Kwo Lee, Inc. v. United States, 2014 Ct. Intl. Trade LEXIS 123

OPINION and ORDER

POGUE, Senior Judge:

Plaintiff, Kwo Lee, Inc. (Shuzhang “Steven” Li, owner), moves to enjoin U.S. Customs and Border Protection (“Customs” or “CBP”) from imposing a single transaction bond requirement on Plaintiffs entries of fresh garlic from the People’s Republic of China (“PRC”). Pl.’s Appl. for a TRO & Mot. for a Prelim. Inj., ECF No. 7 (“Pl.’s Br.”), at 1. Plaintiffs entries are subject to an antidumping duty order (A-570-831). Customs enhanced bond requirement would equal Plaintiffs total potential anti-dumping duty liability as calculated at the PRC-wide rate ($4.71/kg), rather than the expected $0.35/kg cash deposit rate otherwise applicable to Plaintiffs exporter/producer (Qingdao Tiantaixing Foods Co., Ltd. (“QTF”)). Id.; Am. Compl., ECF No. 19, at ¶ 1. Because Plaintiff has established his entitlement to a preliminary injunction, his motion is granted.

BACKGROUND

This action has its origins in a nearly twenty-year-old antidumping duty order on fresh garlic from the PRC. Fresh Garlic from the [PRC], 59 Fed. Reg. 59,209 (Dep’t Commerce Nov. 16, 1994) (anti-dumping duty order). This order set a PRC-wide rate at 376.67 percent (which translates to a cash deposit rate of $4.71/kg of garlic). Id. at 59,210; Ex. 3 to PL’s Br. (Undated Port of San Francisco Information Notice), ECF No. 7-2 at Ex. 3 '(“Information Notice”).

QTF did not begin shipping fresh garlic to the United States until 2006, at which point it requested and, following investigation, was granted a new shipper rate (“NSR”) by the U.S. Department of Commerce (“Commerce”). Fresh Garlic from the [PRC], 73 Fed. Reg. 56,550, 56,552 (Dep’t Commerce Sept. 29, 2008) (final results and rescission, in part, of twelfth new shipper reviews) (“Twelfth NSR ”). QTF’s NSR is 32.78 percent (which translates to a cash deposit rate of $0.352/kg of garlic). Id.; App. to Mem. Supp. Def.’s Opp’n to Pis.’ Appl. for TRO & Mots, for Prelim. Inj. (“Def.’s App.”), (CBP Cash Deposit Instructions for Fresh Garlic from China, A-570-831 (Oct. 15, 2008)), ECF No. 25-1 (“CBP Cash Deposit Instructions”), at A3.¹ QTF made no subsequent shipments of the subject garlic to the United States until 2014,² when Plaintiff attempted to import some of QTF’s fresh garlic. Ex. 5 to PL’s Br. (Decl. of Steven [Li] (Owner)), ECF No. 7-2 (“Li Decl.”), at ¶ 10. Customs denied entry, conducted import specialist review of entry documents, and, ultimately, denied release of the entries. Def.’s App. (Edert Decl.), ECF No 25-1 (“Edert Decl.”), at A10-A11 ¶¶ 6, 11. Customs provided Plaintiff with notice that “[t]o ensure entries are filed correctly and to protect [the] revenue [of the United States]” it would require that he provide an “additional single transaction bond [for each entry] to cover antidumping duties” at the PRC-wide rate of $4.71/kg. See Information Notice, ECF No. 7-2 at Ex. 3. Plaintiff challenges this determination as arbitrary and capricious under 28 U.S.C. § 1581(i) (2012).³ See Am. Compl., ECF No. 19, at ¶ 2; Pl.’s Br., ECF No. 7, at 1.

Plaintiff sought a temporary restraining order (“TRO”) and preliminary injunction to prevent Customs from imposing the heightened bonding requirement, Pl.’s Br., ECF No. 7, at 1. The court held an evi-dentiary hearing on October 1, 2014, see Hr’g, ECF No. 29, and subsequently granted Plaintiffs request for a TRO. See TRO, Oct. 2, 2014, ECF Nos. 35 (conf. version) & 36 (pub. version). This TRO, effective through midnight on October 16, 2014, enjoined Customs from imposing the heightened bond requirement on the subject entries, and required instead that the Plaintiff provide security to this Court in the amount of one million dollars ($1,000,-000.00), “to pay the costs or damages as may be incurred or suffered by the Defendant in the event of a finding that the Defendant has been wrongfully enjoined or restrained.” Id. at 2.

DISCUSSION

“A preliminary injunction is an extraordinary remedy never awarded as of right.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008) (citation omitted). To obtain a preliminary injunction, Plaintiff must establish: “[1] that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest.” Id. at 20, 129 S.Ct. 365 (citations omitted). No one factor is dispositive, FMC Corp. v. United States, 3 F.3d 424, 427 (Fed.Cir.1993), but “[c]entral to the movant’s burden are the likelihood of success and irreparable harm factors.” Sofamor Danek Grp., Inc. v. DePuy-Motech, Inc., 74, F.3d 1216, 1219 (Fed.Cir.1996). The court evaluates a request for a preliminary injunction on a “sliding scale,” where “the more the balance of irreparable harm inclines in the plaintiffs favor, the smaller the likelihood of prevailing on the merits he need show in order to get the injunction.” Qingdao Taifa Grp. Co. v. United States, 581 F.3d 1375, 1378-79 (Fed.Cir.2009) (citing Kowalski v. Chi. Tribune Co., 854 F.2d 168, 170 (7th Cir.1988)). Because of this “sliding scale,” we begin our analysis with discussion of irreparable harm.

I. Plaintiff Has Shown a Viable and Immediate Threat of Irreparable Harm.

Plaintiff must establish that, in the absence of a preliminary injunction, he will suffer irreparable harm. Winter, 555 U.S. at 20, 129 S.Ct. 365. Harm is irreparable when “no damages payment, however great,” can address it, Celsis In Vitro, Inc. v. CellzDirect, Inc., 664 F.3d 922, 930 (Fed.Cir.2012) (citations omitted); see also Morales v. Trans World Airlines, Inc., 504 U.S. 374, 381, 112 S.Ct. 2031, 119 L.Ed.2d 157 (1992) (holding that equitable relief is only appropriate where legal remedies are inadequate). The threat of irreparable harm must be immediate and viable — “[a] preliminary injunction will not issue simply to prevent a mere possibility of injury, even where prospective injury is great.” Zenith Radio Corp. v. United States, 710 F.2d 806, 809 (Fed.Cir.1983) (quotation marks and citations omitted).⁴

Financial loss alone — compensa-ble with monetary damages — is not irreparable. Sampson v. Murray, 415 U.S. 61, 90, 94 S.Ct. 937, 39 L.Ed.2d 166 (1974). However, “the simple fact that one could, if pressed, compute a money damages award does not always preclude a finding of irreparable harm.” Celsis In Vitro, 664 F.3d at 930. Irreparable harm may take the form of “[p]rice erosion, loss of goodwill, damage to reputation, and loss of business opportunities.” Id. (citing Abbott Labs. v. Sandoz, Inc., 544 F.3d 1341, 1362 (Fed.Cir.2008); Sanofi-Synthelabo v. Apotex, Inc., 470 F.3d 1368, 1382-83 (Fed.Cir.2006)).⁵ Bankruptcy is an irreparable harm because, in addition to the obvious economic injury, loss of business renders a final judgment useless, depriving the mov-ant of effective and meaningful judicial review. Doran v. Salem Inn, Inc., 422 U.S. 922, 932, 95 S.Ct. 2561, 45 L.Ed.2d 648 (1975).⁶

Here, Customs seeks to impose single transaction bond requirements on Plaintiffs entries of fresh garlic from the PRC equal to Plaintiffs total potential an-tidumping duty liability if calculated at the PRC-wide rate ($4.71/kg), see Information Notice, ECF No. 7-2 at Ex. 3, rather than the expected $0.35/kg cash' deposit rate otherwise applicable to Plaintiffs exporter/producer, QTF. See Twelfth NSR, 73 Fed. Reg. at 56,552 (setting the antidump-ing duty rate); CBP Cash Deposit Instructions, ECF No. 25-1, at A3 (setting cash deposit rate); Ex. 1 to PL’s Br. (July 3, 2014 letter from QTF to Customs), ECF No. 7-1 at 3 (requesting verification of $0.352/kg rate); Pl.’s Br., ECF No. 7, at 2 n. 3 (Plaintiff receiving oral confirmation of $0.352/kg rate from Customs). For the Plaintiff, this means more than $10 million in additional bonding (i.e., 129 containers at an average of $117,500 additional bonding per container). See Li Decl., ECF No. 7-2 at Ex. 5, at ¶ 10; Attach, to [PL’s] Resp. to Ct.’s Req., Oct. 2, 2012, ECF No. 34-1.⁷

Normally, an importer could obtain such single transaction bonds from a surety for a fraction of the bond value, see Mem. Supp. Def.’s Opp’n to Pis.’ Appl. for TRO & Mots, for Prelim. Inj., ECF Nos. 17 (pub. version) & 25 (conf. version) (“Def.’s Br.”) at 16; [Def.’s] Resp. to Ct.’s Req., Sept. 30, 2014, ECF No. 26, at ¶ 1. But Plaintiff does not present a normal case. Rather, obtaining a bond at this time, in this industry would require fall collateral for the millions of dollars at issue. Pl.’s Resp. to Ct.’s Req., Oct. 2, 2012, ECF No. 30; see also Conf. Tr. of Hr’g Held on Oct. 1, 2014 (“Tr. TRO Hr’g”)(test. Of Mr. Shu-zhang “Steven” Li), ECF No. 40 (“Li Test.”), at 8:20-9:8, 17:21-18:17.⁸ Plaintiff represents that he cannot provide this collateral any more than he can post the full amount as a cash deposit. Li Test., ECF No. 40, at 15:1^4, 17:8-11; Tr. TRO Hr’g (Pl.’s Ex. 4), ECF No. 40 (bank statements). While he has paid the additional bonding for two entries himself, see Attach. to [Pl.’s] Resp. to Ct.’s Req., Oct. 2, 2012, ECF No. 34-1 at 1 (listing two entries as released with payment of full collateral ($116,572.50)); Tr. TRO Hr’g (Pl.’s Exs. 1 & 2), ECF No. 40 (providing Customs bonds and collection receipts noting that cash was provided in lieu of bond for two entries), the vast majority of the garlic has remained in limbo, accruing demur-rage charges⁹ and spoiling. Li Decl., ECF No. 7-2 at Ex. 5, at ¶ 11. Plaintiff also suffers loss of goodwill and damage to his reputation from his domestic customers due to his failure to deliver because of his inability to pay the fully collateralized bond amount. Li Test., ECF No. 40, at 12:6-13:15; Tr. TRO Hr’g (Pl.’s Ex. 3), ECF No. 40 (letter from domestic customer to Plaintiff). Unable to meet either Customs’ or his customers’ demands, Plaintiff faces imminent and immediate bankruptcy, loss of business, and, therefore, loss of access to meaningful judicial review. Accordingly, Plaintiff has sufficiently established irreparable harm for a preliminary injunction.

II. Plaintiff Has Established a Fair Chance of Success on the Merits.

Where, as here, the Plaintiff has made a strong showing of irreparable harm, “the burden to show a likelihood of success is necessarily lower.” Qingdao Taifa, 581 F.3d at 1381. He need only establish a “fair chance of success on the merits,” U.S. Ass’n of Imps. of Textiles & Apparel v. U.S. Dep’t of Commerce, 413 F.3d 1344, 1347 (Fed.Cir.2005) (internal quotation marks and citations omitted), by raising “questions which are ‘serious, substantial, difficult and doubtful.’ ” Timken Co. v. United States, 6 CIT 76, 80, 569 F.Supp. 65, 70 (1983) (quoting Cnty. of Alameda v. Weinberger, 520 F.2d 344, 349-50 n. 12 (9th Cir.1975)).¹⁰

On the merits, Plaintiff challenges Customs’ determination that he must provide enhanced bonding. Am. Compl., ECF No. 19, at ¶ 1. He faces a high burden: Customs has broad authority to protect the revenue of the United States. See 19 U.S.C. §§ 66, 1623. Further, Customs has promulgated extensive bonding regulations, following notiee-and-comment rulemaking, pursuant to that authority.¹¹ This includes 19 C.F.R. § 113.13(d) (2014) under which Customs makes enhanced bonding determinations. However,- while Customs’ “interpretation of its own regulations is entitled to broad deference from the courts,” Cathedral Candle Co. v. U.S. Int’l Trade Comm’n, 400 F.3d 1352, 1363 (Fed.Cir.2005) (citations omitted), the court must “hold unlawful and set aside agency action, findings, and conclusions found to be[] arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A).¹²

The arbitrary and capricious standard of review is narrow and deferential. Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). Nonetheless, the court’s inquiry must still be “searching and careful.” Id. Customs must have “articulate[d] a rational connection between the facts found and the choice made.” Bowman Transp., Inc. v. Ark.-Best Freight Sys., Inc., 419 U.S. 281, 285, 95 S.Ct. 438, 42 L.Ed.2d 447 (1974) (internal quotation marks and citation omitted). Customs cannot have “relied on factors [that] Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before [it], or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). “While we may not supply a reasoned basis for the agency’s action that the agency itself has not given, we will uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned.” Bowman Transp., 419 U.S. at 285-86, 95 S.Ct. 438 (citing SEC v. Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947); Colo. Interstate Gas Co. v. FPC, 324 U.S. 581, 595, 65 S.Ct. 829, 89 L.Ed. 1206 (1945)).

On the present record, while the court has not reached a final decision as to the reasonableness of Customs’ actions, the Plaintiff has established sufficient likelihood of success on the merits by raising “serious, substantial, difficult and doubtful” questions about the reasonableness of Customs’ actions. See Timken, 6 CIT at 80, 569 F.Supp. at 70.

In making its enhanced bonding determination, Customs primarily relies on an alleged deficiency in Plaintiffs entry documents. Specifically, Customs asserts that. Plaintiffs documents included incomplete or discrepant phytosanitary certificates. Def.’s Br., ECF No. 17, at 8-9; Edert Deck, ECF No. 25-1, at All ¶ 8-11; Def.’s App. (Pilipavicius Deck), ECF No. 25-1 (“Pilipavicius Deck”), at A15-A16 ¶¶ 6, 9-10; Def.’s App. (Djeng Deck), ECF No. 25-1 (“Djeng Deck”), at A22-A24 ¶¶ 3-9. According to Customs, the phytosanitary certificate is issued by the Chinese government and acts as a “birth certificate” of sorts for Plaintiffs garlic: It is a reliable way to know the identity of the producer, the facility in which the garlic was produced, and when it was produced. Pilipav-icius Deck, ECF No. 25-1, at A15 ¶8; Djeng Deck, ECF No. 25-1, at A23 ¶ 4. To Customs, flaws in the certificate suggest fraudulent entry documents. Def.’s Br., ECF No. 17, at 26-27; Edert Decl., ECF No. 25-1, at All ¶ 8-11; Pilipavicius Decl., ECF No. 25-1, at A16 ¶ 9-11.

However, Plaintiff has produced evidence that indicates that the phytosanitary .certificates provided by the Chinese government are unreliable at best, being routinely imperfect and incomplete. Tr. TRO Hr’g, ECF No. 40, at 37:5-8; Add. Decl. of Shuzhang Li (Owner), ECF No. 12, at ¶ 4; Decl. Zhao Zhenqing, ECF No. 31 (“Zhao Decl.”), at ¶¶ 5-6. Further, even when complete, they do not provide the information Customs expects: Phytosanitary certificates indicate storage location and inspection site, not producer. Tr. TRO Hr’g, ECF No. 40, at 30:4-10, 35:24-36:9; Zhao Decl., ECF No. 31, at ¶¶ 2-4 (explaining that provenance data on phyto-sanitary certificates is based on site of inspection (warehouse or factory), not the companies that use the facility). If true, such evidentiary unreliability could corrupt any rational connection between the facts found (producer identity) and choices made (enhanced bonding), rendering Customs’ reliance on the certificates arbitrary and capricious. Moreover, if incomplete and discrepant phytosanitary certificates are as pervasive as Plaintiff would argue, see Tr. TRO Hr’g, ECF No. 40, at 36:4-9; Zhao Decl., ECF No. 31, at ¶¶2-4; Attach. 1 to Zhao Decl., ECF No. 31-1 (providing a sampling of incomplete and imperfect phytosanitary certificates from various companies), it would be discriminatory (i.e., arbitrary and capricious) for Customs to single out Plaintiff for heightened bonding requirements on this basis and not do the same for similarly situated companies with comparably imperfect phy-tosanitary certificates.

Further, Plaintiff raises doubts about the secondary “red flags” Customs relied upon in its enhanced bonding determination. Specifically, Plaintiffs sudden high volume of garlic imports was not indicative of planned antidumping duty fraud. See Edert Decl., ECF No 25-1, at A9-A10 ¶¶ 4, 7. Rather the Plaintiff was acting on a perceived business opportunity after an increase in the antidumping duty rates for other garlic importers made importation of QTF-produced garlic financially reasonable. See Tr. TRO Hr’g, ECF No. 40, at 39:1-14 (offering market opportunity as a possible explanation); Li. Deck, ECF No. 7-2 at Ex. 5, at ¶ 4 (explaining that QTF did not import garlic until 2014 due to “business issues”); see also Djeng Deck, ECF No 25-1, at A24 ¶¶ 8-9 (discussing the recent change in antidumping rates for Plaintiffs competitors). Moreover, contrary to Customs’ allegations, QTF’s garlic shipments were not too large for the time of year and their number of employees, as it was the harvest season when there is an influx of garlic on the market and workers work around the clock, taking multiple shifts to process this garlic. Edert Deck, ECF No 25-1, at A10 ¶ 7; Tr. TRO Hr’g, ECF No. 40, at 34:12-22. It follows that Plaintiff has established that Customs, by failing to consider important aspects of the problem before it, may have offered an explanation for its decision that runs counter to the evidence.

Plaintiff has also raised concerns about the adequacy of the process accorded by Customs in requiring heightened bonding, particularly the insufficiency of the Information Notice, ECF No. 7-2 at Ex. 3, see Tr. TRO Hr’g, ECF No. 40, at 53:8-11, and Customs’ failure to provide a reasoned decision (rendering it arbitrary and capricious). The present record suggests Customs did not provide much, if any process outside the generalized and terse statements in the Information Notice, i.e., that heightened bonding was required “[d]ue to discrepancies found with entry documents, concerns with bond sufficiency[,] and the financial risk associated with the entry of fresh garlic from the PRC.” Information Notice, ECF No. 7-2 at Ex. 3. Customs’ bond determinations are renewable and Customs is required to provide “sufficient information as to the basis for the change [in bonding requirements] to allow it to be challenged in court.” Hera Shipping, Inc. v. Carnes, 10 CIT 493, 496, 640 F.Supp. 266, 269 (1986); see Nat’l Fisheries Inst., Inc. v. U.S. Bureau of Customs & Border Prot., 33 CIT 1137, 1151-52, 637 F.Supp.2d 1270, 1284-85 (2009). It is unclear, based on the current record, whether Customs has done so here.

Accordingly, Plaintiff has raised serious and substantial questions as to whether Customs’ decision to require enhanced bonding was arbitrary and capricious, and these questions are sufficient to establish a fair chance of success of the merits.

III. The Balance of the Equities Favors the Plaintiff.

Before granting a preliminary injunction, the court “must balance the competing claims of injury and must consider the effect” that granting or denying relief will have on each party. Winter, 555 U.S. at 24, 129 S.Ct. 365 (internal quotation marks and citation omitted). Here, Plaintiff faces the immediate threat of bankruptcy. In the absence of a preliminary injunction, he will suffer the irreparable harms of loss of business and loss of access to meaningful judicial review.¹³ Customs, meanwhile, faces the possible loss of millions of dollars in revenue to the United States, see Defi’s Br., ECF No. 16, at 31; 19 U.S.C. § 1623 (directing Customs to protect the revenue of the United States), in an industry that has already posed significant antidumping duty collection problems. Edert Deck, ECF No. 25-1, at A9 ¶¶ 2-3; Pilipavicius Deck, ECF No. 25-1, at A14-A15 ¶¶ 3^1. If a preliminary injunction is granted, Customs must risk that, even if it succeeds on the merits, it will not collect the duties owed (given their sheer magnitude and resultant financial impossibility for the Plaintiff). See Def.’s Br., ECF No. 17, at 31-32; see also Queen’s Flowers, 20 CIT at 1128, 947 F.Supp. at 508.

But the record reveals that Commerce has previously deteipined that the Plaintiffs producer/exporter is not subject to the PRC-wide rate. Twelfth NSR, 73 Fed. Reg. at 56,552. Accordingly, there is a possibility that enhanced bonding is unnecessary and that there will be no harm to the revenue of the United States. Moreover, Plaintiffs exporter will be subject to administrative review and collection of any actual antidumping duties owed.¹⁴ It follows that the balance of the equities favors the Plaintiff in that he faces imminent, irreparable injury while Customs faces only possible, if substantial, injury that is susceptible to both legal remedy and present mitigation (through requiring future cash deposits from the Plaintiff, thereby limiting Customs’ exposure for unpaid duties and through requiring that a bond be filed with the court).¹⁵

IV. The Public Interest will be Served by Granting the Plaintiff a Preliminary Injunction.

The court “should pay particular regard for the public consequences” when “employing the extraordinary remedy of injunction.” Winter, 555 U.S. at 24, 129 S.Ct. 365 (quoting Weinberger v. Romero-Barcelo, 456 U.S. 305, 312, 102 S.Ct. 1798, 72 L.Ed.2d 91 (1982)). While Customs has a public interest in protecting the revenue of the United States, there is also a strong public interest in the proper execution of and compliance with the law. 19 U.S.C. §§ 66, 1623. The public interest is served by the accurate and effective, uniform and fair enforcement of trade laws. Union Steel v. United States, 33 CIT 614, 622, 617 F.Supp.2d 1373, 1381 (2009); Ceramica Regiomontana, S.A. v. United States, 7 CIT 390, 397, 590 F.Supp. 1260, 1265 (1984). While “maintaining a maximum level of security for the unliqui-dated entries would serve broadly the public interest of revenue collection,” this cannot be done “at the cost of continuing to subject [a plaintiff] to an unlawful, and discriminatory bonding requirement.” Nat’l Fisheries Inst., Inc. v. U.S. Bureau of Customs & Border Prot., - CIT -, 751 F.Supp.2d 1318, 1325 (2010). Preserving Plaintiffs access to meaningful judicial review, a public interest in itself, protects against unchecked and unchallenged enforcement by preserving Plaintiffs opportunity to litigate a potentially meritorious claim. See Ugine-Savoie Imphy v. United States, 24 CIT 1246, 1252, 121 F.Supp.2d 684, 690 (2000); Queen’s Flowers, 20 CIT at 1127, 947 F.Supp. at 508. Accordingly, the public interest will be served by granting the Plaintiff a preliminary injunction.

CONCLUSION

Plaintiff has demonstrated entitlement to a preliminary injunction against Customs’ requirement of enhanced bonding at the PRC-wide rate. Accordingly, Plaintiffs motion is GRANTED, and it is hereby

ORDERED that Defendant, its officers, delegates, agents, servants, and employees, are enjoined for the pendency of this litigation, including all relevant appeals and remands, until such time as a final court decision is rendered within the meaning of 19 U.S.C. § 1516a(e), from imposing single transaction bond requirements on the entries by Plaintiff, Kwo Lee, Inc., of garlic from the PRC exported by QTF as listed in Appendix A to the TRO, ECF No. 35 (“subject entries”); it is further

ORDERED that Defendant, its officers, delegates, agents, servants, and employees, shall immediately rescind all single transaction bond requirements imposed on the subject entries; it is further

ORDERED that Plaintiff shall continue to provide security in the amount of one million dollars ($1,000,000.00), as required by the TRO, to indemnify the costs or damages of a finding that the Defendant has been wrongfully enjoined or restrained as a result of this preliminary injunction; it is further

ORDERED that the TRO entered on October 2, 2014, ECF Nos. 35 & 36, is vacated; and it is further

ORDERED that the joint status report and briefing schedule for this action shall be filed with the court by November 7, 2014.

Notes

1 . See also Ex. 1 to PL’s Br. (July 3, 2014 letter from QTF to Customs), ECF No. 7-1 at 3 (requesting verification of $0.352/kg rate); Pl.’s Br., ECF No. 7, at 2 n. 3 (Plaintiff receiving oral confirmation of $0.352/kg rate from Customs).

2 . For administrative reviews in which QTF timely certified it had no shipments during the period of review, see Fresh Garlic from the [PRC], Issues & Decision Memorandum, A-570-831, ARP 07-08 (June 14, 2010) (adopted in 75 Fed. Reg. 34,976, 34,980 (Dep’t Commerce June 21, 2010) (final results and partial rescission of the 14th antidumping duty administrative review)) Issue 3 at 11 n. 7 (noting that Customs issued a no-shipment inquiry for QTF, and will only do so when the company has submitted a timely and properly filed no shipment certification); Fresh Garlic from the [PRC], 76 Fed. Reg. 37,321, 37,323 (Dep’t Commerce June 27, 2011) (final results and final rescission, in part, of the 2008-2009 antidumping duty administrative review); Fresh Garlic from the [PRC], 77 Fed. Reg. 11,486, 11,489 (Dep’t Commerce February 27, 2012) (partial final results and partial final rescission of the 2009-2010 administrative review); Fresh Garlic from the [PRC], 78 Fed. Reg. 36,168, 36,170 (Dep’t Commerce June 17, 3013) (final results of antidumping administrative review; 2010-2011); and, Fresh Garlic from the [PRC], 79 Fed. Reg. 36,721, 36,724 (Dep’t Commerce June 30, 2014) (final results and partial rescission of the 18th antidumping duty administrative review; 2011-2012).

3 . All further citations to the U.S. Code are to the 2012 edition.

4 . See also Winter, 555 U.S. at 22, 129 S.Ct. 365 (holding that movant must "demonstrate that irreparable injury is likely in the absence of an injunction”) (emphasis in original) (citing Los Angeles v. Lyons, 461 U.S. 95, 103, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983); Granny Goose Foods, Inc. v. Teamsters, 415 U.S. 423, 441, 94 S.Ct. 1113, 39 L.Ed.2d 435 (1974); O’Shea v. Littleton, 414 U.S. 488, 502, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974) (additional citation to treatise omitted)).

5 . See also Corus Grp. PLC v. Bush, 26 CIT 937, 943, 217 F.Supp.2d 1347, 1354 (2002) ("Generally, where a party is required to fundamentally alter its business operations during litigation in order to comply with a challenged Government action, that party suffers irreparable harm.”), aff'd in part sub nom. Corns Grp. PLC v. Int’l Trade Comm'n, 352 F.3d 1351 (Fed.Cir.2003); Decca Hospitality Furnishings, LLC v. United States, 30 CIT 357, 365-66, 427 F.Supp.2d 1249, 1257-58 (2006) (importer may suffer irreparable harm when “unable to secure the necessary credit to cover the erroneous cash deposit rate pending a final and conclusive court decision”); CPC Int’l, Inc. v. United States, 19 CIT 978, 979, 896 F.Supp. 1240, 1243 (1995) (Irreparable harm occurs where “compliance with a ruling of Customs ... would cause the importer to incur costs, expenditures, business disruption or other financial losses, for which the importer has no legal redress to recover in court, even if the importer ultimately prevails on the merits in contesting the ruling.”).

6 . See also Queen’s Flowers de Colombia v. United States, 20 CIT 1122, 1127, 947 F.Supp. 503, 507 (1996); Am. Parcel Forwarding Co. v. United States, 4 CIT 94, 98, 1982 WL 17521 (1982) (not reported in F. Supp.); McAfee v. U.S., 3 CIT 20, 24, 531 F.Supp. 177, 179 (1982) ("It is difficult for this court to envision any irreparable damage to a plaintiff and his business more deserving of equitable relief than the [very] loss of the business itself.”).

7 . Defendant places total additional bonding required at $[[Confidential Data Deleted ]] mil lion. [Def.’s] Resp. to Ct.'s Order, Oct. 2, 2014, ECF Nos. 32 (conf. version) & 33 (pub. version), at 2.

8 . Cf. Dacca Hospitality, 30 CIT at 366, 427 F.Supp.2d at 1257-58.

9 . That is, money owed to the shipping con-itainer company for use of the containers beyond the agreed time. See. id..; Black’s Law Dictionary 526 (10th ed. 2014) (defining de-murrage as, inter alia, “[a] charge due for the late return of ocean containers or other equipment”).

10 . See also Ugine & Alz Belgium v. United States, 452 F.3d 1289, 1295 (Fed.Cir.2006) (finding sufficient likelihood of success where matter was not "so clear cut” as to deny appeal).

11 . See Customs Bond Structure; Revision, 49 Fed. Reg. 41,152 (Oct. 19, 1984).

12 . The court reviews actions brought under 19 U.S.C. § 1581 (i) (such as here) as provided in the Administrative Procedures Act, 5 U.S.C. § 706. See 28 U.S.C. § 2640(e).

13 . See discussion supra Section I.

14 . "[T]he United States uses a 'retrospective' assessment system under which final liability for antidumping and countervailing duties is determined after merchandise is imported.” 19 C.F.R. § 351.212. At entry, importers make a cash deposit of the estimated anti-dumping duties, id. at 351.211(b)(2), but if, as here, the antidumping duty rate is challenged by an interested party, the final antidumping duly rate (and thus amount owed) will be assessed pursuant to an administrative review, id. at §§ 351.213, 351.211(b)(1), or, if appealed to this Court, assessed according to the final decision in the action. 19 U.S.C. § 1516a(e)(2).-

15 . See Queen's Flowers, 20 CIT at 1128, 947 F.Supp. at 508 (similarly favoring movant in balance of the equities).

Case Details

Case Name: Kwo Lee, Inc. v. United States

Court Name: United States Court of International Trade

Date Published: Oct 16, 2014

Citations: 2014 Ct. Intl. Trade LEXIS 123; 24 F. Supp. 3d 1322; 36 I.T.R.D. (BNA) 1116; 2014 WL 5369391; Slip Op. 14-121; Court No. 14-00212

Docket Number: Slip Op. 14-121; Court No. 14-00212

Court Abbreviation: Ct. Int'l Trade