Grupo Simec S.A.B. de C.V. v. United States , 2023 CIT 22 ( 2023 )


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  • Slip-Op. 23-22
    UNITED STATES COURT OF INTERNATIONAL TRADE
    GRUPO SIMEC S.A.B. de C.V. et al.,
    Plaintiffs,
    v- Before: Stephen Alexander Vaden,
    UNITED STATES, Judge
    Consol. Court No. 22-cv-00202
    Defendant,
    and
    REBAR TRADE ACTION COALITION,
    Defendant-Intervenor.
    OPINION
    [Denying Plaintiffs’ Motion for a Preliminary Injunction.]
    Dated: February 24, 2023
    James L. Rogers, Jr., Nelson Mullins Riley & Scarborough LLP, of Greenville, SC,
    for Plaintiffs Grupo Simec S.A.B. de C.V., et. al.
    Kara M. Westercamp, Trial Attorney, U.S. Department of Justice, of Washington, DC,
    for the Defendant. With her on the brief were Brian M. Boynton, Principal Deputy
    Assistant Attorney General, Patricia M. McCarthy, Director, L. Misha Preheim,
    Assistant Director, U.S. Department of Justice, Commercial Litigation Branch, and
    Ian A. McInerney, Of Counsel, U.S. Department of Commerce, Office of the Chief
    Counsel for Trade Enforcement and Compliance.
    John R. Shane, Wiley Rein LLP, of Washington, DC, for the Defendant-Intervenor.
    With him on the brief were Alan H. Price, Maureen O. Thorson, Jeffrey O. Frank, and
    Paul J. Coyle.
    Consol. Court No. 1:22-cv-00202 Page 2
    Vaden, Judge: On August 8, 2022, Grupo Simec S.A.B. de C.V. (including
    fourteen subsidiaries, collectively, Grupo Simec) filed a complaint challenging the
    Final Results of the Department of Commerce’s (Commerce) Administrative Review
    in Steel Concrete Reinforcing Bar from Mexico: Final Results of Antidumping Duty
    Administrative Review; 2019-2020 (Final Results), 
    87 Fed. Reg. 34,848
     (June 8, 2022).
    Compl. § 1, ECF. No 8. On the consent of all the parties, Chief Judge Barnett issued
    an order enjoining liquidation on August 19, 2022. ECF No. 10. Citing USCIT Rules
    7 and 65(a), Grupo Simec now seeks a further injunction. It moves to enjoin U.S.
    Customs and Border Protection (Customs) from collecting cash deposits at the rate
    set forth in the contested Final Results. Pls.’ Am. Mot. Prelim. Inj. (Pls.’ Mot.), ECF
    No. 32. Commerce opposes this remedy, as does Defendant-Intervenor Rebar Trade
    Coalition (the Coalition). For the reasons that follow, the Motion to enjoin Customs
    from requiring Plaintiffs to pay cash deposits is DENIED.
    BACKGROUND
    I. Procedural History
    On November 6, 2014, Commerce issued an antidumping duty order on
    concrete reinforcing bar (rebar) from Mexico. Steel Concrete Reinforcing Bar from
    Mexico: Antidumping Duty Order, 
    79 Fed. Reg. 65,925
     (Nov. 6, 2014). Commerce
    began an annual review of the order on January 6, 2021. See Initiation of
    Antidumping Duty and Countervailing Duty Administrative Reviews, 
    86 Fed. Reg. 511
    , 513 (Jan. 6, 2021). The agency selected Grupo Simec and Deacero S.A.P.I. de
    C.V. as mandatory respondents on February 8, 2021. See Steel Concrete Reinforcing
    Consol. Court No. 1:22-cv-00202 Page 3
    Bar from Mexico: Preliminary Results of Antidumping Duty Administrative Review;
    2019-2020 (Preliminary Results), 86 Fed Reg. 68,632, 68,633 (Dec. 3, 2021).
    Commerce chose Grupo Simec because it was one of “the two largest exporters and/or
    producers of subject merchandise by volume during the [period of review.]”
    Preliminary Decision Memorandum (PDM) at 2, Barcode: 4186374-02 A-201-844
    REV. The agency then issued an initial antidumping questionnaire to Grupo Simec
    on February 8, 2021. 
    Id. at 2
    .
    Grupo Simec submitted multiple extension requests for the various sections of
    its questionnaire responses, citing challenges caused by COVID-19 restrictions, the
    amount of data requested, and electricity blackouts. See, e.g., Section A Extension
    Request (Feb. 23, 2021) Barcode: 4090967-01 A-201-844 REV. Commerce granted a
    number of partial and full extensions in response to these requests. See, e.g.,
    Extension of Time Section A Response (Feb. 23, 2021), Barcode: 4091001-01 A-201-
    844 REV. Grupo Simec then filed its responses on March 8, March 31, and April 7,
    2021, respectively. Section A Questionnaire Response, Barcode: 4095785-01 A-201-
    844 REV; Section B & C Questionnaire Response, Barcode: 4105401-01 A-201-844
    REV; Section D Response, Barcode: 4107846-01 A-201-844 REV.
    Because of deficiencies in Grupo Simec’s initial questionnaire responses,
    Commerce issued a first supplemental questionnaire focusing on Sections A-C of
    Grupo Simec’s initial responses on July 27, 2021, and a second supplemental
    questionnaire focusing on Sections A and D on August 4, 2021. First Supplemental
    Questionnaire Barcode: 4146957-01 A-201-844 REV; Second Supplemental
    Consol. Court No. 1:22-cv-00202 Page 4
    Questionnaire, Barcode: 4149597-01 A-201-844 REV. The first supplemental
    questionnaire had an initial deadline of August 17, 2021, and the second
    supplemental questionnaire had a deadline of August 11, 2021. Jd. Shortly
    thereafter, Grupo Simec again requested a series of extensions for both
    questionnaires, citing the large amount of data Commerce requested as well as
    continued challenges from the pandemic such as loss of staff. See, e.g., Extension
    Request (Aug. 9, 2021), Barcode: 4151182-01 A-201-844 REV. Again, Commerce
    granted a number of partial extensions. See, e.g., Extension of Time for Grupo Simec’s
    Supplemental Questionnaire Responses (Aug 10, 2021), Barcode: 4151379-01 A-201-
    844 REV.
    With Commerce’s extensions, Grupo Simec’s Section A-C responses were due
    on September 7, 2021, and its Section A & D responses were due on September 9,
    2021. Extension of Time for Section A—C Responses (Sept. 1, 2021), Barcode:
    4157267-01 A-201-844 REV; Extension of Time for Section A & D Responses (Sept. 3,
    2021), Barcode: 4157901-01 A-201-844 REV. Despite these extensions, on September
    6, 2021, Grupo Simec filed another request for a two week extension to answer specific
    questions in its Section A-C questionnaire that were due the following day.
    Extension Request for Downstream Sales Data, Barcode: 4158024-01 A-201-844 REV.
    Commerce denied this request because Grupo Simec had already “been provided six
    weeks to prepare and submit their responses,” and the request lacked any
    justification for why additional time was needed. Denial of Extension (Sept. 7, 2021),
    Barcode: 4158116-01 A-201-844 REV. In response to this denial, Grupo Simec filed
    Consol. Court No. 1:22-cv-00202 Page 5
    another request and reiterated the same points from its previous letters, such as the
    difficulty of gathering the data given the geographic dispersion of the company and
    pandemic-related issues. Second Extension Request for Downstream Sales Data
    (Sept. 7, 2021), Barcode: 4158573-01 A-201-844 REV. The agency denied this request
    because it had already “provided three additional weeks for Grupo Simec.. . to
    respond to Commerce’s supplemental questionnaire covering sections A-C[.]” Denial
    of Extension Request at 1 (Sept. 9, 2021), Barcode: 4159298-01 A-201-844 REV.
    Grupo Simec also requested a one day extension on September 9, 2021, for its Section
    A&D responses, which Commerce granted. See Section A&D Extension Request,
    Barcode: 4159299-01 A-201-844 REV; Granting Extension Request (Sept. 9, 2021),
    Barcode: 4159336-01 A-201-844 REV. Grupo Simec filed its Section A&D responses
    on September 10, 2021. Submission of Section A&D Supplemental Questionnaire
    Response, Barcode: 4160054-01 A-201-844 REV.
    Over a month later, Grupo Simec attempted to submit what it labeled
    “Additional Factual Information” to Commerce, consisting of its downstream sales
    data as well as some translations “inadvertently stripped by computer operation from
    the documents in the Commerce ACCESS filing process.” Submission of Additional
    Information at 2 (Oct. 18, 2021), Barcode: 4172584-01 A-201-844 REV. Because these
    submissions contained information originally requested in the supplemental
    questionnaires, Commerce rejected them as untimely filed. Rejection of Untimely
    Filed Information (Oct. 19, 2021), Barcode: 4173540-01 A-201-844 REV.
    Consol. Court No. 1:22-cv-00202 Page 6
    On December 3, 2021, Commerce issued its Preliminary Results and its
    accompanying explanation in the Preliminary Decision Memorandum. Preliminary
    Results, 86 Fed Reg. 68,632; PDM, Barcode: 4186374-02 A-201-844 REV. A review
    of Grupo Simec’s initial questionnaire responses found “deficiencies [that] covered all
    aspects of Grupo Simec’s responses[.]” PDM at 4, Barcode: 4186374-02 A-201-844
    REV. Commerce determined that Grupo Simec’s supplemental questionnaire
    responses “continued to fail to provide information Commerce requested,” and
    pervasive errors remained in Grupo Simec’s home market sales data, U.S. sales data,
    and downstream sales data. 
    Id. at 5
    . Commerce concluded that “it d[id] not have any
    sales-related information that can be used for conducting a dumping analysis,”
    prompting the application of facts available under 19 U.S.C. § 1677m(e)(8). Id. at 7.
    Commerce did not rest there; it also drew adverse inferences from facts otherwise
    available under 19 U.S.C. § 1677m(d). It explained that “Grupo Simec has failed to
    cooperate by not acting to the best of its ability in failing to remedy the errors
    identified by Commerce as well as failing to submit requested information within the
    established deadline.” Jd. at 8. Commerce then preliminarily assigned a 66.7%
    dumping margin to Grupo Simec, which was the rate given to it in the original 2014
    antidumping investigation. Id. at 9.
    In its Final Results, Commerce maintained substantially the same position.
    See Final Results, 87 Fed. Reg. at 38,849—50; Issues & Decision Memorandum (IDM),
    Barcode: 4247887-02 A-201-844 REV. The Final Results defended Commerce’s (1)
    refusal to give Grupo Simec more time to cure its deficiencies and to issue an
    Consol. Court No. 1:22-cv-00202 Page 7
    additional questionnaire, (2) rejection of Grupo Simec’s late submission, (3) drawing
    of adverse inferences from facts otherwise available, and (4) assignment of a 66.7%
    dumping rate to Grupo Simec. IDM at 4-35.; Barcode: 4247887-02 A-201-844 REV.
    First, Commerce explained that it issued two supplemental questionnaires to
    Grupo Simec and granted multiple extensions, giving Grupo Simec approximately six
    weeks to complete the supplemental questionnaires. Jd. at 9. The agency also noted
    that it was aware from the beginning of Grupo Simec’s difficulties in preparing its
    answers because of COVID-19 and that it had kept these difficulties in mind when
    considering Grupo Simec’s extension requests. Jd. at 9-10. The final due date of
    September 7 came in response to Grupo Simec’s September 1, 2021 extension request,
    and was within the range of the date requested in prior extension requests. Jd. at 10.
    It was only on September 6 that Grupo Simec filed an additional request for an
    extension. Jd. at 10. Commerce explained that it rejected this request “because
    Grupo Simec failed to comply with the basic regulatory requirement of demonstrating
    good cause existed for the extension.” Jd. at 11. It also rejected Grupo Simec’s revised
    extension request — filed on the due date at 4:29 pm — because it “had granted Grupo
    Simec sufficient time and concluded that no additional extensions were warranted.”
    Id. Commerce asserted that it gave Grupo Simec an opportunity to remedy
    deficiencies with the two supplemental questionnaires and that the statute does not
    require it to give the company additional opportunities. Jd. at 16.
    Next, Commerce explained why it rejected Grupo Simec’s submission of
    additional information on October 18, 2021. Jd. at 17. It rejected this submission
    Consol. Court No. 1:22-cv-00202 Page 8
    because the submission “not only failed to comply with basic regulatory requirements
    but was also an attempt to submit untimely questionnaire responses, described as
    ‘additional information.” Jd. The information submitted as additional information
    was information missing from its supplemental questionnaire response for which the
    deadline had already passed. Jd. at 19. Commerce asserted that it was legally
    entitled to enforce its deadlines and that considering the information — submitted
    six weeks after the deadline — would have imposed a significant burden on the
    agency. Id. at 19-20.
    Commerce then addressed why it was proper to draw adverse inferences from
    fact otherwise available; namely, Grupo Simec’s failure to submit complete responses
    to the supplemental questionnaires. Jd. at 25. Given the widespread and pervasive
    deficiencies, it found that “the data [Grupo Simec] placed on the record is incomplete
    and cannot easily be corrected or resolved by Commerce.” Jd. at 26. The agency also
    found that Grupo Simec had not cooperated to the best of its ability because its
    supplemental questionnaire responses had “many of the same deficiencies that were
    flagged in its initial questionnaire response[.]” Jd. at 28. Finally, the selection of a
    66.7% rate was appropriate because Grupo Simec failed to comply with the multiple
    requests for information and this rate was applied to Grupo Simec in the initial
    investigation based on a similar set of facts. Id. at 33-34. Grupo Simec’s resulting
    lawsuit challenges all these findings. Complaint {] 35-52, ECF No. 8.
    Consol. Court No. 1:22-cv-00202 Page 9
    II. Legal Background
    The Tariff Act of 1930 authorizes Commerce to investigate alleged dumping
    activity. If documented, the agency imposes antidumping duties on the unfairly
    priced goods. Sioux Honey Ass’n v. Hartford Fire Ins., 
    672 F.3d 1041
    , 1046 (Fed. Cir.
    2012). The statute defines dumping as the sale of products in the United States by a
    foreign company at prices below their fair value. 19 U.S.C. § 1677b(a).
    To impose antidumping duties, Commerce assesses whether goods are being
    sold at less than their fair value. 
    19 U.S.C. § 1673
    . If dumping has occurred, the
    International Trade Commission (ITC) then evaluates whether American domestic
    industries producing like goods are materially injured or threatened with material
    injury. The ITC also determines whether the domestic growth of industries producing
    the same goods is threatened by the sale of the dumped product. Jd. If dumping is
    documented to have “materially injured” or “threatened with material injury” a
    domestic industry, or “materially retarded” the establishment of a domestic industry,
    Commerce proceeds to impose antidumping duties. 
    19 U.S.C. § 1673
    (2)(A)—-(B).
    For individual companies under investigation, Commerce’s action vis-a-vis
    duties begins when the Department preliminarily concludes that duties are
    appropriate. Its staff then publishes a detailed preliminary determination
    establishing the duty rates assessed for specific cases, providing baseline
    explanations for its findings. 19 U.S.C. § 1673b(d)(1). Afterward, Commerce orders
    exporters to post security for subject merchandise. Liquidation is suspended on “all
    entries of merchandise subject to the [preliminary] determination which are entered,
    Consol. Court No. 1:22-cv-00202 Page 10
    or withdrawn from [a] warehouse, for consumption on or after” publication of the
    preliminary determination or sixty days from publication of notice of initiation of the
    investigation. 19 U.S.C. § 1673b(d)(2)(A)-(B). The duty rates provided in the
    preliminary determination and a halt on liquidation are imposed for a minimum of
    four and a maximum of six months. 19 U.S.C. § 1673b(d)(3). Commerce then provides
    a final determination of duty rates. If its initial determination is sustained, the
    suspension of liquidation applied to subject merchandise remains in place through
    the process of administrative review. See 19 U.S.C. § 1673d(c)(4).
    Affected businesses may face hardships because of the United States’
    “retrospective’ assessment system.” 
    19 C.F.R. § 351.213
    (a). This system requires
    that “final liability for antidumping . . . duties is determined after merchandise is
    imported.” Jd. Final duty liability is decided following an administrative review. 
    Id.
    An antidumping order may be reviewed following a request submitted after the first
    anniversary of its publication. 
    19 C.F.R. § 351.213
    (a)(b)(1). The first administrative
    review examines the period from the commencement of the suspension of liquidation
    to the month immediately prior to the anniversary month. In the case of subsequent
    reviews, the evaluation takes place one year immediately prior to the anniversary
    month. 
    19 C.F.R. § 351.213
    (e)(1). Once these administrative reviews are completed,
    Commerce publishes the final applicable duty rates. Customs then liquidates
    relevant entries within ninety days. 
    19 U.S.C. § 1675
    (a)(3)(B).
    Distinct from preliminary injunctions to suspend liquidation, enjoining the
    collection of cash deposits is a separate and unusual remedy. The former seeks to
    Consol. Court No. 1:22-cv-00202 Page 11
    preserve a party’s litigation options and ensure a full and fair review of duty
    determinations before liquidation. The statute expressly contemplates these steps.
    See 19 U.S.C. § 1516a(c)(2) (providing that the CIT “may enjoin the liquidation of
    some or all entries of merchandise covered by a determination of the Secretary, the
    administering authority, or the Commission’). However, the latter remedy is rare
    and harder to obtain because the statutory and regulatory antidumping duty regime
    envisions a stricter application of the procedure. See 19 U.S.C. §§ 1671f, 1673f, 1677¢;
    
    19 C.F.R. § 351.205
    (d) (providing for importers to pay cash deposits higher than what
    is finally determined they owe, relying on subsequent mechanisms to return excess
    collections). Congress chose this prepayment process to protect the public fisc and to
    ensure the Government receives the tariffs due. See 19 U.S.C. § 1673b(d)(1)(B). The
    deposit requirement remains even in instances where a party’s potential lability
    remains uncertain. Jd. (requiring collection of cash deposits on affirmative
    preliminary determination in antidumping duty investigation); 19 U.S.C. §
    1673d(c)(1)(B)Gi) (making the continuation of cash deposits obligatory on the issuance
    of an affirmative final determination for antidumping duty investigations). The
    distinction between liquidation and the statutory deposit requirement — reflected in
    the likelihood of successfully enjoining each — is grounded in the text of relevant
    statutes as well as longstanding CIT jurisprudence.
    III. Prior Injunctive Relief
    The Court takes special notice in this case of the injunctive relief already
    provided to Plaintiffs. Eleven days after Grupo Simec filed its Complaint, Chief
    Consol. Court No. 1:22-cv-00202 Page 12
    Judge Barnett enjoined liquidation on August 8, 2020. ECF No. 10. The basis for
    Plaintiffs’ Motion is their insistence that this initial equitable remedy remains
    insufficient. To avoid permanent harm to its business interests, Grupo Simec now
    seeks a preliminary injunction preventing Customs from collecting cash deposits.
    Like the injunction obtained against liquidation, Grupo Simec seeks this additional
    equitable relief pending the completion of legal proceedings arising from its challenge
    to the Final Results.
    JURISDICTION AND STANDARD OF REVIEW
    The Court maintains adjudicatory authority over the underlying action. 
    28 U.S.C. § 1581
    (c). “The Court of International Trade shall have exclusive jurisdiction
    of any civil action commenced under section 516A or 517 of the Tariff Act of 1930.”
    
    Id.
     At this early stage in the case, Plaintiffs seek a second preliminary injunction, an
    extraordinary form of equitable relief. It shall issue only where the movant
    establishes that: (1) it will suffer irreparable harm absent the requested relief; (2) it
    is likely to succeed on the merits of its underlying claim; (8) the balance of the
    hardships favors the movant; and (4) an injunction would serve the public interest.
    See Winter v. Natural Res. Def. Council, Inc., 
    555 U.S. 7
    , 20 (2008) (citations omitted);
    Zenith Radio Corp. v. United States, 
    710 F.2d 806
    , 809 (Fed. Cir. 1983) (citations
    omitted).
    In the Federal Circuit, the fulfillment of the four factors bears a complex
    relationship to the resolution of the motion. “[N]o one factor, taken individually, is
    necessarily dispositive.” Ugine & Alz Belg. v. United States, 
    452 F.3d 1289
    , 1292-93
    Consol. Court No. 1:22-cv-00202 Page 13
    (Fed. Cir. 2006) (quoting FMC Corp. v. United States, 
    3 F.3d 424
    , 427 (Fed. Cir.
    1993)). However, “irrespective of relative or public harms, a movant must establish
    both a likelihood of success on the merits and irreparable harm[.]” Reebok Int'l Ltd.
    v. J. Baker, Inc., 
    32 F.3d 1552
    , 1556 (Fed. Cir. 1994); Amazon.com, Inc. v.
    Barnesandnoble.com, Inc., 
    239 F.3d 1348
    , 1350 (Fed. Cir. 2001) (refusing to grant
    plaintiff preliminary relief “unless it establishes both of the first two factors, 1.e.,
    likelihood of success on the merits and irreparable harm.”) (citation omitted).
    Because “the weakness of the showing regarding one factor may be overborne by the
    strength of the others,” FMC Corp., 
    3 F.3d at 427
    , “the more the balance of irreparable
    harm inclines in the plaintiffs favor, the smaller the likelihood of prevailing on the
    merits [plaintiffs] need show in order to get the injunction.” Qingdao Taifa Grp. Co.
    v. United States, 
    581 F.3d 1375
    , 1378-79 (Fed. Cir. 2009) (quoting Kowalski v. Chi.
    Trib. Co., 
    854 F.2d 168
    , 170 (7th Cir. 1988)).
    Nonetheless, “an [adequate] showing on one preliminary injunction factor does
    not warrant injunctive relief in light of a weak showing on other factors.” Wind Tower
    Trade Coal. v. United States, 
    741 F.3d 89
    , 100 (Fed. Cir. 2014) (citing Winter, 
    555 U.S. at 22
    ). Cf Winter, 
    555 U.S. at 26
     (denying injunctive relief because of public
    interest in national security); Swmecht NA, Inc. v. United States, 
    331 F. Supp. 3d 1408
    , 1412 (CIT 2018), affd, 
    923 F.3d 1340
     (Fed. Cir. 2019) (lacking evidence of
    immediate irreparable harm compels denial of preliminary injunction); Otter Prods.,
    LLC v. United States, 
    37 F. Supp. 3d 1306
    , 1316 (CIT 2014) (failing to establish
    irreparable harm sufficient to deny injunction).
    Consol. Court No. 1:22-cv-00202 Page 14
    USCIT Rule 65, governing motions for preliminary injunctions, is parallel to
    Federal Rule of Civil Procedure 65. The Federal Circuit has held that the latter does
    not require a hearing on a motion for a preliminary injunction. See Murata Mach.
    USA v. Daifuku Co., Ltd., 
    830 F.3d 1357
    , 13864 (Fed. Cir. 2016) (“We do not ask, nor
    do the Federal Rules of Civil Procedure require, that the district court conduct a
    preliminary injunction hearing, or even request a responsive brief.”). USCIT Rule 65
    is nearly identical to Federal Rule 65: “It was obviously taken from the federal rule,
    and it therefore is appropriate to look to decisions under the latter in interpreting
    and applying the identical rule of the Court of International Trade.” Precision
    Specialty Metals, Inc. v. United States, 
    315 F.3d 1346
    , 1353 (Fed. Cir. 2003). Thus,
    USCIT Rule 65, like the parallel federal rule, does not require a hearing before ruling
    on a motion for a preliminary injunction.!
    DISCUSSION
    Preliminary Injunction
    A. Irreparable Harm
    For Plaintiffs to prevail, they must establish that irreparable injury is likely to
    accrue to them immediately if the requested equitable relief does not issue.
    Winter, 
    555 U.S. at 22
    . Harm is irreparable if “no damages payment, however great,”
    could redress it. Celsis In Vitro, Inc. v. CellzDirect, Inc., 
    664 F.3d 922
    , 930 (Fed. Cir.
    2012). Imminence of injury is also required, Zenith Radio, 
    710 F.2d at 809
    , yet this
    immediacy does not equate to a demonstration that the harm complained of has
    1 None of the parties has requested a hearing.
    Consol. Court No. 1:22-cv-00202 Page 15
    already occurred. See United States v. W.T. Grant Co., 
    345 U.S. 629
    , 633 (1953)
    (holding movant must show a “cognizable danger of recurrent violation, something
    more than a mere possibility which serves to keep the case alive”). A moving party
    must put forward more than mere “speculative” evidence to demonstrate an
    “immediate and viable” likelihood of injury. Otter, 
    37 F. Supp. 3d at 1315
     (quoting
    Kwo Lee, Inc. v. United States, 
    24 F. Supp. 3d 1322
    , 1326 (CIT 2014)); Sumecht, 
    331 F. Supp. 3d at
    1412 (citing Zenith Radio, 
    710 F.2d at 809
    ). To analyze whether
    Plaintiffs have met this “extremely heavy burden,” Shandong Huarong Gen. Grp. v.
    United States, 
    122 F. Supp. 2d 1367
    , 1369 (CIT 2000), the Court will assess “the
    magnitude of the injury, the immediacy of the injury, and the inadequacy of future
    corrective relief.” Sunpreme, Inc. v. United States, 
    181 F. Supp. 3d 1322
    , 1331 (CIT
    2016).
    Bare financial losses neither constitute nor substantiate irreparable harm,
    even when they signal economic damage to an entity. This derives in part from the
    presumed effectiveness of corrective relief for monetary injury that a court may
    provide at a later date. See, e.g., Sampson v. Murray, 
    415 U.S. 61
    , 90 (1974) (noting
    that “[t]he possibility that adequate compensatory or other corrective relief will be
    available at a later date, in the ordinary course of litigation, weighs heavily against
    a claim of irreparable harm”); Corus Group PLC v. Bush, 
    217 F. Supp. 2d 1347
    , 1355
    (CIT 2002) (holding “economic injury” insufficient to establish irreparable harm). The
    Corus Court found, for example, that plans to close a plant to avoid “operat[ing] at a
    loss,” did not establish irreparable harm because there was no “danger of imminent
    Consol. Court No. 1:22-cv-00202 Page 16
    closure” of the plant. 
    217 F. Supp. 2d at 1855
    . On the other end of the spectrum,
    bankruptcy stemming from a substantial decline of business is grave enough to
    demonstrate the inadequacy of later corrective relief. See Doran v. Salem Inn,
    Inc., 
    422 U.S. 922
    , 932 (1975) (“Certainly [bankruptcy] sufficiently meets the
    standards for granting interim relief, for otherwise a favorable final judgment might
    well be useless.”); McAfee v. United States, 
    3 CIT 20
    , 24 (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.”). Generally,
    a movant must show “[p]rice erosion, loss of goodwill, damage to reputation, and loss
    of business opportunities” severe enough to represent an imminent threat to the
    continuation of the business. Celsis In Vitro, 
    664 F.3d at
    930 (citing Abbott Labs. V.
    Sandoz, Inc., 
    544 F.3d 1341
    , 1362 (Fed. Cir. 2008)).
    Plaintiffs’ Motion fails to meet this high standard because it lacks evidence of
    the alleged harm’s immediacy and irreparability.22 An authoritative dictionary
    instructs that “immediate” equates to “occurring, acting, or accomplished without
    loss of time,” providing the synonym “instant,” with the secondary definition of
    “near to or related to the present.” Immediate, WEBSTER’S THIRD NEW INT'L
    DICTIONARY (1968). Precedent echoes the dictionary. In Shandong Huarong, an
    affidavit from an importer’s “major [American] customer,” attesting that it would be
    compelled to cancel all orders in the event that the court sustained cash deposits, was
    666.
    adjudged “weak evidence, unlikely to justify a preliminary injunction,” largely
    2 Grupo Simec was offered the opportunity to file a reply brief responding to the Government’s and
    the Coalition’s arguments. It declined.
    Consol. Court No. 1:22-cv-00202 Page 17
    because it fell short of “indicating exactly how and when these lost sales would force
    [plaintiff] out of business.” 
    122 F. Supp. 2d at 1370
     (quoting Shree Rama Enterprises
    v. United States, 
    983 F. Supp. 192
    , 195 (CIT 1995)).
    Grupo Simec’s affidavits similarly offer weak evidence and do not show
    immediate and irreparable harm. Grupo Simec offers an affidavit from its chief
    financial officer stating that it has stopped exporting rebar to the United States
    because of the 66.7% rate and that the company is “incur[ring] substantial loss of new
    and existing customers, business opportunities and goodwill.” Pls.’ Mot. at Ex. 1,
    ECF No. 32. Grupo Simec offers another affidavit from its foreign trade manager
    asserting that, without a preliminary injunction, the company will have to lay off
    employees and that the collection of deposits threatens one of Grupo Simec’s fourteen
    subsidiaries with insolvency. Jd. at Ex. 2. These statements are conclusory and
    insufficient to show immediate and irreparable harm. The affidavits offer no timeline
    for the alleged termination of employees or insolvency of the subsidiary in question.
    Plaintiffs have therefore failed to “indicat[e] exactly how and when these lost sales
    would force [them] out of business.” Shandong Huarong, 
    122 F. Supp. 2d at 1371
    .
    Absent such information, Grupo Simec fails to show that the alleged harms are
    immediate.
    At first glance, the statement that a subsidiary is threatened with insolvency
    seems like irreparable harm. But showing irreparable harm demands more than
    Consol. Court No. 1:22-cv-00202 Page 18
    conclusory statements.? As in Shandong Huarong, “no financial statements have
    been proffered indicating that Plaintiff does not possess the capital reserves
    necessary to remain viable during this litigation.” Jd. at 1371; accord Companhia
    Brasileira Carbureto de Calcio v. United States, 
    18 CIT 215
    , 217 (1994) (refusing to
    find irreparable harm when “no hard evidence was submitted to the court indicating
    what specific effect loss of such sales would have upon [plaintiff]”); Chilean Nitrate
    Corp. v. United States, 
    11 CIT 538
    , 541 (1987) (refusing to find irreparable harm when
    “Plaintiffs witness did not testify that financing was sought and denied. No financial
    statement demonstrating lack of reserves was presented.”). Cf. Jiangsu Hilong Intl
    Trading Co. v. United States, No. 02-00311, Order Granting Prelim. Inj., ECF No. 15
    (CIT June 4, 2002) (granting injunction where plaintiff produced financial records
    confirming insolvency claims). Grupo Simec has offered no evidence corroborating its
    affidavits; therefore, its purported harm is only “speculative.” Otter, 
    37 F. Supp. 3d at 1315
    .
    The letters from two of Grupo Simec’s customers are unable to fill the
    evidentiary gap. See Pls.’ Mot. at Exs. 3-4. Both letters remark on the difficulties
    the customers face now that Grupo Simec has stopped exporting rebar to the United
    States. 
    Id.
     Although both speak to the harm their companies experience, neither
    speaks to the harms Grupo Simec’s officers allege in their affidavits. 
    Id.
     At most,
    they provide corroboration of the claim that Grupo Simec stopped exporting rebar to
    3 Even if Grupo Simec had properly shown irreparable harm and had a sufficient showing on all
    remaining factors, it would only be entitled to an injunction pertaining to that individual subsidiary
    — not a blanket injunction covering all subsidiaries as it requests. See Pls.’ Mot. at 1, ECF No. 32.
    Consol. Court No. 1:22-cv-00202 Page 19
    the United States, but a foreseeable result of the operation of the antidumping statute
    cannot alone provide the basis for a finding of irreparable harm. See Shandong
    Huarong, 
    122 F. Supp. 2d at 1371-72
     (refusing to find irreparable harm caused by
    ceasing to export when “Plaintiff has not produced any evidence establishing that it
    would go out of business during the year 2000, thereby negating the possibility of
    selling its excess inventory in the future.”). If it was sufficient, an injunction could
    issue every time a party ceased exporting to the United Sates to avoid paying the
    assessed rate. This result would eviscerate the operation of the antidumping laws
    and obtaining an injunction would be automatic rather than the “extremely heavy
    burden” the law requires. Jd. at 1369.
    Grupo Simec has not met its burden of demonstrating irreparable and
    immediate harm. This failure is sufficient to deny the Motion; however, the Court
    briefly considers the other factors for completeness. See Reebok, 
    32 F.3d at 1556
    (“While a district court must consider all four factors before granting a preliminary
    injunction to determine whether the moving party has carried its burden of
    establishing each of the four, we specifically decline today to require a district court
    to articulate findings on the third and fourth factors when the court denies a
    preliminary injunction because a party fails to establish either of the two critical
    factors.”). Grupo Simec unfortunately fairs no better with those analyses.
    B. Likelihood of Success on the Merits
    In addition to demonstrating that irreparable harm would occur without an
    injunction, a movant must also establish a likelihood of success on the merits to
    Consol. Court No. 1:22-cv-00202 Page 20
    obtain the extraordinary remedy of enjoining the collection of cash deposits.
    Sunpreme, 
    181 F. Supp. 3d at 13832
    . When the Court assesses Commerce’s tariff
    determinations, the Court “shall hold unlawful any determination, finding, or
    conclusion found . . . to be unsupported by substantial evidence on the record, or
    otherwise not in accordance with law[.]” 19 U.S.C. § 1516a(b)(1)(B)G). Grupo Simec
    raises six distinct arguments against the Final Results, alleging that they lack
    substantial evidentiary support or result from Commerce’s abusing its discretion.
    Pls.’ Mot. at 20-33, ECF No. 32.
    Commerce counters that substantial evidence supports its decision to apply
    adverse inferences from facts otherwise available because of the pervasive errors in
    Grupo Simec’s submissions. Def.’s Resp. at 19-20, ECF No. 37. This is all-the-more
    remarkable, Commerce observes, given Grupo Simec’s status as a company with prior
    experience undergoing such reviews. See IDM at 9, Barcode: 4247887-02 A-201-844
    REV; see also Def. Int’s Resp. at 2 (explaining that “not only did Simec request a
    review of its 2019-2020 entries, but it was a seasoned respondent with significant
    experience in responding to Commerce’s questionnaires”). Similarly, the contention
    that Commerce acted ultra vires in rejecting Grupo Simec’s late submission of data
    and denying its extension requests fails because the filing was properly rejected as
    untimely, and Commerce granted many extensions to Grupo Simec. Def.’s Resp. at
    20-21. Indeed, the attempted late submission was much later than the extended
    deadline that Grupo Simec originally requested. See IDM at 18; Barcode: 4247887-
    02 A-201-844 REV (noting that the company had requested a nine day extension but
    Consol. Court No. 1:22-cv-00202 Page 21
    then attempted to submit the missing data six weeks later). Commerce also contests
    the company’s claims that the rate selection was punitive and that it had cooperated
    to the best of its ability. Because the rate was based on a similar set of facts to when
    the rate was applied previously and Grupo Simec failed to submit the requested
    information despite opportunities to cure the deficiencies, Commerce asserts that
    substantial evidence supports its decisions. Jd. at 21-22. Defendant-Intervenor the
    Coalition also filed a response brief arguing many of the same points as the
    Government. See Def.-Int.’s Resp. at 1, ECF No. 35. In addition, the Coalition asserts
    that Grupo Simec received notice and an opportunity to cure the deficiencies because
    Commerce provided it with supplemental questionnaires after Grupo Simec provided
    inadequate answers to the initial antidumping questionnaire. Id. at 27.
    Although Grupo Simec’s claims are colorable, it has not demonstrated a clear
    likelihood of success on the merits. The Government contests these claims, and there
    is no claim that is obviously meritorious at this stage of the case. At best, this factor
    is neutral for Grupo Simec. Even if one of the company’s six claims were clearly
    meritorious, an injunction cannot issue without a finding of irreparable harm, which
    is absent here. See Reebok, 
    32 F.3d at 1556
    ; Amazon.com, 239 F.3d at 1350.
    C. Balance of the Equities
    Plaintiffs misconstrue the balance of equities at this juncture in the case. The
    harms Grupo Simec claims it will suffer include ceasing exportation of rebar during
    the time it is subject to the current rate as well as potential job losses, loss of customer
    Consol. Court No. 1:22-cv-00202 Page 22
    goodwill, and the possible insolvency of one subsidiary.4 Pls.’ Mot. at 34. America’s
    retroactive system, financially inconvenient as it may be, is the course Congress chose
    and committed to Commerce and Customs to enforce. Valeo N. Am., Inc. v. United
    States, 
    277 F. Supp. 3d 1361
    , 1366 (CIT 2017) (“[Playing deposits pending court
    review is an ordinary consequence of the statutory scheme.”) (quoting MacMillan
    Bloedel Ltd. v. United States, 
    16 CIT 331
    , 333 (1992)). The statutory scheme’s
    foreseeable result does not amount to a cause for equitable relief. See Shandong
    Huarong, 
    122 F. Supp. 2d at
    1371—72 (noting that a plaintiff could always sell excess
    stock it did not export the following year). As noted earlier, these harms fail to meet
    the threshold of “irreparability” in the Court’s analysis and ignore the countervailing
    evidence that at least one of Grupo Simec’s customer affiants maintained its business
    relationship with Grupo Simec the last time it was subjected to a 66.7% tariff rate.
    See Pls.’ Mot. at Ex. 4, ECF No. 32 (stating that the company “has been a long-
    standing customer of Groupo [sic] Simec for over 15 years’).
    Plaintiffs give short shrift to the harm potentially caused to the Government.
    They fail to consider that their assumption of a minimal impact on the United States
    contradicts “the determinations at the core of this matter that a tariff increase is
    necessary to counter-act serious injury or the threat of serious injury[.]” Corus
    Group, 
    217 F. Supp. 2d at 1356
    . Commerce’s prior findings suggest that significant
    harm would result if the effective suspension of the underlying tariff would allow
    4 The Court notes that Grupo Simec’s cash deposit rate will change by April 6, 2028, based on the
    projected conclusion of the next administrative review. See Def.-Int.’s Resp. at 11. This undercuts
    both the company’s argument for irreparable harm and its equities-balancing argument.
    Consol. Court No. 1:22-cv-00202 Page 23
    underpriced goods to “flood the market.” Jd. America’s domestic industry — the
    statute’s express beneficiary — would lose the remedy Commerce has found it due.
    Absent exceptional circumstances, a court should be reticent to unwind the entire
    remedy the Government has ordered, especially when it accords with a clear statutory
    scheme.
    D. Serving the Public Interest
    A review of the circumstances surrounding Grupo Simec’s Motion
    demonstrates granting the relief it seeks does not serve the public interest. Grupo
    Simec cites its customers’ letters attesting to business harms resulting from the
    deprivation of Grupo Simec’s rebar and alleges that “U.S. construction and other
    projects involving Simec’s rebar may be jeopardized.” Pls.’ Mot. at 34, ECF No. 32.
    Even accepting these speculative and unsubstantiated claims in the two customer
    affidavits at face value, the public’s greater interest lies in following Congress’s
    legislative enactments and ensuring that Customs collects cash deposits sufficient to
    protect the public fisc. See 
    19 U.S.C. §§ 1673
    (c)(1)(B)(ii), 1675(a)(2)(C). The public
    interest thus favors the Government; and as Plaintiffs have not clearly prevailed in
    any of the four required analyses, they are not entitled to the extraordinary remedy
    of a preliminary injunction. Winter, 
    555 U.S. at 20
    .
    CONCLUSION
    For the foregoing reasons, the Court DENIES Plaintiffs’ Motion for a
    preliminary injunction. Plaintiffs have not met the criteria necessary for the
    Consol. Court No. 1:22-cv-00202 Page 24
    extraordinary remedy of enjoining the normal operation of the tariff collection
    system. It is hereby:
    ORDERED that the Motion is DENIED; and it is further
    ORDERED that the briefing schedule established by the Court in its Order
    of January 27, 2023, shall continue unaffected. See ECF No. 40.
    SO ORDERED.
    /s/ Stephen Alexander Vaden
    Judge Stephen Alexander Vaden
    Dated: _February 24, 2023
    New York, New York
    

Document Info

Docket Number: Consol. 22-00202

Citation Numbers: 2023 CIT 22

Judges: Vaden

Filed Date: 2/24/2023

Precedential Status: Precedential

Modified Date: 2/24/2023

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