450 F.Supp.3d 1347
Ct. Int'l Trade
2020
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Background

  • In January 2018 the President imposed safeguard duties on imported solar panels but delegated USTR authority to grant product exclusions; USTR initially excluded bifacial solar panels (June 2019) and later announced an October 2019 withdrawal of that exclusion with limited notice.
  • Invenergy (joined by SEIA, Clearway, EDF‑R, AES DE) sued, challenging USTR’s October Withdrawal under the APA; the court granted a preliminary injunction in December 2019, finding likely APA violations for lack of notice-and-comment and likely arbitrary and capricious action.
  • USTR then opened a new notice-and-comment process (January 2020) and later published a final April 2020 Withdrawal after receiving comments; the Government sought to treat the April Withdrawal as curing procedural defects.
  • Pending before the court were four principal motions: the Government’s November 2019 Motion to Dismiss (standing / indispensable party), Plaintiffs’ Motions to Supplement to add claims about the April Withdrawal, the Government’s Motion to Vacate the October Withdrawal and dismiss as moot, and the Government’s Rule 60(b)(5) Motion to dissolve the preliminary injunction.
  • The court (1) denied the Government’s abandoned Motion to Dismiss, (2) granted Plaintiffs’ Motions to Supplement under Rule 15(d), (3) denied the Government’s Motion to Vacate and Dismiss for mootness, and (4) denied the Motion to Dissolve the preliminary injunction—each without prejudice to future, properly supported requests.

Issues

Issue Plaintiff's Argument Defendant's Argument Held
Motion to Dismiss for lack of standing / failure to join indispensable party Invenergy (and intervenors) have Article III and statutory standing to challenge USTR action Government argued lack of standing and missing indispensable parties Denied — Government abandoned and failed to pursue the motion after PI; court previously found Plaintiffs had standing.
Motions to Supplement complaints to add April 2020 Withdrawal Supplementation is proper under USCIT R.15(d) to include later events and avoids piecemeal litigation Government does not oppose on merits; defers to court Granted — equitable, lenient standard; no undue delay or prejudice; supplemental claims relate to original controversy.
Motion to Vacate October Withdrawal and dismiss as moot Plaintiffs: vacatur improper absent final judgment or voluntary remand; controversy remains Government: reopened notice-and-comment then issued April Withdrawal and argues matters are moot or superseded Denied without prejudice — live controversy exists over April Withdrawal; Government failed to show legal basis to vacate October Withdrawal pre‑judgment or without remand/confession of error.
Motion to Dissolve PI under Rule 60(b)(5) (after April Withdrawal) Plaintiffs: April Withdrawal remains arbitrary and capricious; Government did not cure merits defect; dissolution inequitable Government: April Withdrawal cured the PI’s procedural defect (notice-and-comment) and thus changed circumstances warrant dissolution; relies on internal USTR memoranda Denied — Government failed to show changed circumstances addressing court’s prior arbitrary-and-capricious concern and did not meet burden to show continuation of injunction is inequitable; USTR has not rescinded October Withdrawal nor established vacatur.

Key Cases Cited

  • Silicon Graphics, Inc. v. ATI Techs., Inc., 607 F.3d 784 (Fed. Cir. 2010) (failure to pursue or argue a motion can be treated as abandonment)
  • Foman v. Davis, 371 U.S. 178 (U.S. 1962) (amendment/supplementation of pleadings should be freely granted absent certain equities)
  • Intrepid v. Pollock, 907 F.2d 1125 (Fed. Cir. 1990) (Rule 15(d) allows supplementation for later events; leave to amend is liberally granted)
  • Chafin v. Chafin, 568 U.S. 165 (U.S. 2013) (case-or-controversy/mootness principles require a live dispute for jurisdiction)
  • Already, LLC v. Nike, Inc., 568 U.S. 85 (U.S. 2013) (mootness and standing standards for prospective relief)
  • Limnia, Inc. v. United States Dep’t of Energy, 857 F.3d 379 (D.C. Cir. 2017) (standards for remand and limits on vacatur/remand without final adjudication)
  • Concilio de Salud Integral de Loiza, Inc. v. Perez‑Perdomo, 551 F.3d 10 (1st Cir. 2008) (vacatur/remand and dissolution of injunction require careful review of changed circumstances)
  • SKF USA v. United States, 254 F.3d 1022 (Fed. Cir. 2001) (procedural principles on remand and vacatur of agency action)
  • In re Shenango Group, 501 F.3d 338 (3d Cir. 2007) (Court retains continuing jurisdiction over injunctions addressing agency action)
  • Cement Kiln Recycling Coalition v. EPA, 255 F.3d 855 (D.C. Cir. 2001) (litigant must meaningfully present issues; courts need not guess arguments)
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