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Wind Tower Trade Coalition v. United States

United States Court of Appeals, Federal Circuit

January 24, 2014

WIND TOWER TRADE COALITION, Plaintiff-Appellant,
v.
UNITED STATES, Defendant-Appellee, and CS Wind China Co., Ltd., CS Wind Corporation, and Titan Wind Energy (Suzhou) Co., Ltd., Defendants-Appellees, and Chengxi Shipyard Co., Ltd., Defendant-Appellee, and Siemens Energy, Inc., Defendant-Appellee.

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Robert E. DeFrancesco, III, Wiley Rein, LLP, of Washington, DC, argued for plaintiff-appellant. With him on the brief were Alan H. Price, Daniel B. Pickard, and Usha Neelakantan.

Joshua E. Kurland, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for defendant-appellee, United States. With him on the brief were Stuart F. Delery, Assistant Attorney General, Jeanne E. Davidson, Director, and Reginald T. Blades, Jr., Assistant Director. Of counsel on the brief was Daniel J. Calhoun, Attorney, Office of the Chief Counsel for Import Administration, United States Department of Commerce, of Washington, DC.

Ned H. Marshak, Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt, of New York, NY, argued for defendants-appellees, CS Wind China Co., Ltd., et al. With him on the brief were Bruce M. Mitchell, Max F. Schutzman, Andrew B. Schroth, and Kavita Mohan. Of counsel was Andrew Thomas Schutz, of Washington, DC.

Elliot J. Feldman, Baker Hostetler, LLP, of Washington, DC, argued for defendant-appellee, Siemens Energy, Inc. With him on the brief was Michael S. Snarr.

Mark David Davis, Davis & Leiman, PC, of Washington, DC, for defendant-appellee Chengxi Shipyard Co., Ltd.

Before NEWMAN, MOORE, and WALLACH, Circuit Judges.

WALLACH, Circuit Judge.

The Wind Tower Trade Coalition (" Appellant" or the " Coalition" ), a group of domestic manufacturers of utility scale wind towers, appeals the decision of the United States Court of International Trade (" CIT" ) denying its motions for preliminary injunctions. See Wind Tower Trade Coal. v. United States, 904 F.Supp.2d 1349 (Ct. Int'l Trade 2013). This court affirms.

BACKGROUND

After receiving petitions filed by the Coalition, the United States Department of Commerce (" Commerce" ) initiated antidumping and countervailing duty investigations covering utility scale wind towers (" subject merchandise" ) from the People's Republic of China (" China" ) and an antidumping investigation covering subject merchandise from the Socialist Republic of Vietnam (" Vietnam" ). The antidumping and countervailing duty statutes [1] require

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Commerce and the United States International Trade Commission (" ITC" ) to conduct parallel investigations to determine whether the application of one or both of these remedial duties is warranted. 19 U.S.C. §§ 1671a-1671d, 1673a-1673d (2006).

Pursuant to 19 U.S.C. §§ 1671b(a) and 1673b(a), the ITC issued a preliminary injury determination that there was a reasonable indication of threat of material injury to a domestic industry by reason of imports of subject merchandise from China and Vietnam. Commerce then issued a preliminary affirmative countervailing duty determination with respect to imports of subject merchandise from China and preliminary affirmative antidumping duty determinations with respect to imports of subject merchandise from China and Vietnam. Based on these determinations, and pursuant to the " provisional measures" requirements of 19 U.S.C. §§ 1671b(d) and 1673b(d), Commerce instructed the United States Customs and Border Protection (" Customs" ) to suspend liquidation of all entries of subject merchandise that were entered or withdrawn from warehouse for consumption on or after the dates of Commerce's preliminary antidumping and countervailing duty determinations. The instructions also required cash deposits for the entries based on the preliminary duty margins Commerce calculated in its preliminary determinations.

Commerce then made final affirmative determinations, after which the ITC issued its final affirmative determination in an evenly-divided vote (i.e., three negative votes and three affirmative votes). Utility Scale Wind Towers from China and Vietnam, 78 Fed.Reg. 10,210, 10,210 n. 2 (ITC Feb. 13, 2013) (final injury determination) (" ITC Determination" ). Under the " divided vote" provision of 19 U.S.C. § 1677(11), the ITC's split vote constituted an affirmative determination. 19 U.S.C. § 1677(11) (" If the Commissioners voting on a determination by the [ITC] ... are evenly divided as to whether the determination should be affirmative or negative, the [ITC] shall be deemed to have made an affirmative determination." ). However, of the six Commissioners on the investigation panel, three Commissioners voted entirely in the negative, finding neither material injury nor threat of injury, two determined that the domestic wind tower industry had suffered present material injury, and a third determined that the domestic industry was threatened with material injury, but that the domestic industry would not have suffered material injury in the absence of the provisional measures. ITC Determination at 10,210 n. 2-3.

Commerce then issued antidumping and countervailing duty orders implementing the results of the final affirmative determinations. Utility Scale Wind Towers from China, 78 Fed.Reg. 11,146 (Dep't of Commerce Feb. 15, 2013) (antidumping duty order); Utility Scale Wind Towers from China, 78 Fed.Reg. 11,152 (Dep't of Commerce Feb. 15, 2013) (countervailing duty order); Utility Scale Wind Towers from Vietnam, 78 Fed.Reg. 11,150 (Dep't of Commerce Feb. 15, 2013) (antidumping duty order) (collectively, the " Orders" ). As to the effective dates of the Orders, Commerce applied the so-called " Special Rule" of 19 U.S.C. §§ 1671e(b)(2) and 1673e(b)(2), making the Orders effective prospectively from the publication date of the ITC Determination. The Orders also

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indicated that Commerce would instruct Customs to terminate the suspension of liquidation and refund the cash deposits made prior to the publication date of the ITC Determination.

Appellant challenged Commerce's application of the Special Rule before the CIT and sought temporary restraining orders (" TRO" ) and preliminary injunctions to: (1) enjoin Commerce from ordering the termination of the suspension of liquidation and the refund of cash deposits; and (2) enjoin Customs during the pendency of the litigation before the CIT, including any subsequent remands and appeals, from discontinuing the suspension of liquidation and refunding the cash deposits. Wind Tower Trade Coal., 904 F.Supp.2d at 1351. The CIT initially denied Appellant's applications because it found Appellant had not made an adequate showing of likelihood of success on the merits. Id. Appellant submitted a supplemental response further explaining its position on its likelihood of success. The CIT then entered TROs to provide the Appellees an opportunity to respond to Appellant's motions.

After receiving Appellees' responses, the CIT denied Appellant's motions for preliminary injunctions and dissolved the TROs. Id. Appellant filed a timely appeal to this court. Upon Appellant's motion to stay pending appeal, this court reinstated the TROs pending full consideration of the issues. Wind Tower Trade Coal. v. United States, No. 13-1303 (Fed. Cir. June 28, 2013) (ECF No. 52) (order granting motion for emergency stay pending appeal).

DISCUSSION

I. Jurisdiction

Of the Appellees, Siemens Energy, Inc. (" Siemens" ) alone challenges this court's jurisdiction: " [The Coalition's] interlocutory appeal of the CIT's order, and its case as a whole, may be dismissed for lack of subject matter jurisdiction, lack of standing, and lack of appellate jurisdiction." Appellee Siemens's Br. 4 ...


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