OMAN FASTENERS, LLC, Plaintiff-Appellee v. UNITED STATES, Defendant MID CONTINENT STEEL & WIRE, INC., Defendant-Appellant
2023-1661
United States Court of Appeals for the Federal Circuit
January 7, 2025
MICHAEL R. HUSTON, Perkins Coie LLP, Phoenix, AZ, argued for plaintiff-appellee. Also represented by ANDREW CARIDAS, MICHAEL PAUL HOUSE, JONATHAN IRVIN TIETZ, Washington, DC; ANDREW DUFRESNE, SOPEN B. SHAH, Madison, WI.
ADAM H. GORDON, The Bristol Group PLLC, Washington, DC, argued for defendant-appellant. Also represented by BENJAMIN JACOB BAY, JENNIFER MICHELE SMITH-VELUZ.
Before MOORE, Chief Judge, SCHALL and TARANTO, Circuit Judges.
TARANTO, Circuit Judge.
Based on its 2015 antidumping-duty order covering certain steel nails from the Sultanate of Oman, the U.S. Department of Commerce conducted an administrative review under section 751 of the Tariff Act of 1930,
Oman Fasteners did not call its tardiness to the attention of Commerce officials. Five weeks later, after certain Commerce personnel noticed the 16-minute delay, Commerce rejected Oman Fasteners’ response. Commerce proceeded to issue the final results of the review without considering any of the information in the response and instead applied an inference adverse to Oman Fasteners, under
Oman Fasteners filed an action in the Court of International Trade (Trade Court) to challenge the final results, and it promptly sought a preliminary injunction against imposition of the 154.33% duty rate. Domestic steel-nail producer Mid Continent Steel & Wire, Inc. (Mid Continent)—which had filed the petition that led to the 2015 antidumping-duty order and which had participated in the 2020-2021 administrative review—intervened as a defendant. After consolidating the preliminary-injunction proceeding with a trial on the merits, the Trade Court held that Commerce abused its discretion and remanded to Commerce for recalculation consistent with its opinion—a nonfinal decision not subject to appeal to this court. But it also issued an injunction that barred Commerce from enforcing the final results
Pursuant to
I
A
Under the general legal framework relevant here, when Commerce finds that “foreign merchandise is . . . sold in the United States at less than its fair value” and the United States International Trade Commission determines that a domestic industry is, or is threatened to be, materially injured, Commerce must impose an antidumping duty “equal to the amount by which the normal value exceeds the export price (or the constructed export price) for the [foreign] merchandise.”
The usual process for finally determining the duty for (already-made) entries of subject merchandise is an administrative review, which is conducted on an up-to-annual basis, at least if requested by an “interested party,” such as a domestic producer like Mid Continent.
The temporal difference between entry and final determinations of duty for the entered merchandise gives rise to a requirement of cash deposits upon entry.
Commerce, lacking subpoena power, generally must rely on the parties for information crucial to its determination. The “burden of creating an adequate record lies with interested parties and not with Commerce.” BMW of N. America LLC v. United States, 926 F.3d 1291, 1295 (Fed. Cir. 2019) (citations omitted). During an administrative review like the one here, Commerce may request information through “questionnaires requesting factual information” to determine the antidumping duty.
B
Commerce initiated an antidumping investigation of certain steel-nail products imported from the Sultanate of Oman, and certain other places, based on a petition filed by Mid Continent, and Commerce subsequently determined that Oman Fasteners was dumping certain steel nails. Certain Steel Nails From the Sultanate of Oman: Final Determination of Sales at Less Than Fair Value, 80 Fed. Reg. 28972 (May 20, 2015). Commerce issued an antidumping-duty order on July 13, 2015, imposing a 9.10% duty on Oman Fasteners. Certain Steel Nails From the Republic of Korea, Malaysia, the Sultanate of Oman, Taiwan, and the Socialist Republic of Vietnam: Antidumping Duty Orders, 80 Fed. Reg. 39994, 39996 (July 13, 2015).1 Each year since, Commerce has conducted an administrative review, and the Commerce-determined rates for Oman Fasteners preceding the present review were (in chronological order) 0.63%, 0.00%, 0.00%,
On September 7, 2021, Commerce initiated an administrative review for the period of review spanning July 1, 2020, to June 30, 2021. Initiation of Antidumping and Countervailing Duty Administrative Reviews, 86 Fed. Reg. 50034, 50037 (Sept. 7, 2021). Oman Fasteners responded to Commerce‘s supplemental questionnaire on December 10, 2021. J.A. 3553-54. On January 24, 2022, in accordance with
On February 14, counsel for Oman Fasteners, in preparing to submit its response electronically, pre-screened the files for submission-impairing errors by using the “check file” feature on Commerce‘s electronic filing system ACCESS. J.A. 2513. The “check file” identified no problem. Id. Although prior submissions by counsel had taken between 9 and 32 minutes, J.A. 144, counsel began uploading the files about 50 minutes before the 5:00 PM deadline. J.A. 2514. Despite the clean “check file” results, counsel received a notification that the first file was rejected 8 minutes after submitting it, and counsel received a similar notification 9 minutes after resubmitting the file. J.A. 2514, 2527-30. Counsel for Oman Fasteners reformatted and resubmitted the response narrative and a supporting PDF (Portable Document Format) document, receiving electronic confirmation of receipt by 4:46 PM. J.A. 2514-15, 2529-30. Counsel then began uploading additional files, which were in a different computer format and contained mostly (but not entirely) the same information already submitted successfully by 4:46 PM—but the last of those files were not accepted (or, therefore, successfully submitted) until 5:16 PM. J.A. 2514-16, 2531-36, 2655-65, 2670, 2893, 2895.3 Counsel for Oman Fasteners did not send Commerce any “notification . . . of filing difficulties or an additional request for extension of the deadline.” J.A. 120, 2669.
The files submitted on February 14th had business proprietary information and were marked as such, with the marking
Commerce notified counsel for Oman Fasteners on March 22, 2022, that it was rejecting the tardy submission and would not consider it part of the record for the proceeding. J.A. 120-21 (citing
In July 2022, Commerce issued its preliminary results for the administrative review and found a dumping margin of 154.33% for the 2020-2021 Oman Fasteners entries. Certain Steel Nails From the Sultanate of Oman: Preliminary Results of Antidumping Duty Administrative Review and Preliminary Determination of No Shipments; 2020-2021, 87 Fed. Reg. 43240, 43241 (July 20, 2022) (Prelim. Results). In its accompanying decision memorandum, Commerce reasoned: “Oman Fasteners failed to provide necessary U.S. sales information by the deadline for submission of that information and failed to demonstrate that any extraordinary circumstances caused the untimely filed extensions request and submission“; “necessary information [was] not available on the record“; and it should turn to information otherwise in the record under
Oman Fasteners asked Commerce to extend the deadline for its issuance of the administrative review‘s final results and to
On December 22, 2022, Commerce issued its final results, adopting the 154.33% rate. Certain Steel Nails From the Sultanate of Oman: Final Results of Antidumping Duty Administrative Review; 2020-2021, 87 Fed. Reg. 78639 (Dec. 22, 2022) (Final Results). In its accompanying memorandum, Commerce stated that “Oman Fasteners did not provide a convincing explanation for why its submission was late” and “did not notify Commerce of its error in not filing the complete submission, or attempt to remedy it.” Issues and Decision Memorandum for the Final Results of the 2020-2021 Administrative Review of the Antidumping Duty Order on Certain Steel Nails from the Sultanate of Oman at 19-20 (Dep‘t of Commerce Dec. 16, 2022) (Final Results Dec. Mem.). Commerce reasoned that the statute authorizes it to adopt any dumping margin “including the highest such rate or margin” and that, on the record here, although “calculated margins” ranged “from 0.63 percent to 9.10 percent,” it was “appropriate to assign Oman Fasteners the Petition rate of 154.33 percent [from the petition initiating the underlying antidumping investigation] based on [Oman Fasteners‘] failure to cooperate, because it is a rate on the record which would confer an adverse inference and induce cooperation.” Id. (emphasis added). Commerce added that the statute “does not require that Commerce demonstrate that the . . . rate used reflects an alleged commercial reality of an interested party,” so it was “not required to consider whether such a rate reasonably reflects the commercial reality of Oman Fasteners.” Id. at 19.
C
The next day, Oman Fasteners, an “interested party” under
After a confidential hearing, which the Trade Court instructed the parties to treat as a trial on the merits, J.A. 52, ECF No. 78; J.A. 3655-56, 3671, the Trade Court issued a judgment on the agency record on February 15, 2023, Trade Court Decision, at *13. Stating that “this is not a close case,” id. at *4, the Trade Court concluded that Commerce abused its discretion in denying the retroactive extension and applying an adverse inference to select the “draconian sanction” of the 154.33% antidumping duty, id. at *7-8. “Because Commerce‘s
The United States declined to appeal from the injunction, but Mid Continent timely filed an interlocutory appeal to this court on March 23, 2023.4 In January 2024,
Oman Fasteners filed a motion to dismiss the appeal as moot. Appellee‘s Mot. to Dismiss Appeal as Moot, ECF No. 48 (Oman‘s Motion to Dismiss). We have jurisdiction under
II
Before turning to the merits of Mid Continent‘s appeal, we first address Oman Fasteners’ arguments that Mid Continent lacked standing to bring this interlocutory appeal, Oman Fasteners Response Br. at 33-38, and that this appeal is now moot, Oman‘s Motion to Dismiss at 15-22.
”
After a case (including an appeal) has been initiated, it “becomes moot—and therefore no longer a ‘Case’ or ‘Controversy’ for purposes of Article III—‘when the issues presented are no longer “live” or the parties lack a legally cognizable interest in the outcome.‘” Already, 568 U.S. at 91 (quoting Murphy v. Hunt, 455 U.S. 478, 481 (1982)); see id. at 90-91 (explaining that “‘an actual controversy’ must exist not only at the time the complaint is filed,’ but through ‘all stages’ of the litigation“) (quoting Alvarez v. Smith, 558 U.S. 87, 92 (2009)). “[A] case becomes moot only when it is impossible for a court to grant any effectual relief whatever to the prevailing party.” Chafin v. Chafin, 568 U.S. 165, 172 (2013) (internal quotation marks omitted). The mootness inquiry goes to “Article III jurisdiction[,] . . . not to the merits of the case.” Arizonans for Official English v. Arizona, 520 U.S. 43, 66-67 (1997); see also Chafin, 568 U.S. at 174 (explaining that it is improper to “confuse[] mootness with the merits“).
A
Oman Fasteners argues that “Mid Continent lacks Article III standing to challenge this injunction against the government.” Oman Fasteners Response Br. at 33-38. We assume for this inquiry that (as Mid Continent argues on the merits) the Trade Court committed reversible error in displacing the 154.33% duty on entries during the 2020-2021 period and enjoining use of that rate to set the cash deposit for entries starting from Commerce‘s December 22, 2022 ruling. We conclude that Mid Continent has Article III standing as well as “statutory” standing.
The challenged dramatic reduction in the government-imposed burden on Oman Fasteners effected by the Trade Court‘s injunction caused competitive economic injuries to Mid Continent, the domestic steel-nail manufacturer that has taken the lead, in its own name, in requesting the antidumping-duty investigation initially and in opposing Oman Fasteners, year after year, in litigation and administrative reviews. See Food and Drug Administration v. Alliance for Hippocratic Medicine, 602 U.S. 367, 383-84 (2024) (recognizing competitive injury for standing); cf. McKinney v. U.S. Department of Treasury, 799 F.2d 1544, 1554-55 (Fed. Cir. 1986) (explaining that “allegations of competitive injury” can confer standing but not in circumstances, unlike the present case, where the alleged injury is not tied to specific companies). Mid Continent asserts that “ordering Commerce to use a cash deposit rate of 1.65% rather than 154.33%” led to significant “real-world consequences” such as “lost sales and lost revenue by virtue of improperly facilitated import competition.” Mid Continent Opening Br. at 75. That commonsensical assertion is materially undisputed. According to
We also find the redressability requirement of standing to be met. In its merits briefs, Mid Continent argues that, if we reverse the injunction, the proper remedy is for this court to “order retroactive imposition of the 154.33% cash deposit rate on imports of steel nails by or from [Oman Fasteners] effective on and after December 22, 2022,” the date of Commerce‘s Final Results. Mid Continent Opening Br. at 76; id. at 19; see also Mid Continent Reply Br. at 12-13; Final Results, 87 Fed. Reg. at 78639. A variant of that position would be a reversal of the injunction and a remand for the Trade Court to decide whether to order a retroactive collection of cash deposits. Here, it suffices for us to make a very limited point—that, on the arguments presented by the parties, we have no sufficient basis for declaring such retroactive collection to be unavailable, generally or in this case, as a matter of law. That limited conclusion suffices for redressability here because the results for the 2020-2021 administrative review have not achieved finality in court, see supra n.4, and we cannot, in the present appeal, rule out the possibility of a rate for that review period above the 1.65% collected since the February 2023 injunction was issued. On those bases, we conclude that a reversal of the injunction could lead to redress for Mid Continent of the competitive harm at issue through retroactive collection of cash deposits. See Oral Arg. at 22:50-24:10; 25:02-25:52.
In addition, we conclude that Mid Continent has met “prudential” or “statutory” standing requirements. See, e.g., Lexmark, 572 U.S. at 125-26. Mid Continent‘s interlocutory appeal of the injunction seeks protection of an interest that is within the “zone of interests” protected by the antidumping-duty provisions of the Tariff Act of 1930 (as amended). See id. at 127 (relying on “zone of interests” formulation); Canadian Lumber Trade Alliance v. United States, 517 F.3d 1319, 1335 (Fed. Cir. 2008) (same). “[I]mposed to protect [domestic] industries against unfair trade practices,” Canadian Wheat Board v. United States, 641 F.3d 1344, 1351 (Fed. Cir. 2011), an antidumping duty is the result of proceedings that, Congress has provided, can be initiated by a petition filed by a domestic-industry manufacturer “to address harm to domestic manufacturing from foreign goods sold at an unfair price,” United States v. Eurodif S.A., 555 U.S. 305, 310-11 (2009);
Mid Continent then had an undisputed right to intervene in Oman Fasteners’ court challenge to the final results of the
We therefore reject Oman Fasteners’ challenge to Mid Continent‘s standing.
B
We also reject Oman Fasteners’ argument that this appeal became moot after it was filed, an argument that rests on the assertion that, because of an intervening development, “[t]he relief that Mid Continent seeks through this [interlocutory] appeal—to reverse or vacate the injunction—would have no effect on Oman Fasteners’ cash deposit rate.” Oman‘s Motion to Dismiss at 3, 22. Oman Fasteners points to the issuance by Commerce on December 11, 2023, of its decision setting the final calculated antidumping duty (at 0.00%) for the 2021-2022 administrative review, covering entries from July 1, 2021, through June 30, 2022, the review period following the period at issue here. See supra n.2. By law, Oman Fasteners says, that rate governs the cash deposits required for entries after the December 2023 decision, see supra p. 5, and therefore a decision by this court in the present case to set aside the injunction before us, as Mid Continent requests, could not result in reinstatement of the 154.33% cash deposit. Oman‘s Motion to Dismiss at 12-13.
We do not agree. Mid Continent retains a “concrete interest, however small,” Chafin, 568 U.S. at 172, in our reversal or vacatur of the Trade Court‘s injunction because Mid Continent could benefit from such a result, depending on what occurs in other proceedings not now before us. See Gilda Industries, Inc. v. United States, 446 F.3d 1271, 1279 (Fed. Cir. 2006) (explaining that standing can exist when overturning the challenged action would provide an otherwise-foreclosed opportunity to secure relief, depending on decisions not yet made). Specifically, for imports subject to the 2020-2021 administrative review itself, still-active proceedings might produce an ultimate duty assessed at liquidation higher than the 0.00% rate that Commerce determined on remand from the Trade Court‘s ruling now before us. See supra n.4 (appeal of Trade Court‘s affirmance of Commerce‘s remand rate of 0.00% stayed in this court). And for imports by Oman Fasteners made while the injunction was in effect but covered by other administrative reviews, other proceedings
We cannot determine here whether Mid Continent will succeed in its separate appeal of the remand redetermination in the 2020-2021 administrative review or what rates will ultimately be found proper for imports addressed in
other administrative reviews but covered by the cash-deposit rate set by Commerce in December 2022 and then the drastically reduced rate set by the Trade Court‘s injunction in February 2023. Above, we concluded that, on the arguments presented to us, we cannot rule out the possibility of a retroactive collection of cash deposits if Mid Continent wins on the merits here (as we must assume for the mootness analysis, Chafin, 568 U.S. at 174). Reflecting that conclusion, we determine here only that, if Mid Continent wins here, it might—to its benefit—be put into a position it would have been in had the injunction never been issued through a requirement of retroactive cash deposits covering entries not yet subject to a final, no longer appealable, determination of the actual duty rate. See, e.g., Oral Arg. at 9:46–12:24, 18:38–21:20. That is enough for us to reject Oman Fasteners’ assertion of mootness. See Chafin, 568 U.S. at 177 (explaining that “even the availability of a ‘partial remedy’ is ‘sufficient to prevent [a] case from being moot‘” where the relief available is “not [] ‘fully satisfactory‘” (quoting Calderon v. Moore, 518 U.S. 149, 150 (1996))); Campbell-Ewald Co. v. Gomez, 577 U.S. 153, 160–61 (2016).
III
On the merits of Mid Continent‘s appeal, we affirm the Trade Court‘s injunction. Mid Continent argues that the Trade Court abused its discretion in enjoining Commerce from implementing the 154.33% antidumping-duty and cash-deposit rate and also challenges the Trade Court‘s consolidation of the hearing on the preliminary injunction with a trial on the merits (which led to the issuance of the injunction). We reject both contentions. We first address the merits of the Trade Court‘s granting of its injunction and then its procedure in doing so.
A plaintiff seeking a permanent injunction must demonstrate “(1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent
“We review Commerce‘s decision using the same standard of review applied by the Trade Court, while carefully considering that court‘s analysis. We decide legal issues de novo and uphold factual determinations if they are supported by substantial evidence.” Mid Continent Steel & Wire, Inc. v. United States, 941 F.3d 530, 537 (Fed. Cir. 2019) (citations omitted);
The Trade Court, like all trial courts, has “broad discretion to manage [its] docket[].” Proctor & Gamble Co. v. Kraft Foods Global, Inc., 549 F.3d 842, 848–49 (Fed. Cir. 2008). Exercise of that inherent power requires judgment and “weigh[ing] competing interests and maintain[ing] an even balance.” Landis v. North American Co., 299 U.S. 248, 254–55 (1936). We thus review management decisions by trial courts under the abuse-of-discretion standard. See id. at 253–57; U.S. Steel Corp. v. United States, 730 F.2d 1465, 1468 (Fed. Cir. 1984); Jazz Photo Corp. v. United States, 439 F.3d 1344, 1349 (Fed. Cir. 2006).
A
We conclude that the Trade Court did not abuse its discretion by enjoining Commerce
1
The Trade Court‘s determination that “[i]njunctive relief here will not disserve the public interest” rested on its conclusion that the “154.33 percent duty rate set by Commerce is unlawful.” Trade Court Decision, at *13. The court explained that “the government has no legitimate interest in collecting cash deposits at that rate” and an injunction would not “undermine the statute‘s remedial purposes, because Oman has no liability to pay 154.33 percent duties.” Id. The Trade Court reasoned that Commerce abused its discretion in denying Oman Fasteners a retroactive extension of time as well as in applying an adverse inference to select the 154.33% rate. Id. at *4–9. It suffices for our affirmance of the injunction for us to conclude, as we do, that applying an adverse inference to select the 154.33% rate was unsupported by the required substantial evidence and was an abuse of discretion, considering the rate selected and the facts surrounding the slightly tardy completion of the submission at issue.6
Commerce invoked the adverse-inference authority and made the necessary threshold finding that respondent Oman Fasteners “failed to cooperate by not acting to the best of its ability to comply with a request for information,”
That “may use” grant of discretion, like any grant of discretion, must be exercised within the constraints of the statute and record. See Weyerhaeuser, 586 U.S. at 25.
Importantly, regarding the specific rates Commerce may adopt through this discretion, we have long held that “the ‘inference’ that Commerce ‘may use’ in ‘selecting from among the facts otherwise available’ must be a reasonably accurate estimate of the respondent‘s actual rate, albeit with some built-in increase intended as a deterrent to non-compliance.” Diamond Sawblades Manufacturers’ Coalition v. United States, 986 F.3d 1351, 1367 (Fed. Cir. 2021) (quoting F.lli de Cecco di Filippo Fara S. Martino S.p.A. v. United States, 216 F.3d 1027, 1032 (Fed. Cir. 2000)) (first citing Essar Steel Ltd. v. United States, 678 F.3d 1268, 1276 (Fed. Cir. 2012); and then citing Gallant Ocean (Thailand) Co. v. United States, 602 F.3d 1319, 1324 (Fed. Cir. 2010)); see also F.lli de Cecco di Filippo Fara S. Martino S.p.A., 216 F.3d at 1032 (“[T]he purpose of
Under the governing standard, we conclude—relying on the combination of considerations we discuss—that the reasoning by Commerce and the evidence before it cannot support the 154.33% result it reached. Most strikingly, Commerce‘s decision to use the adverse-inference authority to select a 154.33% rate, based on a 16-minute delay in submitting the requested information, is a gross departure from the established principle that Commerce, when applying the adverse-inference provision, must pursue accuracy, with any departure limited to what is needed to deter non-compliance with Commerce rules and orders. As we have noted, the Commerce-determined rates for Oman Fasteners preceding the present review were 0.63%, 0.00%, 0.00%, 0.00%, and 1.65% (after the original investigation had adopted a 9.10% rate, which had been reduced to 4.22% by early August 2022). See supra pp. 6–7 & n.1. Even before Commerce, when considering the initially excluded information, recalculated the rate for the present administrative review as 0.00%, see supra n.4, a rate of 154.33% stood out as highly implausible as an accurate figure for Oman Fasteners’ dumping margin for the 2020-2021 administrative-review period. Commerce did not establish a basis for reasonably finding, in light of its past findings or of the evidence in the record in this case, that the 154.33% was even remotely close to an accurate amount by which the normal value of the steel nails at issue exceeded the export price. See J.A. 1670–71;
We need not decide what if any circumstances could justify such a result. A logical implication of our precedent on the governing constraints, quote supra, is that
In its preliminary decision, Commerce devoted just two paragraphs to explaining why it proposed to apply an adverse inference under
That discussion fails to address facts relevant to assessing the character of the actions at issue under the governing standard. See Hitachi Energy USA Inc. v. United States, 34 F.4th 1375, 1385–86 (Fed. Cir. 2022) (determining that applying an adverse inference was unsupported by substantial evidence in the record because Commerce failed to provide a reasonable justification for why it refused information and applied an adverse inference). As discussed supra, counsel began the filing process as far in advance of the deadline as he had found sufficient when making previous filings. J.A. 143–44 (certain prior submissions took 9 to 32 minutes). He used the “check file” feature in the electronic filing system and got a positive indication that the files would be accepted. J.A. 2513, 2894–95. When the system nevertheless rejected files, counsel immediately reformatted and began to resubmit the files, and some were accepted before the deadline and the rest were accepted just 16 minutes after the deadline. J.A. 2514–16, 2527–36, 2894–96. Counsel then complied with the “one-day lag rule” by submitting the final redacted versions and public versions the next day before the 5:00 PM deadline. J.A. 2516, 2558–66, 2892. And the record does not reveal that the 16-minute delay in completion of the initial filing interfered in any way with Commerce‘s review processes, except for the interference that resulted in Commerce‘s own decision to reject the response and limit the record available for its calculation.
We have explained that the “best of its ability” standard of
Commerce has itself treated the kind of slight tardiness at issue here as more suitable for a warning than for the harsh treatment meted out in this matter. First, Commerce has stated (but not codified) a policy under which, if a party facing a 5:00 PM deadline seeks an extension before that time, but Commerce is “not able to notify the party requesting the extension of the disposition of the request by 5:00 p.m,” Commerce treats the deadline as extended automatically until the start of the next business day. Extension of Time Limits, 78 Fed. Reg. 57790, 57792 (Sept. 20, 2013); see Trade Court Decision, at *5. Oman Fasteners’ counsel was apparently unaware of the policy, but it appears that, had he sent in an extension request at 4:55 PM, he would have automatically had an extension until 8:30 AM the next morning—long after the 5:16 PM time when the submission was actually completed. Treating the 16-minute delay here as a failure to cooperate that triggers an adverse inference (and supports a punishingly high duty and cash-deposit rate) is in considerable tension with Commerce‘s policy. Second, Commerce has stated in other proceedings that it has a policy of “leniency” toward law firms that miss a deadline for the first time, promptly contact Commerce, and adopt better practices for the future. See Trade Court Decision, at *6. It appears that this policy applied here except for the fact that Oman Fasteners did not notify Commerce about the delay. Id.; J.A. 241–44, 310. Perhaps that fact, as Commerce suggested, J.A. 306, makes the policy inapplicable even when the information was fully submitted within 16 minutes of the deadline, but the policy itself undermines any conclusion that any failure-to-cooperate determination on the record here could support the harsh result reached.
In short, the 154.33% duty rate is very far from an accurate antidumping duty. There is no adequate basis on this record for finding the type of failure to cooperate that could (if any could) justify such a gross departure from accuracy. For those reasons, we hold that the Trade Court correctly ruled that the 154.33% rate could not stand, and it was therefore in the public interest to enjoin enforcement of that rate, including through its use as the cash-deposit rate.
2
The Trade Court did not abuse its discretion in holding that Oman Fasteners
3
Given the readily affirmed finding of irreparable injury, we see no substantial issue concerning the inadequacy of remedies at law for the injuries, an element of the justification for a permanent injunction. The Trade Court noted that there was no other remedy at law against the government, which is the party that committed the asserted wrong. Trade Court Decision, at *9 n.14. Mid Continent cites no authority or factual basis in this record for treating a potential recovery from third parties (e.g., Oman Fasteners’ law firm or its insurer) as establishing an adequate remedy at law for the government adjudicated wrong, and for all the harm suffered, including the irreparable consequences. That is enough for the injunction on appeal, but we also note the Trade Court‘s observation that, in the present context, the “permanent” injunction is temporally similar to a preliminary injunction, in that it is in effect before there is a final appealable judgment—which occurs (as it has in the present case, see supra n.4) when Commerce completes its work on remand and the dispute returns to the Trade Court. Id. at *9 n.13. If the injunction is viewed as a preliminary injunction, the requirement of a likelihood of success on the challenge to the 154.33% duty is established by the Trade Court‘s determination that the challenge is actually meritorious. Trade Court Decision, at *13. [A37–38]
4
The Trade Court determined that the balance of hardships was “lopsidedly” in Oman Fasteners’ favor because it faced “catastrophe” “[a]bsent injunctive relief,” while “[t]he harm to the government . . . [was] minimal to non-existent.” Trade Court Decision, at *13. Oman Fasteners stopped importing nails in response to the 154.33% antidumping duty, so the government would very likely not have received any cash deposits in the absence of an injunction. Although Mid Continent argues on appeal that the Trade Court “failed to consider the balance of equities as it relates to Mid Continent, a party to this litigation,” Mid Continent Opening Br. at 74, Mid Continent never argued to the Trade Court that it would suffer any hardships, instead focusing on the balance of hardships between Oman Fasteners and the government. J.A. 3116–17; Oman Fasteners Response Br. at 54–55. In any
B
We conclude by addressing Mid Continent‘s challenge to the Trade Court‘s decision to grant a permanent injunction after consolidating Oman Fasteners’ motion for a preliminary injunction with a trial on the merits. We have already noted that the legal effect of the permanent injunction here is similar to that of a preliminary injunction, a similarity that weakens Mid Continent‘s challenge as a theoretical matter. But in any event, the Trade Court followed the procedure that the Supreme Court in University of Texas v. Camenisch identified as appropriate for deciding a permanent injunction where an expedited decision on the merits is appropriate. 451 U.S. 390, 395–96 (1981). On December 28, 2022, before Mid Continent intervened and before the parties briefed the motion for the preliminary injunction that had been filed,7 the Trade Court ordered the government to address, in its response, the merits of consolidating the proceedings under Rule 65(a) and treating the motion for preliminary injunction as a motion for judgment on the agency record under Rule 56.2. J.A. 48, ECF No. 26. That order provided clear notice “before the hearing commence[d] or at a time which . . . still afford[ed] the parties a full opportunity to present their respective cases.” University of Texas, 451 U.S. at 395 (quotations omitted); see also id. at 395–96 (suggesting that the issuance of a permanent injunction, instead of a preliminary injunction, may save a case from becoming moot). And Mid Continent has not established that it suffered concrete, identifiable, material harm from any lack of a necessary opportunity to present its case and challenge Oman Fasteners’ case. We thus see no reversible error in the Trade Court‘s grant of a permanent injunction after exercising its discretion to consolidate the motion for a preliminary injunction with a trial on the merits.
IV
For the foregoing reasons, we affirm the Court of International Trade‘s injunction.
AFFIRMED