482 F.Supp.3d 1344
Ct. Int'l Trade2020Background
- The Trump Administration in 2018 imposed a four-year safeguard on certain crystalline silicon photovoltaic (CSPV) cells and modules and delegated exclusions to USTR; USTR initially excluded bifacial solar panels from the safeguard.
- USTR sought to withdraw that bifacial exclusion in October 2019 and again in April 2020; the Court enjoined those withdrawals under the APA and issued a preliminary injunction (PI) against USTR's implementation of the withdrawals (Invenergy I–IV).
- The ITC conducted a statutorily required midterm review and submitted reports finding bifacial modules could substantially increase imports and depress domestic prices; the President then issued Proclamation 10101 (Oct. 2020) revoking the bifacial exclusion and adjusting year-four duties.
- Plaintiffs (Invenergy and industry intervenors) moved to file second supplemental complaints to challenge Proclamation 10101 and to modify the existing PI to cover the Proclamation; the Government and defendant-intervenors opposed.
- The Court granted a short TRO to preserve the status quo while considering the motions, but after briefing and a hearing denied Plaintiffs’ motion for leave to file second supplemental complaints, denied the motion to modify the PI, and lifted the TRO.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Plaintiffs may file second supplemental complaints to add claims attacking Proclamation 10101 | Proclamation withdraws the same bifacial exclusion and raises the same Trade Act and APA issues; supplementation is permissible and efficient | The Proclamation is a distinct Presidential action, invoking different statutory authority, involving the President (not previously a defendant); claims are separate and belong in a new action | Denied — supplementation is discretionary and the Court found the Proclamation presents distinct claims against the President that are not "directly related" to the existing USTR-focused complaints |
| Whether the PI should be modified to enjoin Proclamation 10101 | The PI should be expanded to preserve the status quo and prevent circumvention of the Court’s prior relief; modification is necessary to avoid irreparable harm | The President’s proclamation is a separate action under different statutory authority and not subject to the APA; the PI enjoined USTR action, not Presidential action | Denied — no changed circumstances requiring modification; PI protects against agency APA violations, not Presidential action |
| Whether Proclamation 10101 violated the existing PI by reinstating duties on bifacial panels | Proclamation has the same practical effect as USTR withdrawals and thus violates the PI | Government: PI constrained only USTR; it never promised the President would refrain from action under Section 204; Presidential action is beyond PI’s scope | Held: Proclamation does not violate the PI because it is a distinct Presidential act under a different statutory authority and the President is not subject to the APA |
| Whether Plaintiffs’ APA claims can be premised on the President’s Proclamation | Proclamation will be implemented by agencies, so APA procedural defects and Trade Act violations are implicated | The President is not subject to the APA; any APA claims against subsequent agency implementation would be tenuous and should be litigated in a separate action | Held: APA claims premised on the President’s Proclamation are too tenuous; Franklin precludes treating the President as an APA-covered agency; Plaintiffs may file a separate suit if they choose |
Key Cases Cited
- Intrepid v. Pollock, 907 F.2d 1125 (Fed. Cir. 1990) (factors for court discretion in allowing supplemental pleadings)
- Foman v. Davis, 371 U.S. 178 (1962) (leave to amend generally to be freely given absent prejudice)
- Franklin v. Massachusetts, 505 U.S. 788 (1992) (President not subject to APA)
- Sys. Fed'n No. 91 v. Wright, 364 U.S. 642 (1961) (court may modify injunctions as circumstances change)
- United States v. United Shoe Machinery Corp., 391 U.S. 244 (1968) (court has power to modify injunctions to achieve intended results)
- Ad Hoc Shrimp Trade Action Comm. v. United States, 562 F. Supp. 2d 1383 (Ct. Int'l Trade 2008) (standard for modifying a preliminary injunction)