CAFC Affirms Denial of Injunction to Importer Challenging Effective Date of AD Rate Increase
The U.S. Court of Appeals for the Federal Circuit on May 8 affirmed a lower court’s denial of an injunction to an importer challenging the effective date of an antidumping duty increase. Sumec, an importer of solar cells, sought an order barring liquidation of its entries after a Court of International Trade decision that raised the rate of its exporter, but before notice of that increase was published in the Federal Register. CAFC, like CIT, held the order unnecessary because an injunction covering those entries has already been issued in another case and, even without an injunction, the government admits the entries should be liquidated if the importer wins the case.
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CIT is still considering the overall challenge to the rate increase’s effective date. The exporter of Sumec’s solar cells had been subject to a 13.18% AD duty rate before its rate was raised in a separate court case to 249.96%. The court decision was issued Oct. 5, 2015, but Commerce didn’t publish a “Timken” notice in the Federal Register on the new rate until Nov. 23, 2015. The effective date of the notice was Oct. 15, 2015. Sumec challenged the application of the new rate to eight of its entries after the Oct. 15 effective date but before the Nov. 23 publication date of the notice. It sought a preliminary injunction barring liquidation of those entries at the higher rate while CIT considered its challenge, but CIT had denied the injunction after finding Sumec didn’t prove liquidation would cause it irreparable harm.
CAFC agreed with CIT’s decision. An injunction barring liquidation of the entries at issue in this case has already been issued in a separate case challenging countervailing duty rates on solar cells from China. While that injunction could be dissolved as a result of events in that case, Sumec could at that time request an injunction in this case, CAFC said. Also, while there’s some doubt as to the circumstances when courts can order Commerce to reliquidate entries that have already liquidated, the government has in briefs filed in this case taken the position that the entries should be reliquidated if it loses the case. Legally, the government can’t now change that position in the case on a whim, so reliquidation would be available and liquidation would not cause irreparable harm, CAFC said.
(Sumecht NA, Inc. v. U.S., Fed. Cir. 19-1015, dated 05/08/19, Judges Moore, Clevenger and Wallach)