# United States **Court of Appeals**  **for the Federal Circuit**

______________________ SUMECHT NA, INC., DB A SUMEC NORTH AMERICA, Plaintiff

- Appellant

v.

UNITED STATES, SOLAR WORLD AMERICAS, INC., Defendants

- Appellees

______________________

2019

- 1015

______________________ Appeal from the United States Court of International Trade in No. 1:17

- cv

- 00244

- JCG, Judge Jennifer Choe

Groves.

______________________

Decided: May 8, 2019

____________ __________

M ARK B. L EHNARDT
, Baker & Hostetler LLP, Washington, DC, argued for plaintiff

- appellant.

J USTIN R EINHART M ILLER , International Trade Field Office, Commercial Litigation Branch, Civil Division, United States Department of Justice, New York, NY, argued for defendant

- appellee United States

. A lso represented by J OSEPH H. H UNT , R EGINALD T HOMAS B LADES
, J R ., J EANNE D AVIDSON , Washington, DC; D AVID W. C AMPBELL
,Office of Chief Counsel for Trade Enforcement and Compliance, United States Depart ment of Commerce,SUMECHT NA
, INC

. v. UNITED STATES 2

Washington, DC.

T IMOTHY C. B RIGHTBILL , Wiley Rein, LLP, Washington, DC, for defendant

- appellee SolarWorld Americas, Inc. Also represented by S TEPHANIE M ANAKER B ELL , T ESSA V. C APELOTO
, L AURA E L

- S ABAAWI
, C YNTHIA C RISTINA G ALVEZ
, U SHA N EELAKANTAN
, A DAM M ILAN T ESLIK
, M AUREEN E. T HORSON

.

______________________

Before M OORE
, C LEVENGER
, and W ALLACH
, Circuit Judges.

W ALLACH
, Circuit Judge.
Appellant Sumecht NA, Inc.

, dba Sumec North America (“Sumec”), a U.S. importer, sued Appellee the United States (“Government”) in the U.S. Court of InternationalTrade (“CIT”), challenging the U.S. Department of Commerce’s (“Commerce”) liquidation 1 instructions. Sumec filed a motion for a preliminary injunction to enjoin th e Government from liquidating certain entries, and the CIT issued an opinion and order denying Sumec’s Motion. Sumecht NA, Inc. v. United States , 331 F. Supp. 3d 1408, 1412 (Ct. Int’l Trade 2018); see J.A. 8

– 10 (denying reconsideration).
Sumec appeals. We have jurisdiction over this appeal of an interlocutory order pursuant to 28 U.S.C. § 1292 (c )(1 ) (2012). We affirm.

B ACKGROUND
I. Legal Framework
Antidumping duties may be imposed on foreign merchandise sold, or likely to be sold, “ in the United States at

1 “Liquidation means the final computation or ascertainment of duties on entries for consumption or drawback entries.” 19 C.F.R. § 159.1 (2019).SUMECHT NA
, INC

. v. UNITED STATES 3

less than its fair value.” 19 U.S.C. § 1673 (1) (20 12 ). At the conclusion of an investigation, if Commerce and the U

. S

. International Trade Commission have made the requisite findings, Commerce “shall publish an antidumping duty order ” directing U.S. Customs and Border Protection (“Customs”) officers to assess duties on import ed goods covered by the investigation. Id. § 1673e(a). Commerce typically must “determine the individual weighted average dumping margin for each known exporter and producer of the subject merchandise.” Id. § 1677f

– 1(c)(1). “ A dumping margin reflects the amount by which the normal value (the price a producer charges in its home mar ket) exceeds the export price (the price of the product in the United States) or constructed export price.” SolarWorld Ams., Inc. v. United States , 910 F.3d 1216, 122 0 (Fed. Cir. 2018) ( internal quotation marks and footnote omitted) ; see 1 9 U.S.C. § 1677( 35)(A).
Relevant here, Commerce considers China to be a nonmarket economy country. See SolarWorld , 910 F.3d at 1220 n.3

. A “nonmarket economy country” is “any foreign country that [Commerce] determines does not operate on market principles of cost or pri cing structures, so that sales of merchandise in such country do not reflect the fair value of the merchandise.” 19 U.S.C. § 1677(18)(A)

. “In antidumping duty proceedings involving merchandise from a

non

- market economy

, . . . Commerce presumes that all r espondents are government

- controlled and therefore subject to a single country

- wide rate

, ” unless respondents “rebut this presumption” to demonstrate eligibility for separate rates, i.e., “individual dumping margins

. . . for each known exporter or produce r.” Dongtai Peak Honey Indus. Co. v. United States , 777 F.3d 1343, 1349

– 50 (Fed. Cir. 2015) (footnote omitted) (citing, inter alia, 19 U.S.C. § 1677f

1(c)(1)).SUMECHT NA
, INC

. v. UNITED STATES 4

II. Factual Background and Procedural History
This appeal relates to Commerce’s antidumping duty order on crystalline silicon photovoltaic cells

, whether or not assembled into modules (“subject merchandise”)

, from the People’s Republic of China (“China”). See Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled into Modules, from the People’s Republic of China , 77 Fed. Reg. 73,018, 73,018 (Dep’t of Commerce Dec. 7, 2012) (am. final determination & antidumping duty order). Based on its investigation, Commerce published its final determination, in which it concluded that Sumec’s Chines e exporter of subject merchandise

, Sumec Hardware & Tools Co., Ltd. (“Hardware”)

, was separate from the China

- wide entity

. See id. at 73,019. T herefore , Commerce assigned Hardware a separate rate, which was an antidumping duty margin of 24.48%. See id. at 73,021. In contrast, Commerce assigned the China

- wide entity an antidumping duty margin of 249.96%. See id. In August 2015, the 24.48% margin assigned to Hardware was amended to 13.18% pursuant to the U.S. Trade Representative’s decision to implement a related World Trade Organization determination. See Implementation of Determination Under Section 129 of the Uruguay Round Agreements Act , 80 Fed. Reg. 48,812, 48,818 (Dep’t Commerce Aug. 14, 2015); see 19 U.S.C. § 3538 (Section 129 of the Uruguay Roun d Agreements Act).

After Commerce’s F inal D etermination was challenged before the CIT, “Commerce requested and was granted a voluntary remand to reevaluate evidence and reconsider the separate rate eligibility of[, inter alia, Hardware]” due to a “concern for consistency with [Commerce]’s approach to similar issues.” Jiangsu Jiasheng Photovoltaic Tech. Co. v. United States , 121 F. Supp. 3d 1263, 1267 (Ct. Int’l Trade 2015). Commerce reconsidered Hardware’s eligibility for a separate rate and determined th at it no longer qualified ; instead, Commerce assigned Hardware the China

- wide
rate. See id. The CIT affirmed this determination onSUMECHT NA
, INC

. v. UNITED STATES 5

October 5, 2015. See id. at 1273. As a result, Commerce published a notice pursuant to Timken Co. v. United States (“ Timk en notice”)

, see 893 F.2d 337 (Fed. Cir. 1990), 2 “notifying the public that the final judgment

. . . is not in harmony with [Commerce]’s [f]inal [d]etermination

. . . in theantidumping duty investigation,” and Commerce suspended liquidation of entries in accordance with the CIT’s decision

, Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled into Modules, from the People’s Republic of China , 80 Fed. Reg. 72,950, 72,950 (Dep’t Commerce Nov. 23, 2015) (notice)

. Although Commerce published the Ti mken notice on November 23, 2015, i.e., forty

- nine days after the CIT issued its opinion in Jiangsu Jiasheng , the Timken notice listed an effective date of “October 15, 2015,” which is ten days after the issuance of Jiangsu Jiasheng

. Id.

In December 2015, Commerce issued amended cash deposit instructions, instructing Customs to collect cash deposits on subject merchandise exported by Hardware at the China

- wide rate of 238.95% 3 for any entries made after

2 In Timken , we explained that, “[i] f the CIT (or this court) renders a decision which is not in harmony with Commerce ’ s determination, then Commerce must publish notice of the decision within ten days of issuance (i.e., entry of judgment), regardless of the time for appeal or of whether an appeal is taken. ” 893 F.2d at 341.

3 During the first annual administrative review of the antidumping duty order, Commerce assigned a China

wide rate of 238.95%, which “equals the [previously assigned China]

- wide entity rate of 249.96% adjusted for export subsidies and estimated domestic subsidy pass

through.” Crystalline Silicon Photovoltaic Cells, Whether or not Assembled into Modules, from the People’s Republic of China , 80 Fed. Reg. 40,998, 41,002 n.50 (Dep’t of Commerce July 15, 2015) (final a dmin. review); see id. at 41,002.SUMECHT NA
, INC

. v. UNITED STATES 6

October 15, 2015. J.A. 74

– 75. In March 2016, C ommerceissued liquidation instructions, ordering Customs to liquidate “all entries” for Hardware “at the cash deposit

. . . rate in effect.” J.A. 82.
Sumec filed a complaint pursuant to 28 U.S.C. § 1581(i ). See J.A. 52 ; see also 28 U.S.C. § 1581(i) (s etting forth the CIT’s “exclusive jurisdiction” over actions that arise out of laws “providing for,” inter alia, “tariffs, duties, fees, or other taxes on the importation of merchandise forreasons other than the raising of revenue,” and “administration an d enforcement” of matters related to the CIT’s other bases for jurisdiction). Sumec challeng ed Commerce’s liquidation instructions and its decision to assess the China

- wide rate on Hardware’s entries of subject merchandise during a thirty

- nine

- day period covering October 15, 2015, to November 23, 2015

. J.A. 58, 60

– 61. According to Sumec, Commerce should have set the “date for the change in liquidation rate as the date of publication of the Timken [n]otice,” i.e. , November 23, 2015, rather than October 15 , 2015. J.A. 56. Sumec alleges that Hardware made entries of subject merchandise during this thirty

nine

- day period, which should have been subject to the separate rate of 13.18% rather than the China

- wide rate of
238.95%. See J.A. 56

– 57. 4 Sumec filed its Motion, seeking

4 Separately, Hardware challeng ed Commerce’s margin calculation in an administrative review of a countervailing duty order covering the same type of merchandise. See Compl. ¶¶ 1, 11

– 24, Sumec Hardware & Tools Co. v. Unite d States , No. 1:18

- cv

- 00186

- JAR (Ct. Int’l Trade Aug. 31, 2018), ECF No. 6. In that action , the CIT issueda statutory injunction enjoining the Government “from issuing instructions to liquidate” subject merchandise exported by Hardware “[t]hat were enter ed

. . . on or after January 1, 2015 up to and including December 31, 2015.”SUMECHT NA
, INC

. v. UNITED STATES 7

to enjoin liquidation of these entries. J.A. 103. The CIT denied Sumec’s Motion. Sumecht , 331 F. Supp. 3d at 1412.

D ISCUSSION I. Standard of Review and Legal Standard
We review the CIT’s preliminary injunction determination for an a buse of discretion. Wind Tower Trade Coal. v. United States , 741 F.3d 89, 95 (Fed. Cir. 2014). The CIT abuses its discretion if it “made a clear error of judgment in weighing the relevant factors or exercised its discretion based on an error of law or cl early erroneous fact finding.To the extent [the CIT]’s decision to grant or deny a preliminary injunction hinges on question s of law, [our] review is de novo.” Id. (internal quotation marks and citation s omitted).
To receive a preliminary injunction, the movant must show “(1) likelihood of success on the merits, (2) irreparable harm absent immediate relief, (3) the balance of interests weighing in favor of relief, and (4) that the injunction serves the public intere st.” Silfab Solar, Inc. v. United States , 892 F.3d 1340, 1345 (Fed. Cir. 2018) (citing Winter v. Nat. Res. Def. Council , 555 U.S. 7, 20 (2008)). Although “preliminary injunctions against liquidation have become almost automatic” in antidumping and counte rvailing duty

cases, they are “an extraordinary remedy never awarded as of right.” Wind Tower , 741 F.3d at 95 (internal quotation marks and citation omitted).
II. The CIT Did Not Abuse Its Discretion in Denying Sumec’s Motion for a Preliminary Injunct ion
The CIT held that “Sumec has failed to show irreparable harm.” Sumecht , 331 F. Supp. 3d at 1412. The CIT

Order for Statutory Inj. upon Consent 1

– 2, Sumec Hardware & Tools Co. v. United States , No. 1:18

- cv

- 00186

- JAR (Ct. Int’l Trade Aug. 31, 2018), ECF No. 8 (“Statutory Inj.”).SUMECHT NA
, INC

. v. UNITED STATES 8

rejected Sumec’s allegations of “financial hardship” due to the “amount of duties owed” because “ Sumec [ did ] not specify any concrete, individual ized harm” or “proffer further evidence in support of its allegations.” Id. The CIT also rejected Sumec’s claim that a preliminary injunction should issue because the possibility of reliquidation 5 was “unclear.” Id. Based on this finding of no irrepara ble harm, the CIT determined it did not need to “address the remaining three factors” for a preliminary injunction. Id.Following Sumec’s motion for reconsideration, the CIT denied this request, explaining that a preliminary injunction in this case invol ving a challenge to antidumping duties was not necessary “because Sumec ha [d] already obtained its desired relief through the grant of [the S] tatutory [I] njunction in a separate proceeding [challenging countervailing duties],” as both cases cover ed “the sa me entries at issue” and therefore the injunction in the countervailing duty case prevent ed liquidation of the entries here. J.A. 9 (citation omitted). 6

5 Rel iquidation “is the re

- calculation of the duties or drawback accruing on an entry” subsequent to liquidation. Shinyei Corp. of Am. v. United States , 355 F.3d 1297, 1310 n.8 (Fed. Cir. 2004) (internal quotation marks omitted).

6 The Government contends Sume c’s request for a preliminary injunction to prevent liquidation of its entries at the China

- wide rate is moot because of the S tatutory I njunction preventing liquidation of the same entries in the countervailing duty case. See Appellee’s Br. 16

– 17. We dis agree. The party asserting mootness bears the burden of demonstrating that (1) “there is no reasonable expectation that the alleged violation will recur, and (2) interim relief or events have completely and irrevocably eradicated the effects of the allege d violation.” C ounty of L os A ngeles v. Davis , 440 U.S. 625, 631 (1979) (internal quotationSUMECHT NA
, INC

. v. UNITED STATES 9

Sumec contends the CIT abused its discretion by basing its decision on the S tatutory I njunction, whic h was issued in the separate, countervailing duty case. See Appellant’s Br. 20. Sumec also argues the CIT’s irreparable harm determination is “directly contrary to this court’s holdings in Ugine [ & ALZ Belg ium v. United States ] and Am [ erican ] Signature [

, Inc. v. United States ],” which contemplate the availability of reliquidation. Id. at 15 (capitalization modified) ; see id. at 15

– 20 (first citing 452 F.3d 1289 (Fed. Cir. 2006); then citing 598 F.3d 816 (Fed. Cir. 2010)). We disagree.

Sumec has not demonstrated that it will be irreparablyharmed absent immediate relief in the form of a preliminary injunction. First, Sumec’s subject merchandise is covered by the S tatutory I njunction in the corresponding countervailing duty case, meaning thes e same entries cannot be liquidated at this time

. T he threat of liquidation is typically sufficient to demonstrate irreparable harm

marks, ellipsis, and citations omitted); see Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc. , 528 U.S. 167, 190 (2000) (discussing the burden of proof). T he Government fails to meet this burden because the relief offered by the S tatutory I njunction in the countervailing duty case is temporary

— it is only effective “during the pendency of [that] l itigation, including any appeals.” Statutory Inj. at1. Such temporary relief does not “completely and irrevocably eradicate[]” the potential for harm in the antidumping duty case. Davis , 440 U.S. at 631 ; cf. City of L os A ngeles v. Lyons , 461 U.S. 95, 1 01 (1983) (holding that, where a plaintiff challenged a certain practice, a city’s voluntarilyimposed moratorium on that practice did not moot the action because “the moratorium by its terms is not permanent ,” such that “[i]ntervening events have not irre vocably eradicated the effects of the alleged violation” (emphasis added) (internal quotation marks and citation omitted)).SUMECHT NA
, INC

. v. UNITED STATES 10

because liquidation may moot further judic i al relief in challenges to administrative proceedings

. Zenith Radio Corp. v. Un ited States , 710 F.2d 806, 810 (Fed. Cir. 1983) (“[L]iquidation would

. . . eliminate the only remedy available to [the plaintiff] for an incorrect review determinationby depriving the [CIT] of the ability to assess dumping duties

. . . . [W]e conclude t hat the consequences of liquidation do constitute irreparable injury.”)

. Here, however, Sumec has obtained the S tatutory I njunction in the countervailing duty case , thereby preventing liquidation of the same entries in the present antidumping duty case

. S ee Statutory Inj. at 1

– 2. Th e S tatutory I njunction enjoins liquidation for entries of subject merchandise made “on or after January 1, 2015 up to and including December 31,
2015

, ” i d. , and t his time period completely overlaps with the thirty

- nine

- day period at issue in this case, i.e., from October 15, 2015, to November 23, 2015

, s ee J.A. 56

– 57.Sumec’s citation to an example where the CIT, in two separate cases, issued two injunctions that overlapped by covering the same entries is unavailing

, see Appellant’s Br. 23

– 24 (citations omitted), because Sumec fails to cite to precedent that requires such overlapping injunctions

, see generally id. We will not constrain the CIT’s discretion by imposing this type of acontext ual rule

. See Wind Tower

,741 F.3d at 95 (recognizing that the CIT is afforded discretion when deciding requests for preliminary injunctions). Under these circumstances, Sumec’s entries are currently protected from liquidation due to the S tatutory I njunc tion. See Statutory Inj. at 1

– 2. Even if the S tatutory I njunction is dissolved, nothing would then prevent Sumec from immediately seeking a temporary restraining order (“TRO”) or preliminary injunction in the underlying antidumping duty case. See USCIT R. 65(a)

– (b) (authorizing the CIT to issue TROs and preliminary injunctions).
Second, the CIT did not commit legal error in determining that the availability of reliquidation means that Sumec failed to demonstrate irreparable harm. In Shinyei , whichSUMECHT NA
, INC

. v. UNITED STATES 11

invol ved an action contesting Commerce’s liquidation instruction s pursuant to § 1581(i), we recognized that the CIT’s equitable powers allowed it to order reliquidation in a § 1581(i) action (“ Shinyei relief”). 355 F.3d at 1305, 1312. We explained the CIT has “broad remedial powers” under 28 U.S.C. § 2643(c)(1), which “allows the [CIT] to ‘order any other relief that is appropriate in a civil action,’” meaning the CIT may order reliquidation even in “[t]he absence of an express reliquidation provision.” Id. at 1312 (ellipsis omitted)

. On the other hand , we have found it unclear whether Shinyei relief is available in two cases brought under § 1581(i). I n Ugine , we reversed the CIT’s denial of a motion for a preliminary injunction in a case challenging Commer ce’s liquidation instructions as applying an improper “country

- of

- origin designation[] for entries that have not [ yet ] been liquidated” for an earlier administrative review, even though Commerce determined in a later administrative review to apply the coun try

- of

- origin designation argued for by the challenger. 452 F.3d at 1293; see id. at 1290. We explained that, although “ Shinyei appearsto provide [the challenger] with an avenue for seeking a judicial remedy

. . . because [the challenger], like [the par ty in Shinyei ], challenges only Commerce’s liquidation instructions,” “the possibility that Shinyei will not be interpreted to encompass the sort of claim at issue here

. . . raises doubt whether [the challenger] will have the opportunity to obtain reliqui dation once its entries are liquidated.” Id. at 1296. We distinguished Shinyei , where the “complaint alleged a violation of 19 U.S.C. § 1675(a)(2)(C), ” 7 on the basis that the challenger in Ugine did not rely on § 1675(a)(2)(C) and “ instead contended that

7 Section 1675(a)(2)(C) provides that the determination in a particular administrative review “s hall be the basis for the assessment of countervailing or antidumpingduties on entries of merchandise covered by the determination and for deposits of estimated duties. ”SUMECHT NA
, INC

. v. UNITED STATES 12

Commerce ’ s instructions for entries imported prior to the [later] administrative review are inconsistent with Commerce ’ s determination in th [at later] administrative review. ” Id.
Similarly, in American Signature , we reversed the CIT’s denial of a motion for a preliminary injunction, in a case challenging Commerce’s authority to issue certain corrected liquidation instructions that sought to remedy “a computer programming error in Commerce’s antidumping margin calculation.” 598 F.3d at 821; see id. at 821

– 22.

“ [W] e conclude[d] that the possibility of Shinyei relief does not defeat [plaintiff]’s claim of irreparable harm

, ” without further explanation for why Shinyei relief may be lacking in that case. Id. at 829. 8 Ultimately , in both cases, we det ermined “the availability of Shinyei relief to [the plaintiff] is uncertain,” and did not defeat the plaintiff ’s showing of irreparable harm. Id. ; see Ugine , 452 F.3d at 1297 (explaining that “it is not clear at this juncture” that Shinyei relief would be available to the challenger ). Admittedly, neither case is a model of clarity for establishing when Shinyei relief may be unavailable in § 1581(i) actions challenging Commerce’s liquidation instructions or when a sufficient showing of irreparable harm can be established by th e potential of such relief being unavailable. We certainly, however, do not read Ugine and American Signature as creating a presumption that , in the preliminary injunction

8 Although not addressed in our American Signaturedecision, the underlying complaint there expressly referenced § 1675(a )(2)(C) to allege that Commerce’s corrected liquidation instructions were erroneous as a matter of law, thereby distinguishing that case from Ugine

. Compare Compl. ¶¶ 30

– 32, Am. Signature, Inc. v. United States , No. 09

- 00400 (Ct. Int’l Trade Sept. 18, 200 9), ECF No. 6, with Ugine , 452 F.3d at 1296 (stating the challenger did not rely on § 1675(a)(2)(C)).SUMECHT NA
, INC

. v. UNITED STATES 13

context, Shinyei relief is uncertain for purposes of irreparable harm in § 1581(i) actions because such a presumption
runs counter to Shinyei ’s holding that the CIT has “broadremedial powers,” including the ability to order reliquidation

. 355 F.3d at 1312.
In any case

, Ugine and American Signature are inapposite here because the Government in this case has “represented unequivocally that, should Sumec prevail on the merits of this case, the [CIT] has the power to grant Sumec relief, including the authority to order the Government to reliquidate Sumec’s entr ies” and that “Sumec would be entitled to refunds plus interest on any overpayments

. ” Appellee’s Br. 25 (citation omitted); see, e.g. , Ugine

, 452 F.3dat 1296 (acknowledging that the Government “was unwilling to take a position” on the availability of Shi nyei relief). 9Based on this representation, the Government would be judicially estopped from taking a contrary position regarding the CIT’s authority to order reliquidation in this case

. See Trs. in Bankr. of N. Am. Rubber Thread Co. v. United States , 5 93 F.3d 1346, 1353 (Fed. Cir. 2010) (“ Where a party assumes a certain position in a legal proceeding, and succeeds in maintaining that position, [that party] may not thereafter, simply because [its] interests have changed, assume a contrary position

. . . . ” (internal quotation marks and brackets omitted)). Accordingly, we conclude the CIT did not abuse its discretion in denying Sumec’s request for

9 The Government straightforwardly maintained this position at oral argument. Oral Arg. at 17: 39

– 46, http:// oralarguments.cafc.uscourts.gov/default.aspx? fl=
2019

- 1015.mp3 (“If Sumec were to prevail on the merits,the Government would not challenge the [CIT] from ordering reliquidation.”)

, 19:50

– 57 (“If they win on the merits,

. . . we would believe that the ru le [of Shinyei ] would apply, which mean s the [CIT] would have the authority [to reliquidate].”).SUMECHT NA
, INC

. v. UNITED STATES 14

a preliminary injunction, based on its holding that Sumec failed to demonstrate irreparable harm

. See Chrysler Motors Corp. v. Auto Body Panels of Ohio, Inc. , 908 F.2d 951,953 (Fed. Cir. 1990) (“If [a preliminary] injunction is denied, the absence of an adequate showing with regard to any one factor may be sufficient, given the weight or lack of it assign ed the other factors, to justify the denial.”); cf. Matsushita Elec. Indus. Co. v. United States , 823 F.2d 505, 509 (Fed. Cir. 1987) (reversing a grant of a preliminary injunction where the CIT’s “finding of irreparable injury was clearly erroneous

, ” witho ut consideration of the other three factors )

. C ONCLUSION

We have considered Sumec’s remaining arguments andfind them unpersuasive. Accordingly, the Opinion and Order of the U.S. Court of International Trade is

AFFIRMED

C OSTS

No c osts.