CIT Issues Injunction in Aluminum Extrusions EAPA Case
The Court of International Trade in a Dec. 22 opinion granted plaintiff Aluminum Extrusions Fair Trade Committee's motion for a preliminary injunction in an Enforce and Protect Act case. Judge Richard Eaton ruled that the plaintiff sufficiently proved that it will be "immediately and irreparably" harmed without the injunction barring liquidation of importer Kingtom Aluminio's aluminum extrusions until the litigation has ended. The judge further ruled that the industry group has a "'fair chance' of success on the meritsm" given that there have been several cases with the same merchandise and parties where CBP has asked for voluntary remand or reversed itself.
"We are pleased that the Court granted our request to enjoin liquidation allowing the case to proceed to the merits," said Robert DeFrancesco, counsel for the plaintiff.
The case concerns the CBP administrative review that reversed the agency's finding that Kingtom Aluminio had evaded antidumping and countervailing duty orders on aluminum extrusions from China by transshipping them through the Dominican Republic (see 2208090018). The plaintiff claims that the results of the administrative review "undermined the evidence collected at the on-site verification and accepted Kingtom’s proffered reconciliation of its production data," which CBP had previously rejected (see 2208120050).
The industry group asked the trade court for an injunction on the liquidation of Kingtom's entries during the litigation. To win injunctive relief, though, the plaintiff must show that it would be immediately and irreparably harmed without the injunction, that there is a likelihood of success on the merits, that the balance of equities favors the plaintiff and that the public interest is better served by the requested relief. Eaton went through each factor, falling on the committee's side for each one and ultimately granting the injunction.
Looking first to the immediate and irreparable injury factor, the judge found that Kingtom was right to claim that if the negative evasion finding is reversed, the entries would again be subject to the duties on aluminum extrusions from China. What Kingtom failed to address, though, is what happens if the entries are liquidated during the case, "thus eliminating the only relief Plaintiff domestic producers seek." The judge said that this "is why an injunction is needed -- to preserve Plaintiff's sole remedy." Also, there is no law supporting the claim that the evasion finding has any future effect and that it only touches entries investigated by CBP.
"Because, here, liquidation prior to a decision by the court would effectively eliminate Plaintiff’s right to judicial review of the contested determination by eliminating the only meaningful relief sought by Plaintiff, the immediate and irreparable injury factor favors granting an injunction," the opinion said.
Eaton next touched on the plaintiff's likelihood of succeeding on the merits of the case. Given that multiple cases with the same merchandise and parties have resulted in voluntary remands or reversals from CBP, past actions suggest that CBP "is still developing its understanding of the scope of its authority under the law," the judge pointed out. "Given this uncertainty, it cannot be said at this time that Plaintiff does not have a 'fair chance' of success on the merits," the opinion said. "Thus, Plaintiff has made a sufficient showing on this factor, which, considered together with the irreparable injury factor discussed above, weighs in favor of granting the injunction."
(Aluminum Extrusions Fair Trade Committee v. United States, Slip Op. 22-154, CIT #22-00236, dated 12/22/22, Judge Richard Eaton. Attorneys: Robert DeFrancesco of Wiley Rein for plaintiff Aluminum Extrusions Fair Trade Committee; Brady Mills of Morris Manning for defendant-intervenor Kingtom Aluminio)