injunction may eviscerate the remedial effects conferred” by the

antidumping duty statute and “the potential for a dissolution prior to a final decision to cause

irreparable harm to plaintiffs is obvious.” Aimcor, 23 CIT at 939, 83 F. Supp. 2d at 1299. It is

clear that § 1516a(c)(2) contemplates that the statutory injunction should preserve the status quo

pending the final and conclusive disposition of the litigation. “Liquidation of a party’s entries is

the final computation or ascertainment of duties accruing on those entries. Once liquidation

occurs, it permanently deprives a party of the opportunity to contest Commerce’s results for the

administrative review by rendering the party’s cause of action moot.” SFK USA Inc. v. United

States, 28 CIT 170, 173, 316 F. Supp. 2d 1322, 1327 (2004) (citations omitted). As noted

earlier, the court has explained that, “19 U.S.C. § 1516a(c)(2) envisions the use of preliminary

injunctions in the antidumping context to preserve proper legal options and to allow for a full and

fair review of duty determinations before liquidation.” Ad Hoc Shrimp Trade Action Committee

v. United States, 34 CIT 1275,at 1277, 724 F. Supp. 2d 1373,at 1376 (2010) (quoting Qingdao

Taifa, 581 F.3d at 1382).

Similarly, in order to preserve proper legal options and to allow for a full and fair review

of Commerce’s antidumping duty determinations, the court will continue to enjoin the

liquidation of subject entries under the September 5, 2017 statutory injunction pending the final

and conclusive court decision in this litigation. Consol. Court No. 17-00208 Page 10

CONCLUSION

Upon consideration of the motion and all other papers and proceedings herein, it is

hereby

ORDERED that Defendant-Intervenor’s motion is denied.

/s/ Jennifer Choe-Groves Jennifer Choe-Groves, Judge

Dated: December 21, 2017 New York, New York