CS Wind Vietnam Co. v. United States
2017 CIT 53
Ct. Intl. Trade2017Background
- CS Wind (producer/exporter of wind towers from Vietnam) challenged Commerce's antidumping determination; after remands and appeal Commerce set CS Wind’s dumping margin to 0.00% in a post‑appeal remand.
- CS Wind moved for an injunction suspending liquidation of unliquidated entries on or after Feb. 13, 2013, arguing liquidation prior to final resolution could irreparably harm it if a nonzero rate is later imposed.
- Many entries were already administratively suspended or enjoined by prior court Timken notices; CS Wind sought protection for entries from the first and fourth review periods, including one entry predating the first Timken notice.
- The government opposed the motion, arguing entries are not at immediate risk because they are suspended or subject to a 0.00% cash deposit rate from the first administrative review.
- The court treated the motion under the preliminary‑injunction framework but noted this is atypical because CS Wind has largely prevailed below; the sole real dispute was whether CS Wind faces immediate irreparable harm from potential premature liquidation.
- The court granted the injunction in part, ordering the government to advise whether the first Timken notice fully protects CS Wind; absent such assurance the court would issue a limited injunction covering the contested entry (and possibly broader relief if the government consents).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Immediacy of irreparable harm (risk of premature liquidation) | CS Wind: liquidation could occur before final resolution and would irreparably impair judicial review and remedy. | Gov’t: no immediate risk because entries are enjoined/suspended and carry a 0.00% deposit rate from the first review. | Court: CS Wind faces potential irreparable harm as to at least one entry predating the first Timken notice; injunction granted in part. |
| Likelihood of success on the merits | CS Wind: likely to succeed because Commerce set a 0.00% margin in the post‑appeal remand. | Gov’t: disputes need for injunction given current procedural protections; opposes movant’s characterization. | Court: merits largely resolved in CS Wind’s favor already; this factor supports relief. |
| Timeliness / Good cause for filing after 30 days | CS Wind: good cause because circumstances changed only after Commerce adjusted rate to 0.00% on remand. | Gov’t: contends motion is untimely; opposes relief. | Court: finds good cause—motion not barred despite passing the 30‑day Rule 56.2 deadline. |
| Scope of injunction / effect of Timken notices | CS Wind: seeks injunction covering entries from first and fourth review periods to prevent liquidation at a nonzero rate. | Gov’t: contends many entries are already protected by Timken notices and administrative suspensions; asked to clarify legal effect. | Court: enjoined liquidation in part; ordered government to state whether first Timken notice fully protects CS Wind; issued limited injunction covering the pre‑Timken entry pending response. |
Key Cases Cited
- Zenith Radio Corp. v. United States, 710 F.2d 806 (Fed. Cir. 1983) (sets the four‑factor preliminary injunction standard in trade cases)
- FMC Corp. v. United States, 3 F.3d 424 (Fed. Cir. 1993) (discusses balancing and sliding‑scale approach for injunction factors)
- Ugine & ALZ Belg. v. United States, 452 F.3d 1289 (Fed. Cir. 2006) (addresses weighing of injunction factors and sliding scale)
- Corus Grp. PLC v. Bush, 217 F. Supp. 2d 1347 (Ct. Int’l Trade 2002) (cited for injunction balancing framework)
- Snap‑on, Inc. v. United States, 949 F. Supp. 2d 1346 (Ct. Int’l Trade 2013) (explains how Timken notices and injunctions interact with liquidation suspension)
- Timken Co. v. United States, 893 F.2d 337 (Fed. Cir. 1990) (holding that Commerce must publish notice of a court decision not in harmony and suspension of liquidation of subsequent entries)