Slip Op. 09-23

UNITED STATES COURT OF INTERNATIONAL TRADE

______________________________

:

SINCE HARDWARE (GUANGZHOU) :

CO., LTD., :

:

Plaintiff, :

:

v. : Court No. 09-00123

:

:

UNITED STATES, :

:

Defendant, :

:

and :

:

HOME PRODUCTS INTERNATIONAL, :

LTD., :

:

Def.-Ints. :

______________________________:

OPINION AND ORDER

[Plaintiff’s motion for preliminary injunction granted.]

Dated: March 27, 2009

Law Offices of Vincent Bowen (Vincent Bowen) for plaintiff.

Michael F. Hertz, Acting Assistant Attorney General; Jeanne

E. Davidson, Director, Franklin E. White, Jr., Assistant

Director, Commercial Litigation Branch, Civil Division, U.S.

Department of Justice (David S. Silverbrand) for defendant.

Blank Rome LLP (Frederick L. Ikenson) for defendantintervenor.

Eaton, Judge: Before the court is plaintiff’s motion for a

preliminary injunction, to which defendant consents, together

with defendant-intervenor’s opposition to plaintiff’s motion, and
Court No. 09-00123 Page 2

plaintiff’s reply to defendant-intervenor’s opposition. For the

reasons that follow, the court grants plaintiff’s motion. 

Defendant-intervenor’s primary argument is that plaintiff

will not suffer irreparable harm if a preliminary injunction does

not issue. In support of this claim, defendant-intervenor argues

that plaintiff is a foreign manufacturer, and, because foreign

manufacturers pay no duties, they “are in a completely different

position [from importers]: they do not stand to be irreparably

injured by the liquidation of importers’ past entries and they

are not entitled to receive the exceptional injunctive relief

afforded by the Zenith decision.” Def.-Int.’s Opp. 9 (citing

Zenith Radio Corp. v. United States, 710 F.2d 806 (Fed. Cir.

1983)). The only other significant issue raised by defendantintervenor is that plaintiff has a low likelihood of success on

the merits, which “cannot be ignored” where, as is alleged here,

there is not a strong case of irreparable injury. Def.-Int.’s

Opp. 13. 

This Court has recently considered arguments identical to

those presented by defendant-intervenor. See Qingdao Taifa Group

Co. v. United States, 32 CIT __, Slip Op. 08-118 (Nov. 4, 2008)

(not reported in the Federal Supplement) (“Qingdao Taifa”). In

denying a motion to set aside an injunction against liquidation,

the Qingdao Taifa Court found:

No extraordinary showing of irreparable harm

is required to obtain the injunction sought
Court No. 09-00123 Page 3

here. It has long been established that

liquidation of entries after a final

determination of duties for a particular

period, before the merits can be litigated,

is sufficient harm. See Zenith Radio Corp.

v. United States, 710 F.2d 806, 810 (Fed.

Cir. 1983) (granting domestic producer

injunction of liquidation during challenge to

periodic review determination). Also, one

need not be an importer to seek relief under

19 U.S.C. § 1516a(c)(3). See id. at 811. 

Competitive concerns of the domestic producer

were one of the determining factors in

Zenith. See id. at 810-11. Competition is

no less a concern for a foreign producer or

exporter than it is for a domestic producer. 

Therefore, Gleason’s argument based on

Taifa’s lack of its own imports is of no

consequence and, as a legal matter, Taifa has

established irreparable harm. 

Qingdao Taifa, 32 CIT at __, Slip Op. 08-118 at 3.

Based on the reasoning in Qingdao Taifa, defendantintervenor’s argument with respect to plaintiff’s inability to

establish irreparable harm because of its status as a foreign

manufacturer fails. 

With regard to defendant-intervenor’s likelihood of success

on the merits argument, it is well settled that “[t]he greater

the harm to the moving party, the lower the standard will be.” 

Ugine-Savoie Imphy v. United States, 24 CIT 1246, 1251, 121 F.

Supp. 2d 684, 689 (2000) (citation omitted). It has also “long

been established that liquidation of entries after a final

determination of duties for a particular period, before the

merits can be litigated, is sufficient harm” for the entry of a

preliminary injunction. See Qingdao Taifa, 32 CIT at __, Slip
Court No. 09-00123 Page 4

Op. 08-118 at 3 (citation omitted). Thus, the standard for

demonstrating likelihood of success on the merits in this case is

relatively low. 

Defendant-intervenor’s main argument with respect to success

on the merits is that there is an “overwhelming case against

plaintiff” based on the United States Department of Commerce’s

(“Commerce”) application of a total Adverse Facts Available

(“AFA”) antidumping duty rate. See Def.-Int.’s Opp. 13-14. 

Plaintiff, on the other hand, asserts that 

even if the Commerce Department’s finding of

a lack of full cooperation with respect to

sourcing of certain inputs is determined to

be supported by substantial evidence on the

record, this does [not] warrant the Commerce

Department’s revocation of Since Hardware’s

eligibility for separate rate status based on

its reported data and factors of production,

a status for which the Commerce Department

qualified Since Hardware in the preliminary

determination and in the two completed

administrative reviews.

 

Pl.’s Reply 6. For the court, plaintiff has set forth

substantial claims that justify it proceeding to litigation based

on its separate duty rate claim. Qingdao Taifa, 32 CIT at __,

Slip Op. 08-118 at 3 (“While the burden, as to this factor, is

not high in actions such as this when irreparable harm is

established, there still must be a substantial question for the

court to resolve.”) (citations omitted). Here, defendantintervenor’s assertion that “there can be no substantial question

because [plaintiff] received a total-adverse-facts-based rate of
Court No. 09-00123 Page 5

duty due to non-cooperation . . . does not resolve the matter.” 

Id. at __, Slip Op. 08-118 at 4. The primary issue to be

litigated in this case is whether the application of total AFA

justified in law and fact Commerce’s actions. Although

plaintiff’s full case has not been presented to the court, 

plaintiff’s claims form a sufficient basis to meet the low

standard of likelihood of success on the merits. 

Finally, as in Qingdao Taifa, 

There is also little doubt that the public

interest is served by permitting the court to

reach a considered decision regarding the

agency’s determination as to whether, and in

what amount, duties are owed, before

precluding the parties from litigating the

issue. No harm comes to either side by

preserving the status quo.

Qingdao Taifa, 32 CIT at __, Slip Op. 08-118 at 3. 

Upon consideration of the motion, defendant-intervenor’s

opposition and plaintiff’s reply, and after due deliberation, it

is hereby

ORDERED that plaintiff’s motion for preliminary injunction

is granted; it is further 

ORDERED that defendant United States, together with its

delegates, officers, agents, servants and employees of the United

States Department of Commerce and United States Customs and

Border Protection, shall be, and hereby are, enjoined during the

pendency of this action, including relevant appeals and remands,

from liquidating, or causing or permitting liquidation of, any
Court No. 09-00123 Page 6

unliquidated entries into the United States of floor-standing,

metal-top ironing tables and certain parts thereof from China

that:

(1) are subject to the antidumping duty administrative

review, the results of which were published as

Floor-Standing, Metal-Top Ironing Tables and

Certain Parts Thereof from the People’s Republic

of China: Final Results of Antidumping Duty

Administrative Review, 74 Fed. Reg. 11,085 (Dep’t

of Commerce Mar. 16, 2009) (“Final Results”);

(2) were produced and exported to the United States by

plaintiff, Since Hardware (Guangzhou) Co., Ltd.;

(3) were entered, or were withdrawn from warehouse,

for consumption on or after August 1, 2006 through

and including July 31, 2007; and

(4) remain unliquidated as of 5:00 p.m. E.D.T. on the

fifth business day after the day upon which copies

of the Order are served by hand by plaintiff upon

the following individuals and received by them or

by their delegates:

Ann Sebastian

Director APO United/Import Administration Docket Center

International Trade Administration

U.S. Department of Commerce 

14 Street and Constitution Avenue, NW, Room 1870 th

Washington, DC 20230

Jayson P. Ahern

Acting Commissioner of U.S. Customs and Border

Protection

Attn: Alfonso Robles, Esq., Chief Counsel

U.S. Bureau of Customs and Border Protection

1300 Pennsylvania Avenue, NW, Room 4.4B

Washington, DC 20229

It is further

ORDERED that plaintiff shall file a certificate of service

within three (3) business days of serving the Order on the above-
Court No. 09-00123 Page 7

referenced individuals; and

ORDERED that this injunction shall expire upon entry of a

final and conclusive court decision in this litigation, including

all appeals and remand proceedings, as provided in 19 U.S.C.

§ 1516a(e). 

 /s/ Richard K. Eaton 

 Richard K. Eaton 

Dated: March 27, 2009

New York, New York