Auxin Solar, Inc. v. United States

698 F.Supp.3d 1353

AUXIN SOLAR, INC., and Concept Clean Energy, Inc., Plaintiffs, v. UNITED STATES; United States Department of Commerce;Gina M. Raimondo, Secretary of Commerce;United States Customs and Border Protection;and Troy A. Miller, United States Customsand Border Protection Acting Commissioner, Defendants.

Slip Op. 24-58 Court No. 23-00274

United States Court of International Trade

May 9, 2024

Thomas M. Beline, Chase J. Dunn, James E. Ransdell, IV, Roop K. Bhatti, Sydney C. Reed, Cassidy Levy Kent (USA) LLP, of Washington D.C., for Plaintiffs Auxin Solar, Inc. and Concept Clean Energy, Inc.

Douglas G. Edelschick, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, D.C., for the Defendants. With him on the brief were Brian M. Boynton, Principal Deputy Assistant Attorney General, Patricia M. McCarthy, Director, and Tara K. Hogan, Assistant Director. Of counsel on the brief were Spencer Neff, Attorney, Office of the Chief Counsel for Trade Enforcement and Compliance, U.S. Department of Commerce, of Washington D.C., and Emma L. Tiner, Attorney, Office of the Assistant Chief Counsel, U.S. Customs and Border Protection, of Washington D.C.

Jeffrey S. Grimson, Bryan P. Cenko, Clemence D. Kim, Evan P. Drake, Kristin H. Mowry, Mowry & Grimson, PLLC, of Washington, D.C., for Defendant-Intervenors American Clean Power Association, JA Solar USA, Inc., JA Solar Vietnam Co. Ltd., JA Solar Malaysia Sdn. Bhd. and JA Solar International Limited.

Jonathan T. Stoel, Michael G. Jacobson, Nicholas R. Sparks, Lindsay K. Brown, Hogan Lovells US LLP, of Washington D.C., for Defendant-Intervenors Canadian Solar (USA) Inc. and Canadian Solar International Limited.

Matthew R. Nicely, Daniel M. Witkowski, James E. Tysse, Julia K. Eppard, Sydney L. Stringer, Yujin K. McNamara, Akin, Gump, Strauss, Hauer & Feld, LLP, of Washington, D.C., for Defendant-Intervenors Solar Energy Industries Association and NextEra Energy, Inc.

Craig A. Lewis, Nicholas W. Laneville, I, Gregory M.A. Hawkins, Hogan Lovells US LLP, of Washington D.C., for Defendant-Intervenors BYD (H.K.) Co., Ltd. and BYD America LLC.

John B. Brew, Alexander H. Schaefer, Amanda S. Berman, Robert L. LaFrankie, II, Weronika Bukowski, Crowell & Moring, LLP, of Washington D.C., for Defendant-Intervenors Invenergy Renewables LLC and Invenergy Solar Equipment Management LLC.

Jonathan M. Freed, Doris Di, Kenneth N. Hammer, MacKensie R. Sugama, Robert G. Gosselink, Trade Pacific PLLC, of Washington, D.C., for Defendant-Intervenors Trina Solar (U.S.) Inc., Trina Solar (Vietnam) Science & Technology Co., Ltd., Trina Solar Energy Development Company Limited, Trina Solar Science & Technology (Thailand) Ltd.

Gregory S. Menegaz, Alexandra H. Salzman, James K. Horgan, Vivien J. Wang, deKieffer & Horgan, PLLC, of Washington, D.C., for Defendant-Intervenor Risen Solar Technology Sdn. Bhd.

OPINION AND ORDER

Reif, Judge:

Before the court are: (1) the motions to dismiss under U.S. Court of International Trade ("USCIT" or the "Court") Rule 12(b)(1) of defendants the United States ("the government"), U.S. Department of Commerce ("Commerce"), Secretary of Commerce Gina M. Raimondo, U.S. Customs and Border Protection ("Customs") and Acting Customs Commissioner Troy A. Miller (collectively, "defendants"); (2) the motions to intervene of nine proposed defendant-intervenors¹ under Rule 24; (3) a supplemental protective order filed by proposed defendant-intervenors; and (4) the Joint Stipulation in lieu of preliminary injunction proposed by plaintiffs, Auxin Solar Inc. ("Auxin Solar") and Concept Clean Energy, Inc. ("CCE") (together, "plaintiffs"), and defendants. Plaintiffs invoke the Court's subject matter jurisdiction under 28 U.S.C. § 1581(i)(1)(B) and (D).² See Compl. (Dec. 29, 2023), ECF No. 2. Plaintiffs state that their cause of action arises under the Administrative Procedure Act ("APA"), 5 U.S.C. § 706(2), and they seek relief pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201(a), alleging that defendants failed to collect antidumping and countervailing duty cash deposits and failed to suspend liquidation on products circumventing the antidumping and countervailing duty orders concerning CSPV cells and modules from China. See id. ¶¶ 19, 100, 116. Defendants filed a motion to dismiss for lack of subject matter jurisdiction, arguing that plaintiffs' invocation of residual jurisdiction pursuant to 28 U.S.C. § 1581(i) is not available because jurisdiction is, or could have been, available under 28 U.S.C. § 1581(c). Defs.' Mot. to Dismiss, ECF No. 16 ("Defs. Mot. Dismiss"); Defs.' Reply Supp. Mot. Dismiss ("Defs. Reply Mot. Dismiss"), ECF No. 69. Plaintiffs and defendants filed a Joint Stipulation in Lieu of plaintiffs' Preliminary Injunction, stipulating to the Court's authority to grant reliquidation as a form of relief. Joint Stipulation in Lieu of Prelim. Inj. ("Joint Stipulation"), ECF No. 19.

Nine proposed defendant-intervenors filed motions to intervene in the instant action, arguing that they are importers who would be liable for the duties, which have been suspended pursuant to the rule suspending liquidation and collection of tariffs and duties issued by Commerce. See supra note 1. For the following reasons, the court denies defendants' motion to dismiss, and grants the joint stipulation of plaintiffs and defendants, the motions to intervene of proposed defendant-intervenors and the protective order filed by proposed defendant-intervenors.

BACKGROUND³

I. Factual background

On January 17, 2024, plaintiffs filed a complaint before the Court challenging the rulemaking, determinations and instructions issued by Commerce concerning the preliminary and final determinations in the circumvention inquiries covering Crystalline Silicon Photovoltaic ("CSPV") cells whether or not assembled into modules ("cells") imported from Cambodia, Malaysia, Thailand and Vietnam using parts and components from the People's Republic of China ("China"). Procedures Covering Suspension of Liquidation, Duties and Estimated Duties in Accord with Presidential Proclamation 10414 ("Duty Suspension Rule"), 87 Fed. Reg. 56,868 (Dep't of Commerce Sept. 16, 2022);⁴ Compl. ¶¶ 51-55, 65-71.

Since 2012, Commerce has applied antidumping and countervailing duty orders covering CSPV cells and modules from China. See Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled Into Modules, from the People's Republic of China: Amended Final Determination of Sales at Less Than Fair Value, and Antidumping Duty Order, 77 Fed. Reg. 73,018 (Dep't of Commerce Dec. 7, 2012); Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled Into Modules, from the People's Republic of China: Countervailing Duty Order, 77 Fed. Reg. 73,017 (Dep't of Commerce Dec. 7, 2012). On June 9, 2022, the president declared an emergency pursuant to 19 U.S.C. § 1318(a)⁵ with respect to threats to the availability of sufficient electricity generation capacity to meet expected customer demand in the United States. Proclamation 10414: Declaration of Emergency and Authorization for Temporary Extensions of Time and Duty-Free Importation of Solar Cells and Modules from Southeast Asia ("Proclamation 10414"), 87 Fed. Reg. 35,067, 35,068 (June 9, 2022).⁶ Proclamation 10414 authorized Commerce to take action to permit CSPV cells into the United States "free of the collection" of antidumping and countervailing duties ("AD/CV duties"). Id.

On August 23, 2023, Commerce issued a final determination concluding that CSPV cells and modules from Cambodia, Malaysia, Thailand, and Vietnam were circumventing the AD/CV duty orders on CSPVs from China. Antidumping and Countervailing Duty Orders on Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled Into Modules, From the People's Republic of China: Final Scope Determination and Final Affirmative Determinations of Circumvention With Respect to Cambodia, Malaysia, Thailand, and Vietnam ("Final Determinations"), 88 Fed. Reg. 57,419, 57,421-22 (Dep't of Commerce Aug. 23, 2023); see Antidumping and Countervailing Duty Orders on Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled Into Modules, from the People's Republic of China: Preliminary Affirmative Determinations of Circumvention With Respect to Cambodia, Malaysia, Thailand, and Vietnam ("Preliminary Affirmative Determinations of Circumvention"), 87 Fed. Reg. 75,221, 75,223-26 (Dep't of Commerce Dec. 8, 2022). Commerce relied on the Duty Suspension Rule to exempt from the collection and assessment of AD/CV duties all "applicable entries"⁷ that were certified to be utilized within 180 days after the expiration of the emergency period. See Final Determinations, 88 Fed. Reg. at 57,419.

II. Procedural history

Plaintiffs declare unlawful the Duty Suspension Rule issued by Commerce along with Commerce's instructions to Customs to exempt CSPV cells from suspension of liquidation and cash deposit requirements, so long as the importers and exporters complied with Commerce's certification regime. Plaintiffs argue further that Commerce's rulemaking was unlawful and request that the court order vacatur of the Duty Suspension Rule, or in the alternative, suspend and remand the Duty Suspension Rule for further proceedings and order Customs to suspend liquidation of entries of CSPV cells and collect cash deposits. Compl. at 63.⁸ According to plaintiffs, the Duty Suspension Rule has "precipitated a lawless CSPV cell and module marketplace characterized by a massive and sustained wave of cheap CSPV cells and modules from Malaysia, Thailand, Vietnam, and Cambodia that are made from components originating in the People's Republic of China." Id. ¶ 20.

On January 9, 2024, plaintiffs filed a motion for a preliminary injunction, requesting that the court order the suspension of liquidation of entries that would be subject to the Final Determinations. Pls.' Public Mot. for Prelim. Inj., ECF No. 8; Pls.'...