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Intervenors' Injunction Request Would 'Impermissibly' Expand Case, DOJ Argues at Trade Court

The Court of International Trade should deny a motion for a preliminary injunction by two plaintiff-intervenors because granting that injunction would expand the case beyond its original issues in violation of Supreme Court rulings, DOJ argued in its Feb. 28 response at the Court of International Trade. By requesting an injunction that covers entries not initially subject to the proceeding filed by Jilin Bright, plaintiff-intervenors seek to expand the issues covered by the proceeding, DOJ argued (Jilin Bright Future Chemicals Co. v. United States, CIT # 22-00336).

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Plaintiff-intervenors Ningxia Guangua Cherishmet Activated Carbon and Datong Municipal Yunguang Activated Carbon participated as separate-rate respondents in the underlying Comerce proceeding and joined the current case in February as intervenors. They then filed a separate injunction motion seeking to stop the government “from issuing instructions to liquidate, or from liquidating, entries of activated carbon" from China that were exported by the plaintiff-intervenors and entered into the U.S. during the period of review."

The government opposed the injunction motion, arguing that the interveners could have filed their own complaints within the statutory time limit but failed to do so. While "plaintiff-intervenors’ entries were the subject of the final results, these entries are not at issue in Jilin Bright’s case," DOJ said. "It does not follow that if one party files a complaint, all parties that participated in the review may seek an injunction from the Court. The filing of a complaint by one party does not enjoin the entries of all parties that participated in the review."

Congress provided that parties who are contesting Commerce’s antidumping decisions may file their own case, DOJ said. "We are unaware of any provision in the statute or otherwise that indicates that Congress intended to override the Supreme Court’s holding that intervenors may not expand the existing case."

DOJ noted that CIT previously rejected the position that preliminary injunctions alter the issues of the case and has granted intervenor motions for preliminary injunctions many times in the past, but argued that those decisions misconstrued the Supreme Court's rulings. "If plaintiff-intervenors were not enlarging the case, they would not need to ask the court to use its 'extraordinary' equitable powers to enjoin their entries," DOJ said.

A trade lawyer familiar with similar cases said that it's unusual that companies don't file their own lawsuits. DOJ opposes injunctions by plaintiff-intervenors "on principle in the hopes that a judge will bite," the lawyer said. Historically, opposing plaintiff-intervenor injunctions haven't been successful, but it happens rarely enough that this judge might go in another direction, the lawyer said.

In this particular case, the government's argument may have a sympathetic ear, according to another trade lawyer, John Peterson of Neville Peterson. Chief Judge Mark Barnett served at the Commerce Department for nearly two decades, he said. Also, "the Justice Department may be trying to raise the issue on appeal ... but in some ways this argument is beating a dead horse," Peterson said.