Silfab Solar, Inc. v. United States, U.S. Customs & Border Prot., U.S. Int'l Trade Comm'n, Chairman Rhonda K. Schmidtlein, Comm'r Kevin K. McAleenan, Office of the U.S. Trade Representative, U.S. Trade Representative Robert E. Lighthizer, Solarworld Americas, Inc., 892 F.3d 1340

Background

In 2017 Suniva petitioned the ITC, which investigated imports of crystalline silicon photovoltaic (CSPV) cells and modules and issued an affirmative serious-injury finding under 19 U.S.C. § 2252(b).
The four-member ITC unanimously found serious injury but divided on recommended remedies; no single remedy recommendation obtained a majority, so no official remedy recommendation was transmitted.
The ITC reported that Canadian CSPV imports comprised about 2% of relevant U.S. imports and made a negative ‘‘substantial share’’ finding for Canada under the NAFTA Implementation Act.
The TPSC (via USTR) made a closed recommendation to the President; the President issued Proclamation No. 9693 imposing four-year safeguard tariffs (30% on many solar imports) and expressly determined Canada’s imports did in fact account for a substantial share.
Canadian manufacturers and a U.S. importer sued in the Court of International Trade seeking a preliminary injunction against tariff enforcement; the CIT denied relief, and the plaintiffs appealed.
The Federal Circuit affirmed, holding the President acted within statutory authority and plaintiffs failed to show likelihood of success on the merits for injunctive relief.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether President lacked authority to act absent an ITC remedy recommendation	President cannot impose safeguards without a Commission remedy recommendation	Statute conditions presidential action on ITC injury finding, not a remedy recommendation	Rejected — President need only have ITC serious-injury finding to act
Whether procedural or statutory ITC deficiencies invalidate presidential action	ITC’s failure to follow statutory remedy-reporting requirements vitiates Presi- dential action	President may act despite alleged ITC procedural noncompliance; courts do not void action for such flaws	Rejected — presidential action stands despite ITC procedural issues
Whether President failed to satisfy report-and-consideration requirements of §2253(a)/(b)	President did not properly consider ITC report or transmit required report to Congress	Proclamation states the President considered statutory factors; any reporting defects are not judicially remediable	Rejected — courts will not review the President’s factual/consideration determinations
Whether Presidential determination regarding Canada violated NAFTA Implementation Act (19 U.S.C. §3372)	President’s finding that Canadian imports ‘‘account for a substantial share’’ conflicted with ITC’s negative finding and lacked support	President may reach an independent factual determination; presidential factual findings are not subject to judicial review	Rejected — presidential factual determination not reviewable; action upheld

Key Cases Cited

Winter v. Nat. Res. Def. Council, 555 U.S. 7 (2008) (preliminary-injunction standard and extraordinary nature of injunction)
Munaf v. Geren, 553 U.S. 674 (2008) (standards for injunctive relief)
Am. Signature, Inc. v. United States, 598 F.3d 816 (Fed. Cir. 2010) (standard of review for preliminary injunctions)
Titan Tire Corp. v. Case New Holland, Inc., 566 F.3d 1372 (Fed. Cir. 2009) (prelim injunction review)
Wind Tower Trade Coal. v. United States, 741 F.3d 89 (Fed. Cir. 2014) (likelihood-of-success requirement for injunctions)
Qingdao Taifa Grp. Co. v. United States, 581 F.3d 1375 (Fed. Cir. 2009) (sliding-scale approach to injunctions)
Belgium v. United States, 452 F.3d 1289 (Fed. Cir. 2006) (sliding-scale precedent for injunctions)
Corus Grp. PLC v. Int’l. Trade Comm’n, 352 F.3d 1351 (Fed. Cir. 2003) (limited judicial review of presidential safeguard actions)
Motion Sys. Corp. v. Bush, 437 F.3d 1356 (Fed. Cir. 2006) (courts may review whether President violated explicit statutory mandates)
Maple Leaf Fish Co. v. United States, 762 F.2d 86 (Fed. Cir. 1985) (nonreviewability of certain presidential factual judgments)
Michael Simon Design, Inc. v. United States, 609 F.3d 1335 (Fed. Cir. 2010) (presidential action not invalidated by alleged ITC statutory error)
Dalton v. Specter, 511 U.S. 462 (1994) (President not required to assess procedural violations when acting on agency recommendations)
United States v. George S. Bush & Co., 310 U.S. 371 (1940) (no judicial review of presidential factual judgments)