2020 CIT 19
Ct. Int'l Trade2020Background
- In January 2018 the President imposed safeguard duties on certain imported solar panels and delegated to USTR authority to grant exclusions.
- USTR initially excluded bifacial solar panels from the safeguard duties following notice-and-comment (June 2019 Exclusion).
- In October 2019 USTR published a Withdrawal purporting to rescind that exclusion with short notice and no new comment period; Invenergy sued, challenging the Withdrawal under the APA.
- The Court granted a preliminary injunction (Dec. 5, 2019) enjoining implementation, enforcement, or HTSUS modification reflecting the Withdrawal pending final judgment.
- USTR published a Federal Register Notice (Jan. 27, 2020) soliciting comments on retention or withdrawal of the bifacial exclusion and stating it would seek the Court’s permission before implementing any withdrawal.
- Plaintiffs moved to show cause that the Notice violated the PI; the Government argued the Notice did not implement or enforce a withdrawal and therefore did not breach the PI.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether USTR's Jan. 27, 2020 Notice violated the Court's preliminary injunction | The Notice is a new process to consider withdrawal and is an end-run around the PI because it advances withdrawal before briefing and final adjudication | The Notice does not implement a withdrawal, change the HTSUS, or make the Withdrawal effective; it merely solicits public comment and acknowledges the injunction | Denied. The Notice did not violate the PI because it did not enter, enforce, or effectuate any Withdrawal or HTSUS modification |
| Whether the Court should order USTR to halt proceedings under the Notice and proceed to briefing | Plaintiffs asked the Court to compel cessation of the Notice process and proceed to merits briefing | Gov't asked the Court to deny that relief and stated it would move to vacate the Withdrawal and seek to lift the injunction before any implementation | Denied. Court refused to enjoin the comment process and retained jurisdiction; it also declined to resolve the government's separate motion to vacate the Withdrawal at this time |
| Whether the Court retains jurisdiction to interpret and enforce its PI | Implied: Plaintiffs rely on the Court's authority to enforce its injunction | Gov't did not dispute the Court’s enforcement authority but argued the Notice was not an act requiring enforcement | Held: Court reaffirmed its exclusive jurisdiction to interpret and enforce the PI and to control implementation/enforcement/modification of the Withdrawal until final judgment |
Key Cases Cited
- In re Shenango Group, 501 F.3d 338 (3d Cir. 2007) (federal court retains jurisdiction to interpret and enforce its orders)
- In re Tomlin, 105 F.3d 933 (4th Cir. 1997) (same)