Wind Tower Trade Coalition v. United States

904 F. Supp. 2d 1349, 2013 CIT 44, 2013 WL 1286201, 35 I.T.R.D. (BNA) 1330, 2013 Ct. Intl. Trade LEXIS 44
CourtUnited States Court of International Trade
DecidedMarch 29, 2013
DocketSlip Op. 13-44; Court 13-00080, 13-00081, 13-00082
StatusPublished
Cited by7 cases

This text of 904 F. Supp. 2d 1349 (Wind Tower Trade Coalition v. United States) is published on Counsel Stack Legal Research, covering United States Court of International Trade primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wind Tower Trade Coalition v. United States, 904 F. Supp. 2d 1349, 2013 CIT 44, 2013 WL 1286201, 35 I.T.R.D. (BNA) 1330, 2013 Ct. Intl. Trade LEXIS 44 (cit 2013).

Opinion

OPINION and ORDER

GORDON, Judge:

These actions involve the administration of trade remedy provisional measures (cash deposits) pursuant to Sections 706(b) and 736(b) of the Tariff Act of 1930, as amended, 19 U.S.C. §§ 1671e(b) & 16736(b), 1 by the U.S. Department of Commerce (“Commerce”) at the conclusion of the antidumping and countervailing duty investigations covering utility scale wind towers from the People’s Republic of China (“China”) and the antidumping investigation covering that same merchandise from the Socialist Republic of Vietnam (“Vietnam”). Utility Scale Wind Towers from the People’s Republic of China, 78 Fed. Reg. 11,146 (Dep’t of Commerce Feb. 15, 2013) (antidumping duty order); Utility Scale Wind Towers from the People’s Republic of China, 78 Fed. Reg. 11,152 (Dep’t of Commerce Feb. 15, 2013) (countervailing duty order); Utility Scale Wind Towers from the Socialist Republic of Vietnam, 78 Fed. Reg. 11,150 (Dep’t of Commerce Feb. 15, 2013) (antidumping duty order) (collectively, “Orders ”). In those investigations the U.S. International Trade Commission (“ITC”) found injury to the domestic industry in an evenly divided vote (3-3). Utility Scale Wind Towers from China and Vietnam, 78 Fed. Reg. 10,210 (Int’l Trade Comm’n Feb. 13, 2013); see also Utility Scale Wind Towers from China and Vietnam, USITC Inv. Nos. 701-TA-486 and 731-TA-1196 (Final), USITC Pub. 4372 (Feb. 2013); see also 19 U.S.C. § 1677(11) (tie-breaking provision). Among the three affirmative votes, two Commissioners found material injury, with the third finding threat, but no material injury in the absence of provisional measures. 78 Fed. Reg. 10,210 at n. 2. Commerce, in turn, has said that it will instruct U.S. Customs ■ and Border Protection (“Customs”) to release the cash deposits on subject merchandise entered before the date of the ITC’s final determination in accordance with 19 U.S.C. §§ 1671e(b)(2) and 1673e(b)(2). See Orders.

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

The court initially denied Plaintiffs applications for temporary restraining orders (“TRO”) and preliminary injunctions because it believed Plaintiff had not made an adequate showing on the likelihood of success on the merits. Order Denying Temp. Restraining Order, Feb. 28, 2013, ECF No. 21 (Court No. 13-00080) (“Feb. 28 Order”). Plaintiff then submitted a sup *1352 plemental response farther explaining its position on its likelihood of success. PL’s Resp. to the Court’s Mem. and Order, Mar. 1, 2013, ECF No. 22 (Court No. 13-00080) (“PL’s Supp. Br.”). Although the court still harbored doubts about Plaintiffs showing on the likelihood of success, the court entered a TRO to allow the other interested parties an opportunity to respond to Plaintiffs motions. Second Mem. and Order on PL’s Application for a TRO and Prelim. Inj., Mar. 4, 2013, ECF No. 23 (Court No. 13-00080) (“Mar. 4 Order”). Defendant and DefendanWIntervenors, CS Wind Corporation, CS Wind China Co., Ltd., and CS Wind Vietnam Co., Ltd. (collectively “CS Wind”), have since expressed their opposition. Def.-Intervenors’ Opp’n to PL’s Mot. for Prelim. Inj., Mar. 8, 2013, ECF No. 25; Def.’s Opp’n to PL’s Mot. for Prelim. Inj., Mar. 15, 2013, ECF No. 38. For the reasons set forth below, the court will enter an order denying Plaintiffs motions.

I. Standard Governing Issuance of Preliminary Injunction

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

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

Notwithstanding the near automaticity of preliminary injunctions in anti-dumping and countervailing duty cases, they are not awarded as of right. See Qingdao Taifa,

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Neo Solar Power Corp. v. United States
2016 CIT 58 (Court of International Trade, 2016)
Siemens Energy, Inc. v. United States
806 F.3d 1367 (Federal Circuit, 2015)
Zhejiang Native Produce & Animal By-Products Import & Export Corp. v. United States
61 F. Supp. 3d 1358 (Court of International Trade, 2015)
Blink Design, Inc. v. United States
986 F. Supp. 2d 1348 (Court of International Trade, 2014)
Wind Tower Trade Coalition v. United States
741 F.3d 89 (Federal Circuit, 2014)

Cite This Page — Counsel Stack

Bluebook (online)
904 F. Supp. 2d 1349, 2013 CIT 44, 2013 WL 1286201, 35 I.T.R.D. (BNA) 1330, 2013 Ct. Intl. Trade LEXIS 44, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wind-tower-trade-coalition-v-united-states-cit-2013.