Celik Halat ve Tel Sanayi A.S. v. United States , 2020 CIT 175 ( 2020 )

Slip Op. 20-175
UNITED STATES COURT OF INTERNATIONAL TRADE
CELIK HALAT VE TEL SANAYI A.S.,
Plaintiff,
v.
UNITED STATES,
Before: Claire R. Kelly, Judge
Defendant,
Court No. 20-03843
and
INSTEEL WIRE PRODUCTS COMPANY
ET AL.,
Defendant-Intervenors.
OPINION AND ORDER
[Denying plaintiffs motion for a temporary restraining order and preliminary
injunction.]
Dated: December 6, 2020
Irene H. Chen, Chen Law Group, LLC, of Rockville, MD, for plaintiff.
Tara K. Hogan, Assistant Director, Commercial Litigation Branch, Civil Division,
U.S. Department of Justice, of Washington, DC, for defendant. Also on the brief was
Jeffrey Bossert Clark, Acting Assistant Attorney General, Jeanne E. Davidson,
Director, and Reginald T. Blades, Jr., Assistant Director. Of counsel were Reza
Karamloo and Jesus Saenz, Attorneys, Office of the Chief Counsel for Trade
Enforcement & Compliance, U.S. Department of Commerce.
Brooke M. Ringel, Paul C. Rosenthal, Kathleen W. Cannon, R. Alan Luberda, and
Joshua R. Morey, Kelley Drye & Warren, LLP, of Washington, DC, for defendant-
intervenors Insteel Wire Products Company et al.
Court No. 20-03843 Page 2
Kelly, Judge: Before the court is Plaintiff Celik Halat ve Tel Sanayi A.S.’s
(“Celik” or “Plaintiff”) motion for a temporary restraining order (“TRO”) and
preliminary injunction. See Pl.’s Mot. for [TRO] & Prelim. Injunction, Nov. 19, 2020,
ECF No. 5 (“Pl.’s Mot.”). Defendant opposes Plaintiff’s motion. See Def.’s Resp. to
Pl.’s Mots. for [TRO] & Prelim. Injunction, Dec. 4, 2020, ECF No. 17 (“Def.’s Resp.”).
For the following reasons, Plaintiff’s motion is denied.
BACKGROUND
On May 6, 2020, the U.S. Department of Commerce (“Commerce”) initiated its
antidumping duty (“ADD”) investigation of prestressed concrete steel wire (“PC
Strand”) from the Republic of Turkey (“Turkey”). See Compl. at ¶ 3, Nov. 19, 2020,
ECF No. 2 (“Compl.”); see also [PC Strand] from Argentina, Colombia, Egypt,
Indonesia, Italy, Malaysia, the Netherlands, Saudi Arabia, South Africa, Spain,
Taiwan, Tunisia, [Turkey], Ukraine, and the United Arab Emirates, 85 Fed. Reg.
28,605, 28,610 (Dep’t Commerce May 13, 2020) (initiation of less-than-fair value
investigations). On June 18, 2020, Commerce selected Celik for individual
examination. See Compl. at ¶ 4. The next day, Commerce issued to Celik an
antidumping questionnaire and set forth a deadline of July 17, 2020 for Celik’s
Section A response; August 10, 2020 for its Sections B and Section C responses; and
August 13, 2020 for its Section D responses. See id. at ¶ 5. Celik’s questionnaire
responses were to be uploaded electronically to Commerce’s ACCESS website by 5:00
pm on the specified deadline for each section. See id.Court No. 20-03843 Page 3
Plaintiff states that it timely filed its Section A and Section D questionnaire
responses, but, due to technical issues with Commerce’s ACCESS website, untimely
filed portions of their Section B and Section C responses. See id. at ¶¶ 7–17. Namely,
with respect to its Section B response, Plaintiff untimely submitted a supplementary
“Domestic Sales Table” at 5:21 pm, and with respect to its Section C response,
Plaintiff untimely submitted Exhibits C8–11—which comprised a part of Celik’s
response—at 5:06 pm. See id. at ¶ 8. Since Plaintiff did not meet the 5:00 pm
deadline on August 10, 2020, Commerce refused to accept Plaintiff’s Sections B and
C questionnaire responses. See id. at ¶¶ 18–22. 1 On September 30, 2020, Commerce
issued a preliminary determination in which it found that Plaintiff did not cooperate
with the investigation to the best of its ability, and thus Commerce used facts
available with an adverse inference (“adverse facts available” or “AFA”) 2 to
1 Plaintiff asserts that on August 19, 2020, Commerce notified Plaintiff by letter that
it was rejecting Plaintiff’s untimely filed Section B and Section C questionnaire
responses, and Plaintiff subsequently submitted a request for Commerce to
reconsider its refusal to accept the responses, stating that the technical issues it
experienced constituted extraordinary circumstances. See Compl. at ¶¶ 18–19; see
also 19 C.F.R. § 351.302 (2020) (allowing Commerce to consider late questionnaires
if extraordinary circumstances led to the delay). Commerce denied this request, after
which Plaintiff states that it requested, and attended a video conference with
Commerce once again asking it to consider the questionnaire responses. See Compl.
at ¶¶ 20–21. In addition, after the petitioner in the ADD and countervailing duty
investigation wrote a letter to Commerce calling for the imposition of adverse facts
available, Plaintiff states that it responded, and asked Commerce to accept its
responses. See id. at ¶ 22.
2 Parties and Commerce sometimes use the shorthand “AFA” or “adverse facts
(footnote continued)
Court No. 20-03843 Page 4
preliminarily assign Plaintiff a dumping margin of 53.65 percent. See [PC Strand]
from Argentina, Colombia, Egypt, Indonesia, Italy, Malaysia, the Netherlands, Saudi
Arabia, South Africa, Spain, Taiwan, Tunisia, [Turkey], Ukraine, and the United
Arab Emirates, 85 Fed. Reg. 61,722 (Dep’t Commerce Sept. 30, 2020) (prelim.
affirmative determinations of sales at less than fair value & prelim. affirmative
critical circumstances determinations, in part) (“Prelim. Results”) and accompanying
Decisions Memo. for the [Prelim. Results] at 7–9, A-489-842, (Sept. 23, 2020),
available at https://enforcement.trade.gov/frn/summary/turkey/2020-21546-2.pdf
(last visited Dec. 5, 2020); see also Section 776 of the Tariff Act of 1930, as amended,
19 U.S.C. § 1677e (2018). 3
On November 19, 2020, Plaintiff Celik initiated this action pursuant to 28
U.S.C. § 1581(i) (2018) 4 by concurrently filing a summons and complaint. See
Summons, Nov. 19, 2020, ECF No. 1; Compl. Plaintiff submits that Commerce’s
refusal to accept its Section B and Section C questionnaire responses were arbitrary,
capricious, an abuse of discretion and not in accordance with law. See Compl. at ¶¶
available” to refer to Commerce's reliance on facts otherwise available with an
adverse inference to reach a final determination. AFA, however, encompasses a two-
part inquiry established by statute. See 19 U.S.C. § 1677e(a)–(b). It first requires
Commerce to identify information missing from the record, and second, to explain
how a party failed to cooperate to the best of its ability as to warrant the use of an
adverse inference when “selecting among the facts otherwise available.” Id.
3 Further citations to the Tariff Act of 1930, as amended, are to the relevant
provisions of Title 19 of the U.S. Code, 2018 edition.
4 Further citations Title 28 of the U.S. Code are to the 2018 edition.
Court No. 20-03843 Page 5
43–44, 48–49. In addition, since Commerce declined to accept the Sections B and
Section C responses, Plaintiff claims that Commerce assigned it a “punitive” and
inaccurate dumping margin of 53.65 percent that would cause Plaintiff irreparable
harm, including the total and permanent loss of Plaintiff’s U.S. market. See id. at ¶¶
24–25, 46, 48–49.
Shortly thereafter, Celik moved for a TRO and a preliminary injunction
requesting that the court enjoin Commerce from refusing to accept Plaintiff’s
untimely submitted Section B and Section C questionnaire responses. See Pl.’s Mot.
Plaintiff also filed a motion to consolidate this case with Celik Halat ve Tel Sanayi
A.S. v. United States, Ct. No. 20-03848, another action challenging Commerce’s
decision to reject Celik’s untimely questionnaire responses in the ongoing
countervailing duty investigation of PC Strand from Turkey. See Pl.’s Mot. to
Consolidate Cases, Nov. 19, 2020, ECF No. 6; see also Compl., Nov. 19, 2020, ECF
No. 2 (from Dkt. Ct. No. 20-03848).
On November 20, 2020, the court held a telephonic conference with counsel for
both parties for purposes of establishing a briefing schedule for the motion for a TRO
and a preliminary injunction. See Appearance Sheet, Nov. 20, 2020, ECF No. 10.
During the telephone conference, Defendant indicated that the government would be
filing a motion to dismiss the complaint for lack of subject matter jurisdiction. The
court ordered a schedule providing for the Defendant to respond to Plaintiff’s motion
by December 4, 2020, and further providing for briefing of the motion to dismiss. See
Court No. 20-03843 Page 6
Scheduling Order, Nov. 20, 2020, ECF No. 11. The court also stayed the motion to
consolidate pending resolution of the motion to dismiss. See id. In accordance with
the court’s order, Defendant filed its response to the request for a TRO and a
preliminary injunction on December 4, 2020. See generally Def.’s Resp.
Defendant opposes Plaintiff’s motion, arguing that Plaintiff is unlikely to
succeed on the merits because this Court lacks jurisdiction and there has been no
final agency action. See id. at 7–12. Further, Defendant argues that Plaintiff has
not shown that it will suffer irreparable harm absent the injunction, nor has it shown
that the public interest and balance of harms weigh in its favor. See id. at 12–19
STANDARD OF REVIEW
U.S. Court of International Trade (“USCIT”) Rule 65 permits the court to issue
a preliminary injunction on notice to the adverse party. See USCIT R. 65(a). To
obtain a preliminary injunction, Plaintiff must establish that (1) it is likely to succeed
on the merits, (2) it is likely to suffer irreparable harm without a preliminary
injunction, (3) the balance of the equities favors Plaintiff, and (4) the injunction is in
the public interest. See Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20
(2008); Zenith Radio Corp. v. United States, 710 F.2d 806, 809 (Fed. Cir. 1983)
(“Zenith Radio Corp.”). In reviewing these factors, “no one factor, taken individually,”
is dispositive. Ugine & ALZ Belg. v. United States, 452 F.3d 1289, 1292 (Fed. Cir.
2006) (citations omitted) (“Ugine & ALZ Belg.”); FMC Corp. v. United States, 3 F.3d
424, 427 (Fed. Cir. 1993). However, each factor need not be given equal
Court No. 20-03843 Page 7
weight. See Ugine & ALZ Belg., 452 F.3d at 1293; Nken v. Holder, 556 U.S. 418, 434
(2009) (“Nken”). Likelihood of success on the merits and irreparable harm are
generally considered the most significant factors in evaluating a motion for injunctive
relief. See Nken, 556 U.S. at 434; Amazon.com, Inc. v. Barnesandnoble.com, Inc., 239
F.3d 1343, 1350 (Fed. Cir. 2001).
DISCUSSION
I. Likelihood of Success on the Merits
Plaintiff’s likelihood of success on the merits depends upon whether: (a) the
court has subject matter jurisdiction; (b) Plaintiff has challenged a final agency action
ripe for review; and (c) Commerce abused its discretion in rejecting Plaintiff’s
questionnaire.
A. Subject Matter Jurisdiction
Defendant asserts that Plaintiff is unlikely to succeed on the merits because
the court lacks subject matter jurisdiction over the complaint, and has indicated that
it intends to file a motion to dismiss. 5 The court concludes that it is likely that the
court lacks subject matter jurisdiction over Plaintiff’s claims.
5 Although Defendant has not yet filed its motion, the court must consider the
“likelihood” that it has subject matter jurisdiction over this proceeding in order to
analyze the likelihood that Plaintiff will succeed on the merits. The court discusses
the “likelihood” that it has jurisdiction in this case, as opposed to conclusively
determining whether or not it has jurisdiction, because the motion before the court is
for a preliminary injunction and TRO, and not a motion to dismiss.
Court No. 20-03843 Page 8
The court cannot exercise jurisdiction under 28 U.S.C. § 1581(i) where another
subsection “is or could have been available, unless the remedy provided under that
other subsection would be manifestly inadequate.” Miller & Co. v. United States, 824
F.2d 961, 963 (Fed. Cir. 1987). “While neither Congress nor the courts have provided
a precise definition of the term ‘manifestly inadequate,’ given the clear Congressional
preference expressed in [28 U.S.C. § 1581(i)] for review in accordance with [19 U.S.C.
§ 1516a], the Court must be careful not to interfere in ongoing proceedings absent a
clear indication of the inadequacy of a [19 U.S.C. § 1581(c)] review.” Sahaviriya Steel
Indus. Pub. Co. Ltd. v. United States, 33 CIT 140, 151, 601 F. Supp. 2d 1355, 1365
(2009) (citations omitted) (“Sahaviriya”). Moreover, “[a] party may not expand a
court’s jurisdiction by creative pleading.” Sunpreme Inc. v. United States, 892 F.3d
1186, 1193 (Fed. Cir. 2018) (quoting Norsk Hydro Can., Inc. v. United States, 472
F.3d 1347, 1355 (Fed. Cir. 2006)). Instead, the court must “look to the true nature of
the action in the district court in determining jurisdiction of the appeal.” Id. (citations
omitted).
Recourse under 19 U.S.C. § 1581(c) is not manifestly inadequate when judicial
review pursuant to subsection (c) provides the remedy Plaintiff seeks—namely, a
remand order directing Commerce to reconsider or further explain its refusal to
accept Plaintiff’s submissions. That Plaintiff frames its request for relief in such a
way as to urge disposition of this cause of action before publication of the final
Court No. 20-03843 Page 9
determination cannot serve as the basis for the court’s exercise of jurisdiction in this
instance.
As such, although styled as an action under 28 U.S.C. § 1581(i), it appears the
“true nature” of Plaintiff’s action arises under § 1581(c), see Juancheng Kangtai
Chem. Co. v. United States, 932 F.3d 1321, 1326 (Fed. Cir. 2019), which, pursuant to
19 U.S.C. § 1516a, enables Plaintiff to seek judicial review of the final results of an
ADD investigation. Indeed, what Plaintiff seeks by asking the court to require
Commerce to accept its untimely submission is not a temporary relief, but essentially
the ultimate relief in a case challenging Commerce’s final determination in an ADD
investigation. See, e.g., Cyber Power Systems (USA) Inc. v. United States, 44 CIT __,
__, Slip Op. 20-130 at 7–8 (Sept. 2, 2020) (“Cyber Systems”).
Plaintiff argues that the remedy under § 1581(c) is manifestly inadequate
because the harm it alleges is a loss of its U.S. sales market owing to Commerce’s
failure to accept its questionnaire response. See Pls.’ Mot. at 9–10. However, without
more, harm attributable to a possible abuse of discretion within an investigation is
insufficient to render the remedy afforded by 19 U.S.C. § 1581(c) “manifestly
inadequate.” See Sahaviriya, 33 CIT at 155, 601 F. Supp. 2d at 1368–69 (citations
omitted) (finding the harm attributable to a potentially unauthorized antidumping
proceeding insufficient to show that relief pursuant to 28 U.S.C. § 1581(c) is
manifestly inadequate). The harm alleged by Plaintiff is incidental to participation
in an antidumping investigation and is likely insufficient to surmount well-
Court No. 20-03843 Page 10
established principles requiring that this court strictly enforce the statutory and
administrative requirements for bringing a cause of action under § 1581(c). As such,
it is unlikely that this court has subject matter jurisdiction over Plaintiff’s complaint.
B. Final Agency Action
Defendant argues that Celik is unlikely to succeed on the merits because its
claim is not ripe. See Def.’s Resp. at 9–12. “Ripeness is a justiciability doctrine
designed ‘to prevent the courts, through avoidance of premature adjudication, from
entangling themselves in abstract disagreements over administrative policies, and
also to protect the agencies from judicial interference until an administrative decision
has been formalized and its effects felt in a concrete way by the challenging parties.’”
Nat’l Park Hospitality Ass’n v. U.S. Dep’t of Interior, 538 U.S. 803, 807–08 (2003).
Even if Plaintiff’s complaint were properly before the court pursuant to 28
U.S.C. § 1581(i), it is unlikely that there is a viable cause of action because Commerce
has not yet issued its final determination. It is possible that Commerce may
reconsider challenged aspects of its preliminary determination, thus, involving the
court at this juncture risks undue entanglement with the administrative process on
the basis of contingent future events. See, e.g., Thomas v. Union Carbide Agric.
Prods. Co., 473 U.S. 568, 580–81 (1985). As such, the court concludes that ripeness
concerns would weigh against Plaintiff’s likelihood of succeeding on the merits.
Court No. 20-03843 Page 11
C. Abuse of Discretion
Under 19 C.F.R. § 351.302, Commerce may reject untimely filed factual
submissions. See 19 C.F.R. § 351.302. Commerce has discretion to set and enforce
its own deadlines to ensure finality, and the court reviews Commerce’s decision to
reject Celik’s submission for abuse of that discretion. See Bosun Tools Co. v. United
States, 43 CIT __, __, 405 F. Supp. 3d 1359, 1365–66 (2019) (citing Grobest & I-Mei
Industrial (Vietnam) Co. v. United States, 36 CIT 98, 122–23, 815 F. Supp. 2d 1342,
1365–66 (2012) (“Grobest”); NTN Bearing Corp. v. United States, 74 F.3d 1204, 1207
(Fed. Cir. 1995) (“NTN Bearing Corp.”)). Commerce abuses its discretion when it
rejects information that would not be burdensome to incorporate and which would
increase the accuracy of the calculated dumping margins. See Grobest, 36 CIT at
122–23, 815 F. Supp. 2d at 1365–66; see also NTN Bearing Corp., 74 F.3d at 1207–
08 (holding that Commerce abused its discretion where its decision not to use a
“straightforward mathematical adjustment’’ to correct for certain clerical errors led
to ‘‘the imposition of many millions of dollars in duties not justified under the
statute.’’). Moreover, the court may review Commerce’s decision to ensure that it is
not “treating similar situations in dissimilar ways.” Nakornthai Strip Mill Public Co.
v. United States, 32 CIT 1272, 1276, 587 F. Supp. 2d 1303, 1307 (2008) (citations
omitted).
Plaintiff submits that Commerce abused its discretion in rejecting its
questionnaire responses because Commerce has granted extensions for reasons less
Court No. 20-03843 Page 12
severe than the circumstances surrounding the alleged 21-minute delay that gives
rise to this action. See Pl.’s Mot. at 18–20. Plaintiff’s allegations raise serious
concerns regarding Commerce’s justification for rejecting Plaintiff’s requests for
reconsideration; however, these concerns are insufficient to establish that the
Plaintiff is likely to succeed in light of the jurisdictional and ripeness concerns.
II. Irreparable Harm
Plaintiff alleges that, without the requested relief, it will suffer irreparable
financial and reputational harm and will lose its business in the United States. See
Pl.’s Mot. at 12–14. Defendant contends that it is unclear that Plaintiff’s requested
relief would alleviate any of the alleged harms, and further submits that Plaintiff’s
allegations of financial harm are not actual and imminent, but rather, speculative.
See Def.’s Resp. at 12–17. Plaintiff fails to demonstrate that imminent, irreparable
harm would occur if its motion is denied.
A finding of irreparable harm requires that a Plaintiff demonstrate “a viable
threat of serious harm which cannot be undone.” Zenith Radio Corp., 710 F.2d at
809 (citations omitted). Generally, an allegation of financial loss alone, however
substantial, which is compensable with monetary damages, is not irreparable harm
if such corrective relief will be available at a later date. See Sampson v. Murray, 415
U.S. 61, 90 (1974) (“Sampson”). As such, “[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
Court No. 20-03843 Page 13
harm.” Id. Nevertheless, irreparable harm may take the form of “[p]rice erosion, loss
of goodwill, damage to reputation, and loss of business opportunities.” Celsis
In Vitro, Inc. v. CellzDirect, Inc., 664 F.3d 922, 930 (Fed. Cir. 2012). Substantial loss
of business is irreparable harm because, in addition to the obvious economic injury,
loss of business renders a final judgment ineffective, depriving the movant of
meaningful judicial review. See Doran v. Salem Inn, Inc., 422 U.S. 922, 932 (1975).
Plaintiff offers an affidavit from its Chief Executive Officer, Serdar Seylam, as
support for its claim that the failure to obtain the relief it seeks will cause it
irreparable harm. See Pl.’s Mot. at Ex. J. The affidavit states that Celik will lose its
U.S. customer base, which is a significant portion of its business—the loss of which
will impact the employment of its work force, its shareholders, and its future
prospects in the U.S. market. See generally id. Plaintiff claims that its customers
have already communicated that they could not continue doing business with
Plaintiff’s U.S. PC Strand business if the preliminary rates that Commerce assigned
“are confirmed in the final determination.” See Pl.’s Mot. at Ex. J, ¶¶ 11–12. Plaintiff
also states that its U.S. customer has already started looking for an alternate supplier
of PC Strand. 6 See Pl.’s Mot. at Ex. J, ¶ 17. Plaintiff provides no information
6 Defendant also avers that Plaintiff’s two months delay in seeking relief undermines
its claim of imminent harm. See Def.’s Resp. at 13. Plaintiff does not explain its
delay in its motion, nor is the basis for the delay obvious to the court.
Court No. 20-03843 Page 14
concerning other markets or customers.7 Plaintiff further alleges that if this court
does not grant its motion, it will suffer financial losses in the amount of $96,000 per
month. See Pl.’s Mot. at Ex. J, ¶ 15. However, Plaintiff makes these allegations
without citing to any evidence of its assets and whether or not they are sufficient to
cover the costs. Plaintiff merely states that “[t]he losses will adversely affect our
shareholders, employees and their families.” See Pl.’s Mot. at Ex. J, ¶ 15. Plaintiff
offers no evidence that speaks to the question of whether the alleged harm is
unavoidable or irreparable. Moreover, although financial losses and loss of business
opportunities can constitute irreparable harm, the losses generally must be more
severe than shown here and be “imminent and unavoidable.” Harmoni Int’l Spice,
Inc. v. United States, 41 CIT __, __, 211 F. Supp. 3d 1298, 1308–09 (2017)
(“Harmoni”). Plaintiff’s largely unsubstantiated allegations about potential harm to
its business do not rise to this level of severity.
Additionally, although it argues that it would be unable to afford the bonds
necessary to proceed with the normal administrative and judicial routes to challenge
Commerce’s determination, see Pl.’s Mot. at Ex. J, ¶ 13, Plaintiff offers no support for
the position that it could not secure the capital to fund those bonds from other
sources. See Harmoni, 41 CIT at __, 211 F. Supp. 3d at 1308 (denying a preliminary
7 Plaintiff states that it is “at immediate risk of losing its entire U.S. export market,
which is its primary market and represents nearly half of its total exports by value.”
See Pl.’s Mot. at 13. However, Plaintiff does not offer any evidence to support this
statement, nor does it offer any evidence concerning the portion of its business that
is dependent on exports, generally speaking.
Court No. 20-03843 Page 15
injunction where Plaintiff offered no proof that it had exhausted other avenues to
secure capital). Although the need to seek out new markets or resort to alternative
sources of capital may cause an adverse economic impact, the standard for
irreparable harm requires more than an adverse economic impact. See Corus Grp.
PLC v. Bush, 26 CIT 937, 944, 217 F. Supp. 2d 1347, 1355 (2002), aff’d in part sub
nom. Corus Grp. PLC. v. Int’l Trade Comm’n., 352 F.3d 1351 (Fed. Cir. 2003).
Finally, according to Plaintiff, it has already suffered harm to its reputation in
the U.S. See Pl.’s Mot. at Ex. J, ¶ 16. Although Plaintiff states this harm will be
irreparable absent a grant of its requested relief, see id., it has done little more than
make this broad-based allegation. Beyond Mr. Seylam’s affidavit, Plaintiff offers no
evidence that Plaintiff’s reputation has been harmed to date, let alone that it will be
irreparably harmed going forward.
III. Balance of Harms
Plaintiff contends the balance of harms weighs in its favor as it will suffer the
loss of its U.S. sales market if the injunction does not issue. See Pl.’s Mot. at 20–21.
When considering a motion for a preliminary injunction, the court must "balance the
competing claims of injury and must consider the effect" that granting or denying
relief would have on each party. Winter v. Natural Res. Def. Council, Inc., 555 U.S.
7, 24 (2008) (“Winter”). The loss of a significant market may be a significant harm,
but the harm caused by piecemeal appellate review of Commerce’s procedural
determinations is also significant.
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Balancing the hardship also requires the court to balance the equities.
See Winter, 555 U.S. at 20. Here, Plaintiff admits that it did not begin to attempt to
upload its Sections B and C questionnaire responses until 4:10 pm, less than an hour
before the deadline. See Compl. at ¶ 9. Moreover, Plaintiff said that when it first
received an error message regarding the Domestic Sales Table from the Section B
questionnaire, it decided not to call the ACCESS help desk. See Compl. at ¶ 10.
Plaintiff could have not only accounted for system errors in advance, but also could
have attempted to rectify the error with the help of known resources, but it chose not
to. Interrupting the administrative process and resorting to the judicial process is
not a costless endeavor. There are potential costs to the government as well as the
domestic industry should it be entitled to relief as a result of the investigation. For
the reasons given, and in light of the would-be harm to the government and the
domestic injury, the balance of equities cannot favor Plaintiff whose alleged harms
were avoidable.
IV. Public Interest
Plaintiff requests that this court force Commerce to accept its responses to
Sections B and C of the ADD questionnaire, thus asking the court to grant it the
ultimate relief it seeks. Where a plaintiff requests the “permanent, ultimate relief,”
the public interest may “discourage[] issuance of a preliminary injunction.” See
Cyber Systems, 44 CIT at __, Slip Op. 20-130 at 7–8. A preliminary injunction that
asks for the permanent, ultimate relief disrupts the status quo and harms the public
Court No. 20-03843 Page 17
interest where a hearing on the merits later reveals that the facts of the case demand
a contrary conclusion to that provisionally reached in granting the preliminary
injunction. See id. The public interest is served by the review of Commerce’s
procedural determinations upon the review of its final determination. See PPG
Indus., Inc. v. United States, 2 CIT 110, 112–13, 525 F. Supp. 883, 885 (1981)
(discussing the Customs Court Act of 1980).
CONCLUSION
For the foregoing reasons it is
ORDERED that Plaintiff’s motion for a TRO and a preliminary injunction are
denied.
/s/ Claire R. Kelly
Claire R. Kelly, Judge
Dated: December 6, 2020
New York, New York