Celik Halat ve Tel Sanayi A.S. v. United States

Slip Op. 20-176

UNITED STATES COURT OF INTERNATIONAL TRADE

CELIK HALAT VE TEL SANAYI A.S.,

Plaintiff,

v.

UNITED STATES,
Before: Claire R. Kelly, Judge
Defendant,
Court No. 20-03848
and

INSTEEL WIRE PRODUCTS COMPANY
ET AL.,

Defendant-Intervenors.

OPINION AND ORDER

[Denying plaintiff’s motion for a temporary restraining order and preliminary
injunction.]

Dated: December 6, 2020

Irene H. Chen, Chen Law Group, LLC, of Rockville, MD, for plaintiff.

Tara K. Hogan, Assistant Director, Commercial Litigation Branch, Civil Division,
U.S. Department of Justice, of Washington, DC, for defendant. Also on the brief was
Jeffrey Bossert Clark, Acting Assistant Attorney General, Jeanne E. Davidson,
Director, and Reginald T. Blades, Jr., Assistant Director. Of counsel were Reza
Karamloo and Jesus Saenz, Attorneys, Office of the Chief Counsel for Trade
Enforcement & Compliance, U.S. Department of Commerce.

Brooke M. Ringel, Paul C. Rosenthal, Kathleen W. Cannon, R. Alan Luberda, and
Joshua R. Morey, Kelley Drye & Warren, LLP, of Washington, DC, for defendant-
intervenors Insteel Wire Products Company et al.
Court No. 20-03848 Page 2

Kelly, Judge: Before the court is Plaintiff Celik Halat ve Tel Sanayi A.S.’s

(“Celik” or “Plaintiff”) motion for a temporary restraining order (“TRO”) and

preliminary injunction. See Pl.’s Mot. for [TRO] & Prelim. Injunction Confidential

Version, Nov. 19, 2020, ECF No. 15 (“Pl.’s Mot.”). Defendant opposes Plaintiff’s

motion. See Def.’s Resp. to Pl.’s Mots. for [TRO] & Prelim. Injunction, Dec. 4, 2020,

ECF No. 20 (“Def.’s Resp.”). For the following reasons, Plaintiff’s motion is denied.

BACKGROUND

On May 6, 2020, the U.S. Department of Commerce (“Commerce”) initiated its

countervailing duty (“CVD”) investigation of prestressed concrete steel wire (“PC

Strand”) from the Republic of Turkey (“Turkey”). See Compl. at ¶ 2, Nov. 19, 2020,

ECF No. 2 (“Compl.”); see also [PC Strand] from [Turkey], 85 Fed. Reg. 28,610, 28,612

(Dep’t Commerce May 13, 2020) (initiation of [CVD] investigation). On June 25, 2020,

Commerce selected Celik for individual examination. See Compl. at ¶ 3. That same

day, Commerce issued a revised initial CVD questionnaire to the Turkish government

and set a deadline of August 10, 2020 at 5:00 pm Eastern Daylight Time for filing the

final business proprietary information (“BPI”) and the public CVD questionnaire

response. See id. at ¶¶ 3, 9.

Plaintiff states that on or about August 4, 2020, due in part to a medical

situation of counsel, it filed a request for a one-week extension of the August 7, 2020

deadline to file its response to Section III of Commerce’s CVD questionnaire, which

Commerce declined. See id. at ¶ 7. On August 7, 2020, Plaintiff timely filed its BPI
Court No. 20-03848 Page 3

response. See id. at ¶ 8. However, on August 10, 2020, purportedly due to counsel’s

medical situation, Plaintiff overlooked the two-hour time difference between

Mountain Daylight Time and Eastern Daylight Time when timing its submission,

and submitted its response at 4:27 pm MDT (6:27 pm EDT) instead of 4:27 pm EDT.

See id. at ¶¶ 10, 12. 1

On August 20, 2020, after learning that its CVD response was untimely

submitted and rejected, Plaintiff requested reconsideration of Commerce’s rejection.

See id. at ¶¶ 11–14. Commerce declined and continued to reject Plaintiff’s August 7,

2020 and August 10, 2020 filings of the BPI and public versions of its questionnaire

responses. See id. at ¶¶ 15–16. In the concurrent antidumping duty (“ADD”)

investigation, Celik’s counsel requested a meeting with Commerce to discuss its

denial of the questionnaire responses in both the ADD and the CVD proceedings. See

Pl.’s Mot. at 3. On September 4, 2020, Celik’s counsel met with Commerce to discuss

its denial of the responses. See id. at 3–4.

For its preliminary determination, Commerce applied adverse facts available

with an adverse inference (“AFA”) after finding that Celik significantly impeded its

1 It appears that there is a typographical error in Plaintiff’s complaint, and the court
presumes that Plaintiff intended to state that, in filing its submission at 4:27 pm
MDT, it overlooked the time difference between MDT and EDT. What Plaintiff
actually states is that “the filing was actually submitted at 6:27 PM MDT, not 4:27
PM EDT[.]” Compl. at ¶ 12. If this were true, then Plaintiff’s filing was not submitted
until 8:27pm EDT.
Court No. 20-03848 Page 4

investigation, and assigned a CVD subsidy and cash deposit rate of 135.06 percent. 2

See [PC Strand] from [Turkey], 85 Fed. Reg. 59,287, 59,288 (Dep’t Commerce Sept.

21, 2020) (prelim. affirmative [CVD] determination, prelim. affirmative critical

circumstances determination, in part) (“Prelim. Results”) and accompanying Decision

Memo. for the [Prelim. Results] at 9, C-489-843, (Sept. 14, 2020) available at

https://enforcement.trade.gov/frn/summary/turkey/2020-20692-1.pdf (last visited

Dec. 5, 2020). Moreover, Commerce determined that critical circumstances existed

with respect to Celik’s imports of subject merchandise, and, pursuant to section 703

and 733 of the Tariff Act of 1930, as amended 19 U.S.C. §§ 1671b(e)(2) and 1673b(e)(2)

(2018), 3 Commerce retroactively suspended liquidation of Celik’s entries. See Prelim

Results, 85 Fed. Reg. at 59,288.

On November 19, 2020, Plaintiff Celik initiated this action pursuant to 28

U.S.C. § 1581(i) (2018) 4 by concurrently filing a summons and complaint. See

Summons, Nov. 19, 2020, ECF No. 1; Compl. Shortly thereafter, Celik moved for a

TRO and a preliminary injunction to enjoin Commerce from continuing to reject its

2 Parties and Commerce sometimes use the shorthand “AFA” or “adverse facts
available” to refer to Commerce's reliance on facts otherwise available with an
adverse inference to reach a final determination. AFA, however, encompasses a two-
part inquiry established by statute. See 19 U.S.C. § 1677e(a)–(b). It first requires
Commerce to identify information missing from the record, and second, to explain
how a party failed to cooperate to the best of its ability as to warrant the use of an
adverse inference when “selecting among the facts otherwise available.” Id.
3 Further citations to the Tariff Act of 1930, as amended, are to the relevant
provisions of Title 19 of the U.S. Code, 2018 edition.
4 Further citations Title 28 of the U.S. Code are to the 2018 edition.
Court No. 20-03848 Page 5

untimely submitted questionnaire responses in the ongoing CVD investigation of

certain PC Strand from Turkey. See generally Pl.’s Mot; see also Prelim. Results.

Plaintiff also filed a motion to consolidate this case with Celik Halat ve Tel Sanayi

A.S. v. United States, Ct. No. 20-03843, an action challenging Commerce’s decision

to reject Celik’s untimely questionnaire responses in the ongoing ADD investigation

of PC Strand from Turkey. See Pl.’s Mot. to Consolidate Cases, Nov. 19, 2020, ECF

No. 6; see also Compl., Nov. 19, 2020, ECF No. 2 (from Dkt. No. 20-03843).

On November 20, 2020, the court held a telephonic conference with counsel for

both parties for the purpose of establishing a briefing schedule for the motion for a

TRO and a preliminary injunction. See Appearance Sheet, Nov. 20, 2020, ECF No.

10. During the telephone conference, Defendant indicated that the government

would be filing a motion to dismiss the complaint for lack of subject matter

jurisdiction. The court ordered a schedule providing for the Defendant to respond to

Plaintiff’s motion by December 4, 2020, and further providing for briefing of the

motion to dismiss. See Scheduling Order, Nov. 20, 2020, ECF No. 11. The court also

stayed the motion to consolidate pending resolution of the motion to dismiss. See id.

In accordance with the court’s order, Defendant filed its response to Plaintiff’s request

for a TRO and a preliminary injunction on December 4, 2020. See generally Def.’s

Resp.

Defendant opposes Plaintiff’s motion, arguing that Plaintiff is unlikely to

succeed on the merits because this Court lacks jurisdiction and there has been no
Court No. 20-03848 Page 6

final agency action. See id. at 7–12. Further, Defendant argues that Plaintiff has

not shown that it will suffer irreparable harm absent the injunction, nor has it shown

that the public interest and balance of harms weigh in its favor. See id. at 12–19.

STANDARD OF REVIEW

U.S. Court of International Trade (“USCIT”) Rule 65 permits the court to issue

a preliminary injunction on notice to the adverse party. See USCIT R. 65(a). To

obtain a preliminary injunction, Plaintiff must establish that (1) it is likely to succeed

on the merits, (2) it is likely to suffer irreparable harm without a preliminary

injunction, (3) the balance of the equities favors Plaintiff, and (4) the injunction is in

the public interest. See Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7

(2008); Zenith Radio Corp. v. United States, 710 F.2d 806, 809 (Fed. Cir. 1983)

(“Zenith Radio Corp.”). In reviewing these factors, “no one factor, taken individually,”

is dispositive. Ugine & ALZ Belg. v. United States, 452 F.3d 1289, 1292 (Fed. Cir.

2006) (citations omitted) (“Ugine & ALZ Belg.”); FMC Corp. v. United States, 3 F.3d

424, 427 (Fed.Cir.1993). However, each factor need not be given equal

weight. See Ugine & ALZ Belg., 452 F.3d at 1293; Nken v. Holder, 556 U.S. 418, 434

(2009) (“Nken”). Likelihood of success on the merits and irreparable harm are

generally considered the most significant factors in evaluating a motion for injunctive

relief. See Nken, 556 U.S. at 434; Amazon.com, Inc. v. Barnesandnoble.com, Inc., 239

F.3d 1343, 1350 (Fed. Cir. 2001).
Court No. 20-03848 Page 7

DISCUSSION

I. Likelihood of Success on the Merits

Plaintiff’s likelihood of success on the merits depends upon whether: (a) the

court has subject matter jurisdiction; (b) Plaintiff has challenged a reviewable final

agency action ripe for review; and (c) Commerce abused its discretion in rejecting

Plaintiff’s questionnaire.

A. Subject Matter Jurisdiction

Defendant asserts that Plaintiff is unlikely to succeed on the merits because

the court lacks subject matter jurisdiction over the complaint, and has indicated that

it intends to file a motion to dismiss. 5 The court concludes that it is likely that the

court lacks subject matter jurisdiction over Plaintiff’s claims.

The court cannot exercise jurisdiction under 28 U.S.C. § 1581(i) where another

subsection “is or could have been available, unless the remedy provided under that

other subsection would be manifestly inadequate.” Miller & Co. v. United States, 824

F.2d 961, 963 (Fed. Cir. 1987). “While neither Congress nor the courts have provided

a precise definition of the term ‘manifestly inadequate,’ given the clear Congressional

preference expressed in [28 U.S.C. § 1581(i)] for review in accordance with [19 U.S.C.

5 Although Defendant has not yet filed its motion, the court must consider the
“likelihood” that it has subject matter jurisdiction over this proceeding in order to
analyze the likelihood that Plaintiff will succeed on the merits. The court discusses
the “likelihood” that it has jurisdiction in this case, as opposed to conclusively
determining whether or not it has jurisdiction, because the motion before the court is
for a preliminary injunction and TRO, and not a motion to dismiss.
Court No. 20-03848 Page 8

§ 1516a], the Court must be careful not to interfere in ongoing proceedings absent a

clear indication of the inadequacy of a [19 U.S.C. § 1581(c)] review.” Sahaviriya Steel

Industries Public Co. Ltd. v. United States, 33 CIT 140, 151, 601 F. Supp. 2d 1355,

1365 (2009) (citations omitted) (“Sahaviriya”). Moreover, “[a] party may not expand

a court’s jurisdiction by creative pleading.” Sunpreme Inc. v. United States, 892 F.3d

1186, 1193 (Fed. Cir. 2018) (quoting Norsk Hydro Can., Inc. v. United States, 472

F.3d 1347, 1355 (Fed. Cir. 2006)). Instead, the court must “look to the true nature of

the action in the district court in determining jurisdiction of the appeal.” Id. (citations

omitted).

Recourse under 19 U.S.C. § 1581(c) is not manifestly inadequate when judicial

review pursuant to subsection (c) provides the remedy Plaintiff seeks—namely, a

remand order directing Commerce to reconsider or further explain its refusal to

accept Plaintiff’s submissions. That Plaintiff frames its request for relief in such a

way as to urge disposition of this cause of action before publication of the final

determination cannot serve as the basis for the court’s exercise of jurisdiction in this

instance.

As such, although styled as an action under 28 U.S.C. § 1581(i), it appears the

“true nature” of Plaintiff’s claim arises under § 1581(c), see Juancheng Kangtai

Chem. Co. v. United States, 932 F.3d 1321, 1326 (Fed. Cir. 2019), which, pursuant to

19 U.S.C. § 1516a, enables Plaintiff to seek judicial review of the final results of a

CVD investigation. Indeed, what Plaintiff seeks by asking the court to require
Court No. 20-03848 Page 9

Commerce to accept its submissions is not a temporary relief, but essentially the

ultimate relief in a case challenging Commerce’s final determination in a CVD

investigation. See, e.g., Cyber Power Systems (USA) Inc. v. United States, 44 CIT __,

__, Slip Op. 20-130 at 7–8 (Sept. 2, 2020) (“Cyber Systems”).

Plaintiff argues that the remedy under § 1581(c) is manifestly inadequate

because the harm it alleges is a loss of its U.S. sales market owing to Commerce’s

failure to accept its questionnaire response. See Pls.’ Mot. at 7–9. However, without

more, harm attributable to a possible abuse of discretion within an investigation is

insufficient to render the remedy afforded by 19 U.S.C. § 1581(c) “manifestly

inadequate.” See Sahaviriya, 33 CIT at 155, 601 F. Supp. 2d at 1368–69 (citations

omitted) (finding the harm attributable to a potentially unauthorized ADD

proceeding insufficient to show that relief pursuant to 28 U.S.C. § 1581(c) is

manifestly inadequate). The harm alleged by Plaintiff is incidental to participation

in a CVD investigation, and is likely insufficient to surmount well-established

principles requiring that this court strictly enforce the statutory and administrative

requirements for bringing a cause of action under § 1581(c). As such, it is unlikely

that this court has subject matter jurisdiction over Plaintiff’s complaint.

B. Final Agency Action

Defendant argues that Celik is unlikely to succeed on the merits because its

claim is not ripe. See Def.’s Resp. at 9–12. “Ripeness is a justiciability doctrine

designed ‘to prevent the courts, through avoidance of premature adjudication, from
Court No. 20-03848 Page 10

entangling themselves in abstract disagreements over administrative policies, and

also to protect the agencies from judicial interference until an administrative decision

has been formalized and its effects felt in a concrete way by the challenging parties.’”

Nat’l Park Hospitality Ass’n v. U.S. Dep’t of Interior, 538 U.S. 803, 807–08 (2003).

Even if Plaintiff’s complaint were properly before the court under 28 U.S.C.

§ 1581(i), it is unlikely that there is a viable cause of action because Commerce has

not yet issued its final determination. It is possible that Commerce may reconsider

challenged aspects of its preliminary determination, thus, involving the court at this

juncture risks undue entanglement with the administrative process on the basis of

contingent future events. See, e.g., Thomas v. Union Carbide Agric. Prods. Co., 473

U.S. 568, 580–81 (1985). As such, the court concludes that ripeness concerns weigh

against Plaintiff’s likelihood of succeeding on the merits.

C. Abuse of Discretion

Under 19 C.F.R. § 351.302, Commerce may reject untimely filed factual

submissions. See 19 C.F.R. § 351.302. Commerce has the discretion to set and

enforce its own deadlines to ensure finality, and the court reviews Commerce’s

decision to reject Celik’s submissions for abuse of that discretion. See Bosun Tools

Co. v. United States, 43 CIT __, __, 405 F. Supp. 3d 1359, 1365–66 (2019) (citing

Grobest & I-Mei Industrial (Vietnam) Co. v. United States, 36 CIT 98, 122–23, 815 F.

Supp. 2d 1342, 1365–67 (2012) (“Grobest”); NTN Bearing Corp. v. United States, 74

F.3d 1204, 1207–08 (Fed. Cir. 1995) (“NTN Bearing Corp.”)). Commerce abuses its
Court No. 20-03848 Page 11

discretion when it rejects information that would not be burdensome to incorporate

and which would increase the accuracy of the calculated subsidy rate. See Grobest,

36 CIT at 122–23, 815 F. Supp. 2d at 1365–66; see also NTN Bearing Corp., 74 F.3d

at 1207–08 (holding that Commerce abused its discretion where its decision not to

use a “straightforward mathematical adjustment’’ to correct for certain clerical errors

led to ‘‘the imposition of many millions of dollars in duties not justified under the

statute.’’). Moreover, the court may review Commerce’s decision to ensure that it is

not “treating similar situations in dissimilar ways.” Nakornthai Strip Mill Public Co.

v. United States, 32 CIT 1272, 1276, 587 F. Supp. 2d 1303, 1307 (2008) (citations

omitted).

Plaintiff submits that Commerce abused its discretion in rejecting its

questionnaire responses because Commerce has granted extensions for reasons less

severe than the circumstances surrounding the alleged 87-minute delay that gives

rise to this action. See Pl.’s Mot. at 16–18. Plaintiff’s allegations raise serious

concerns regarding Commerce’s justification for rejecting Plaintiff’s requests for

reconsideration; however, these concerns are insufficient to establish that Plaintiff is

likely to succeed in light of the jurisdictional and ripeness concerns.

II. Irreparable Harm

Plaintiff alleges that without the requested relief it will suffer irreparable

financial and reputational harm and will lose its business in the United States. See

Pl.’s Mot. at 10–12. Defendant contends that it is unclear that Plaintiff’s requested
Court No. 20-03848 Page 12

relief would alleviate any of the alleged harms, and further submits that Plaintiff’s

allegations of financial harm are not actual and imminent, but rather, speculative.

See Def.’s Resp. at 12–17. Plaintiff fails to demonstrate that imminent, irreparable

harm would occur if its motion is denied.

A finding of irreparable harm requires that a Plaintiff demonstrate “a viable

threat of serious harm which cannot be undone.” Zenith Radio Corp., 710 F.2d at

809 (citations omitted). Generally, an allegation of financial loss alone, however

substantial, which is compensable with monetary damages, is not irreparable harm

if such corrective relief will be available at a later date. See Sampson v. Murray, 415

U.S. 61, 90 (1974) (“Sampson”). As such, “[t]he possibility that adequate

compensatory or other corrective relief will be available at a later date, in the

ordinary course of litigation, weighs heavily against a claim of irreparable

harm.” Id. Nevertheless, irreparable harm may take the form of “[p]rice erosion, loss

of goodwill, damage to reputation, and loss of business opportunities.” Celsis

In Vitro, Inc. v. CellzDirect, Inc., 664 F.3d 922, 930 (Fed. Cir. 2012). Substantial loss

of business is irreparable harm because, in addition to the obvious economic injury,

loss of business renders a final judgment ineffective, depriving the movant of

meaningful judicial review. See Doran v. Salem Inn, Inc., 422 U.S. 922, 932 (1975).

Plaintiff offers the affidavit from its Chief Executive Officer, Serdar Seylam, to

support its claim that the failure to obtain the relief it seeks will cause it irreparable

harm. See Pl.’s Mot. at Ex. H. The affidavit states that Celik will lose its U.S.
Court No. 20-03848 Page 13

customer base, which is a significant portion of its business—the loss of which will

affect the employment of its work force, its shareholders, and its future prospects in

the U.S. market. See generally id. Plaintiff claims that its customers have already

communicated that they could not continue doing business with Plaintiff’s U.S. PC

Strand business if the preliminary rates that Commerce assigned “are confirmed in

the final determination.” See Pl.’s Mot. at Ex. H, ¶¶ 11–12. Plaintiff also states that

its U.S. customer has already started looking for an alternate supplier of PC Strand. 6

See Pl.’s Mot. at Ex. H, ¶ 17. Plaintiff provides no other information concerning other

markets or customers. 7 Plaintiff further alleges that if this court does not grant its

motion, it will suffer financial losses in the amount of $96,000 per month. See Pl.’s

Mot. at Ex. H, ¶ 15. However, Plaintiff makes these allegations without citing to any

evidence of its assets and whether or not they are sufficient to cover the costs.

Plaintiff merely states that “[t]he losses will adversely affect our shareholders,

employees and their families.” See Pl.’s Mot. at Ex. H, ¶ 15. Plaintiff offers no

evidence that speaks to the question of whether the alleged harm is unavoidable or

irreparable. Moreover, although financial losses and loss of business opportunities

6 Defendant also avers that Plaintiff’s two months delay in seeking relief undermines
it claim of imminent harm. See Def.’s Resp. at 13. Plaintiff did not explain its delay
in its motion, nor is the basis for the delay obvious to the court.
7 Plaintiff claims that without the requested relief, it “is facing the loss of its entire
U.S. market of PC Strand, which accounts for 70 percent of Celik Halat’s total exports
in 2019.” Compl., ¶ 19. However, Plaintiff does not offer any evidence to support this
statement, nor does it offer any evidence concerning the portion of its business that
is dependent on exports, generally speaking.
Court No. 20-03848 Page 14

can constitute irreparable harm, the losses generally must be more severe than

shown here and be “imminent and unavoidable.” Harmoni Int’l Spice, Inc. v. United

States, 41 CIT __, __, 211 F. Supp 3d 1298, 1308–09 (Ct. Int’l Trade 2017)

(“Harmoni”). Plaintiff’s largely unsubstantiated allegations about potential harm to

its business do not rise to this level of severity.

Additionally, although it argues that it would be unable to afford the bonds

necessary to proceed with the normal administrative and judicial routes to challenge

Commerce’s determination, see Pl.’s Mot. at Ex. H, ¶ 13, Plaintiff offers no support

for the position that it could not secure the capital to fund those bonds from other

sources. See Harmoni, 41 CIT at __, 211 F. Supp. 3d at 1308 (denying a preliminary

injunction where Plaintiff offered no proof that it had exhausted other avenues to

secure capital). Although the need to seek out new markets or resort to alternative

sources of capital might cause an adverse economic impact, the standard for

irreparable harm requires more than an adverse economic impact. See Corus Grp.

PLC v. Bush, 26 CIT 937, 944 (2002), aff'd in part sub nom. Corus Grp. PLC. v. Int'l

Trade Comm'n., 352 F.3d 1351 (Fed. Cir. 2003).

Finally, according to Plaintiff, it has already suffered harm to its reputation in

the U.S. See Pl.’s Mot. at Ex. H, ¶ 16. Although Plaintiff states this harm will be

irreparable absent a grant of its requested relief, see, id., it has done little more than

make this broad-based allegation. Beyond Mr. Seylam’s affidavit, Plaintiff offers no
Court No. 20-03848 Page 15

evidence that Plaintiff’s reputation has been harmed to date, let alone that it will be

irreparably harmed going forward.

III. Balance of Harms

Plaintiff contends that the balance of harms weighs in its favor as it will suffer

the loss of its U.S. sales market if the injunction does not issue. See Pl.’s Mot. at 18–

19. When considering a motion for a preliminary injunction, the court must “balance

the competing claims of injury and must consider the effect” that granting or denying

relief would have on each party. Winter v. Natural Res. Def. Council, Inc., 555 U.S.

7, 24 (2008) (“Winter”). The loss of a significant market may be a significant harm,

but the harm caused by piecemeal appellate review of Commerce’s procedural

determinations is also significant. Interrupting the administrative process and

resorting to the judicial process is not a costless endeavor. There are potential costs

to the government as well as the domestic industry should it be entitled to relief as a

result of the investigation.

Balancing the hardship also requires the court to balance the equities.

See Winter, 555 U.S. at 20. Here, although Plaintiff’s counsel took some precaution

by setting multiple alarms to wake up for the submission, counsel failed to consider

time zone differences. See Pl.’s Mot. at 39. For the reasons given, and in light of the

would-be harm to the government and the domestic injury, the balance of equities

cannot favor Plaintiff whose alleged harms were avoidable.
Court No. 20-03848 Page 16

IV. Public Interest

Plaintiff requests that this court force Commerce to accept its responses to

Sections B and C of the CVD questionnaire, thus asking the court to grant it the

ultimate relief it seeks. Where a plaintiff requests the “permanent, ultimate relief,”

the public interest may “discourage[] issuance of a preliminary injunction.” See

Cyber Systems, 44 CIT __, Slip Op. 20-130 at 7–8. A preliminary injunction that

asks for the permanent, ultimate relief disrupts the status quo and harms the public

interest where a hearing on the merits later reveals that the facts of the case demand

a contrary conclusion to that provisionally reached in granting the preliminary

injunction. See id. The public interest is served by the review of Commerce’s

procedural determinations upon the review of its final determination. See PPG

Indus., Inc. v. United States, 2 CIT 110, 112–13, 525 F. Supp. 883, 885 (1981)

(discussing the Customs Court Act of 1980).

CONCLUSION

For the foregoing reasons it is

ORDERED that Plaintiff’s motion for a TRO and a preliminary injunction are

denied.

/s/ Claire R. Kelly
Claire R. Kelly, Judge

Dated: December 6, 2020
New York, New York