                                          Slip Op. 14-29

                  UNITED STATES COURT OF INTERNATIONAL TRADE

___________________________________
                                    :
DIAMOND SAWBLADES                   :
MANUFACTURERS’ COALITION,           :
                                    :
                                    :
            Plaintiff,              :                 Before: Richard K. Eaton, Judge
                                    :
      v.                            :                 Court No. 13-00391
                                    :
UNITED STATES DEPARTMENT OF         :
COMMERCE and UNITED STATES          :
INTERNATIONAL TRADE                 :
COMMISSION,                         :
                                    :
            Defendants.             :
                                    :
___________________________________ :


                                MEMORANDUM and ORDER

[Plaintiff’s motion for a preliminary injunction is denied.]

                                                                           Dated: March 13, 2014

       Wiley Rein LLP (Daniel B. Pickard and Maureen E. Thorson), for plaintiff.

       Stuart F. Delery, Acting Assistant Attorney General; Jeanne E. Davidson, Director,
Franklin E. White, Jr., Assistant Director, Alexander V. Sverdlov, Trial Attorney, Civil Division,
Commercial Litigation Branch, United States Department of Justice; Office of the Chief Counsel
for Import Administration, United States Department of Commerce (Nathaniel Halvorson), of
counsel, for defendant.

               Eaton, Judge: This action concerns the five-year, or “sunset,” review of the

antidumping duty order on diamond sawblades and parts thereof from the People’s Republic of

China (“PRC”) which was initiated by the Department of Commerce (“Commerce” or “the

Department”) by publication of a notice in the Federal Register on December 2, 2012. Initiation
Court No. 13-00391                                                                  Page 2
of Five-Year (“Sunset”) Review, 78 Fed. Reg. 72,061 (Dep’t Commerce Dec. 2, 2013)

(“Initiation Notice”). The sole question posed by the case itself is whether the review was

initiated at the proper time. Now before the court is the motion of plaintiff Diamond Sawblades

Manufacturer’s Coalition (“plaintiff” or “the Coalition”) seeking a preliminary injunction to

prevent the Department from conducting the review until either November 4, 2014 or the

resolution of this action. The Department opposes the motion. The court has jurisdiction

pursuant to 19 U.S.C. § 1581(i). Dofasco Inc. v. United States, 28 CIT 263, 326 F. Supp. 2d

1340 (2004). As explained below, because the plaintiff cannot demonstrate that it will be

irreparably harmed in the absence of the issuance of the injunction it seeks, the motion is denied.



                                          DISCUSSION

 I.   Background

       In 2005, the International Trade Commission (“ITC”) initiated an injury investigation

regarding certain diamond sawblades imported from the PRC and the Republic of Korea

(“Korea”). See Diamond Sawblades Mfrs. Coal. v. United States, 626 F.3d 1374, 1376 (Fed. Cir.

2010) (“Diamond Sawblades V”). The ITC preliminarily determined that there was a reasonable

likelihood of injury to a United States industry as a result of the importation of diamond

sawblades, but then altered its position and found no material injury or threatened material injury

in its final determination. Id. For its part, the Department made preliminary and final

determinations that diamond sawblades were being sold at less than fair value in the United

States. Id.

       The Coalition brought an action in this Court, challenging the ITC’s negative final

material injury determination. Id. at 1377. The Diamond Sawblades Court remanded the case to
Court No. 13-00391                                                                  Page 3
the ITC, on the basis that its negative injury determination was insufficiently supported.

Diamond Sawblades Mfrs. Coal. v. United States, 32 CIT 134, 151 (2008) (“Diamond Sawblades

I”). On remand, the ITC found a threat of material injury and the Court affirmed that

determination. Diamond Sawblades Mfrs. Coalition v. United States, 33 CIT 48, 67 (2009)

(Diamond Sawblades II).

       After the issuance of Diamond Sawblades II, Commerce suspended liquidation of the

subject imports but took the position that it was not required to publish antidumping duty orders

or to direct the collection of cash deposits on ongoing imports until the appeal of Diamond

Sawblades II to the Court of Appeals for the Federal Circuit had been resolved. Diamond

Sawblades V, 626 F.3d at 1377. Disputing this position, the Coalition petitioned the Diamond

Sawblades Court for “a writ of mandamus directing Commerce to publish antidumping duty

orders and immediately begin collecting cash deposits” and the Court granted the writ. Id.;

Diamond Sawblades Mfrs. Coal. v. United States, 33 CIT 1422, 1452–53, 650 F. Supp. 2d 1331,

1357 (2009) (“Diamond Sawblades III”). While the appeal in Diamond Sawblades III was

pending, the Federal Circuit issued an opinion affirming Diamond Sawblades II. Diamond

Sawblades Mfrs. Coal. v. United States, 612 F.3d 1348, 1362 (Fed. Cir. 2010) (“Diamond

Sawblades IV”). Thereafter, in Diamond Sawblades V, the Federal Circuit affirmed the issuance

of the writ of mandamus and rejected the Department’s position that it was not required to

publish the antidumping duty order until after all appeals relating to the order had been resolved.

Diamond Sawblades V, 626 F.3d at 1382–83.

       On November 4, 2009, the Department published the antidumping duty order in the

Federal Register. Diamond Sawblades and Parts Thereof From the PRC and Korea, 74 Fed. Reg.

57,145 (Dep’t of Commerce Nov. 4, 2009) (antidumping duty orders) (“Antidumping Order”).
Court No. 13-00391                                                                  Page 4
Therein, the Department stated the effective date of the order as January 23, 2009. Antidumping

Order, 74 Fed. Reg. at 57,146. Using January 23, 2009 as the date to calculate the five-year

period after which a sunset review must be conducted, the Department published the notice of

initiation of the sunset review on December 2, 2013. Initiation Notice, 78 Fed. Reg. at 72,061.

This action, challenging the Department’s decision to use January 23, 2009 as the anniversary

date to begin conducting the sunset review, rather than the later date of November 4, 2009,

followed. Plaintiff now seeks a preliminary injunction to halt the review while the present

litigation is pending.



II. Legal Framework

   A. Sunset Reviews


       Under 19 U.S.C. § 1675(c)(1)(2006), the Department “and the ITC must review

antidumping and countervailing duty orders every five years.” Nucor Corp. v. United States, 601

F.3d 1291 (Fed. Cir. 2010) (citing 19 U.S.C. § 1675(c)(1) (2006)); see 19 C.F.R. §

351.102(b)(49) (2012) (defining the term “sunset review” to mean review under 19 U.S.C. §

1675(c)) . 19 U.S.C. § 1675(c)(1) provides that:

       5 years after the date of publication of . . . an antidumping duty order . . . the
       administering authority and the Commission shall conduct a review to determine . . .
       whether revocation of the . . . antidumping duty order . . . would be likely to lead to
       continuation or recurrence of dumping . . . and of material injury.

Thus, according to the statute, five years “after the date of publication of” the Diamond

Sawblades antidumping order, the Department and the ITC are required to conduct a review to

determine whether to revoke the antidumping duty order. Additionally, under the Department’s

regulations, a notice of initiation of the initial sunset review of an antidumping duty order must
Court No. 13-00391                                                                      Page 5
be published “[n]o later than 30 days before the fifth anniversary date of an order.” 19 C.F.R. §

351.218(c)(1) (2012).



    B. 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.” Wind Tower Trade Coalition v. United States, 741 F.3d 89, 95 (Fed. Cir.

2014) (quoting Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008) (internal

quotation marks omitted)). Absent a showing of irreparable harm, a preliminary injunction may

not be issued. Qingdao Tafia Grp. Co. v. United States, 581 F.3d 1375, 1379 (Fed. Cir. 2009)

(“A presently existing, actual threat must be shown.” (quoting Zenith Radio Corp. v. United

States, 710 F.2d 806, 809 (1983) (emphasis added and internal quotation marks omitted)).

        Injunctions against ongoing agency action are disfavored. See McKart v. United States,

395 U.S. 185, 194 (1969) (“The courts ordinarily should not interfere with an agency until it has

completed its action, or else has clearly exceeded its jurisdiction.”). This is true even where a

plaintiff has alleged that the agency’s action is ultra vires. See Nippon Steel Corp. v. United

States, 219 F.3d 1348, 1353 (Fed. Cir. 2000) (quoting McKart in an action where plaintiff

alleged that the Department’s actions were ultra vires).
Court No. 13-00391                                                                      Page 6
III.   Discussion

          Plaintiff alleges that the Department acted beyond the scope of its authority by seeking to

conduct a sunset review of the antidumping duty order on diamond sawblades from the PRC

prior to the five-year anniversary of the November 4, 2009 date on which the order was

published. For plaintiff, November 4, 2009, the actual date of publication of the order in the

Federal Register, is the date of publication for purposes of 19 U.S.C. § 1675(c)(1). The

Department, on the other hand, insists that the January 23, 2009 effective date of the order is the

appropriate anniversary date. Plaintiff seeks a preliminary injunction to prevent the sunset

review from going forward during the pendency of the litigation commenced to determine if the

review was initiated at the proper time. Because plaintiff fails to demonstrate that it will suffer

irreparable harm in the absence of the issuance of a preliminary injunction, its motion must be

denied.

          Plaintiff asserts three ways in which it claims it will be “irreparably harmed” if the

agency’s proceeding is not enjoined. The Coalition first alleges that being “forced to participate

in an unlawful proceeding, at considerable expense,” constitutes irreparable harm. Pl.’s Mot. For

TRO & Prelim. Inj. (ECF Dkt. No. 10) (“Pl.’s Br.”). However, the Federal Circuit and the

United States Supreme Court have expressly held that “‘[m]ere litigation expense, even

substantial and unrecouperable cost, does not constitute irreparable injury.’” Nippon Steel, 219

F.3d at 1353 (quoting FTC v. Standard Oil Co. of Cal., 449 U.S. 232, 244 (1980)). Thus,

precedent directs that plaintiff will suffer no irreparable harm as a consequence of its

expenditures related to the suit.

          Second, plaintiff argues that because the Department unlawfully initiated the sunset

review and because the principal relief that the Coalition seeks is to avoid the necessity of
Court No. 13-00391                                                                   Page 7
participating in an illegal proceeding, denial of an injunction and subsequent forced participation

in the proceeding constitutes irreparable harm. The Coalition relies on this Court’s decision in

Dofasco. There, in the context of determining whether it had jurisdiction under 19 U.S.C. §

1581(i), the Court held that jurisdiction was appropriate because forcing the plaintiff to await the

conclusion of a proceeding alleged to be illegal and then bringing suit under 19 U.S.C. § 1581(c)

would be a manifestly inadequate remedy. Dofasco, 28 CIT at 268, 326 F. Supp. 2d at 1345

(“[F]orcing Dofasco to wait until a final determination has been issued before it may challenge

the lawfulness of the administrative review, would mean that Dofasco’s opportunity for full

relief—i.e., freedom from participation in the administrative review—would be lost.” (citations

omitted)).

       Under law developed in this Court and the Federal Circuit, “jurisdiction under subsection

1581(i) may not be invoked if jurisdiction under another subsection of 1581 is or could have

been available, unless the other subsection is shown to be manifestly inadequate.” Norman G.

Jensen, Inc. v. United States, 687 F.3d 1325, 1329 (Fed. Cir. 2012) (citation and internal

quotation marks omitted). Plaintiff, however, conflates the showing of “irreparable harm”

required for the issuance of a preliminary injunction with the lack of an adequate remedy under

19 U.S.C. § 1581(a)–(h), required in order for the Court to have jurisdiction under 19 U.S.C. §

1581(i). It does not follow, however, that the same facts that give rise to jurisdiction under 19

U.S.C. § 1581(i) necessarily demonstrate that a plaintiff will be irreparably harmed in the

absence of a preliminary injunction. That is, the lack of an adequate remedy and an irreparable

injury are simply not the same thing. The lack of adequate remedy inquiry seeks to determine

whether the relief sought under 19 U.S.C. § 1581(i) can be obtained by bringing suit under a

different provision of 19 U.S.C. § 1581. The question of whether a plaintiff will suffer
Court No. 13-00391                                                                     Page 8
irreparable harm, on the other hand, seeks to determine whether “the trial court’s power to

provide an effective remedy on the merits, which is the purpose of a preliminary injunction,” will

be disturbed if an injunction does not issue. Cambridge Lee Indus., Inc. v. United States, 916

F.2d 1578, 1581 (Fed. Cir. 1990) (quoting Fundiaco Tupy S.A. v. United States, 841 F.2d 1101,

1103 (Fed. Cir. 1988)). Indeed, in Dofasco itself no preliminary injunction was issued, despite

one having been sought and, jurisdiction having been present, the case was decided on its merits

at the summary judgment stage. See Dofasco, 28 CIT at 276, 326 F. Supp. 2d at 1351. Put

another way, although the relief that plaintiff seeks (not being forced to participate in an

unlawful proceeding) is sufficient to provide the court with jurisdiction under 19 U.S.C. §

1581(i), a temporary denial of that remedy during the pendency of this action is not a sufficient

harm to support a preliminary injunction under the prevailing case law.

       Third, the Coalition contends that it is entitled to an injunction because if the sunset

review proceeds it will lose the benefit of several months of trade protection to which it would

otherwise be entitled. In particular, for plaintiff, if the court adopts the Department’s position

that the sunset review was properly initiated, “the relief to which [the Coalition] is entitled”

would be diminished because the earlier anniversary date will result in the antidumping order

being rescinded several months earlier than it should be under the statute. Pl.’s Br. at 14–15.

While this argument may demonstrate that plaintiff will not obtain the relief it seeks should it

ultimately lose on the merits of this action, it does not demonstrate that it will be irreparably

harmed if an injunction does not issue. As noted, the purpose of an injunction is to freeze

matters so that if the party seeking the injunction wins, the court can provide it with an effective

remedy. Here, it is the ultimate resolution of the merits of the Coalition’s claim that will

determine whether it is entitled to the later anniversary date for which it argues, and if it prevails
Court No. 13-00391                                                                     Page 9
the relief it seeks will be ordered. Put another way, if plaintiff ultimately wins on the merits, it

will do so because it has shown that the anniversary date the Department is using is incorrect. In

that situation, the Department’s current proceeding will be ultra vires and Commerce will be

required to properly initiate a sunset review at the appropriate time. Thus, if victorious, plaintiff

will not lose the several months of trade protection to which it claims it is entitled even though

no injunction is in place. On the other hand, should plaintiff lose on the merits, it would not be

entitled to those additional months in any case. Thus, plaintiff’s final argument fails to

demonstrate that it will be irreparably harmed if no preliminary injunction is issued.

       Because plaintiff has failed to demonstrate that it will be irreparably harmed if a

preliminary injunction does not issue, the court does not address the remaining three

requirements for the issuance of a preliminary injunction. See Dupont Teijin Films USA, LP v.

United States, 27 CIT 1754, 1757 n.2 (2003) (“Because plaintiffs have failed to show irreparable

harm, the court need not address whether they have established the other three elements required

for the issuance of a preliminary injunction.” (citation omitted)).



                                  CONCLUSION AND ORDER

       For the foregoing reasons, plaintiff’s motion for a preliminary injunction is denied.



                                                              /s Richard K. Eaton
                                                                Richard K. Eaton

Dated: March 13, 2014
       New York, New York
