United States Court of Appeals 

for the Federal Circuit ______________________ 

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. 

______________________ 

2013-1303

______________________ 

Appeal from the United States Court of International 

Trade in Nos. 13-CV-0080, 13-CV-0081, and 13-CV-0082, 

Judge Leo M. Gordon.
2 WIND TOWER TRADE v. US

______________________ 

Decided: January 24, 2014

______________________ 

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, New York, 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. 

______________________ 
WIND TOWER TRADE v. US 3

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 statutes1 require 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 

1 The antidumping statute governs the application 

of remedial duties to foreign goods sold, or likely to be 

sold, in the United States “at less than fair value,” 19 

U.S.C. § 1673 (pertaining to the “imposition of 

antidumping duties”), while the countervailing duty 

statute governs the application of remedial duties to 

subsidized imports, 19 U.S.C. § 1671 (pertaining to the 

“imposition of countervailing duties”). These sections 

contain parallel provisions and much of the governing 

language is identical.

 
4 WIND TOWER TRADE v. US

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 
WIND TOWER TRADE v. US 5

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 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 
6 WIND TOWER TRADE v. US

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 (emphasis added). 

Siemens bases its challenge on 28 U.S.C. § 1292(d)(1),

which provides

when any judge of the [CIT], in issuing any other 

interlocutory order, includes in the order a 

statement that a controlling question of law is 

involved with respect to which there is a 

substantial ground for difference of opinion and 

that an immediate appeal from that order may 

materially advance the ultimate termination of 

the litigation, [this court] may, in its discretion, 

permit an appeal to be taken from such order
WIND TOWER TRADE v. US 7

(emphasis added). Siemens contends this appeal does not 

meet these criteria. Siemens also acknowledges, however, 

that “[t]his Court previously has assumed jurisdiction 

over appeals of interlocutory orders pertaining to 

injunctions from the CIT, relying on § 1292(c).” Appellee 

Siemens’s Br. 7.

In American Signature, Inc. v. United States, 598 F.3d 

816, 823 (Fed. Cir. 2010), for example, this court exercised 

jurisdiction over a case in which the CIT denied a motion 

for a preliminary injunction. This court expressly stated 

that jurisdiction was proper under § 1292(c)(1), which 

provides that this court “shall have exclusive jurisdiction

. . . of an appeal from an interlocutory order or decree 

described in subsection (a) . . . in any case over which the 

court would have jurisdiction of an appeal under section 

1295 of this title.” Section 1295(a)(5) provides that this 

court has exclusive jurisdiction “of an appeal from a final 

decision of the [CIT].” Section 1292(a), however, specifies 

that

the courts of appeals shall have jurisdiction of 

appeals from . . . [i]nterlocutory orders of the 

district courts of the United States, the United 

States District Court for the District of the Canal 

Zone, the District Court of Guam, and the District 

Court of the Virgin Islands, or of the judges 

thereof, granting, continuing, modifying, refusing 

or dissolving injunctions, or refusing to dissolve or 

modify injunctions.

Because this subsection does not specify the CIT, Siemens 

argues that only those appeals from interlocutory orders 

that meet the criteria of § 1292(d)(1), the subsection that 

specifically references the CIT, can be heard by this court.

Contrary to Siemens’s arguments, this court has held 

that §§ 1292(a), 1292(c)(1), and 1295 in conjunction confer 

jurisdiction upon this court over appeals of interlocutory 

orders issued by the CIT “granting, continuing, modifying, 
8 WIND TOWER TRADE v. US

refusing or dissolving” injunctions. 28 U.S.C. § 1292(a); 

see, e.g., Norcal/Crosetti Foods, Inc. v. United States, 963 

F.2d 356, 358 (Fed. Cir. 1992) (stating, in an appeal from 

the CIT, “[p]ursuant to 28 U.S.C. § 1292(c)(1) . . . , this 

court has jurisdiction over an appeal from interlocutory 

orders described in section 1292(a), which include orders 

granting injunctive relief”). Under our precedent, this 

court has jurisdiction under 28 U.S.C. § 1292(c)(1).

II. Standard of Review

“The governing standard of review on appeal of a 

grant or denial of a preliminary injunction is abuse of 

discretion.” Am. Signature, 598 F.3d at 823 (citing Titan 

Tire Corp. v. Case New Holland, Inc., 566 F.3d 1372, 1375 

(Fed. Cir. 2009)). “An abuse of discretion may be 

established under Federal Circuit law by showing that 

the court made a clear error of judgment in weighing the 

relevant factors or exercised its discretion based on an 

error of law or clearly erroneous fact finding.” Qingdao 

Taifa Grp. Co. v. United States, 581 F.3d 1375, 1379 (Fed. 

Cir. 2009) (internal citation and quotation marks 

omitted). To the extent a court’s decision to grant or deny

a preliminary injunction “hinges on questions of law,” this 

court’s review is de novo. Nat’l Steel Car, Ltd. v. 

Canadian Pac. Ry., Ltd., 357 F.3d 1319, 1325 (Fed. Cir. 

2004).

III. Legal Framework

A. Standard for Preliminary Injunctions

“A plaintiff seeking a preliminary injunction must 

establish [(1)] that he is likely to succeed on the merits, 

[(2)] that he is likely to suffer irreparable harm in the 

absence of preliminary relief, [(3)] that the balance of 

equities tips in his favor, and [(4)] that an injunction is in 

the public interest.” Winter v. Natural Res. Def. Council, 

Inc., 555 U.S. 7, 20 (2008) (citations omitted). As 

observed by the CIT, “[i]n antidumping and 
WIND TOWER TRADE v. US 9

countervailing duty cases preliminary injunctions against 

liquidation have become almost automatic due to the 

retrospective nature of U.S. trade remedies, the length of 

the judicial review process, and the cruciality of 

unliquidated entries for judicial review.” Wind Tower 

Trade Coal., 904 F. Supp. 2d at 1352 (citing 19 C.F.R. § 

351.212(a) (2012); Zenith Radio Corp. v. United States, 

710 F.2d 806, 810 (Fed. Cir. 1983); SKF USA, Inc. v. 

United States, 512 F.3d 1326, 1329 (Fed. Cir. 2008) (“The 

Zenith rule renders a court action moot once liquidation 

occurs.”); Qingdao Taifa, 581 F.3d at 1381–82). 

However, “[a] preliminary injunction is an 

extraordinary remedy never awarded as of right.” Winter, 

555 U.S. at 24 (citing Munaf v. Geren, 553 U.S. 674, 689–

90 (2008)); see also Qingdao Taifa, 581 F.3d at 1382 

(noting the Supreme Court’s “emphasis on the importance 

of the likelihood of success in the preliminary injunction 

calculus” in Munaf, 553 U.S. at 689–90). Therefore, “even 

if a party establishes that it will be irreparably harmed, 

the party must also demonstrate that it has at least a fair 

chance of success on the merits for a preliminary 

injunction to be appropriate.” Qingdao Taifa, 581 F.3d at 

1381 (internal quotation marks and citation omitted). 

B. ITC Injury Determinations

In parallel investigations, Commerce investigates the 

extent to which foreign imports are “dumped” (i.e., sold or 

likely to be sold in the United States “at less than fair 

value”) or subsidized by a foreign government, while the 

ITC investigates whether the U.S. domestic industry has 

been materially injured, or threatened with material 

injury, as a result of the foreign imports. 19 U.S.C.

§§ 1671a–1671d, 1673a–1673d. If both Commerce and the 

ITC make preliminary affirmative determinations, 

provisional measures take effect, which suspend 

liquidation and require cash deposits for entries of 

merchandise covered by the investigation. Id. §§ 1671b(d), 
10 WIND TOWER TRADE v. US

1673b(d). If Commerce and the ITC then make 

affirmative final determinations at the conclusion of their 

respective investigations, the statute directs Commerce to 

publish antidumping and/or countervailing duty orders. 

Id. §§ 1671e(a), 1673e(a). In such orders, Commerce 

specifies the effective date of the orders—either the duty 

orders apply retrospectively to the entries that were 

suspended, or the orders apply prospectively from the 

date of publication of the final ITC determination.

Pursuant to 19 U.S.C. §§ 1671e(b) and 1673e(b),2 the 

effective date depends on the nature of the ITC 

determination, which will lead to the application of either 

the “General Rule” or the “Special Rule” (collectively, “the 

Rules”). The Rules are as follows:

(1) General rule

2 The enactment of the Trade Agreements Act of 

1979 (codified at 19 U.S.C. §§ 1671e(b) and 1673e(b)) 

implemented the provisions of two international trade 

agreements the United States entered into as part of the 

Tokyo Round of Multilateral Trade Negotiations. 

According to the Trade Agreements Act’s legislative 

history, these provisions prohibit the collection of duties 

during the provisional-measures period “unless the final 

determination is that there is material injury or threat of 

material injury which, but for provisional measures, e.g., 

suspension of liquidation, during the investigation, would 

have been material injury.” S. Rep. No. 96-249, at 59, 77

(1979), reprinted in 1979 U.S.C.C.A.N. 381, 445, 463. 

These agreements recognize that, without a finding of 

material injury or threat with an affirmative “but for” 

finding, there is no affirmative injury determination to 

support the imposition of duties during the provisionalmeasures period.

 
WIND TOWER TRADE v. US 11

If the [ITC], in its final determination . . . finds 

material injury or threat of material injury which, 

but for the suspension of liquidation . . . would 

have led to a finding of material injury, then 

entries of the [subject merchandise], the 

liquidation of which has been suspended . . . , 

shall be subject to the imposition of . . . duties . . . .

(2) Special rule

If the [ITC], in its final determination . . . finds 

threat of material injury, other than threat of 

material injury described in paragraph (1), . . . 

then [subject merchandise] which is entered, or 

withdrawn from warehouse, for consumption on or 

after the date of publication of notice of an 

affirmative determination of the [ITC] . . . shall be 

subject to the [assessment or imposition] of . . . 

duties . . . , and [Customs] shall release any bond 

or other security, and refund any cash deposit 

made.

Id. §§ 1671e(b), 1673e(b) (providing parallel rules for 

countervailing and antidumping duties, respectively). In 

other words, the General Rule applies if the ITC makes 

(1) an affirmative finding of present material injury, or (2) 

a finding of a threat of material injury that would have 

been a finding of present material injury in the absence of 

the provisional measures (i.e., a finding that “but for” the 

suspension of liquidation, the ITC would have concluded 

that the domestic industry is materially injured). Id. 

Under this Rule, duties are collected retrospectively on 

subject merchandise that entered the United States

during the course of the investigation. On the other hand, 

the Special Rule applies if the ITC finds that the U.S. 

industry is threatened with material injury, but there 

would not be present material injury in the absence of the 

provisional measures. Id. Under this rule, Commerce’s 

orders are effective prospectively from the publication 
12 WIND TOWER TRADE v. US

date of the ITC’s final determination and provisional cash 

deposits are refunded.

The statutes do not explicitly address which of the 

Rules applies to the fragmented ITC voting pattern 

presented in this case (i.e., an evenly-divided affirmative 

determination comprising three negative votes and three 

affirmative votes, with two commissioners voting for 

material injury and one voting for threat with a negative 

“but for” finding). The CIT, however, addressed this 

voting pattern in MBL (USA) Corp. v. United States, 787 

F. Supp. 202 (Ct. Int’l Trade 1992), where Commerce 

applied the General Rule based on its interpretation of 19 

U.S.C. § 1673e(b). The CIT reviewed Commerce’s 

interpretation of § 1673e(b) under the second prong of 

Chevron, U.S.A., Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 837, 842–45 (1984), and 

determined that the interpretation was unreasonable 

because Commerce was effectively ignoring the three 

negative votes, and focusing only on the three affirmative 

votes. MBL, 787 F. Supp. at 207–08. The CIT found it 

unreasonable that two votes for and four votes against 

material injury during the provisional-measures period 

could justify retroactive application of the duties. 

Therefore, the CIT reversed Commerce’s determination, 

holding that the Special Rule applies to this particular 

voting pattern.

Here, expressly noting the holding of MBL, Commerce 

applied the Special Rule, making the Orders effective 

prospectively. Because the CIT did not find that 

Appellant’s challenge based on Commerce’s application of 

the Special Rule was likely to succeed on the merits, it 

denied the Coalition’s motions for preliminary 

injunctions. Appellant argues that the CIT erred in this 

regard.
WIND TOWER TRADE v. US 13

IV. Likelihood of Success of the Merits

In response to Appellant’s contention that Commerce 

erred in applying the Special Rule, the CIT stated that it 

was “persuaded that this issue is just not winnable.” 

Wind Tower Trade Coal., 904 F. Supp. 2d at 1356. When 

a court examines the lawfulness of Commerce’s statutory 

interpretations, it employs the two-prong test established 

in Chevron. 467 U.S. at 842–45. The court first examines 

“whether Congress has directly spoken to the precise 

question at issue,” and if so, the agency and the court 

must comply with Congress’s clear intent. Id. at 842–43. 

If, however, “the statute is silent or ambiguous with 

respect to the specific issue,” a prong-two analysis is 

warranted, under which the court must determine 

“whether the agency’s answer is based on a permissible 

construction of the statute.” Id. at 843. “To determine 

whether Commerce’s interpretation is reasonable, the 

court ‘may look to the express terms of the provisions at 

issue, the objectives of those provisions, and the objectives 

of the antidumping scheme as a whole.’” Wheatland Tube 

Co. v. United States, 495 F.3d 1355, 1361 (Fed. Cir. 2007) 

(quoting NSK Ltd. v. United States, 217 F. Supp. 2d 1291, 

1297 (Ct. Int’l Trade 2002)).

Relying on Chevron, the CIT found, “[b]eginning from 

the premise that Congress did not address the specific 

ITC voting pattern presented here, it is not difficult to 

sustain Commerce’s interpretation of sections 1671e(b) 

and 1673e(b) as a reasonable construction of the statute 

to which the court must defer.” Wind Tower Coal., 904 F. 

Supp. 2d at 1356. The CIT properly held it was 

reasonable for Commerce to consider all of the ITC 

Commissioners’ votes—not just the affirmative votes—

under the second prong of Chevron.

Appellant argues that the CIT should not have moved 

beyond Chevron’s first prong because the plain language 

of the statute is clear that the General Rule applies to the 
14 WIND TOWER TRADE v. US

voting pattern at issue. To Appellant, as “the text of the 

statute makes clear, the Special Rule is only applicable 

when the ITC makes a final determination of threat of 

material injury.” Appellant’s Br. 17–18; id. at 19–20 

(“[T]he Special Rule is not applicable in circumstances 

where only one Commissioner has made an affirmative 

finding of threat of material injury with a corresponding 

‘but for’ determination and the statute does not support 

attributing negative ‘but for’ determinations to 

Commissioners who made overall negative findings.”). As 

noted, however, the plain language of the statute does not 

address the voting pattern at issue here. See 19 U.S.C. 

§§ 1671e(b), 1673e(b). Because “the statute is silent . . . 

with respect to the specific issue,” a prong-two analysis is 

warranted. Chevron, 467 U.S. at 843.

In the alternative, Appellant argues that, to the 

extent the statute is unclear, Commerce’s application of 

the Special Rule is not a reasonable interpretation of the 

statute and is not entitled to deference. First, Appellant 

argues that Commerce’s application of the Special Rule is 

unreasonable because it renders the affirmative threat 

determination of a single Commissioner the controlling 

vote of the entire ITC. To Appellant, the statute “clearly 

indicates that Congress did not intend for the Special 

Rule to be applied when a majority of the Commissioners 

who votes in the affirmative found that a U.S. industry is 

materially injured by reason of subject imports.” 

Appellant’s Br. 27–28. In support, Appellant relies on the 

“divided vote” provision of 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 Commission shall 

be deemed to have made an affirmative determination.”). 

“Based on this explicit statutory directive,” Appellant 

argues, “there is no doubt that under such split vote 

circumstances, Congress intended for duties to be 

assessed on the subject merchandise.” Appellant’s Br. 34.
WIND TOWER TRADE v. US 15

The Coalition’s argument is unpersuasive because it 

ignores the votes of three of the six Commissioners, 

relying solely on the three votes for affirmative material 

injury or threat thereof. Such an interpretation of the 

statute, one that ignores that only two of the six 

Commissioners found present material injury and no 

Commissioner made an affirmative “but for” 

determination, is not reasonable. Indeed, the statutory 

language of the Rules requires that the ITC as a whole 

makes a finding when determining which of the Rules 

applies. 19 U.S.C. § 1671e(b)(1) (“If the Commission, in 

its final determination . . . finds material injury or threat 

of material injury . . . .”) (emphasis added); id.

§ 1671e(b)(2) (same); id. § 1673e(b)(1) (same); id. § 

1673e(b)(2) (same). “The [ITC] makes its determinations 

by tallying the votes of the six individual commissioners.” 

U.S. Steel Grp. v. United States, 96 F.3d 1352, 1360 (Fed. 

Cir. 1996). Ignoring half of the votes of the six 

Commissioners does not reflect a determination of “the 

Commission.” Occasionally, even in the law, common 

sense must prevail.

In any case, the legislative history of the statute 

explicitly states that Congress, in conformity with the 

United States’ international agreements, intended to 

ensure that Commerce does not impose duties on 

merchandise that enters during the provisional-measures 

period “unless the final determination is that there is 

material injury or threat of material injury which, but for 

provisional measures, e.g., suspension of liquidation, 

during the investigation, would have been material 

injury.” See S. Rep. No. 96-249, at 59, 77 (1979), reprinted 

in 1979 U.S.C.C.A.N. 381 at 445, 463. This purpose is 

flouted when two-thirds of the ITC’s votes are 

disregarded.

The Coalition also argues the word “finds” in the 

statutes unambiguously requires Commerce to consider 

only votes that contain actual declarations on the issue 
16 WIND TOWER TRADE v. US

identified in the Rules. Appellant’s Br. 28 (“As becomes 

clear from the text of the statute, the relevant issue here 

is the meaning of the term ‘finds.’”). Because the word 

“finds” is not defined in the Tariff Act, Appellant asserts it 

should be defined to mean that only votes of the three 

Commissioners who found affirmative material injury or 

threat thereof should be considered for purposes of the 

Special Rule: “Based on these votes, and these votes 

alone, the only logical conclusion is that the affirmative 

material injury votes outweigh the affirmative threat of 

material injury vote, warranting application of the 

General Rule.” Appellant’s Br. 31.

Appellee the United States has exposed the logical 

fallacy of this argument:

If anything . . . [the Coalition’s] position 

constitutes an unreasonable interpretation of the 

statute’s plain language, because one can hardly 

construe the ITC to have “found” material injury 

when four of six commissioners explicitly rejected 

that finding, whereas the ITC’s vote breakdown 

entails at least a finding of threat of injury. 

Indeed, Commerce in MBL espoused the 

interpretation that [the Coalition] now asserts, 

thereby ignoring the votes of half of the ITC 

commissioners, and the [CIT] held the 

interpretation to be unreasonable.

Appellee United States’ Br. 22 (citing MBL, 787 F. Supp. 

at 208). There is no support for the proposition that the 

word “finds” in §§ 1671e(b) and 1673e(b) prevents 

Commerce from considering all of the ITC votes when 

determining whether the General or the Special Rule 

applies.

Finally, Appellant challenges Commerce’s reliance on 

MBL, and insists that the rule from an earlier CIT case, 

Metallverken Nederland B.V. v. United States, 728 F. 

Supp. 730 (Ct. Int’l Trade 1989), should be applied. While
WIND TOWER TRADE v. US 17

MBL involved a voting pattern identical to that at issue 

here, Metallverken involved a different pattern. To the 

Coalition, however, reliance on Metallverken is warranted 

as MBL’s “holding is flawed because it inappropriately 

attributes affirmative threat findings and negative ‘but 

for’ findings to three Commissioners who did not make 

such determinations.” Appellant’s Br. 31.

Appellant’s argument fails for several reasons.3 As an 

initial matter, MBL is the only case addressing the ITC 

voting pattern presented here. Second, the language from 

Metallverken suggesting that the voting pattern in this 

case may lead to the application of the General Rule is 

dicta, as was recognized by the CIT in MBL. See MBL, 

787 F. Supp. at 206 (recognizing that Metallverken “grew 

out of an affirmative determination by the ITC” in which 

the Commissioner voting for threat of injury made an 

affirmative “but for” finding); see also Wind Tower Coal., 

904 F. Supp. 2d at 1357 (“Metallverken . . . did not involve 

the same ITC voting pattern, nor did it involve 

Commerce’s interpretation of an ITC final determination, 

as Commerce was not a party to the action.”). Third, in 

MBL itself the CIT undertook an extensive examination 

of the Metallverken decision and found it to be of limited 

persuasive weight on the question of the proper treatment 

of provisional measures. See MBL, 787 F. Supp. at 206.

In sum, this court agrees with the CIT’s well-reasoned 

conclusion that “Commerce’s application of the special 

rule to the fragmented ITC voting pattern here . . . flows 

reasonably from the specific statutory provisions, their 

purposes, and the statute as a whole, as the court 

3 Because this court finds Appellant’s arguments 

regarding Metallverken unavailing, its additional 

arguments based on examples of Commerce’s “practice” 

cited in Metallverken are also unpersuasive.

 
18 WIND TOWER TRADE v. US

explained in MBL.” Wind Tower Trade Coal., 904 F. 

Supp. 2d at 1356. Appellant has not undermined this 

conclusion, and therefore has not demonstrated its 

likelihood of success on the merits of its challenge to 

Commerce’s application of the Special Rule.

V. Irreparable Injury

Regarding the second preliminary injunction factor, 

the CIT observed that “parties tend to establish 

irreparable injury fairly easily in trade cases because of 

the negative consequences of liquidation. Here, the court 

[below] believes that [the Coalition] has established such 

injury because once the entries covered by the provisional 

measures are liquidated, the court cannot provide any 

meaningful relief.” Wind Tower Trade Coal., 904 F. Supp. 

2d at 1358. No party has challenged this aspect of the 

decision. The court notes, however, that a showing on one 

preliminary injunction factor does not warrant injunctive 

relief in light of a weak showing on other factors. Winter, 

555 U.S. at 22 (citing Mazurek v. Armstrong, 520 U.S. 

968, 972 (1997) (per curiam)) (“[I]njunctive relief [is] an 

extraordinary remedy that may only be awarded upon a 

clear showing that the plaintiff is entitled to such relief.”). 

The CIT did not abuse its discretion in holding that the

Coalition’s showing of irreparable injury is outweighed by 

its failure to demonstrate any likelihood of success on the 

merits.

VI. Balance of the Equities

Based on its finding that there was little likelihood of 

success on the merits of Appellant’s challenge, the CIT 

expressed its concern “that issuance of preliminary 

injunctions against liquidation here may be a misuse of 

the court’s equitable power by keeping the provisional 

measures in place beyond their prescribed 4-month period 

[under 19 U.S.C. §§ 1671b(d), 1673b(d)] and by depriving 

importers of the time value of their provisional cash 

deposits.” Wind Tower Trade Coal., 904 F. Supp. 2d at 
WIND TOWER TRADE v. US 19

1358–59. For these reasons, the CIT properly found that 

the equities did not favor Appellant.

The Coalition, however, insists that the balance tips 

in its favor because it will be irreparably injured in the 

absence of preliminary injunctions, while the United 

States will suffer no hardship. Appellant is mistaken. 

First, it is notable that the Coalition will not suffer 

concrete financial hardship in the absence of injunctions 

because its members are not liable for paying duties and 

have no right to recover any duties. Second, even if the 

suspended entries are liquidated without assessment of 

retrospective duties, the Coalition is protected by the 

prospective assessment of duties under the Orders. In 

addition, the Coalition will be able to obtain future 

administrative and judicial review of the calculations of 

such duties on any injurious post-Order entries.

Third, the United States has a cognizable interest in 

administrating the trade laws in a fair, timely, and 

effective manner. Under 19 U.S.C. §§ 1671b(d) and 

1673b(d), provisional measures take effect when 

Commerce issues a preliminary affirmative determination 

and generally “may not remain in effect for more than 4 

months.” An injunction postponing liquidation for the 

pendency of the litigation would necessarily prolong the 

provisional measures well beyond their statutory limit. 

The CIT did not abuse its discretion in finding that, in 

light of the weak showing of a likelihood of success on the 

merits, the balance did not tip in Appellant’s favor. See

Winter, 555 U.S. at 23 (“[E]ven if plaintiffs have shown 

irreparable injury . . . , any such injury is outweighed by 

the public interest and the [balance of the equities].”).

VII. Public Interest

Finally, the CIT did not believe “it is in the public 

interest to issue preliminary injunctions in actions where 

there is no likelihood of success on the merits.” Wind 

Tower Trade Coal., 904 F. Supp. 2d at 1359. Appellant 
20 WIND TOWER TRADE v. US

contends, however, that “the public interest favors the 

grant of preliminary injunctions, and the CIT, based 

largely on its erroneous determination that the Coalition 

failed to establish a likelihood of success on the merits, 

abused its discretion in finding otherwise.” Appellant’s 

Br. 51.

It was not an abuse of discretion for the CIT to find, 

given the unlikelihood of the Coalition’s success on the 

merits, that granting the preliminary injunctions would 

not be in the public interest. Indeed, “‘[i]n exercising 

their sound discretion, courts of equity should pay 

particular regard for the public consequences in 

employing the extraordinary remedy of injunction.’” 

Winter, 555 U.S. at 24 (quoting Weinberger v. Romero–

Barcelo, 456 U.S. 305, 312 (1982)); see also FMC Corp. v. 

United States, 3 F.3d 424, 427 (Fed. Cir. 1993) (“Absent a 

showing that a movant is likely to succeed on the merits, 

we question whether the movant can ever be entitled to a 

preliminary injunction unless some extraordinary injury

or strong public interest is also shown.”) (emphases 

added). Here, no strong public interest was demonstrated.

CONCLUSION

For the foregoing reasons, the CIT’s decision denying 

Appellant’s motions for preliminary injunctions and 

dissolving the TROs is affirmed.

AFFIRMED