Slip Op.  UNITED STATES COURT OF INTERNATIONAL TRADE INVENERGY RENEWABLES LLC, Plaintiff,
and SOLAR ENERGY INDUSTRIES ASSOCIATION, CLEARWAY ENERGY GROUP LLC, EDF RENEWABLES, INC. and AES DISTRIBUTED ENERGY, INC., Plaintiff-Intervenors, v. UNITED STATES OF AMERICA, OFFICE OF THE UNITED STATES TRADE REPRESENTATIVE, UNITED STATES TRADE REPRESENTA TIVE ROBERT E. LIGHTHIZER, U.S. CUSTOMS AND BORDER PROTECTION, and ACTING COMMISSIONER OF U.S. CUSTOMS and BORDER PROTECTION MARK A. MORGAN, Defendants,
and HANWHA Q CELLS USA, INC. and AUXIN SOLAR, INC,
Defendant-Intervenors. Before: Judge Gary S. Katzmann Court No. 19-00192

OPINION
[The court denies Plaintiffs’ motion for leave to file second supplemental complaints and denies Plaintiffs’ motion to modifypreliminary injunction.] Dated: November 19, 2020Court No. 19-00192 Page 2
Amanda Shafer Berman, John Brew and LarryF. Eisenstat, Crowell & Moring LLP, of Washington, DC and New York, NY, argued for plaintiff, Invenergy Renewables LLC and plaintiff-intervenors, Clearway Energy Group LLC and AES Distributed Energy, Inc . With them on the briefs were Frances Ha dfield and Leland P. Frost. Matthew R. Nicely and Daniel M. Witkowski, Akin, Gump, Strauss, Hauer & Feld LLP, of Washington, DC, argued fo r plaintiff-intervenor, Solar Energy Industries Association. With them on the brief was Julia K. Eppard

. Kevin M. O’Brien, Baker & McKenzie LLP, of Wa shington, DC, argued for plaintiff-intervenor, EDF Renewables, Inc . With him on the brief wa s Christine M. Streatfeild. Stephen C. Tosini, Senior Trial Counsel, Comm ercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, DC, argue d for defendants. With him on the briefs were Jeffrey Bossert Clark, Acting Assistant Attorney General, Jeanne E. Davi dson, Director, Tara K. Hogan, Assistant Director, and Joshua E. Kurland, Attorney. John M. Gurley, Dianna Dimitriu c-Quaia, Taniel E. Anderson, )ULHGHULNH6*ऺUJHQV , and Jessica R. DiPietro, Arent Fox LLP, of Washingt on, DC, argued for defendant-intervenors, Hanwha Q CELLS USA, Inc . and Auxin Solar Inc

. With them on the briefs were Aman Kakar and Russell A. Semmel. Katzmann, Judge: In the most recent heari ng in this ongoing litigation, counsel for the plaintiffs described the predicam ent of her clients as something akin to Whack-a-Mole. Counsel for the United States said it was more analogou s to a game of PacMan. We need not choose between the two characterizations here but can say that this litigation has taken many twists and turns. The court for the fifth time addresses issues related to attempts to withdraw an exclusion from safeguard duties on imported bifacial solar modules, duties which the President imposed by proclamation to protect the domestic industry. 1 In its prior decisions, without reaching the merits of the underlying challenges to the safeguard duties, the court determined that the actions of the Office of the United States Trade Representative (“USTR”) in October 2019 and Apr il 2020 to withdraw the exclusion of bifacial

1 For purposes of this opinion, the term “solar modules” and “solar panels” are used interchangeably.Court No. 19-00192 Page 3
panels from the safeguard measure on solar products likely violated proce dural requirements of the Administrative Procedure Act (“APA”). See Order and Op. Granting Mot. for Prelim. Inj., Invenergy Renewables LLC v. United States, 43 CIT __, 422 F. Supp. 3d 1255 (2019), ECF No. 113 (“Invenergy I”); Order and Op. Den. Mot. to Show Cause, Invenergy Renewables LLC v. United States, 44 CIT __, 427 F. Supp. 3d 1402 (2020), ECF No. 149 (“Invenergy II”); Order and Op. Den. Mot. to Dissolve Prelim. Inj., Mots. to Dismiss and Granting Mot. to Suppl. Compl., Invenergy Renewables LLC v. United States, 44 CIT __, 450 F. Supp. 3d 1347 (2020), ECF No. 185 (“Invenergy III”); Order and Op. Den. Mot. to Dissolve Prelim. Inj., Mot. to Stay, Granting Mot. to Modify Prelim. Inj., Mot. to Complete Administrative R., and Vacating USTR Decision, Invenergy Renewables LLC v. United States, 44 CIT __, Slip Op. 20- 144 (Oct. 15, 2020), ECF No. 252, 253 (“Invenergy IV”). Acco rdingly, the court issued a pr eliminary injunc tion (“PI”) to enjoin implementation of withdraw als of Exclusion of Particular Products From the Solar Products Safeguard Measure, 84 Fed. Reg. 27,684–85 (USTR June 13, 2019) (“Exclusion”). In the most recent development, the President on October 10, 2020, announced his decision to withdraw by proclamation an exclusion for bifacial solar panels from safeguard duties and to increase duties on certain crystalline silicon photovolta ic (“CSPV”) cells in year four of the safeguard measure from the originally scheduled fifteen percent to ei ghteen percent. Proclamation 10101 of October 10, 2020, To Further Facilitate Positive Adjustment to Competition From Imports of Certain Crystalline Silicon Photovoltaic Cells (Whether or Not Partially or Fully Assembled Into Other Products), 85 Fed. Reg. 65,639 (Oct. 16, 2020) (“Proc lamation 10101”). Thus, with Proclamation 10101, bifacial solar panels ar e set to be subjected to safeguard duties once again.Court No. 19-00192 Page 4
Plaintiff Invenergy Renewables LLC (“I nvenergy”), a renewable energy company, 2 joined by Plaintiff-Intervenors Solar Energy Industrie s Association (“SEIA”), Clearway Energy Group LLP (“Clearway”), EDF Renewables, Inc. (“EDF- R”), and AES Distributed Energy, Inc. (“AES DE”) (collectively, “Plaintiffs”), challenged thatOctober 2020 action under the umbrella of the prior litigation by seeking to incorporate Proc lamation 10101 into their complaints and to the court’s previously issued PI enjo ining USTR from withdrawing its Exclusion. Pls.’ Mot. for Leave to File Second Suppl. Compls., Oct. 17, 2020, ECF N o. 257 (“Pls.’ Mot. to Suppl. Compls.”); Pls.’ Emergency Appl./Mot. for Prelim. Inj. Modifica tion or in the Alterna tive TRO, Oct. 20, 2020, ECF No. 263 (“Pls.’ Mot. to Modify PI”). The United States, USTR, U.S. Trade Representative Robert E. Lighthizer, U.S. Customs and Border Protection (“CBP”), and CBP Acting Commissioner Mark A. Morgan (collectively, “the Government”), joined by DefendantIntervenors Hanwha Q CELLS US A, Inc. (“Hanwha Q CELLS”) and Auxin Solar Inc. (“Auxin Solar”) (collectively, “Defendant-Intervenors” ), oppose Plaintiffs’ challenge. The court temporarily restrained the re-implementation of sa feguard duties on bifacial solar products so that it could consider Plaintiffs’ challenge. Order Granting Mot. for TRO, Oct. 24, 2020, ECF No. 270 (“First TRO Order”); Order Extending TRO, Nov. 6, 2020, ECF No . 283 (“Second TRO Order”). The court now denies both of Plai ntiffs’ motions and lift s its previously issued TRO. The parties may seek further recourse by filing separate actions.

2 Invenergy describes itself as “the world’s leading independen t and privately-held renewable energy company.” Invenergy’s Co mp. ¶ 14, Oct. 21, 2019, ECF No. 13.Court No. 19-00192 Page 5

BACKGROUND I. Prior Proceedings The statutory framework at issue here is th at of the APA and of Sections 201, 203 and 204 of the Trade Act of 1974, 19 U.S.C. §§ 2251–54. As th e court noted in Invene rgy I, the APA sets out procedural requirements fo r notice-and-comment rulemaking by government agencies with respect to certain legal or pol icy decisions. 433 F. Supp. 3d at1297. The Trade Act lays out procedures by which the executive branch may implement temporary safeguard measures to protect a domestic industry from harm. I d. at 1265–66 (citing 19 U.S.C. §§ 2251–54). Section 202 dictates that, upon petitions from domestic en tities or industries, the International Trade Commission (“ITC”) may make an affirmative determination that serious injury or a threat of serious injury to that industry exists. 19 U.S.C. § 2252. The President is then permitted to authorize discretionary safeguards to provide temporary relief to the at-risk domestic industry. Id. § 2253. The statute prescribes in Section 203 certain f actors which the President must consider before issuing safeguard measures and limits the duration of such measures. Id. § 2253(a)(2), (e)(1). The statute also outlines certain limits on Presidential action, including by limiting new action following the termination of safe guard measures regarding certai n articles. E.g., id. § 2253(e). Further, the safeguard statute mandates that the President “shall by regulation provide for the efficient and fair administration of all actions taken for the purpose of providing import relief.” Id. § 2253(g)(1). Section 204 sets procedural fo rth procedural requirements and requires certain findings to be made by the President before a safeguard action can be modified. Id. § 2254. In January 2018, the President issued Pres idential Proclamation 9693 To Facilitate Positive Adjustment to Competition From Import s of Certain Crystalline Silicon Photovoltaic Cells (Whether or Not Partially or Fully Assembled Into Other Products) and for Other Purposes,Court No. 19-00192 Page 6
83 Fed. Reg. 3,541–51 (Jan. 25, 2018) (“Proclamati on 9693”), announcing a safeguard measure against imports of solar products after an affirmative determinat ion of injury by the ITC. These duties were to remain in effect for a four-year period that began on February 7, 2018. The President delegated the process of “exclusion of a particular product from the safeguard measure” to USTR. Proclamation 9693, 83 Fed. Reg. at 3,543. After a lengthy process, USTR decided to exclude bifacial solar panels from safeguard duti es. Exclusion. Four months later, in October 2019, Invenergy initiated litigation to enjoin the Government from implementing the Withdrawal
of Bifacial Solar Panels Excl usion to the Solar Products Safe guard Measure, 84 Fed. Reg. 54,244–45 (USTR Oct. 9, 2019) (“First Withdrawal”), which would have ended the Exclusion. Invenergy’s Mot. for Prelim. Inj., Nov. 1, 2019, ECF No. 49. On December 5, 2019, the court issued a PI to enjoin USTR from reinstituting safeguard duties on certain bifacial solar panels through implementation of the Firs t Withdrawal. Invenergy I, 422 F. Supp. 3d at 1294. On April 14, 2020, the Government filed a status report to inform the court of the issuance of USTR’s
Determination on the Exclusion of Bifacial Solar Panels From the Safe guard Measure on Solar Products, 85 Fed. Reg. 21,497–99 (USTR Apr. 17, 2020) (“Second Withdrawal”), which, like the First Withdrawal, constituted a withdrawal of the Exclusion of bifaci al solar panels from safeguard duties. Def.’s Status Report, ECF No. 155. On May 27, 2020, the court issued a decision in which it granted Plaintiffs’ motion to supplement their compla ints to include the
Second Withdrawal and denied the Government’s motion to dissolve the preliminary injunction because it had not proved sufficiently changed circumstances. Invenergy III, 450 F. Supp. 3d atCourt No. 19-00192 Page 7

1365. 3 After further filings and another oral ar gument, on October 15, 2020, the court granted Plaintiffs’ cross-motion to modify the PI to enjoin the Second Withdr awal and simultaneously
vacated the First Withdrawal. I nvenergy IV, Slip Op. 20-144 at 4 4–45

. As with the initial injunction, the modified injunction was granted upon finding a likelihood of success on the merits
of the two APA counts alone. See id

. at 22 (“[T]he court concludes th at Plaintiffs . . . [showed]
that the Second Withdrawal was likely arbitrary and capricious and that they would suffer from the same procedural harm through a decision that did not comply with APA requirements.”). The
court there observed: The court notes that if presented with an adequate record and explanation of USTR’s action, the court could proceed, in accordance with well-established administrative law standards, to review US TR’s decision to withdraw it previously granted exclusion from safeguard dutie s on imported bifacial solar modules. However, various procedural missteps by USTR mean that the court cannot reach that point now. As the court has state d, “[t]he court acknowledges the Government and Defendant-Intervenors’ concern that domestic industr ies may face a threat of material injury due to USTR’s decision to exclude bifacial solar products from safeguard duties. The court also ackno wledges the concerns of Plaintiffs (consumers, purchasers and importers of utility-grade bifacial solar panels), who oppose safeguard duties that they claim increas e the cost of bifacial solar panels.” Invenergy III, 450 F. Supp. 3d at 1365 (cita tions omitted). The court takes no position on the efficacy of safeguard duties in providing protection to the domestic solar industry or of a decision to exclude pr oducts from those safeguard duties. Id. Once again, the court merely continues to require the Government to follow its own laws when it acts. Invenergy IV, Slip Op. 20-144 at 45 . The court further ordered that the Government complete the administrative record by December 3, 2020 and that the parties confer and submit a joint status report on the status and schedule of further briefing by Decemb er 11, 2020. Order Granting Def.’s Consent Mot. for Extension of Time to File Administrative R., Nov. 2, 2020, ECF No. 275; Order

3 On August 5, 2020, the Government filed an appeal of this decision in United States Court of Appeals for the Federal Circuit. Invenergy III, appeal docketed No. 2020-2130 (Fed. Cir. Aug. 5, 2020), ECF No. 240.Court No. 19-00192 Page 8
Granting Def.’s Consent Mot. for Extension of Time to File Joint Status Report, Nov. 13, 2020,
ECF. No. 290. II. Proclamation 10101 and Ensuing Litigation When the President has taken a safeguard measure to address serious injury to the domestic industry under Section 201 of the Trade Act of 1974, Section 204 of the Trade Act directs the ITC to monitor developments with respect to the do mestic industry protected by the safeguard. See 19 U.S.C. § 2254(a). When, as here, the safeguard measure the President im poses under Section 203 of the Trade Act exceeds three years, the statute re quires the ITC to submit a report with the results of its monitoring efforts to the President and to Congress not later than th e date that is the midpoint of the initial period during whic h the action is in effect. See id. Pursuant to these statutory requirements and for the purpose of preparing a mid-term report regarding the safeguard measure imposed by Proclamation 9693, the ITC initiated a monitoring investigation on July 25, 2019, held a public h earing, and accepted written submissions from interested parties to pr epare the required report. See Crystalline Silicon Photovoltaic Cells, Whether or Not Partially or Fully Assembled Into Other Products: Monitoring Developments in the Domestic Industry Institution and Scheduling Notice for the Subject Investigation , 84 Fed. Reg. 37,674 (ITC Aug. 1, 2019). The ITC then issued its mid-term monitori ng report in February 2020. Crystalline Silicon Photovoltaic Cells, Whethe r or Not Partially or Fully Assembled Into Other Products: Monitoring Developments in the Domestic Industry, USITC Pub. 5021, Inv. No. TA-201-075 at 1 (Feb. 2020). The report found “a number of significant developments” in the domestic industry for CSPV products,” including anexpanded U.S. module industry, “changes in import volumes, and generally decreased prices.” Id.Court No. 19-00192 Page 9
Additionally, in March 2020, the ITC issued a report pursuant to a request from USTR under Section 204, 19 U.S.C. § 2254(a)(4 ), regarding the probable ec onomic effect on the domestic solar cell and module manufacturing industry of modifying the safegua rd measure to increase the level of the tariff-rate quota (“ TRQ”) on solar cells. Crystallin e Silicon Photovoltaic Cells, Whether or Not Partially or Fully Assemble d Into Other Products: Advice on the Probable Economic Effect of Cert ain Modifications to the Safeguard Measure , USITC Pub. 5032, TA-201- 075 (Mar. 2020). After receipt of the ITC’s repor ts, Section 204 author izes the President to reduce, modify, or terminate an action he has taken under Sectio n 203. 19 U.S.C. § 2254(b)(1). On October 10, 2020, pursuant to that Section, the President issued Proclamation 10101. In the proclamation, the President noted the ITC’s findings that: (1) the ex clusion of bifacial modules from the safeguard measure will likely result in substantial increases in imports of bifacial modules if the Exclusion remains in effect; (2) such modules will likel y compete with domestically produced CSPV products in the United States; and (3) the benefits to domestic CSPV module producers from an increased TRQ discussed elsewhere in the procla mation would likely be limited if the bifacial module exclusion remained in place. Proc lamation 10101, 85 Fed. Reg. at 65,640 ¶ 6. He additionally noted the ITC’s further finding that bif acial modules are likely to account for a greater share of the market in the future and can substitute for monofacial products in the various market segments, such that exempting imports of bifacial modules from the safeguard tariff would apply significant downward pressure on prices of domestically produced CSPV modules. Id. The President also stated that he had received a petiti on “from a majority of th e representatives of the domestic industry with respect to each of the following modifications.” Id. ¶ 7. The President found that the “domestic industry has begun to make positive adjustmentCourt No. 19-00192 Page 10
to import competition, shown by the increases in domestic module production capacity, production, and market share.” Id. Invoking his authority under Sec tion 204 to “reduce, modify, or terminate an action taken under Section 203 of the Trade Act when the President determines that the domestic industry has made a positive ad justment to import comp etition,” the President determined that “it is necessary to revoke th[e] exclusion an d to apply the safeguard tariff to bifacial panels” because that exclusion “has im paired and is likely to continue to impair the effectiveness of the action [he] proclaimed in Proclamation 9693.” 85 Fed. Reg. at 65,640 ¶¶ 7, 9(a). He further determined that to “achieve th e full remedial effect envisaged by Proclamation 9693,” it was necessary to increase “t he duty rate of the safeguard tariff for the fourth year of the safeguard measure to proclaimed” in that Pr oclamation. Id. at 65,640 ¶ 9(b). The President modified the Harmonized Tariff Schedule of the United States (“HTSUS”) accordingly, setting October 25, 2020, as the effective date for the modifications. Id. at 65,640–42 cls. (1), (4),
Annex. On October 12, 2020, the Government not ified the court of Proclamation 10101. 4 Def.’s Status Report, Oct. 12, 2020, ECF No. 251. Plainti ffs responded by filing a motion to supplement their complaints to include a challenge to Pr oclamation 10101. See Pls.’ Mot. to Suppl. Compls. 5 They then filed an emergency motion to modifythe PI to explicitly enjoin Proclamation 10101,

4 Proclamation 10101 was published in the Fede ral Register on Octobe r 16, 2020. 85 Fed. Reg. 65,639 (Oct. 16, 2020).

5 Plaintiffs collectively filed a motion for leave to supplement their complaints and accompanying memorandum of support. See Pls.’ Mot. to Suppl. Co mpls. However, each pl aintiff filed separate proposed supplemental complaints. See Pls.’ Mo t. to Suppl. Compls., Attach. 1, Oct. 17, 2020, ECF No. 257 (“Invenergy’s Proposed Second Suppl . Compl.”); Pl. Clearway’s Proposed Second Suppl. Compl., Oct. 19, 2020, ECF No. 258; Pl.-In ter. SEIA’s Proposed Second Suppl. Compl., Oct. 19, 2020, ECF No. 259; Pl.-Inter. AES DE’s Proposed Second Suppl. Compl., Oct. 19, 2020, ECF No. 260; Pl.-Inter EDF- R’s Proposed Second Suppl. Compl., Oct. 19, 2020, ECF No. 261.Court No. 19-00192 Page 11
and, in the alternative, for a TRO to temporarily enjoin Proc lamation 10101 until a hearing could be held on their outstanding motions. Pls.’ Mot. to Modify PI at 1. Si multaneously, DefendantIntervenors filed a condi tional motion for a three-judge panel in the event that the court granted Plaintiffs’ motion to supplement their complaints. Conditional Mot. of Def.-Inters. for a Panel of Three Judges, Oct. 20, 2020, ECF No. 264. The court ordered the Gove rnment and DefendantIntervenors to respond to Plainti ffs’ motion, Order Directing Resp. by Def. and Def.-Ints., Oct. 21, 2020, ECF No. 265, which those part ies did on October 23, 2020, Def.’s Resp. to Pls.’ Mot. to Amend the Ct.’s Prelim. Inj. or for a TRO, ECF No. 269 (“Def.’s Resp. to Mot. to Modify PI”); Def.-Inters.’ Resp. to Pls.’ Emergency Mot. to Modify Prelim. Inj., ECF No. 268 (“Def.-Inters.’ Resp. to Mot. to Modify PI”). The court issued the TRO on October 24, 2020 to temporarily enjoin Proclamation 10101, as it affected bifacial solar panels, in order to preserve the status quo as the court considered Plaintiffs’ allegations that Pr oclamation 10101 violated the PI and Plaintiffs’ motions to supplement their complaints and modify the PI. First TRO Order. On November 3, 2020, the Government and Defendant-Inte rvenors responded to Plainti ffs’ motion to supplement their complaints. Def.’s Resp. to Pls.’ Mot. for Le ave to File Second Suppl. Compl., ECF No. 277 (“Def.’s Resp. to Suppl. Compl.”); Def.-Inters.’ Res p. to Pl. and Pl.-Inters.’ Mot. for Leave to File Second Suppl. Compl., ECF No. 279 (“Def.-Inters.’ Resp. to S uppl. Compl.”). After a hearing on November 5, 2020, the court extended the TRO for an additional fourteen days while the court took Plaintiffs’ motions and the Government’s and Defendant-Intervenors’ responses under advisement. Second TRO Order. At the request of the court, the parties filed supplemental briefs on November 10, 2020. Pl. Invenergy’s and Pl.-In ters. Clearway and AES DE’s Suppl. Br. in Supp. of Emergency Mot. to Modify PI, ECF No. 286 (“Invenergy’s Suppl. Br .”); Pl.-Inters. SEIACourt No. 19-00192 Page 12
and EDF-R’s Suppl. Br. in Supp. of Emergency Mo t. to Modify PI, ECF No. 288 (“Pl.-Inters.’ Suppl. Br.”); Def.’s Suppl. Br., ECF No. 285; Def.-Inters.’ Post-Hearing Submission, ECF No. 287 (“Def.-Inters.’ Suppl. Br.”).
JURISDICTION The court has jurisdiction over this case pur suant to 28 U.S.C. § 1581(i), which provides that the court “shall have exclus ive jurisdiction of any civil action commenced against the United States, its agencies, or its officers, that arises out of any law of the United States providing for . . . [the] administration and enforcem ent” of tariffs and duties.
DISCUSSION The court denies both Plaintiffs’ Motion for Leave to File Second Supplemental Complaints and Plaintiffs’ Motion to Modify th e PI. The court addresses each motion in turn.
I. Plaintiffs’ Motion for Leave to Fi le Second Supplement Complaints Plaintiffs request leave to file second supplemental complaints to “incorporate facts related to, and expand their claims to encompass,” the President’s withdrawal of the Exclusion in Proclamation 10101. Pls.’ Mot. to Suppl. Compls. at 2. The proposed second supplemental complaints add, inter alia, allegations that Proclamation 10101 “violates the Trade Act’s restrictions on the imposition a nd modification of safeguard meas ures and does not comply with the process prescribed by that Ac t for Presidential action,” and th at “[i]nsofar as Section[s] 203– 04 of the Trade Act allows Defendants to impose a safeguard measure pursuant to [Proclamation 10101], they violate Plaintiffs’ due process rights.” Pls.’ Mot. to Suppl. Compls., Attach. 1 ¶¶ 101, 112 , Oct. 17, 2020, ECF No. 257 (“Invenergy’s Proposed Second Suppl. Compl.”) . The proposed second supplemental complaints further al lege that “[i]nsofar as [Proclamation 10101] must be implemented by Defendants through subsequent actions, such actions also violate the . . .Court No. 19-00192 Page 13
APA procedural requirements,” and must be set as ide because they are “arbitrary, capricious, an abuse of discretion, and otherwise not in accordance with law.” Id. at ¶¶ 83, 90. Plaintiffs ask that Proclamation 10101 be declared unlawful and the Government be enjoined from implementing the proclamation, including by collecting duties on merchandise covered by the Exclusion or modifying the HTSUS. Id. at 28 (P rayer for Relief). In addition, SE IA’s complaint also challenges the modification of the safeguard in year four to reduce the duty rate on modules to eighteen percent. SEIA’s Proposed Second Suppl. Compl. ¶ 50 , Oct. 19, 2020, ECF No. 259

. Relying on the fact that Proclamation 10101 withdr aws the same exclusion of bifacial solar panels at issue in this litiga tion and claiming that Proclamation 10101 is “unlawful for many of the same reasons as USTR’s prior withdrawal actions ,” Plaintiffs argue that supplementation would be both permissible and efficient. Pls.’ Mot. to Suppl. Compls. at 2. Th ey specifically identify Sections 203 and 204 of the Trade Act as key consid erations in the court’s analysis of both their initial claims regarding the First Withdraw al and Second Withdrawal and their proposed supplemental claims regarding Proclamation 10101. Id. at 9. The Government and DefendantIntervenors oppose Plaintiffs’ motion to supplemen t their complaints, arguing instead that the President’s revocation of the Exclusion in Pr oclamation 10101 represents a “separate Executive action from USTR’s administrative de terminations at issue in this lawsuit.” Def.’s Resp. to Suppl. Compls. at 8; Def.-Inters.’ Resp. to Suppl. Compls. at 11–12. While leave to amend the pleadings shall, under USCIT Rule 15, be freely granted, the decision of whether to permit the filing of a supplemental complaint falls within the discretion of the court after consideration of all relevant factors. Intr epid v. Pollock, 907 F.2d 1125, 1128–29 (Fed. Cir. 1990) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)). Among those factors properly informing the court’s discretion are the relations hip between the initial cause of action and theCourt No. 19-00192 Page 14
proposed amendments and the risk of prejudice to the parties. Id. Inparticular, where “later events are directly related to those averments” constituti ng the basis of the original claims and there is “no substantive prejudic e” to the nonmovant, both the Federal Circuit and the Supreme Court have held that amendment is proper. Id. at 1129, 1131; Foman, 371 U.S. at 179, 181 (finding motion to amend was improperly denied where there was no prejudice to defendant and supplemental complaint asserted a second claim against same defendant and relating to same transaction); Griffin v. School Board, 377 U.S. 218, 227 (1964) (f inding amendment proper where there was no prejudice to defendant and supplem ental claims were “part of th e same old cause of action”). The court is not persuaded by Plaintiffs’ ar guments that the existing action and proposed second supplemental complaints are sufficiently related to justify amendment. Plaintiffs’ proposed second supplemental complaints do not “directly relate[]” to the claims and actions forming the basis of the existing action. In trepid, 907 F.3d at 1129. Rather, th ey involve actions undertaken by the President, a party not implicated in Plaint iffs’ complaints or supplemental complaints and seek relief against the President not contemplat ed by Plaintiffs’ prior pleadings. Those earlier pleadings allege that USTR viol ated Plaintiffs’ due process right s by failing to provide adequate notice and opportunity for comment under the APA, a nd by failing to defer to Presidential authority and procedural requirements under Sections 203 and 204 of the Trade Act. Invenergy’s Suppl. Compl. ¶¶ 77–81, May 27, 2020, ECF No. 187. In c ontrast, the proposed Second Supplemental Complaints allege that Proclamation 10101 violat es the APA only “insofar as [it] must be implemented by Defendants,” and that the Presid ent’s own actions viol ated the procedural requirements of the Trade Act. Invenergy’ s Proposed Second Suppl. Compl. ¶¶ 91, 101. The USTR’s administrative proceedings at issue in th e existing complaints are entirely separate from the ITC’s midterm review of the safeguard which led to the modification of the safeguard by theCourt No. 19-00192 Page 15
President in issuing Proclamation 10101, now challenged by Plaintiffs. In short, the core issues are different. 6 Plaintiffs argue that their claims regard ing Proclamation 10101 constitute “the same statutory and constitutional claims” as their exis ting allegations against US TR and involve “legal and factual issues” which “overlap substantially.” Invenergy’s S uppl. Br. at 3. With respect to the Trade Act, Plaintiffs’ previous pleadings allege that by withdrawing the Exclusion USTR violated Section 203’s requiremen t that the President “provide for the efficient and fair administration of all actions taken for the purpo se of providing import relief under this part,” 19 U.S.C. § 2253(g), and Section 204’s requirements for Presidential action pr ior to the modification of a safeguard action, 19 U.S.C. § 2254(b). Invenergy’s Proposed Second Suppl. Compl. at ¶¶ 78, 79. In their proposed amended pleading, Plaintiffs argue that Proclamati on 10101 also violates Section 203 by re-imposing a safeguard measure less than two years after the prior measure terminated and violates Section 204 insofar as it fa ils to satisfy that Section’s requirement that the President only “reduce modify or terminat e” safeguard measures upon finding “positive adjustments to import competition” and following industry request. Invenergy’s Proposed Second Suppl. Compl. at ¶¶ 97–101. The court finds that the current and proposed claims are not dire ctly related su ch that they warrant amendment sought by Plaintiffs. Although Plaintiffs’ proposed supplemental claims under Sections 203 and 204 of the Trade Act involv e the same statutory scheme as the existing complaints, they are far from the same statutor y claims. Rather, as no ted, the proposed second

6 SEIA’s proposed second supplemental complaint is further removed from the core issue in the underlying APA litigation by adding a challenge to the rate of duty in year four of the safeguard, a determination that does not affect the bifacial exclusion in any way and is entirely unrelated to the underlying litigation – but is still the subject of Proclamatio n 10101. SEIA’s Proposed Second Suppl. Compl. ¶ 50.Court No. 19-00192 Page 16
supplemental complaints introduce a new cause of ac tion against the President for violation of his own statutory duties under the Tr ade Act. Invenergy’s Proposed Second Suppl. Compl. at ¶¶ 96– 101. This new claim is distinctfrom Plaintiffs’ original alle gations that USTR overstepped statutory bounds and exercised auth ority “not delegated to USTR” by the President by issuing the First Withdrawal and Second Withdrawal. Invene rgy’s Suppl. Compl. at ¶ 79. Nor is there a compelling argument that Plai ntiffs’ proposed additional claims under the APA are adequately related to the existing compla ints to require the court to grant Plaintiffs’ motion. With respect to the APA, Plaintiffs’ original claims hi nge on the procedural rulemaking requirements imposed on agencies by the APA, a nd USTR’s alleged failure to afford due process to Plaintiffs by complying with those requireme nts. Plaintiffs’ proposed supplemental claims address the APA only with respect to USTR ’s likely implementation of Proclamation 10101, Invenergy’s Proposed Second Suppl. Compl. at ¶¶ 83, 91. As the Pres ident is not himself subject to the APA, Franklin v. Mass achusetts, 505 U.S. 788, 801–801 (1992), this attempt to formulate claims under the APA regarding Proclamation 10101 is too tenuous a c onnection to warrant granting of Plaintiffs’ motion. Finally, there is no evidence that Plaintiffs will be prejudiced by denial of their motion to amend. Rather, Proclamation 10101 involves a distinct and separa te action governed by different procedures. As such, the court finds that effi cient resolution of Plaintiffs’ claims regarding Proclamation 10101 is most likely to be achieved in a separate proceeding. Rather than requiring the parties to “separately litigat[e] many of the same merits issues” across multiple actions, Pls.’ Mot. to Suppl. Compls. at 11, recognizing the distin ct nature of Plaintiffs ’ claims stemming from Proclamation 10101 will promote e fficient resolution of the alre ady-pleaded issues surroundingCourt No. 19-00192 Page 17

the First Withdrawal and Second Withdrawal without prejudice to Plaintiffs’ ability to re-file their supplemental claims as a separate action. For these reasons, the court acts within its discretion in denying Plaintiffs’ Motion for Leave to File Second Supplemental Complaints. II. Plaintiffs’ Motion to Modifythe Preliminary Injunction Plaintiffs move for modification of the PI to further enjoin the President’s decision in Proclamation 10101 to end the Exclusion. Pls.’ Mot. to Modify PI at 13. Plaintiffs claim that Proclamation 10101 attempts to implement the same w ithdrawal of the exclusion for bifacial solar panels under the safeguard measure on CSPV products that the court previously enjoined. Id. at 2. Plaintiffs contend that Proclamation 10101 cons titutes a change in circumstances that should be enjoined “in order to continue to protec t Plaintiffs from harm pending final adjudication of the lawfulness of the government’s actions.” Id. at 1 3. Citing the court’s recent opinion in Invenergy IV that noted the court must pr eserve the status quo during the pe ndency of an appeal, Plaintiffs’ further argue modification of the PI to include Proclamation 10101 is neces sary. Id. at 16. Plaintiffs then argue that, even though they n eed not re-prove each fa ctor of the PI, they nevertheless are likely to succeed on the merits of their challenge to the withdrawals of the Exclusion, id. at 17–35, Plaintiffs face irreparable procedural and economic harms from implementation of Proclamation 10101, id. at 26–41, and the balance of equities and public interest weigh in favor of enjoining Proclamation 10101, id. at 41–42. Plaintiffs alleged in their in itial response to th e Government’s status report regarding Proclamation 10101, Pls.’ Resp. to Def.’s Status Report at 3, Oct. 15, 2020, ECF No. 254, and in their motion to modify the PI that Proclamati on 10101 constituted a viola tion of the previously issued PI by “seek[ing] to bypass the [c]ourt’s review -- and to circumvent the [c]ourt’s PI,” Pls.’Court No. 19-00192 Page 18
Mot. to Modify PI at 1. Further, in their mo tion, Plaintiffs noted the Government’s previous statements to the court that “it would not make a withdrawal of the Exclus ion effective, and would not impose safeguard duties on bifacial panels, unless and until the [c]ourt lifted its PI.” Id. at 14. Plaintiffs also claimed that “[p]r operly construed, the extant PI s hould be all that is necessary to prevent [Proclamation 10101]’s with drawal of the Exclus ion from becoming effective.” Id. at 15. At oral argument, Plaintiffs cl arified that, while they claimed that Proclamation 10101 violates the PI, they moved to modify the PI “so that ther e can be no question going forward at least that defendants are barred from entering the proclamation into effect and imposing the safeguard measure on bifacial panels under the proclamation or under USTR’s prior withdrawal actions.” Tr. of Hr’g of Nov. 5, 2020 at 14, Nov. 6, 2020, ECF No. 284. The Government and Defendant-Intervenor responded in opposition to Plaintiffs’ motion. The Government summarized Proclamation 10101 as “a new determination, by the President, under a different statutory authority than that on which USTR relied, which is not subject to the procedural requirements of the APA that this [c ]ourt has found lacking w ith respect to USTR’s actions.” Def.’s Resp. to Mot. to Modify PI at2. Thus, the Governmentargues that modification of the PI to include Proclamation 10101 would not be appropriate in light of the narrower standard of review over Presidential actions and Plaintiffs ’ failure to meet the four factors necessary for injunctive relief. Id. at 2–3. Fu rther, the Government explains that, “[b]ecause Proclamation 10101 provides an additional and wholly distinct basis for applying th e safeguard duties to bifacial products, [P]laintiffs’ likelihood of success on their challenge to the Proclamation cannot rest on their challenges to the USTR’s prior actions.” Id. at 10. T hus, the Government argues that Plaintiffs would be required to prove each of th e injunctive factors anew as they relate to Proclamation 10101. Id. at 11–12. Defendant-Intervenor s similarly argue that Plaintiffs “have notCourt No. 19-00192 Page 19
met their burden to warrant modification of the [P I]” and dispute Plaintiffs’ characterization of the status quo as inclusive of the withdrawal. 7 Def.-Inters.’ Resp. to Mot. to Modify PI at 13–15. The Government and Defendant-Intervenors then argue th at Plaintiffs have not carried their burden of proving their success on the injunctive factors. Def.’s Resp. to Mot. to Modi fy PI at 12–29: Def.- Inters.’ Resp. to Mot. to Modify PI at 16–42. As to Plaintiffs’ claims of a violation of th e PI, the Government responded that, despite its representations on behalf of US TR, it “never represented thatthe President would withhold issuance of a midterm proclamation, or decline to use his authority under section 204 to take action in response to congressionally-mandated ITC issue[d] midterm reports .” Def.’s Resp. to Mot. to Modify PI at 9. Further, at oral argument, the Government stated th at the PI could not be construed to cover hypothetical, future Pres idential action. Tr. of Hr’g of Nov. 5, 2020 at 44–45. Finally, the Government argues that the Pr esident’s action, resulting from the ITC’s midterm review that began in July 2019 before the initiation of this l itigation, does not circumvent the PI. Id. at 45. As the court noted in Ad Hoc Shrimp Trad e Action Committee v. Unite d States, in order for the court to modify a PI, the moving party must show that (1) “a change in circumstances of the parties from the time the injunction would i ssue that would make the modification necessary”; and (2) continuation of the unmodified PI woul d be inequitable. 32 CIT 666, 670, 562 F. Supp.

7 Defendant-Intervenors now argue that the Exclusion is one of the contested agency decisions within this litigation. See Def.-In ters.’ Resp. to Mot. to Modify PI at 14; Tr. of Hr’g of Nov. 5, 2020 at 82–84; Def.-Inters.’ Suppl. Br. at 7–8. The co urt rejects this charac terization. DefendantIntervenors have never filed a se parate action or cross-complaint within this action challenging the Exclusion before the court. See also Tr. of Hr’g of Nov. 5, 2020 at 47 (the Government explaining that it nor any other pa rty has challenged the Exclusion). Thus, the court does not have subjectmatter jurisdiction over review of the Exclusi on and would have no basis for ruling on the procedural or substantive merits of Defendant-Intervenors’ grievances with the Exclusion. If Defendant-Intervenors’ wish to expressly challenge the merits of the Exclusion, then they may do so by initiating such a challenge following the rules of this court.Court No. 19-00192 Page 20
2d 1383, 1388 (2008). The first requirement is ba sed on the Supreme Court’s decision in Sys Fed’n No. 91 v. Wright, in which it stated that “[t]he source of th e power to modify is of course the fact that an injunction often requires contin uing supervision by the issuing court and always a continuing willingness to apply its powers and processes on behalf of the party who obtained that equitable relief.” 364 U.S. 642, 647 (1961); see also United States v. United Shoe Machinery Corp., 391 U.S. 244, 249 (1968) (holding that if an injunction has failed to achieve its intended results, the court has the power to modify th e order). The court thus addresses whether modification of the PI is required in order to fulf ill its original objective and to avoid inequity to Plaintiffs. 8
The court denies Plaintiffs’ motion to m odify the PI because it determines that Proclamation 10101 does not constitute a change incircumstances requiring modification. As the court noted in Invenergy IV, the pu rpose of the PI, as originally issued and as modified, is “to shield Plaintiffs from the effect s of an agency decisi on that was undertaken in violation of the APA.” Slip Op. 20-144 at 20. Fundamentally, the Presid ent is neither an ag ency nor subject to the APA under well-settled, long-standing decisions by the Supreme Court. See Franklin, 505 U.S. at 800–01 (“Out of respect for the separation of powers and the unique constitutional position

8 Plaintiffs propose that the court may modify the PI in order to pres erve the status quo. Pls.’ Mot. to Modify PI at 16. However, as the court noted in its past opinion, that standard applies in the context of modification of a PI while an appeal is pending. Invenergy IV, Slip Op. 20-144 at 18 (“The caselaw is clear that a court may exerci se continuing supervis ion over a PI while an interlocutory appeal is pending to the extent nece ssary to maintain the status quo.” (citing Amado v. Microsoft Corp., 517 F.3d 1354, 1358 (Fed. Cir. 2008) ; Prudential Real Estate Affiliates, Inc. v. PPR Realty, Inc., 204 F.3d 867, 8 80 (9th Cir. 2000); Sierra Club, Lone Star Chapter v. Cedar Point Oil Co., 73 F.3d 546, 578 (5th Cir. 1996)). Be cause the court declines to modify the PI further, the court need not a ddress the impact of the pending appeal on the present decision. Further, for the reasons stated below, the c ourt concludes that Proclamation 10101 does not impact that status quo set by the PI.Court No. 19-00192 Page 21
of the President, we find that te xtual silence is not enough to subject the President to the provisions of the APA.”). Thus, there is no way in which modification of the PI to include Proclamation 10101 would shield Plaintiffs from an agencydecision that runs afoul of the APA. 9 The court also concludes that Proclamation 10101 is not a violation of the PI despite dir ecting re-implementation of safeguard duties on bifacial solar products, the same effect of US TR’s enjoined actions. Because the President acted to withdraw the Exclus ion under different statutory authority than that delegated to the USTR, any implementation of safeguard duties on bifa cial products does not violate the court’s PI, which was premised sole ly upon legislative restrictions imposed on USTR by the APA. 10 Any inequity faced by Plaintiffs is notimplicated by the protection of the PI or within the scope of the cu rrent litigation. Plainti ffs are not without recourse to have those alleged inequities addressed by this court but, because the court denies the motion to file second supplemental complaints, Plaintiffs must do so under a separate action. Thus, the Plaintiffs’ motion to modify the PI is denied.

9 None of Plaintiffs’ cited cases require modification of a PI to include whollyseparate action by a different government actor under different legal authority, but mere ly explain that a court has the power to modify a PI to preserve the status quo, in the event of changed circumstances, or where it is necessary to achieve the PI’s purpose. Se e Pls.’ Mot. to Modify PI at 14–16 (citing SKF USA Inc. v. United States, 28 CIT 170, 184, 316 F. Supp. 2d 1322, 1335–36 (2004); Sys. Fed’n No. 91, 364 U.S. 642, 647 (1961); Transgo Inc. v. Aj ac Transmission Parts Corp., 768 F.2d 1001, 1030 (9th Cir. 1985); Pro Edge L.P. v. Gue, 411 F. Supp. 2d 1080 (N.D. Iowa 2006); 1250 24th Street Associates Ltd. v. Brown, 684 F. Supp. 326, 329–30 (D .D.C. 1988)). See also Invenergy’s Suppl. Br. at 7. Proclamation 10101 is not analogous to any of the situati ons addressed in those cases. 10 Plaintiffs contend that Proc lamation 10101 was issued to circumvent the PI. See, e.g., Invenergy’s Suppl. Br. at 7 (“[T]h e obvious intent of the 2020 Proclamation is to circumvent this [c]ourt’s PI . . . .”). The court notes that th e midterm investigation and review of the safeguard was commenced pursuant to statute in July 2019 pr ior to the initiation of this litigation which resulted in the PI. See Background, supra, Sec. II. Th e court thus declines to conclude on the record now before it that Pr oclamation 10101 is a deliberate circ umvention of the court’s past decisions directed at the actions of USTR.Court No. 19-00192 Page 22

CONCLUSION Because Proclamation 10101 constitutes a distinct action related to the safeguard measure that presents questions of law and fact separate from USTR’s action at issue in the present case, the court exercises its discreti on and denies Plaintiffs’ Motion to File Second Supplemental Complaints. For similar reasons, the court also denies Plaintiffs’ Motion to Modify the PI.
SO ORDERED. /s/ Gary S. Katzmann Gary S. Katzmann, Judge Dated: November 19, 2020 New York, New York