2020 CIT 144
Ct. Int'l Trade2020Background
- President issued Proclamation 9693 imposing safeguard duties on imported solar panels and delegated authority to USTR to grant exclusions.
- USTR granted an exclusion for bifacial solar panels (June 2019) but then issued a First Withdrawal (Oct. 2019) without notice-and-comment, prompting Invenergy and industry plaintiffs to sue and obtain a preliminary injunction (Dec. 2019).
- USTR later published a January 2020 notice soliciting comments and issued a Second Withdrawal (Apr. 2020); the Government subsequently published a June 2020 rescission stating it would not implement the First Withdrawal.
- The court found USTR’s First Withdrawal procedurally deficient and — after the Government conceded error — vacated it as unlawful under the APA.
- The court concluded the Second Withdrawal likely is arbitrary and capricious (insufficient explanation; failure to address key comments and change in position) and accordingly modified the preliminary injunction to enjoin enforcement of the Second Withdrawal.
- The court granted in part Plaintiffs’ motion to complete the administrative record (ordering USTR to produce records tied to the June 2019 exclusion and the January 2020 notice) and denied Plaintiffs’ stay request.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Court jurisdiction to dissolve the PI while Government's interlocutory appeal is pending | The court should retain authority to rule on dissolution and on modification to preserve Plaintiffs' rights | Filing of the interlocutory appeal divested the court of jurisdiction to dissolve the PI; court can act only to preserve the status quo | Court lacked jurisdiction to dissolve the PI while appeal pending but retained authority to modify the injunction to preserve the status quo; denied motion to dissolve |
| Lawfulness of the First Withdrawal (notice-and-comment; APA) | First Withdrawal violated APA notice-and-comment and was procedurally deficient | Government eventually conceded the First Withdrawal lacked required notice-and-comment | Court vacated the First Withdrawal as unlawful under the APA |
| Adequacy of the Second Withdrawal (reasoned explanation; reliance on internal Gerrish memo) | Second Withdrawal lacks adequate, public explanation; fails to address significant comments and the change from the June 2019 exclusion; unpublished internal memo cannot substitute for public rationale | Second Withdrawal resulted from a new notice-and-comment process and is entitled to a presumption of regularity; internal Gerrish memo is part of the administrative record | Court held Plaintiffs likely to succeed on arbitrary-and-capricious challenge to the Second Withdrawal; Gerrish memo (never publicly released) cannot stand in for the contemporaneous public explanation; PI modified to enjoin enforcement of Second Withdrawal |
| Completeness of the administrative record | Record filed by USTR is incomplete; court should order production of materials underlying the June 2019 exclusion and documents related to the January 2020 notice | Submitted administrative record is presumptively complete; USTR’s reconsideration was a "clean slate" so older materials are irrelevant | Court ordered partial completion: USTR must produce documents related to the June 2019 exclusion and the January 2020 notice; denied expansion as to First Withdrawal (vacated) and broader fourth-category request |
Key Cases Cited
- Regents of the Univ. of Cal. v. Dep't of Homeland Sec., 140 S. Ct. 1891 (2020) (agency must defend actions based on contemporaneous reasons; courts limited to grounds invoked by agency)
- Dep't of Commerce v. New York, 139 S. Ct. 2551 (2019) (requires reasoned explanation and review of rational connection between facts and agency choice)
- Motor Vehicles Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) (arbitrary-and-capricious standard; agency must examine relevant data and articulate satisfactory explanation)
- SEC v. Chenery Corp., 318 U.S. 80 (1943) (judicial review confined to the grounds the agency invoked when it acted)
- F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502 (2009) (agency changing a prior position must acknowledge and provide a reasoned explanation for the change)
- Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117 (2016) (unexplained inconsistency in agency practice can render change arbitrary and capricious)
- Griggs v. Provident Consumer Discount Co., 459 U.S. 56 (1982) (notice of appeal confers jurisdiction on appellate court and divests district court of control over appealed matters)
- Amado v. Microsoft Corp., 517 F.3d 1354 (Fed. Cir. 2008) (district courts have equitable authority to modify injunctions to preserve the status quo pending appeal)
- SKF USA, Inc. v. United States, 254 F.3d 1022 (Fed. Cir. 2001) (agency may request remand to reconsider its prior position)
- Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971) (review on the whole administrative record; scope of judicial review)