                                         Slip Op. 18-38

                UNITED STATES COURT OF INTERNATIONAL TRADE


 U.S. AUTO PARTS NETWORK, INC.,

        Plaintiff,

 v.
                                                   Before: Jennifer Choe-Groves, Judge
 UNITED STATES, UNITED STATES
 DEPARTMENT OF HOMELAND                            Court No. 18-00068
 SECURITY, SECRETARY KIRSTJEN
 NIELSEN, and CHIEF FREDERICK J.
 EISLER, III,

        Defendants.


                               MEMORANDUM AND ORDER

[Granting in part and denying in part Plaintiff’s Motion for Temporary Restraining Order.]

                                                                    Dated: April 6, 2018

Barry F. Irwin and Reid P. Huefner, Irwin IP LLC, of Burr Ridge, IL, for Plaintiff U.S. Auto
Parts Network, Inc. With them on brief were Iftekhar A. Zaim and Chris Eggert.

Beverly A. Farrell and Monica P. Triana, Trial Attorneys, Commercial Litigation Branch, Civil
Division, U.S. Department of Justice, of New York, N.Y., and Amy M. Rubin, Assistant
Director, for Defendants United States, U.S. Department of Homeland Security, Secretary
Kirstjen Nielsen, and Chief Frederick J. Eisler, III. With them on brief was Chad A. Readler,
Acting Assistant Attorney General. Of Counsel were Ed Maurer and Yelena Slepak, U.S.
Customs and Border Protection.


       Choe-Groves, Judge: Plaintiff U.S. Auto Parts Network, Inc. (“U.S. Auto” or “Plaintiff”)

is a company that sells, among other products, vehicle grilles and associated parts for vehicle

repairs (“Repair Grilles”). Plaintiff commenced this action to obtain judicial review of the

decision made by U.S. Customs and Border Protection (“Customs”) to impose an enhanced

single entry bond requirement for each of Plaintiff’s shipments into the United States in the
Court No. 18-00068                                                                                Page 2


amount of three times the shipment value (“SEB Requirement”). See Am. Verified Compl. ¶ 9,

Apr. 5, 2018, ECF No. 17 (“Compl.”). Before the court is the Plaintiff’s Motion for Temporary

Restraining Order. See Pl.’s Mot. , Apr. 2, 2018, ECF No. 5; Mem. P. & A. Supp. U.S. Auto’s

Appl. TRO, Apr. 2, 2018, ECF No. 6 (“Pl.’s Mem.”). For the reasons explained below, the court

grants in part and denies in part Plaintiff’s motion.

                                           BACKGROUND

          Section 42 of the Lanham Act forbids the importation and entry of merchandise into the

United States that copies or simulates the name of a domestic manufacturer or registered

trademark in such a way that causes confusion to the public regarding the true origins of the

product. See 15 U.S.C. § 1124 (2012). 1 Under Section 526 of the Tariff Act of 1930, 2 “[a]ny

such merchandise bearing a counterfeit mark 3 . . . imported into the United States in violation of”

Section 42 of the Lanham Act shall be seized by Customs officers and subject to forfeiture. See

19 U.S.C. § 1526(e). Customs officers have the additional authority to require “bonds or other

security . . . they[] may deem necessary for the protection of the revenue or to assure compliance

with any provision of law, regulation, or instruction which the Secretary of the Treasury or the

Customs Service may be authorized to enforce.” Id. § 1623(a). Customs’ own regulation and




1
    All further citations to Titles 5, 15, 19, and 28 of the U.S. Code are to the 2012 edition.
2
 All further citations to the Tariff Act of 1930 are to the relevant provisions of Title 19 of the
U.S. Code.
3
  The Lanham Act defines “counterfeit” as a “spurious mark which is identical with, or
substantially indistinguishable from, a registered mark.” 15 U.S.C. § 1127. The same provision
also delineates various types of marks. See id.
Court No. 18-00068                                                                             Page 3


directive provide further guidance as to how the agency determines the amount of a bond. See

19 C.F.R. § 113.13 (2018); 4 Compl. Ex. E, Apr. 5, 2018, ECF No. 17-5.

          U.S. Auto received notice of the enhanced bond in an email from Customs on March 7,

2018. See Compl. Ex. B, Apr. 5, 2018, ECF No. 17-2. According to the correspondence,

because U.S. Auto “had over 30 shipments containing” merchandise in violation of 19 U.S.C. §

1526(e), “a single entry bond at three times the value of the shipment [will be] required on all

future shipments to adequately ensure compliance with applicable Intellectual Property Rights

laws and the prohibition on importation of counterfeit or copyrighted goods. Any future entries

without a single entry bond for three times the shipment value will be rejected.” Id. Customs

imposed the treble bond requirement pursuant to 19 C.F.R. § 113.13(c) and (d). See id.

          U.S. Auto commenced this action on April 2, 2018. See Summons, Apr. 2, 2018, ECF

No. 1; Compl., Apr. 2, 2018, ECF No. 2. The complaint alleges violations of the Administrative

Procedure Act, as well as the Fifth and Eighth Amendments of the United States Constitution.

See Compl. ¶¶ 22. Plaintiff filed its Motion for Temporary Restraining Order concurrently,

seeking relief from Customs’ treble bond requirement. See Pl.’s Mot. TRO, Apr. 2, 2018, ECF

No. 5. Defendants (collectively, “Government”) filed a response. See Defs.’ Resp. Pl.’s Mot.

TRO, Apr. 5, 2018, ECF No. 15 (“Defs.’ Resp.”). The court held a hearing by telephone

conference with the Parties on April 6, 2018. See Teleconference, Apr. 6, 2018, ECF No. 19.




4
    All further citations to Title 19 of the Code of Federal Regulations are to the 2018 edition.
Court No. 18-00068                                                                              Page 4


                                             DISCUSSION

      I.      Subject Matter Jurisdiction

           The court must first determine whether it possesses subject matter jurisdiction over this

action. Plaintiff asserts that the court has jurisdiction over all currently-imported goods subject

to the SEB Requirement under 28 U.S.C. § 1581(i). 5 See Compl. ¶ 24; Pl.’s Mem. 25–26.

Plaintiff also contends that the court has jurisdiction over all prospective imports subject to the

SEB Requirement under 28 U.S.C. § 1581(h) or, in the alternative, 28 U.S.C. § 1581(i). See

Compl. ¶ 24; Pl.’s Mem. 26.

           The court reviews challenges to Customs’ determinations regarding bond sufficiency

under 28 U.S.C. § 1581(i)(4). See, e.g., Harmoni Int’l Spice, Inc. v. United States, 41 CIT __,

__, 211 F. Supp. 3d 1298, 1306 (2017) (asserting jurisdiction under 28 U.S.C. § 1581(i)(4) over

action involving Customs’ requirement that company post single bond at a rate based on

antidumping duty rate preliminarily assigned by the U.S. Department of Commerce); Seafood

Exps. Ass’n of India v. United States, 31 CIT 366, 375, 479 F. Supp. 2d 1367, 1376 (2007)

(asserting jurisdiction over challenge to Customs’ bond directive pursuant to 28 U.S.C.


5
    Under 28 U.S.C. § 1581(i), the Court has exclusive jurisdiction over:
           any civil action commenced against the United States, its agencies, or its officers, that
           arises out of any law of the United States providing for—
                  (1) revenue from imports or tonnage;
                  (2) tariffs, duties, fees, or other taxes on the importation of merchandise for
                      reasons other than the raising of revenue;
                  (3) embargoes or other quantitative restrictions on the importation of merchandise
                      for reasons other than the protection of the public health or safety; or
                  (4) administration and enforcement with respect to the matters referred to in
                      paragraphs (1)–(3) of this subsection and subsections (a)–(h) of this section.
28 U.S.C. § 1581(i).
Court No. 18-00068                                                                                 Page 5


§ 1581(i)(4) “as it relates to § 1581(i)(1) and (i)(2)”). The court exercises subject matter

jurisdiction, therefore, over the entirety of this action pursuant to 28 U.S.C. § 1581(i)(4).

    II.      Plaintiff’s Motion for Temporary Restraining Order

             A. Legal Standard

          Rule 65(b) of the Rules of this Court allows for the issuance of a temporary restraining

order in an action. USCIT R. 65(b). The court considers four factors when evaluating whether

to grant a temporary restraining order or preliminary injunction. See Winter v. Nat. Res. Def.

Council, Inc., 555 U.S. 7, 20 (2008); see also Silfab Solar, Inc. v. United States, Slip Op. 18-15,

2018 WL 1176619, at *3 (CIT Mar. 5, 2018) (recognizing that the standard for evaluating a

motion for a temporary restraining order and a motion for preliminary injunction are the same).

These factors are: (1) whether the party will incur irreparable harm in the absence of such order

or injunction; (2) that the party is likely to succeed on the merits of the action; (3) that the

balance of hardships favors the imposition of temporary equitable relief; and (4) that the

temporary restraining order or injunction is in the public interest. See Winter, 555 U.S. at 20;

see also Wind Tower Trade Coal. v. United States, 741 F.3d 89, 95 (Fed. Cir. 2014). No one

factor is “‘necessarily dispositive,’ because ‘the weakness of the showing regarding one factor

may be overborne by the strength of the others.’” Belgium v. United States, 452 F.3d 1289,

1292–93 (Fed. Cir. 2006) (citing FMC Corp. v. United States, 3 F.3d 424, 427 (Fed. Cir. 1993)).

The factors should be weighed according to a “sliding scale,” however, which means that a

greater showing of irreparable harm in Plaintiff’s favor lessens the burden on Plaintiff to show a

likelihood of success on the merits. See id. (internal citations omitted). The court will evaluate

each of the four factors in turn.
Court No. 18-00068                                                                            Page 6


           B. Irreparable Harm

       Plaintiff must show that it will suffer irreparable harm absent a grant of a temporary

restraining order. See Winter, 555 U.S. at 20. Irreparable harm includes “a viable threat of

serious harm which cannot be undone.” Zenith Radio Corp. v. United States, 710 F.2d 806, 809

(Fed. Cir. 1983) (internal citations omitted). An allegation of financial loss alone, generally,

does not constitute irreparable harm if future money damages can provide adequate corrective

relief. See Sampson v. Murray, 415 U.S. 61, 90 (1974). Bankruptcy or substantial loss of

business may constitute irreparable harm, however, because “loss of business renders a final

judgment ineffective, depriving the movant of meaningful judicial review.” Harmoni Int’l Spice,

Inc., 41 CIT at __, 211 F. Supp. 3d at 1307 (citing Doran v. Salem Inn, Inc., 422 U.S. 922, 932

(1975)). “Price erosion, loss of goodwill, damage to reputation, and loss of business

opportunities” may also constitute irreparable harm. Celsis In Vitro, Inc. v. CellzDirect, Inc.,

664 F.3d 922, 930 (Fed. Cir. 2012) (internal citations omitted).

       U.S. Auto claims that the SEB Requirement threatens the viability of its business. See

Pl.’s Mem. 19–21. U.S. Auto receives an average of forty shipments per week, each having a

commercial value of approximately $42,000. See Am. Decl. Aaron Coleman Supp. U.S. Auto

Mem. Supp. Appl. TRO ¶ 6, Apr. 5, 2018, ECF No. 18 (“Coleman Decl.”). Customs’ new

instructions require a bond valuing roughly $125,000 per shipment, which equates to an

estimated $5 million per week. See id. ¶ 9. U.S. Auto asserts that it has not been able to find a

surety that will cover the bond requirement without full collateral, and the business cannot

sustain itself on domestically-sourced inventory alone. See id. ¶¶ 10, 16. “Without the ability to

import any merchandise . . . in a short period of time, U.S. Auto will no longer be able to
Court No. 18-00068                                                                           Page 7


continue in business and will likely be forced to cease all operations and liquidate the company.”

Id. ¶ 32. Plaintiff also contends that its inability to pay the bond requirement will harm its

supply chain, cause inventory shortfalls, damage its relations with business partners, and lead to

a loss of reputation and goodwill. See id. ¶¶ 18–29.

       The Government contests Plaintiff’s proffered support as “speculative, vague and/or

unsupported statements.” Defs.’ Resp. 15. The court disagrees. Plaintiff has demonstrated that

the SEB Requirement will cause it significant financial detriment resulting in likely closing its

business. The court concludes that Plaintiff’s statements are sufficient to show irreparable harm

for the purpose of the motion.

           C. Balance of Hardships

       When evaluating a request for a temporary restraining order, it is the court’s

responsibility to balance the hardships on each of the Parties. See Winter, 555 U.S. at 20. To

support its showing for this factor, U.S. Auto reiterates the same reasons it proffered to

demonstrate a threat of irreparable harm. See Pl.’s Mem. 34–35. The Government attests that

Customs, in contrast, “has suffered significant harm as a result of having to inspect each of

plaintiff’s shipments in order to locate and remove infringing merchandise.” Defs.’ Resp. 15–16.

Customs officers at the port are required to inspect the containers because “infringing

merchandise cannot be allowed into the U.S. stream of commerce.” Id. at 16. Defendants argue

that Customs has conducted these inspections for months, requiring “substantial diversion of

resources” and “more than 1100 man hours.” Id. at 18. There are an additional ninety containers

at the port currently, which will require “thousands of man hours and significant resources” to

inspect. Id. The court notes that Customs faces burdens of resource diversion and
Court No. 18-00068                                                                            Page 8


inconvenience, but does not face any permanent consequences. Based on the facts and

arguments presented, the court concludes that the balance of hardships weighs in the favor of

Plaintiff, who is facing the closing of its business, loss of reputation, loss of customers, and other

potentially permanent consequences due to the enhanced bond requirements.

            D. Likelihood of Success on the Merits

        In order to obtain a temporary restraining order, Plaintiff bears the burden of showing

that it is likely to succeed on the merits of its claims. See Winter, 555 U.S. at 20. U.S. Auto

asserts four claims against the Government in its complaint. See Compl. ¶¶ 65–81. Plaintiff’s

first two counts allege that Customs’ imposition of the treble bond requirement violated various

provisions of the Administrative Procedure Act. See id. ¶¶ 65–73. U.S. Auto’s third claim

contends that the treble bond requirement constitutes a punitive action and is unconstitutional

under the Eighth Amendment’s Excessive Fines Clause. See id. ¶¶ 74–75. Plaintiff’s fourth

claim asserts that Customs did not provide U.S. Auto with the opportunity to challenge the

increased bond requirement, which amounted to a violation of Plaintiff’s right to due process

under the Fifth Amendment. See id. ¶¶ 76–81. Plaintiff requests both injunctive and monetary

relief. See id. ¶¶ A–H. Because Plaintiff’s briefing does not discuss its likelihood of success on

the merits with regards to its Eighth Amendment claim, see Pl.’s Mem. 25–34, the court declines

to evaluate it here.

                       1. Counts I and II: Agency Action in Violation of the Administrative

                          Procedure Act

        U.S. Auto asserts that Customs’ application of the SEB Requirement on all of its

shipments constitutes an agency action that is reviewable under the Administrative Procedure
Court No. 18-00068                                                                             Page 9


Act. See Compl. ¶¶ 65–73. Plaintiff contends specifically that Customs, in setting the SEB

Requirement, acted arbitrarily and capriciously, as well as beyond its statutory mandate,

applicable regulations, and own Customs Directive. See id. The Government argues that

Customs officers have the authority to impose bond requirements pursuant to 19 U.S.C. § 1623, 6

and implore that the SEB Requirement was necessary in order to ensure U.S. Auto’s compliance

with the Customs Modernization Act, Pub. L. No. 103-182, 107 Stat. 2057 (1993), which

imposes on importers a duty to engage in reasonable care. See Defs.’ Resp. 3, 11–12.

          The Administrative Procedure Act prohibits an agency from acting in a manner that is

“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.” 5

U.S.C. § 706(2)(A). An agency cannot act, furthermore, “in excess of statutory jurisdiction,

authority, or limitations, or short of statutory right,” or “without observance of procedure

required by law.” Id. § 706(2)(C), (D). The court considers whether the agency “entirely failed

to consider an important aspect of the problem, offered an explanation for its decision that runs

counter to the evidence before the agency, or is so implausible that it could not be ascribed to a

difference in view or the product of agency expertise.” Motor Vehicle Mfrs. Ass’n. v. State




6
    The statute reads, in relevant part:
          In any case in which bond or other security is not specifically required by law, the
          Secretary of Treasury may by regulation or specific instruction require, or authorize
          customs officers to require, such bonds or other security as he, or they, may deem
          necessary for the protection of the revenue or to assure compliance with any provision of
          law, regulation, or instruction which the Secretary of the Treasury or Customs Service
          may be authorized to enforce.
19 U.S.C. § 1623(a).
Court No. 18-00068                                                                         Page 10


Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983); see also Al. Aircraft Indus., Inc. v. United

States, 586 F.3d 1372, 1375 (Fed. Cir. 2009) (stating the same).

       19 U.S.C. § 1623 facially appears to confer Customs officers with discretion in setting

the amount of a bond. Customs’ own directive provides further guidance in determining the

amount. The directive states, in relevant part, “The purpose of the bond is to protect the revenue

and ensure compliance. . . . However, it is not Customs [sic] intent to require bond amounts

which unnecessarily put an excessive burden on a person or firm, or place them in an impossible

situation.” Compl. Ex. E, at 2, Apr. 5, 2018, ECF No. 17-5. Here, the SEB Requirement goes

against the directive by placing U.S. Auto in a difficult position. The court notes that the

Government confirmed that approximately 99% of the goods imported by U.S. Auto are not

implicated by Customs’ counterfeit allegations. See Pl.’s Mem. 2; see also Teleconference at

0:42:55–0:43:06, Apr. 6, 2018, ECF No. 19. The Government confirmed further that the SEB

Requirement seeks to ensure compliance with respect to only 1% of U.S. Auto’s shipments, but

burdens all of U.S. Auto’s imports. Customs’ action of imposing an enhanced, punitive bond on

all of Plaintiff’s imports, when it actually should be directed towards only 1% of imports, is an

abuse of discretion that is contrary to Customs’ mandate. Based on the facts available at this

juncture of the action, the court concludes that Plaintiff has shown a likelihood of success on the

merits with regards to its claims under the Administrative Procedure Act.

                   2. Count IV: Due Process

       U.S. Auto further alleges that Customs’ imposition of the SEB Requirement “without

giving U.S. Auto the opportunity to challenge the underlying factual and legal determinations
Court No. 18-00068                                                                         Page 11


judicially or the ability to challenge the bond requirement is contrary to the law” and amounts to

a violation of the Fifth Amendment’s Due Process Clause. See Compl. ¶¶ 76–81.

       The Fifth Amendment prohibits the deprivation of life, liberty, or property without due

process of law. U.S. Const. amend. V. “The core of due process is the right to notice and a

meaningful opportunity to be heard.” LaChance v. Erickson, 522 U.S. 262, 266 (1998) (citing

Cleveland Bd. of Ed. v. Loudermill, 470 U.S. 532, 542 (1985)). “The first inquiry in every due

process challenge is whether the plaintiff has been deprived of a protected interest in ‘property’

or ‘liberty.’” Int’l Custom Prods., Inc. v. United States, 791 F.3d 1329, 1337 (Fed. Cir. 2015),

cert. denied, 136 S. Ct. 2408 (2016) (quoting Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40,

59 (1999)). Only after establishing that the plaintiff has been deprived of a protected interest

will the court evaluate whether the afforded procedures comport with due process requirements.

See Am. Mfrs. Mut. Ins. Co., 526 U.S. at 59.

       Plaintiff likely cannot assert a genuine due process claim because it has not been deprived

of a Constitutionally protected interest. Courts have recognized that individuals do not have a

protectable interest to engage in international trade under the Constitution. See Int’l Custom

Prods., Inc., 791 F.3d at 1337 (citing Am. Ass’n of Exps. & Imps.—Textile & Apparel Grp. v.

United States, 751 F.2d 1239, 1250 (Fed. Cir. 1985)). Plaintiff has not shown, therefore, a

likelihood of success on the merits with regard to Count IV in its complaint.

           E. Public Interest

       Plaintiff must also demonstrate that a grant of a temporary restraining order serves the

public interest. See Winter, 555 U.S. at 20. U.S. Auto contends that the public interest favors a

temporary restraining order in this action because the company otherwise risks bankruptcy,
Court No. 18-00068                                                                         Page 12


which would deprive it access to meaningful judicial review. See Pl.’s Mem. 36. Plaintiff notes

that the litigation of meritorious claims provides a check on Government enforcement and

ensures the proper administration of the law. See id. U.S. Auto argues further that without the

temporary restraining order, over 350 U.S. residents will lose their jobs, and the aftermarket auto

parts market, which “saves U.S. Consumers $1.5 [billion] annually,” will suffer. Id. The

Government disagrees, asserting that the grant of a temporary restraining order “will allow U.S.

Auto to continue to import goods that infringe upon registered trademarks and require [Customs]

to expend significant time and resources to remove infringing goods from U.S. Auto’s

shipments.” Defs.’ Resp. 19. Defendants contend, furthermore, that “[w]hile it is possible that

aftermarket parts are cheaper for customers, this does not negate the public interest in

compliance with law or the protection of intellectual property rights.” Id. at 20.

       The court concludes that the public interest factor alone would be in Defendants’ favor,

since the public benefits from the efficient administration and enforcement of the law.

                                           CONCLUSION

       For the aforementioned reasons, and viewing all of the relevant factors as a whole, the

court concludes that Plaintiff has sufficiently demonstrated its need for a temporary restraining

order with respect to the subject merchandise not alleged to be infringing. Accordingly, upon

consideration of Plaintiff’s Motion for Temporary Restraining Order, and all other papers and

proceedings in this action, it is hereby

       ORDERED that Plaintiff’s motion is granted in part and denied in part; and it is further

       ORDERED that Defendants and their officers, employees, and agents be temporarily

restrained starting at 5:00 P.M. on the date of this Order from enforcing a requirement that, for
Court No. 18-00068                                                                        Page 13


each shipment into the United States, U.S. Auto Parts Network, Inc. (“U.S. Auto”) submit a

single entry bond at three times the shipment value in order to obtain entry into the United States

with respect to the subject merchandise not alleged to be infringing; and it is further

         ORDERED that Defendants and their officers, employees, and agents may impose a

single entry bond at three times the shipment value proportional to the percentage of allegedly

infringing goods contained in the shipments; and it is further

         ORDERED that Defendants and their officers, employees, and agents shall expeditiously

process all of U.S. Auto’s shipping containers and immediately release to U.S. Auto all imports

not implicated by Customs’ underlying trademark infringement allegations; and it is further

         ORDERED that this temporary restraining order will expire on April 20, 2018 at 5:00

P.M.




                                                              /s/ Jennifer Choe-Groves
                                                               Jennifer Choe-Groves, Judge

Dated:      April 6, 2018
         New York, New York
