United States Court of International Trade

Slip Op. 20-78

Before the Court in Luoyang Bearing Corporation (Group) v. United States, et. al., Slip Op. 20-78, Court No. 19-00026 (June 1, 2020) was a challenge to Commerce determinations in an administrative review of the antidumping duty order on tapered roller bearings from China. Specifically, plaintiff challenged Commerce’s denial of plaintiff’s separate rate application and Commerce’s application of the country-wide antidumping (“AD”) rate, pursuant to a finding of de facto government control over plaintiff’s board of directors. The Government argued that plaintiff “failed to raise any arguments to Commerce contesting an adverse preliminary determination before bringing a challenge to the Court.” Id. at 2. For the following reasons, the Court denied Plaintiff’s motion without reaching the merits of its claims.  

“Preceding a review by the Court of the merits of a given claim, a party challenging agency action must have first exhausted its administrative remedies or demonstrated to the Court that it should be exempted from that requirement.” Id. The Court may excuse the exhaustion of administrative remedies requirement in situations where plaintiff proves futility by showing that exhaustion would require plaintiff “to go through obviously useless motions in order to preserve their rights.” Id. at 11. The mere fact that an adverse decision may have been likely does not excuse a party from a statutory or regulatory requirement that it exhausts administrative remedies. Here, although plaintiff had the opportunity “to present legal arguments concerning Commerce’s practice and its application” to the agency, plaintiff chose not to. Id. at 13. The Court noted “despite Commerce’s consistent position regarding indirect ownership and de facto independence from government control, indicating that an adverse final decision may have been likely,” plaintiff was still required to present a case brief. Id. As such, the Court dismissed the case for failure to exhaust administrative remedies.         

Slip Op. 20-79

Before the Court in J. Conrad LTD v. United States, et. al. v. United States, et. al., Slip Op. 20-79, Court No. 20-00053 (June 1, 2020) was plaintiffs’ motions for “temporary restraining orders and preliminary injunctions against implementation or further enforcement of Presidential Proclamation 9980, which imposes tariffs on certain imported steel-derivative products, including steel nails, on national security grounds.” Id. at 2. “The parties agree on the four preliminary injunction elements but disagree on how the Court should apply them.” Id. at 12. Plaintiffs argued a “request for a preliminary injunction is evaluated in accordance with a ‘sliding scale’ approach: the more the balance of irreparable harm inclines in the plaintiff’s favor, the smaller the likelihood of prevailing on the merits he need show in order to get the injunction.” Id. at 12. The government argued that “plaintiffs must show that each prong of the test is ‘likely,’ as opposed to a balancing or sliding-scale test. Thus, if plaintiffs fail to establish any one factor by a ‘clear showing,’ the motion must be denied.” Id. For the following reasonings, the Court denied plaintiffs’ motions for preliminary injunction and temporary restraining orders as moot.

“A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Id. at 11. “Plaintiffs contend that absent a preliminary injunction, they will be irreparably harmed pending a decision on the merits by (1) payment of cash deposits for the 25 percent duties imposed by Proclamation 9980; (2) Customs’ liquidation of all entries filed by them subject to Proclamation 9980; (3) the alleged deprivation of their procedural due process rights; and (4) competitive injury due to the entry of consent preliminary injunctions in related cases brought by their competitors challenging Proclamation 9980. Id. at 15. Here, the Court reasoned “even if we presume that plaintiffs’ higher costs likely cannot be passed along in full to their customers, that does not suffice to establish a likelihood of irreparable harm. Plaintiffs have not demonstrated a likelihood that absorbing some portion of the duty costs will cause insolvency, force them to cease operations, or cause other serious harm that could not be remedied by a money judgment at the close of this litigation.” Id. at 23. The Court found plaintiffs’ arguments “too vague to lend significant probative weight in support of a finding of likely irreparable harm to plaintiffs’ viability as business enterprises.” Id. at 22-23. Given plaintiffs’ failure to succeed on the first element of the preliminary injunction test, the Court did “not address the other three elements” and denied plaintiffs’ motions. Id. at 2