393 F.Supp.3d 1271
Ct. Int'l Trade2019Background
- The Coalition sued to challenge Commerce’s Final Results of an expedited countervailing-duty (CVD) review for certain softwood lumber from Canada, issued July 5, 2019, which assigned de minimis or reduced cash-deposit rates to eight Canadian exporters.
- Commerce instructed CBP to discontinue suspension of liquidation and refund deposits for five exporters found de minimis, and to collect reduced deposits for three others.
- The Coalition moved for a TRO and preliminary injunction to stop (1) liquidation of certain unliquidated entries, (2) revocation of the CVD order as to the five de minimis companies, and (3) collection of reduced cash deposits for entries on or after July 5, 2019.
- The court had entered a TRO on July 15, 2019; after briefing and oral argument, the government and intervenors opposed injunctive relief. The court found the TRO was improvidently granted.
- The court vacated the TRO and denied the preliminary injunction, holding the Coalition failed to demonstrate irreparable harm necessary for injunctive relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether liquidation of entries at or without regard to CVD duties would cause irreparable harm | Liquidation would moot judicial review or deprive Coalition of remedy for entries, and liquidation at reduced rates injures Coalition | Liquidation does not cause irreparable harm to domestic producers; expedited-review results are prospective and future remedies remain; any harm from some liquidations is self-inflicted by Coalition withdrawals | Denied — Coalition failed to show irreparable harm from liquidation; injunction not warranted |
| Whether revocation of the CVD order as to five companies and reduced deposits for others creates imminent risk of circumvention causing irreparable harm | Revocation/reduced rates increase circumvention risk and harm to domestic industry | Circumvention arguments are speculative and unsupported; no evidence of likely harm | Denied — speculative circumvention risk insufficient to establish irreparable harm |
| Whether entries of Fontaine and Rustique will cause distinct irreparable harm because Coalition withdrew review requests | Coalition says liquidation at reduced rates harms it; uncertainty about which rate will be applied | Fontaine: any harm is self-inflicted because Coalition withdrew administrative-review requests; Coalition has no evidence of concrete harm | Denied — Coalition’s withdrawal undermines claim; no evidence of actual harm |
| Whether the TRO previously granted should remain in place | Coalition sought to keep TRO pending merits and appeals | Government and intervenors opposed; court questioned basis for TRO | TRO vacated as improvidently granted; injunction denied |
Key Cases Cited
- Winter v. Nat’l Res. Def. Council, 555 U.S. 7 (2008) (preliminary injunction requires likelihood of success, irreparable harm, balance of equities, and public interest)
- Silfab Solar, Inc. v. United States, 892 F.3d 1340 (Fed. Cir. 2018) (standard for preliminary injunction in CIT context)
- Sumecht NA, Inc. v. United States, 923 F.3d 1340 (Fed. Cir. 2019) (preliminary injunctions in AD/CVD cases are extraordinary and require showing of irreparable harm)
- Zenith Radio Corp. v. United States, 710 F.2d 806 (1983) (liquidation during administrative-review challenges can constitute irreparable harm where it destroys the plaintiff’s only remedy)
- FMC Corp. v. United States, 3 F.3d 424 (Fed. Cir. 1993) (explains Zenith’s focus on liquidation tied to a specific review period)