                                          Slip Op. 12- 29

                UNITED STATES COURT OF INTERNATIONAL TRADE

 ASHLEY FURNITURE INDUSTRIES, INC.,

                       Plaintiff,

                       v.

 UNITED STATES and UNITED STATES
 INTERNATIONAL TRADE COMMISSION,

                       Defendants,
                                                     Before: Gregory W. Carman, Judge
                       and                                   Timothy C. Stanceu, Judge
                                                             Leo M. Gordon, Judge
 AMERICAN FURNITURE
 MANUFACTURERS COMMITTEE FOR                         Consol. Court No. 07-00323
 LEGAL TRADE, KINCAID FURNITURE
 CO., INC., L. & J.G. STICKLEY, INC.,
 SANDBERG FURNITURE
 MANUFACTURING COMPANY, INC.,
 STANLEY FURNITURE COMPANY, INC.,
 T. COPELAND AND SONS, INC., and
 VAUGHAN-BASSETT FURNITURE
 COMPANY, INC.,

                       Defendant-Intervenors.


                                    OPINION AND ORDER

[Denying plaintiff’s motion for an injunction pending appeal to prevent distribution of withheld
funds]

                                                                   Dated: March 6, 2012

        Kristin H. Mowry, Jeffrey S. Grimson, Jill A. Cramer, Susan L. Brooks, and Sarah M.
Wyss, Mowry & Grimson, PLLC, of Washington, DC and Kevin Russell, Goldstein & Russell,
P.C., of Washington, DC for plaintiff.

        Jessica R. Toplin and Courtney S. McNamara, Trial Attorneys, Commercial Litigation
Branch, Civil Division, U.S. Department of Justice, of Washington, DC, for defendant United
States. With them on the brief was Tony West, Assistant Attorney General, Jeanne E. Davidson,
Consol. Court No. 07-00323                                                                   Page 2

Director, and Franklin E. White, Jr., Assistant Director. Of counsel on the brief was Andrew G.
Jones, Office of Assistant Chief Counsel, U.S. Customs and Border Protection, of New York,
NY.

        Neal J. Reynolds, Assistant General Counsel for Litigation, Office of the General
Counsel, U.S. International Trade Commission, of Washington, DC, for defendant U.S.
International Trade Commission.

       Jeffrey M. Telep, Joseph W. Dorn, and Taryn K. Williams, King & Spalding LLP, of
Washington, DC, for defendant-intervenors the American Furniture Manufacturers Committee
for Legal Trade, Kincaid Furniture Co., Inc., L. & J.G. Stickley, Inc., Sandberg Furniture
Manufacturing Company, Inc., Stanley Furniture Co., Inc., T. Copeland and Sons, Inc., and
Vaughan-Bassett Furniture Company, Inc.

       Stanceu, Judge: In this litigation, plaintiff Ashley Furniture Industries, Inc. (“Ashley”)

challenged administrative decisions by two agencies, the U.S. International Trade Commission

(“ITC” or the “Commission”) and U.S. Customs and Border Protection (“Customs” or “CBP”),

that denied it distributions of funds available under the Continued Dumping and Subsidy Offset

Act of 2000 (“CDSOA”), Pub. L. No. 106-387, §§ 1001-03, 114 Stat. 1549, 1549A-72-75,

19 U.S.C. § 1675c (2000),1 repealed by Deficit Reduction Act of 2005, Pub. L. 109-171,

§ 7601(a), 120 Stat. 4, 154 (Feb. 8, 2006; effective Oct. 1, 2007). The ITC excluded Ashley

from a list of parties eligible for status as an “affected domestic producer” (“ADP”) under the

CDSOA, which status potentially would have qualified Ashley for distributions of antidumping

duties collected under an antidumping duty order on imports of wooden bedroom furniture from

the People’s Republic of China (“China”). See, e.g., First Amended Compl. ¶ 31 (Feb. 9, 2011),

ECF No. 50; Notice of Amended Final Determination of Sales at Less Than Fair Value &

Antidumping Duty Order: Wooden Bedroom Furniture From the People’s Republic of China,



       1
      Citations are to the version of the Continued Dumping and Subsidy Offset Act
(“CDSOA”) found at 19 U.S.C. § 1675c (2000).
Consol. Court No. 07-00323                                                                 Page 3

70 Fed. Reg. 329 (Jan. 4, 2005) (“Antidumping Duty Order”). Based on the ITC’s decision,

Customs declined to provide Ashley CDSOA annual distributions for Fiscal Years 2007

through 2010.

       Plaintiff brought three similar actions, now consolidated, during the period of

September 4, 2007 through March 4, 2010, raising statutory and constitutional (First

Amendment, Fifth Amendment equal protection, and Fifth Amendment due process) challenges

to the agency actions and the CDSOA.2 Compl. (Sept. 4, 2007), ECF No. 5; Compl. (Jan. 16,

2009), ECF No. 5 (Court No. 09-00025); Compl. (Mar. 4, 2010), ECF No. 3 (Court

No. 10-00081). Plaintiff’s actions were opposed by defendant-intervenors American Furniture

Manufacturers Committee for Legal Trade, a coalition of domestic wooden bedroom furniture

producers that were eligible to receive CDSOA distributions, and Kincaid Furniture Co., Inc.,

L & G Stickley, Inc., Sandberg Furniture Manufacturing Company, Inc., Stanley Furniture Co.,

Inc., T. Copeland and Sons, Inc., and Vaughan-Bassett Furniture Company, Inc., domestic

wooden bedroom furniture producers eligible to receive CDSOA distributions. Unopposed

Renewed Mot. to Intervene 2 (Feb. 2, 2011), ECF No. 41. Ashley filed a motion for a

preliminary injunction on January 11, 2012, seeking to enjoin defendants, during the pendency

of this case and through all appeals and remands, from distributing to other parties Ashley’s




       2
           Due to the presence of common issues, the court, on February 15, 2011, consolidated
plaintiff’s three actions under Consol. Court No. 07-00323. Order (Feb. 15, 2011), ECF No. 51.
Consolidated with Ashley Furniture Industries, Inc. v. United States under Consol. Court
No. 07-00323 are Ashley Furniture Industries, Inc. v. United States, Court No. 09-00025 and
Ashley Furniture Industries, Inc. v. United States, Court No. 10-00081. Plaintiff’s First
Amended Complaints in each of the three actions are essentially identical but directed to
CDSOA distributions for the different Fiscal Years, i.e., 2007, 2008, 2009, and 2010.
Consol. Court No. 07-00323                                                                  Page 4

potential share of CDSOA funds, which Customs temporarily is withholding from distribution.

Pl.’s Mot. for Prelim. Inj. (Jan 11, 2012), ECF No. 95.

       In Ashley Furniture Industries, Inc. v. United States, the court entered judgment

dismissing plaintiff’s consolidated action, concluding (1) that plaintiff’s motion for a preliminary

injunction, which the court construed to also be a motion for permanent equitable relief, should

be denied, and (2) that plaintiff’s claims must be dismissed, some for lack of standing and the

remaining for failure to state a claim upon which relief can be granted. 36 CIT __, __, Slip Op.

12-14, at 4 (Jan. 31, 2012) (“Ashley Furniture”).

       Plaintiff now moves under USCIT Rule 62(c) for an injunction pending appeal of the

court’s January 31, 2012 opinion and judgment. Pl.’s Mot. for Inj. Pending Appeal & for

Expedited Consideration 1 (Feb. 2, 2012), ECF No. 103 (“Pl.’s Mot.”); Pl.’s Mem. of Points &

Authorities in Supp. of its Mot. for Inj. Pending Appeal & for Expedited Consideration 1 (Feb. 2,

2012), ECF No. 103 (“Pl.’s Mem.”). Plaintiff again seeks to enjoin defendants from disbursing

funds Customs is withholding from distribution for Ashley “during the pendency of its appeal,

including the appeal to the United States Court of Appeals for the Federal Circuit, petitions for

certiorari, and any remands.” Pl.’s Mem. 1. We deny plaintiff’s motion.

                                         I. BACKGROUND

       Background on this case is presented in our opinion in Ashley Furniture, 36 CIT at __,

Slip Op. 12-14, at 4-7, and is supplemented herein.

       In 2005, Commerce issued an antidumping duty order on imports of wooden bedroom

furniture from China. Antidumping Duty Order, 70 Fed. Reg. at 329. During proceedings before

the ITC to determine whether such imports were causing or threatening to cause material injury
Consol. Court No. 07-00323                                                                     Page 5

to the domestic industry, Ashley responded to the ITC’s questionnaires, expressing opposition to

the issuance of an antidumping duty order. First Amended Compl. ¶ 19. Ashley did not appear

as a potential ADP for the antidumping duty order on the list prepared by the ITC, as published

by Customs for each of the Fiscal Years from 2007 through 2010. Distribution of Continued

Dumping & Subsidy Offset to Affected Domestic Producers, 72 Fed. Reg. 29,582, 29,622-23

(May 29, 2007); Distribution of Continued Dumping & Subsidy Offset to Affected Domestic

Producers, 73 Fed. Reg. 31,196, 31,236-37 (May 30, 2008); Distribution of Continued Dumping

& Subsidy Offset to Affected Domestic Producers, 74 Fed. Reg. 25,814, 25,855-56

(May 29, 2009); Distribution of Continued Dumping & Subsidy Offset to Affected Domestic

Producers, 75 Fed. Reg. 30,530, 30,571-72 (June 1, 2010).

        In this litigation, plaintiff challenged the ITC’s decision not to include Ashley on the list

of parties potentially eligible for ADP status and CBP’s failure to distribute CDSOA funds to

Ashley. Plaintiff claimed these agency actions were unlawful under the CDSOA and

unsupported by substantial evidence; it claimed, further, that the CDSOA violated the freedom of

expression guarantee of the First Amendment, the equal protection guarantee of the Fifth

Amendment, and, due to retroactivity, due process. Ashley Furniture, 36 CIT at __, Slip Op.

12-14, at 9-10.

        Plaintiff filed its preliminary injunction motion on January 11, 2012, seeking to restrain

defendants from distributing any funds “that are currently being withheld by CBP for Ashley for

FY2007-FY2010 . . . for the pendency of this litigation, including all relevant appeals and

remands, until such time as a final court decision is rendered in this case.” Pl.’s Mot. for

Prelim. Inj. 1.
Consol. Court No. 07-00323                                                                    Page 6

       On January 31, 2012, the court entered judgment dismissing this action. Ashley

Furniture, 36 CIT at __, Slip Op. 12-14, at 29. We concluded that plaintiff was not entitled to

injunctive relief that would delay the pending CBP distribution of CDSOA funds or to an

affirmative injunction directing distribution of CDSOA benefits to Ashley. Id. at __, Slip Op.

12-14, at 12. We dismissed plaintiff’s statutory claims because plaintiff did not satisfy the

CDSOA requirements for eligibility to receive distributions. Id. at __, Slip Op. 12-14, at 14-15.

We dismissed the First Amendment and Fifth Amendment equal protection claims as foreclosed

by precedent of the U.S. Court of Appeals for the Federal Circuit (“Court of Appeals”). Id.

at __, Slip Op. 12-14, at 16-26 (citing SKF USA, Inc. v. United States, 556 F.3d 1360 (Fed. Cir.

2009) (“SKF”)). Finally, we dismissed plaintiff’s retroactivity claim for lack of standing.

Id. at __, Slip Op. 12-14, at 26-28.

       On February 1, 2012, plaintiff filed its appeal. Notice of Appeal (Feb. 1, 2012), ECF

No. 101. The next day, plaintiff filed the instant motion for an injunction pending appeal, also

moving to shorten the time period for defendants and defendant-intervenors to respond to the

motion. Mot. to Shorten the Time Period to Respond to Pl.’s Mot. for Inj. Pending Appeal & for

Expedited Consideration (Feb. 2, 2012), ECF No. 104. In opposing the motion to reduce the

response time, Customs indicated that the CDSOA funds withheld on behalf of Ashley will not

be distributed to those parties currently designated as ADPs until on or after March 9, 2012.

Defs. United States & U.S. Customs & Border Protection’s Resp. in Opp’n to Pl.’s Mot. for

Expedited Consideration of its Mot. for Inj. Pending Appeal 3 (Feb. 3, 2012), ECF No. 106. On

February 7, 2012, the court denied the motion to reduce the time for defendants and defendant-
Consol. Court No. 07-00323                                                                     Page 7

intervenors to respond. Ashley Furniture Industries, Inc. v. United States, 36 CIT__, __, Slip

Op. 12-16, at 4 (Feb. 7, 2012).

                                          II. DISCUSSION

       Plaintiff seeks to enjoin CBP and the ITC from making any CDSOA distributions “that

are currently being withheld by CBP for Ashley for FY2007-FY2010 . . . for the pendency of its

appeal, including the appeal to the United States Court of Appeals for the Federal Circuit,

petitions for certiorari, and any remands.” Pl.’s Mot. 1.3 The relief plaintiff now seeks was

requested and denied in Ashley Furniture, 36 CIT at __, Slip Op. 12-14, at 10-12. Under the

standards applicable to a post-judgment injunction, we again conclude that the requested relief is

not warranted.

       USCIT Rule 62(c) governs plaintiff’s motion, providing that “[w]hile an appeal is

pending from . . . [a] final judgment that grants, dissolves, or denies an injunction, the court may

. . . grant an injunction on terms for bond or other terms that secure the opposing party’s rights.”

Equitable relief should not be ordered if plaintiff cannot satisfy the test applicable to requests for




       3
         Plaintiff seeks an order enjoining:
      Defendants, the United States and the United States Customs and Border Protection
      (“CBP”), together with their delegates, officers, agents and employees, from
      disbursing, ordering the disbursement of, or causing disbursement of any funds,
      pursuant to their authority under the Continued Dumping and Subsidy Offset Act of
      2000 (the “CDSOA”), 19 U.S.C. § 1675c, that are currently being withheld by CBP
      for Ashley for FY2007-FY2010 under case no. A-570-890 pertaining to the
      antidumping order against wooden bedroom furniture from China. Ashley requests
      that such injunction remain in place for the pendency of its appeal, including the
      appeal to the United States Court of Appeals for the Federal Circuit, petitions for
      certiorari, and any remands.
Pl.’s Mot. for Inj. Pending Appeal & for Expedited Consideration 1 (Feb. 2, 2012), ECF
No. 103.
Consol. Court No. 07-00323                                                                     Page 8

a stay of the judgment pending appeal.4 See Furniture Brands Int’l, Inc. v. United States, 36 CIT

__, __, Slip Op. 12-20, at 7-8 (Feb. 17, 2012) (“[I]njunctions pending appeal demand a

‘significantly higher justification’ than do stays . . .”) (quoting Ohio Citizens For Responsible

Energy, Inc. v. NRC, 479 U.S. 1312, 1312 (1986) (Scalia, J., in chambers)). This test was

described by the U.S. Supreme Court in 2009 as requiring a court to consider:

      (1) whether the stay applicant has made a strong showing that he is likely to succeed
      on the merits; (2) whether the applicant will be irreparably injured absent a stay;
      (3) whether issuance of the stay will substantially injure the other parties interested
      in the proceeding; and (4) where the public interest lies.

Nken v. Holder, 129 S. Ct. 1749, 1761 (2009) (citing Hilton v. Braunskill, 481 U.S. 770, 776

(1987)). The Court instructed that “[t]he first two factors of the traditional standard are the most

critical,” id., and that “[it] is not enough that the chance of success on the merits be better than

negligible,” id. (internal quotations omitted).

       Ashley believes it may satisfy the likelihood of success factor of the test for post-

judgment injunctive relief by raising “serious, substantial, difficult and doubtful questions.”

Pl.’s Mem. 9 (citing SKF USA, Inc. v. United States, 28 CIT 170, 176, 316 F. Supp. 2d 1322,

1329 (2004)). This permissive view of the likelihood of success factor does not square with the

Supreme Court’s statements in Nken that an applicant must have “made a strong showing that he

is likely to succeed on the merits” and that “[it] is not enough that the chance of success on the

merits be better than negligible.” 129 S. Ct. at 1761 (internal quotations omitted). See Furniture

Brands Int’l, 36 CIT at __, Slip Op. 12-20, at 13-14 (rejecting arguments that standards for post-



       4
         What plaintiff requests is not a stay, which would merely “operat[e] upon the judicial
proceeding itself,” but instead is an injunction that is “directed at someone, and governs that
party’s conduct.” See Nken v. Holder, 129 S. Ct. 1749, 1757-58 (2009).
Consol. Court No. 07-00323                                                                   Page 9

judgment relief are equal to standards for preliminary injunctive relief). Plaintiff also argues that

it bears a lower burden of establishing likelihood of success on the merits because the Court of

Appeals has greater leeway than has this Court in construing its own precedents and because it is

possible that the decision in SKF would be overturned or abrogated by the Court of Appeals en

banc. Pl.’s Mem. 10. We reject this argument as well, concluding that the likelihood of success

factor cannot be satisfied by mere speculation that the Court of Appeals will modify current law.

       The court determines that plaintiff’s motion does not satisfy the test in Nken. Although

the court presumes the irreparable injury factor to be satisfied, plaintiff has not made a strong

showing that it is likely to succeed on appeal. Ashley cannot demonstrate that our granting the

injunction will not substantially injure defendant-intervenors, whose receipt of the withheld

funds would be further delayed through the progress of plaintiff’s appeal. The public interest,

which is served by the orderly and proper administration of the CDSOA, would not be advanced

by the injunction being sought. We address each of these factors below.

 A. Plaintiff Has Not Made a Strong Showing of Likelihood of Succeeding on the Merits of Its
                                         Appeal

       We dismissed Ashley’s First Amendment and equal protection claims according to the

holding in SKF, which sustained the “petition support requirement” of the CDSOA against

challenges brought on First Amendment and equal protection grounds. Ashley Furniture, 36 CIT

at __, Slip Op. 12-14, at 15-25. As it did prior to the court’s entering judgment against it, Ashley

argues that SKF has been invalidated or substantially undermined by several subsequent

Supreme Court decisions applying the First Amendment. Pl.’s Mem. 10-16. We again reject

this argument.
Consol. Court No. 07-00323                                                                  Page 10

       Plaintiff argues that in light of Sorrell v. IMS Health, Inc., 131 S. Ct. 2653 (2011), we

should now conclude that the Court of Appeals in SKF misapplied the “commercial speech” test

of Central Hudson Gas & Electric Corp. v. Public Service Commission of N.Y., 447 U.S. 557

(1980), when upholding the petition support requirement. Pl.’s Mem. 10. According to Ashley,

the Court of Appeals failed to recognize the “substantial mismatch” between the CDSOA’s

“putative objective” of rewarding parties assisting government enforcement of the antidumping

laws and the means chosen, which distinguished between similarly-situated parties “that

provided identical practical support” and did so based only on whether a party did or did not

express support for an antidumping duty petition. Id. (citing SKF, 556 F.3d at 1352). Calling

into question the reasoning of SKF, plaintiff states that “the Federal Circuit believed that the

statute was constitutional because Congress had a ‘rational’ basis for the massive

underinclusiveness of the statute.” Id. at 10-11. We continue to disagree with Ashley’s position

that SKF is no longer precedent controlling on the First Amendment claims plaintiff advanced in

this litigation. See Ashley Furniture, 36 CIT at __, Slip Op. 12-14, at 21-23.

       The Court of Appeals stated in SKF that “regulation of lawful and non-misleading

commercial speech is permissible if (1) ‘the asserted governmental interest is substantial,’

(2) ‘the regulation directly advances the governmental interest asserted,’ and (3) the regulation

‘is not more extensive than is necessary to serve that interest.’” SKF, 556 F.3d at 1355 (quoting

Central Hudson, 447 U.S. at 566). We reject plaintiff’s conclusion that the CDSOA, when

evaluated according to the Supreme Court’s holding in Sorrell, now should be found to violate

the First Amendment because of its “massive underinclusiveness.” In the CDSOA, Congress

chose to reward only petitioners and interested parties who expressed support for a petition “by
Consol. Court No. 07-00323                                                                  Page 11

letter or through questionnaire response” rather than rewarding all domestic producers that

participated as interested parties in an antidumping duty investigation, including those declining

to express support for an antidumping duty petition (such as Ashley, which informed the ITC

that it opposed the issuance of an antidumping duty order on wooden bedroom furniture from

China). 19 U.S.C. § 1675c(d)(1); First Amended Compl. ¶ 19. We find nothing in Sorrell

establishing a broad First Amendment principle under which the CDSOA could withstand

scrutiny under the Central Hudson test only by rewarding all such producers.

       Plaintiff advances a contrary interpretation of Sorrell, viewing it to hold that “a facially

discriminatory statute is invalid unless the Government can explain ‘why remedies other than

content-based rules would be inadequate’ to fulfill its interests,” and submits that the CDSOA

would not be found constitutional under such an inquiry. Pl.’s Mem. 11 (quoting Sorrell, 131 S.

Ct. at 2669). Plaintiff misconstrues the language it quotes from the Supreme Court’s opinion.

Sorrell struck down a Vermont statute that imposed content- and speaker-based restrictions on

the availability and use of information obtained from pharmacies that identified prescribing

physicians and had been used in the marketing of prescription drugs by pharmaceutical

manufacturers. Sorrell, 131 S. Ct. at 2660-61. The quoted language appears in the context of

the Supreme Court’s explaining why the statute could not be justified by one of the purposes the

State of Vermont advanced for the statute, which was a concern on the part of the State to protect

doctors from harassment by representatives of pharmaceutical manufacturers. Id. at 2669. In

refuting that position, the Supreme Court noted that the State had not explained why that

particular concern could not be addressed by remedies other than the content-based restrictions

of the statute in question, opining that doctors who did not want to meet with these
Consol. Court No. 07-00323                                                                  Page 12

representatives could simply decline to do so. Id. at 2669. Contrary to the implied premise of

plaintiff’s argument, the Supreme Court, in discussing the claimed purpose of preventing such

harassment, was not expanding or modifying the Central Hudson inquiry.

       Ashley also argues that we erred in distinguishing the petition support requirement from

the Vermont statute struck down by Sorrell, contending that in Sorrell “[t]he Supreme Court

explained that an inference of suppressive purpose arose from the State’s failure to satisfy the

heightened scrutiny the Supreme Court applied, not that heightened scrutiny applied because the

Court had already determined that the State had acted with a suppressive purpose.” Pl.’s

Mem. 12. We do not find merit in this argument. Sorrell neither held nor implied that a statute’s

purpose may be ascertained only by assessing whether the statute fails the relevant First

Amendment test.

       Also on the basis of Sorrell, Ashley argues that we failed to recognize the constitutional

infirmity of the CDSOA, stating that “the relevant constitutional test does not vary depending on

whether the government bans speech or merely burdens it by imposing a financial consequence

for the speech.” Pl.’s Mem. 12. Plaintiff also cites Arizona Free Enterprise Club’s Freedom

Club PAC v. Bennett, 131 S. Ct. 2806 (2011), in support of its argument, submitting “that

substantial burdens on speech are subject to the same constitutional test (whatever that test might

be) as an outright ban on speech.” Pl.’s Mem. 13. This argument is also unconvincing. Sorrell

concluded that the Vermont statute did not survive scrutiny under the Central Hudson test, the

same test that SKF applied in upholding the CDSOA. Neither Sorrell nor Arizona Free

Enterprise provides a basis for us to ignore the holding in SKF, which rested on a conclusion that

Congress had a substantial purpose in enacting the petition support requirement and that this
Consol. Court No. 07-00323                                                                   Page 13

purpose was not the intentional suppression of expression. See Ashley Furniture, 36 CIT at __,

Slip Op. 12-14, at 22-23 (citing SKF, 556 F.3d at 1351-52).

       Plaintiff also cites Snyder v. Phelps, 131 S. Ct. 1207 (2011), which set aside as violative

of the First Amendment a jury verdict imposing substantial liability on picketers of a military

funeral for state tort law claims. Ashley argues that Snyder establishes a “constitutional

principle,” under which “Ashley’s opposition to the government’s proposed duties constituted

speech on a matter of public concern that is afforded the same degree of constitutional protection

as political speech, that conflicts with a premise of the Federal Circuit’s decision in SKF.” Pl.’s

Mem. 14. Ashley states in its brief that “[c]ontrary to the distinction drawn by this Court, strict

scrutiny did apply in Snyder not because of the nature of the burden (civil liability)” but because

speech on public issues is entitled to special protection. Pl.’s Mem. 14. We do not agree that

Snyder increased the likelihood that plaintiff will succeed on appeal. The case does not hold that

all speech addressing matters of public concern, such as a position taken in antidumping

litigation, must receive a level of judicial scrutiny higher than that applied in SKF.

       Finally, plaintiff invokes Citizens United v. Federal Election Commission, 130 S. Ct. 876

(2010), for the principle that “a statute that discriminates on the basis of viewpoint on issues of

public concern is subject to strict scrutiny even if the speaker is a corporation.” Pl.’s Mem. 14

(emphasis omitted). Ashley maintains that the Court of Appeals “transgressed” this principle

“by applying a lax version of the commercial speech doctrine to a statute that would be subject

to strict scrutiny as viewpoint discriminatory if applied to a private individual.” Id. (citing SKF,

556 F.3d at 1361). Again, we are bound by the holding in SKF, and we do not consider SKF to

have been implicitly overturned by Citizens United, the holding of which does not require us to
Consol. Court No. 07-00323                                                                  Page 14

apply to the CDSOA a more stringent First Amendment standard than that applied by the Court

of Appeals in SKF. See Ashley Furniture, 36 CIT at __, Slip Op. 12-14, at 18-21.

       For the foregoing reasons, the court concludes that plaintiff has not shown that upon

appeal it is likely to succeed on the merits of its First Amendment claims.

B. Plaintiff Has Shown a Probability That It Would Be Irreparably Injured Absent an Injunction

       As to whether plaintiff will suffer irreparable injury in the absence of an injunction,

Ashley argues that denial of its motion would cause it irreparable harm in three ways. First, it

argues that were CBP to distribute to other parties what Ashley claims is Ashley’s share of the

withheld distributions, it would suffer “immediate and irreparable harm because recoupment

under the regulations will be inadequate to make Ashley whole and, moreover, the competitive

disadvantage to Ashley is irreparable.” Pl.’s Mem. 4. Second, plaintiff argues that because its

claims involve First Amendment rights, any unlawful loss of those rights, even for short periods

of time, may constitute irreparable injury. Id. Third, plaintiff argues that given the track record

of companies exiting the wooden bedroom furniture industry or seeking creditor protection, it

will be impossible to recover disbursed funds. Id. at 5. As a result, the regulation for

recoupment for overpayments to ADPs by Customs, 19 C.F.R. § 159.64(b)(3) (2011), is unlikely

to be a complete remedy. Pl.’s Mem. 5.

       The court is willing to presume, based on the circumstances plaintiff identifies, that a

distribution of CDSOA funds to furniture producers currently designated as ADPs is likely to

prevent Ashley from receiving the funds to which it claims to be entitled. The distribution

would render uncertain the prospects of plaintiff’s ever receiving those funds in their entirety.

Even though irreparable harm may not be a certainty, the court presumes, for purposes of ruling
Consol. Court No. 07-00323                                                                  Page 15

on plaintiff’s motion, the irreparable harm requirement to be satisfied by plaintiff’s motion for an

injunction pending appeal.

 C. Plaintiff Has Not Shown that Issuance of an Injunction Would Not Substantially Injure the
                          Other Parties Interested in the Proceeding

       On the question of substantial injury to the other interested parties in this proceeding,

plaintiff argues that “[t]he balance of equities weighs strongly in Ashley’s favor” because

“[w]hereas the postponement of Defendant-Intervenor’s CDSOA disbursement is at most an

inconvenience, the prejudice to Ashley relating to premature CDSOA distributions is imminent

and potentially permanent.” Pl.’s Mem. 6-7.

       To satisfy the third factor described in Nken, Ashley must show that defendant-

intervenors would not be substantially injured by the court’s granting the requested injunction,

which is more than a showing that Ashley is favored by the balance of the hardships. The funds

at issue have been withheld from defendant-intervenors for upwards of four years. The court is

not in a position to presume that further delay, even if only during the course of appellate review,

would cause defendant-intervenors nothing more than insubstantial harm.

      D. Plaintiff Has Not Shown that the Public Interest Will Be Served by the Injunction

       Ashley cites American Signature, Inc. v. United States, 598 F.3d 816 (Fed. Cir. 2010), for

the proposition that “‘[t]he public interest is best served by ensuring that governmental bodies

comply with the law, and interpret and apply trade statutes uniformly and fairly.’” Pl.’s

Mem. 7-8 (quoting Am. Signature, 598 F.3d at 830). Plaintiff submits that granting the

injunction it seeks is the best means of achieving this objective, arguing that “[t]he question of

whether or not CBP’s refusal to distribute CDSOA funds to Ashley is lawful remains unsettled in

light of Ashley’s appeal and remains so throughout the pendency of Ashley’s appeal.” Id. at 8.
Consol. Court No. 07-00323                                                                    Page 16

Ashley adds that, if it ultimately prevails, “unknown and immeasurable complications will arise

as CBP attempts to recoup the duties from current affected domestic producers who . . . are in

precarious financial states.” Id. This attempted recoupment, according to plaintiff, “would

contravene the public interest by costing tax payers untold amounts.” Id.

       We are not persuaded by plaintiff’s “public interest” argument, which is grounded in a

premise that the issue of whether or not CBP’s refusal to distribute CDSOA funds to Ashley is

lawful remains an unsettled question of law. That question is unsettled only in the sense that

Ashley has appealed the judgment issued in this case. We continue to view the dismissal of

Ashley’s First Amendment claims as based on the precedent of SKF, which we consider to be

binding on us. As we discussed above and in Ashley Furniture, plaintiff relies on Supreme Court

First Amendment cases that do not implicitly overturn SKF. Contrary to plaintiff’s position, we

view SKF as a matter of settled law. In this respect, it cannot be said that the injunction would

ensure “that governmental bodies comply with the law, and interpret and apply trade statutes

uniformly and fairly.” Am. Signature, 598 F.3d at 830. Plaintiff’s argument concerning the cost

to the taxpayer of attempting to recoup funds, which relies on the premise that the law is

unsettled and will be decided in Ashley’s favor, also does not convince us that the injunction

being sought is in the public interest.

       Rather, the public at large is best served by a lawful and orderly resolution of the issue

posed by the continuing withholding of CDSOA funds. Continued delay in their distribution to

those who are legally entitled to them is inimical to the public interest. Therefore, we conclude

that the public interest factor does not support the grant of an injunction pending appeal.
Consol. Court No. 07-00323                                                                     Page 17

                                   III. CONCLUSION AND ORDER

        For purposes of ruling on Plaintiff’s Motion for Injunction Pending Appeal and for

Expedited Consideration, as filed on February 2, 2012, ECF No. 103 (“Plaintiff’s Motion”), the

court presumes that plaintiff has satisfied the irreparable harm factor. That factor, standing

alone, is insufficient to justify the injunction plaintiff seeks, particularly where, as here, there has

been no showing of likelihood of success on the merits of plaintiff’s claims during the appellate

process. Plaintiff has not satisfied the remaining two factors relevant to a determination on

Plaintiff’s Motion.

        Upon consideration of Plaintiff’s Motion, the accompanying memorandum of law, all

papers and proceedings herein, and after due deliberation, it is hereby

        ORDERED that Plaintiff’s Motion be, and hereby is, DENIED.


                                                                  /s/Timothy C. Stanceu
                                                                Timothy C. Stanceu
                                                                Judge

Dated: March 6, 2012
       New York, New York
