Celik Halat ve Tel Sanayi A.S. v. United States

485 F.Supp.3d 1404

CELIK HALAT VE TEL SANAYI A.S., Plaintiff,

v. UNITED STATES, Defendant,andInsteel Wire Products Company et al., Defendant-Intervenors.

Slip Op. 20-175

Court No. 20-03843

United States Court of International Trade.

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.

OPINION AND ORDER

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.

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 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 ¶¶ 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 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, 129 S.Ct. 365, 172 L.Ed.2d 249 (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 weight. See Ugine & ALZ Belg., 452 F.3d at 1293 ; Nken v. Holder, 556 U.S. 418, 434, 129 S.Ct. 1749, 173 L.Ed.2d 550 (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, 129 S.Ct. 1749 ; 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.

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 C.I.T. 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...