In Re Section 301 Cases

Slip Op 21-81
UNITED STATES COURT OF INTERNATIONAL TRADE
Before: Mark A. Barnett,
Claire R. Kelly and
Jennifer Choe-Groves, Judges
Court No. 21-00052
OPINION
[Granting Plaintiffs’ motions for leave to file a reply and for a preliminary injunction.
Chief Judge Barnett dissents from the entry of a preliminary injunction.]
Dated: July 6, 2021
Matthew R. Nicely and Pratik A. Shah, Akin Gump Strauss Hauer & Feld LLP, of
Washington, DC, argued for plaintiffs HMTX Industries LLC, Halstead New England
Corporation, Metroflor Corporation, and Jasco Products Company LLC. 	With them
on the brief were James E. Tysse, Devin S. Sikes, Daniel M. Witkowski, and Sarah
B. W. Kirwin.
Jamie L. Shookman, Trial Attorney, Commercial Litigation Branch, Civil Division,
U.S. Department of Justice, of New York, NY, argued for defendants. 	Also on the
brief 	were 	Brian 	M. 	Boynton, 	Acting 	Assistant 	Attorney 	General, 	Jeanne 	E.
Davidson, Director, L. Misha Preheim, Assistant Director, Justin R. Miller, Attorney-
In-Charge, International Trade Field Office, and Sosun Bae, Senior Trial Counsel,
and Ann C. Motto, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S.
Department of Justice, of Washington, DC. 	Of Counsel on the brief were Megan
Grimball, Associate General Counsel, Philip Butler, Associate General Counsel, and
Edward Marcus, Assistant General Counsel, Office of the U.S. Trade Representative,
of Washington, DC, and Paula Smith, Assistant Chief Counsel, Edward Maurer,
Deputy Assistant Chief Counsel, and Valerie Sorensen-Clark, Attorney, Office of the
Assistant Chief Counsel, International Trade Litigation, U.S. Customs and Border
Protection, of New York, NY.
Kelly, 	Judge: 	Plaintiffs 	HMTX 	Industries 	LLC, 	Halstead 	New 	England
Corporation, Metroflor Corporation, and Jasco Products Company LLC commenced
the first of approximately 3,600 cases (the “Section 301 Cases”) contesting the
IN RE SECTION 301 CASES
Case 1:21-cv-00052-3JP Document 329 Filed 07/06/21 Page 1 of 50

Court No. 21-00052 	Page 2
imposition of a third and fourth round of tariffs by the Office of the United States
Trade Representative (“USTR”) pursuant to Section 301 of the Trade Act of 1974,
19 U.S.C. § 2411, et seq. (“the Trade Act”). See generally Am. Compl., HMTX Indus.
LLC v. United States, Court No. 20-cv-00177 (CIT Sept. 21, 2020), ECF No. 12 (“20-
177 Am. Compl.”). 	Plaintiffs now move the court for a preliminary injunction
pursuant 	to 	U.S. 	Court 	of 	International 	Trade 	(“CIT”) 	Rule 	65(a) 	suspending
liquidation of unliquidated entries subject to the contested tariffs. 1 	Pls.’ Mot. for
Prelim. Inj. Limited to Suspension of Liquidation, April 23, 2021, ECF No. 287 (“Pls.’
Mot.”). Plaintiffs request that any injunction extend to all Section 301 Cases “subject
to an opt-out mechanism” for individual plaintiffs. Pls.’ Mot. at 2. Defendants United
States, et al. (“the Government”) oppose the motion. 	Defs.’ Opp’n to Pls.’ Mot. for
Prelim. Inj. Limited to Suspension, May 14, 2021, ECF No. 304 (“Defs.’ Opp’n”).
Plaintiffs further move for leave to file a reply to the Government’s opposition. Pls.’
Mot. for Leave to File a Reply in Supp. of a Prelim. Inj. Limited to Suspension of
Liquidation, May 20, 2021, ECF No. 307; see also Proposed Reply in Supp. of Pls.’
Mot. for Prelim. Inj. Limited to Suspension of Liquidation, May 20, 2021, ECF No.
307-1 (“Pls.’ Reply”). The Government defers to the court’s discretion as to acceptance
of Plaintiffs’ Reply. 	Defs.’ Resp. to Pls.’ Mot. for Leave to File a Reply in Supp. of a
Prelim. Inj. Limited to Suspension of Liquidation, May 26, 2021, ECF No. 309. 	For
the reasons set forth below, both of Plaintiffs’ motions are granted. 2
1 Plaintiffs do not seek to enjoin the collection of List 3 and List 4A duties (as defined
below). Pls.’ Mot. at 1.
2 Absent leave of court, parties may not file a reply brief in further support of a non-
dispositive motion. See CIT Rule 7(d); Retamal v. U.S. Customs & Border Prot., Dep’t
(footnote continued)
Case 1:21-cv-00052-3JP Document 329 Filed 07/06/21 Page 2 of 50

Court No. 21-00052 	Page 3
BACKGROUND
On August 14, 2017, the President issued a memorandum instructing the
USTR to consider, consistent with Section 302(b) of the Trade Act, initiating an
investigation 	addressing 	the 	Government 	of 	the 	People’s 	Republic 	of 	China’s
(“China”) 	“laws, 	policies, 	practices, 	or 	actions 	that 	may 	be 	unreasonable 	or
discriminatory and that may be harming American intellectual property rights,
innovation, 	or 	technology 	development.” 	Addressing 	China’s 	Laws, 	Policies,
Practices, and Actions Related to Intellectual Property, Innovation, and Technology,
82 Fed. Reg. 39,007 (Aug. 17, 2017). The USTR initiated an investigation on August
18, 2017. 	Initiation of Section 301 Investigation; Hearing; and Request for Public
Comment: China’s Acts, Policies, and Practices Related to Technology Transfer,
Intellectual Property, and Innovation, 82 Fed. Reg. 40,213 (Aug. 24, 2017). On March
22, 2018, the USTR published a report announcing the results of its investigation.
O FFICE 	OF 	THE 	U NITED 	STATES 	T RADE 	REPRESENTATIVE , 	F INDINGS 	OF 	THE
I NVESTIGATION 	INTO 	CHINA’S 	ACTS , 	P OLICIES , 	AND 	P RACTICES 	RELATED 	TO
T ECHNOLOGY T RANSFER , I NTELLECTUAL P ROPERTY , AND I NNOVATION U NDER S ECTION
301 	OF 	THE 	T RADE 	ACT 	OF 	1974 	(2018),
https://ustr.gov/sites/default/files/Section%20301%20FINAL.PDF.
On June 20, 2018, the USTR published notice of a final list of products covering
818 tariff subheadings that would be subject to an additional duty of 25 percent ad
of Homeland Sec., 439 F.3d 1372, 1377 (Fed. Cir. 2006) (noting that the court may
allow reply briefs for non-dispositive motions). 	Plaintiffs’ proposed reply brief aids
the court’s understanding of the disagreement between the parties. Thus, the court
will grant Plaintiffs’ motion.
Case 1:21-cv-00052-3JP Document 329 Filed 07/06/21 Page 3 of 50

Court No. 21-00052 	Page 4
valorem. 	Notice of Action and Request for Public Comment Concerning Proposed
Determination 	of 	Action 	Pursuant 	to 	Section 	301: 	China’s 	Acts, 	Policies, 	and
Practices Related to Technology Transfer, Intellectual Property, and Innovation, 83
Fed. Reg. 28,710 (June 20, 2018) (“List 1”). On August 16, 2018, the USTR published
notice of an additional list of products covering 279 tariff subheadings that would be
subject to an additional duty of 25 percent ad valorem. Notice of Action Pursuant to
Section 301: China’s Acts, Policies, and Practices Related to Technology Transfer,
Intellectual Property, and Innovation, 83 Fed. Reg. 40,823 (Aug. 16, 2018) (“List 2”).
During the time period between the USTR’s finalization of List 1 and List 2,
the USTR indicated its intent to modify the action by imposing an additional duty of
10 percent ad valorem on another list of products imported from China. Request for
Comments Concerning Proposed Modification of Action Pursuant to Section 301:
China’s Acts, Policies, and Practices Related to Technology Transfer, Intellectual
Property, and Innovation, 83 Fed. Reg. 33,608 (July 17, 2018). 	On September 21,
2018, the USTR published final notice of new duties with an effective date of
September 24, 2018. Notice of Modification of Action Pursuant to Section 301 Action:
China’s Acts, Policies, and Practices Related to Technology Transfer, Intellectual
Property, and Innovation, 83 Fed. Reg. 47,974 (Sept. 21, 2018) (“List 3”). The rate of
additional duty on products covered by List 3 was set to increase to 25 percent ad
valorem 	on 	January 	1, 	2019. 	Id. 	After 	several 	extensions 	of 	the 	date 	of
implementation 	of 	the 	List 	3 	tariffs 	issued 	in 	connection 	with 	ongoing 	trade
negotiations, on May 10, 2019 (or June 15, 2019, depending on the date of export),
List 3 duties increased to 25 percent ad valorem. 	Notice of Modification of Section
Case 1:21-cv-00052-3JP Document 329 Filed 07/06/21 Page 4 of 50

Court No. 21-00052 	Page 5
301 Action: China’s Acts, Policies, and Practices Related to Technology Transfer,
Intellectual 	Property, 	and 	Innovation, 	84 	Fed. 	Reg. 	20,459 	(May 	9, 	2019);
Implementing 	Modification 	to 	Section 	301 	Action: 	China’s 	Acts, 	Policies, 	and
Practices Related to Technology Transfer, Intellectual Property, and Innovation, 84
Fed. Reg. 21,892 (May 15, 2019); Additional Implementing Modification to Section
301 Action: China’s Acts, Policies, and Practices Related to Technology Transfer,
Intellectual Property, and Innovation, 84 Fed. Reg. 26,930 (June 10, 2019).
The USTR subsequently established an exclusion procedure pursuant to which
importers could request exclusion of their products from List 3 duties. Procedures for
Requests to Exclude Particular Products From the September 2018 Action Pursuant
to Section 301: China’s Acts, Policies, and Practices Related to Technology Transfer,
Intellectual Property, and Innovation, 84 Fed. Reg. 29,576 (June 24, 2019). Plaintiffs
obtained exclusions for certain of their imports, effective September 24, 2018, through
August 7, 2020. 	Notice of Product Exclusions: China’s Acts, Policies, and Practices
Related to Technology Transfer, Intellectual Property, and Innovation, 84 Fed. Reg.
61,674 (Nov. 13, 2019); Notice of Product Exclusions: China’s Acts, Policies, and
Practices Related to Technology Transfer, Intellectual Property, and Innovation, 84
Fed. Reg. 69,012 (Dec. 17, 2019); Notice of Product Exclusions: China’s Acts, Policies,
and Practices Related to Technology Transfer, Intellectual Property, and Innovation,
85 Fed. Reg. 549 (Jan. 6, 2020); Notice of Product Exclusions: China’s Acts, Policies,
and Practices Related to Technology Transfer, Intellectual Property, and Innovation,
85 Fed. Reg. 9921 (Feb. 20, 2020).
Case 1:21-cv-00052-3JP Document 329 Filed 07/06/21 Page 5 of 50

Court No. 21-00052 	Page 6
On May 17, 2019, the USTR announced its intent to again modify the action to
impose additional duties up to 25 percent ad valorem on another list of products
imported from China. 	Request for Comments Concerning Proposed Modification of
Action Pursuant to Section 301: China’s Acts, Policies, and Practices Related to
Technology Transfer, Intellectual Property, and Innovation, 84 Fed. Reg. 22,564 (May
17, 2019). On August 20, 2019, the USTR announced that it was imposing additional
duties of 10 percent ad valorem on products identified in the May 17, 2019 request
for comments. 	Notice of Modification of Section 301 Action: China’s Acts, Policies,
and Practices Related to Technology Transfer, Intellectual Property, and Innovation,
84 Fed. Reg. 43,304 (Aug. 20, 2019) (“List 4”). List 4 was further categorized into List
4A and List 4B. Id.
Thereafter, the USTR provided notice of its intent to increase the additional
duty rate applicable to List 4A and List 4B from 10 percent ad valorem to 15 percent
ad valorem. Notice of Modification of Section 301 Action: China’s Acts, Policies, and
Practices Related to Technology Transfer, Intellectual Property, and Innovation, 84
Fed. Reg. 45,821 (Aug. 30, 2019). 	On December 18, 2019, the USTR indefinitely
suspended the additional duties of 15 percent ad valorem on List 4B, but not List 4A.
Notice of Modification of Section 301 Action: China’s Acts, Policies, and Practices
Related to Technology Transfer, Intellectual Property, and Innovation, 84 Fed. Reg.
69,447 (Dec. 18, 2019).
On January 22, 2020, the USTR halved the additional duty on products
covered by List 4A from 15 percent to 7.5 percent ad valorem. Notice of Modification
Case 1:21-cv-00052-3JP Document 329 Filed 07/06/21 Page 6 of 50

Court No. 21-00052 	Page 7
of Section 301 Action: China’s Acts, Policies, and Practices Related to Technology
Transfer, Intellectual Property, and Innovation, 85 Fed. Reg. 3741 (Jan. 22, 2020).
On September 10, 2020, Plaintiffs commenced an action challenging the
Section 301 duties imposed pursuant to List 3 and List 4A. 	Compl., HMTX Indus.
LLC v. United States, Court No. 20-cv-00177 (CIT Sept. 10, 2020), ECF No. 2; see
also 20-177 Am. Compl. 	Count one alleges a violation of the Trade Act based on
Plaintiffs’ view that the USTR’s imposition of the List 3 and List 4A duties was not
authorized by the USTR’s modification authority under Section 307 of the Trade Act
and seeks a declaratory judgment to that effect. 20-177 Am. Compl. ¶¶ 63–70. Count
two alleges violations of the Administrative Procedure Act (“APA”). Id. ¶¶ 71–75.
On February 5, 2021, Plaintiffs’ action, among others, 3 was assigned to this
panel. See, e.g., Order, HMTX Indus. LLC v. United States, Court No. 20-cv-00177,
(CIT Feb. 5, 2021), ECF No. 43. 	On February 10, 2021, the panel designated a
“master case” under the name “In Re Section 301 Cases” to function as the primary
vehicle by which the court would manage the litigation of the Section 301 Cases. Std.
Procedural Order No. 21-01 (Feb. 10, 2021), ECF No. 1. 	After receiving input from
the parties, on March 31, 2021, the court designated Plaintiffs’ case as “the sample
case for purposes of the court’s initial consideration and resolution of Plaintiffs’
claims.” Std. Procedural Order 21-04 (Mar. 31, 2021), ECF No. 267. The court stayed
all other Section 301 Cases and appointed a Plaintiffs’ Steering Committee to aid the
court’s adoption of case management procedures and coordinate the preparation of
consolidated briefs and court submissions. Id.; see also Std. Procedural Order 21-02
3 Approximately 3,600 Section 301 Cases were assigned to this panel.
Case 1:21-cv-00052-3JP Document 329 Filed 07/06/21 Page 7 of 50

Court No. 21-00052 	Page 8
(Feb. 16, 2021), ECF No. 82 (explaining the duties of the steering committee). 	On
April 12, 2021, the parties filed a Joint Status Report with a proposed briefing
schedule governing disposition of the merits of the sample case. Joint Status Report,
Apr. 12, 2021, ECF No. 274 (“Jt. Status Report”). 	The parties explained their
respective positions on the issue of relief in the event Plaintiffs prevail. 	Id. at 4–9.
The following day, the court entered a Scheduling Order. See Scheduling Order, Apr.
13, 2021, ECF No. 275.
Plaintiffs filed the instant motion on April 23, 2021. 	See Pls.’ Mot. 	The
Government responded and, as noted, the court will accept Plaintiffs’ Reply. 	See
Defs.’ Opp’n; Pls.’ Reply. A remote oral argument on the motion was held on June 17,
2021. 	Docket 	Entry, 	June 	17, 	2021, 	ECF 	No. 	327, 	available 	at
https://www.cit.uscourts.gov/sites/cit/files/061721-21-00052-3JP.mp3 (“Oral Arg.”).
JURISDICTION AND STANDARD OF REVIEW
The court has jurisdiction pursuant to 28 U.S.C. § 1581(i)(1)(B) (2018), which
grants the court “exclusive jurisdiction of any civil action commenced against the
United States . . . that arises out of any law of the United States providing for . . .
tariffs, duties, fees, or other taxes on the importation of merchandise for reasons other
than the raising of revenue.” “The Court of International Trade shall possess all the
powers in law and equity of, or as conferred by statute upon, a district court of the
United States.” 28 U.S.C. § 1585.
“A preliminary injunction is an extraordinary remedy never awarded as of
right.” 	Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). 	To obtain a
preliminary injunction, a party must demonstrate “(1) likelihood of success on the
Case 1:21-cv-00052-3JP Document 329 Filed 07/06/21 Page 8 of 50

Court No. 21-00052 	Page 9
merits, (2) irreparable harm absent immediate relief, (3) the balance of interests
weighing 	in 	favor 	of 	relief, 	and 	(4) 	that 	the 	injunction 	serves 	the 	public
interest.” 	Silfab Solar, Inc. v. United States, 892 F.3d 1340, 1345 (Fed. Cir.
2018) (citing Winter, 555 U.S. at 20).
The Court of Appeals for the Federal Circuit has historically applied a “sliding
scale” approach. See Qingdao Taifa Grp. Co. v. United States, 581 F.3d 1375, 1381–
82 (Fed. Cir. 2009); see also Ugine & Alz Belg. v. United States, 452 F.3d 1289, 1293
(Fed. Cir. 2006). 	Under the sliding scale approach, “the greater the potential harm
to the plaintiff, the lesser the burden on Plaintiffs to make the required showing of
likelihood of success on the merits.” 	Ugine, 452 F.3d at 1293 (internal quotation
marks and citations omitted). 	Thus, where the harm is great, a movant must only
“demonstrate that it has at least a fair chance of success on the merits.” Wind Tower
Trade Coal. v. United States, 741 F.3d 89, 96 (Fed. Cir. 2014). 	Conversely, courts
may not lessen a movant’s burden of demonstrating a likelihood of irreparable harm,
regardless of the strength of the other factors. Winter, 555 U.S. at 22.
DISCUSSION
Plaintiffs have established their entitlement to a preliminary injunction. Here,
Plaintiffs demonstrated they will likely suffer irreparable harm because their entries
of subject merchandise will liquidate absent an injunction. 	Moreover, Plaintiffs
persuasively argue that there is sufficient uncertainty as to the availability of relief
under Shinyei Corp. of America v. United States, 355 F.3d 1297 (Fed. Cir. 2004), to
establish the likelihood that Plaintiffs will be unable to recover duties unlawfully
paid should they be successful in their claim on the merits, thus demonstrating
Case 1:21-cv-00052-3JP Document 329 Filed 07/06/21 Page 9 of 50

Court No. 21-00052 	Page 10
irreparable harm. See Am. Signature, Inc. v. United States, 598 F.3d 816, 829 (Fed.
Cir. 2010). Consequently, Plaintiffs’ burden to demonstrate a likelihood of success on
the 	merits 	is 	reduced, 	and 	Plaintiffs 	satisfy 	their 	reduced 	burden 	by 	raising
sufficiently serious and substantial questions regarding the interpretation and
application of Section 307 of the Trade Act. 	Likewise, Plaintiffs have sufficiently
demonstrated that the balance of the equities and public interest factors weigh
heavily in their favor.
I. 	Irreparable Harm
For the reasons that follow, the liquidation of Plaintiffs’ entries constitutes
irreparable harm in this case because it may foreclose Plaintiffs’ ability to challenge
the 	Government’s 	imposition 	of 	duties 	paid 	or 	have 	those 	duties 	returned.
Irreparable harm is a “viable threat of serious harm which cannot be undone,” Zenith
Radio Corp. v. United States, 710 F.2d 806, 809 (Fed. Cir. 1983) (emphasis removed)
(quoting S.J. Stile Assocs. Ltd. v. Snyder, 649 F.2d 522, 525 (C.C.P.A. 1981)), or
remedied by money damages, see, e.g., Metalcraft of Mayville, Inc. v. Toro Co., 848
F.3d 1358, 1368 (Fed. Cir. 2017). 	The potential unavailability of reliquidation or
refund in this case sufficiently demonstrates irreparable harm. 4 	Moreover, the
Government fails to meaningfully dispute that liquidation will cause harm that
cannot be undone and instead argues that any unlawfully collected duties would be
forever unrecoverable.
4 Liquidation is defined as “the final computation or ascertainment of duties.” 	19
C.F.R. § 159.1.
Case 1:21-cv-00052-3JP Document 329 Filed 07/06/21 Page 10 of 50

Court No. 21-00052 	Page 11
Liquidation, as the final computation of duties, will constitute irreparable
harm unless an importer can obtain refunds or reliquidation because it cuts off
judicial review and eliminates any chance of recovery of unlawful exactions. 	See
Zenith, 710 F.2d at 810. 	In Zenith, the Court of Appeals held that liquidation of
entries moots the action with respect to those entries and constitutes irreparable
harm. 	Id. 	The Court of Appeals explained that liquidation would not only involve
economic harm, but also the “statutory right to obtain judicial review of the
determination.” Id. Here, without reliquidation or refunds, Plaintiffs will be denied
meaningful judicial review for each entry that liquidates. 5 	The denial of judicial
review is irreparable harm.
5 As to the deprivation of judicial review, at oral argument Defendant argued that
Zenith’s concern regarding the availability of judicial review might not be present in
this case. 	Oral Arg. at 00:22:13. 	Although Zenith involved a domestic producer’s
claim that antidumping duties imposed on an importer’s entries should be higher, the
facts of this case suggest that mootness is a concern here. 	The importers here may
have multiple entries that may be subject to the 301 duties, but each entry is its own
transaction and occurrence giving rise to its own cause of action. See United States
v. Stone & Downer Co., 274 U.S. 225, 236 (1927). 	Thus, although an importer may
have more than one chance to challenge 301 duties (and it is conceivable that it may
not, it may have only had one entry) it may lose its right to judicial review on any
entry that is liquidated. The loss of judicial review for that entry is a harm. Stone &
Downer, which focused on classification of entries, held that res judicata did not bar
claims previously litigated with respect to prior entries. 	Id. at 236–37. 	Here, the
danger is not that judicial review will be unavailable because a claim has already
been litigated but that judicial review will be unavailable because it may never be
litigated with respect to an entry that has been liquidated. Nevertheless, it is unclear
why the rationales underlying Stone & Downer would not also be applicable here.
Accepting the view that the loss of judicial review for some entries is not irreparable
harm because there are other entries for which review still exists leads to the illogical
conclusion that allegedly unlawful government exactions for which there is no
recompense cannot constitute irreparable harm so long as those exactions are
ongoing.
Case 1:21-cv-00052-3JP Document 329 Filed 07/06/21 Page 11 of 50

Court No. 21-00052 	Page 12
Further, although the CIT is granted broad statutory authority to order
appropriate relief, the Court of Appeals has cast sufficient doubt as to the scope of
that authority to create a likelihood of irreparable harm. “The Court of International
Trade shall possess all the powers in law and equity of, or as conferred by statute
upon, a district court of the United States.” 	28 U.S.C. § 1585. 6 	“The Court of
International Trade may enter a money judgment for or against the United States in
any civil action commenced under section 1581 or 1582 of this title.” Id. § 2643(a)(1).
Moreover, the CIT can order “any other form of relief that is appropriate in a civil
action, including, but not limited to, declaratory judgments, orders of remand,
injunctions, and writs of mandamus and prohibition.” 	Id. § 2643(c)(1). 	Given this
seemingly broad statutory authority to fashion appropriate relief, the court would
like to agree with the Dissent that we have the clear power to order reliquidation in
the event Plaintiffs are ultimately successful, as we view the statute as providing this
Court 	with 	the 	explicit 	power 	to 	order 	reliquidation 	and 	refunds 	where 	the
government has unlawfully exacted duties. 7
6 The legislative history of the Customs Courts Act of 1980, Pub. L. No. 96–417, 94
Stat. 1727 (1980), supports the broad interpretation of Congress’ grant of authority
to the CIT. See, e.g., 126 Cong. Rec. H9333–49, at H9342–43 (daily ed. Sept. 22, 1980)
(statement 	of 	Rep. Rodino) 	(“Another 	essential 	provision in this legislation is
proposed section 1585. This section removes any doubt that the [CIT] has authority
to award the relief necessary to remedy an alleged injury in a civil action before the
court. 	The committee intends to make it clear that the court possesses all plenary
powers in law and equity, thereby completing the full transformation of the court to
article III status.” (emphasis added)).
7 The Government specifically asks this court not to reach the issue for the purposes
of this motion. Defs.’ Opp’n at 42 (asking the court to deny Plaintiff’s motion “without
reference to the availability, or not, of reliquidation as a remedy at the end of the
case.”). Opting not to assert a serious challenge to the reparability of the undeniable
harm of liquidation, the Government is left to argue that Plaintiffs’ delay in seeking
(footnote continued)
Case 1:21-cv-00052-3JP Document 329 Filed 07/06/21 Page 12 of 50

Court No. 21-00052 	Page 13
However, the Court of Appeals has explicitly and implicitly called the breadth
of the CIT’s statutory authority into question. For example, in Shinyei, the Court of
Appeals did not simply hold that the CIT had the authority to order reliquidation
based on the plain language of the statute, but rather went on to state that
reliquidation was appropriate in that case because to hold otherwise “would preclude
enforcement of court orders as to duty determinations as soon as entries subject to
those orders are liquidated.” 	Shinyei, 355 F.3d at 1312. 	Arguably, the holding of
Shinyei is that the Court of Appeals “decline[d] to find that the statute as a whole
was intended to preclude judicial enforcement of court orders after liquidation.” 8 Id.
One view of Shinyei would be that it confirmed the CIT’s power to order money
judgment in Section 1581 actions and to order reliquidation if necessary; however,
subsequent cases suggest that the holding in Shinyei was a narrow one.
In Ugine, an importer challenged Commerce’s liquidation instructions on the
grounds that the instructions “for entries imported prior to the fourth administrative
review are inconsistent with Commerce’s determination in the subsequent fourth
administrative review.” 	452 F.3d at 1296. 	The Court of Appeals characterized the
an injunction undercuts their motion. 	Id. at 33–34. 	This argument fails to
acknowledge that Plaintiffs commenced their action soon after their Section 301
exclusion expired. 	Id. at 32; Pls.’ Reply at 22. 	This argument also ignores the fact
that the Government did not articulate its position as to refund relief until the filing
of the Joint Status Report on April 12, 2021. See Jt. Status Report at 7–8. Up until
the point when the Government asserted its position that it would seek to preclude
reliquidation or refund, Plaintiffs had no reason to seek an injunction. 	See, e.g.,
Sumecht 	N.A., 	Inc. 	v. 	United 	States, 	923 	F.3d 	1340, 	1348 	(Fed. 	Cir. 	2019)
(Government concession regarding the availability of refunds defeated the motion for
a preliminary injunction). 	The Government cannot complain of Plaintiffs’ delay in
moving for injunctive relief when Defendants’ past conduct gave Plaintiffs every
reason to believe such a motion would be unnecessary.
8 Indeed, the Government makes this argument. See Defs.’ Opp’n at 40.
Case 1:21-cv-00052-3JP Document 329 Filed 07/06/21 Page 13 of 50

Court No. 21-00052 	Page 14
key 	consideration 	in 	Shinyei 	to 	be 	that 	the 	importer 	“was 	complaining 	that
Commerce’s instructions . . . did not reflect the results of the administrative review
that covered those entries,” and found that because that was not the exact theory
propounded by the importer in Ugine that the “difference between the two cases—
and the possibility that Shinyei will not be interpreted to encompass the sort of claim
at issue here—raises doubt whether [Plaintiffs] will have the opportunity to obtain
reliquidation once [their] entries are liquidated.” Id. By describing Shinyei in such
narrow 	terms—suggesting 	that 	a 	different 	type 	of 	challenge 	to 	Commerce’s
liquidation instructions might lead to a different result and failing to even mention
the 	CIT’s 	statutory 	authority 	to 	fashion 	relief—Ugine 	casts 	doubt 	as 	to 	the
availability of reliquidation and refunds in this case.
Similarly, the Court of Appeals in American Signature held that Shinyei relief
was in doubt where an importer challenged Commerce’s attempt to correct an error
contained in the final results of its administrative review of an antidumping duty.
598 F.3d at 822–24, 829. 	In American Signature, the Court of Appeals stated that
Shinyei 	stands 	for 	the 	proposition 	that 	“in 	an 	action 	challenging 	liquidation
instructions under 28 U.S.C. § 1581(i), the [CIT] may, under certain circumstances,
use its equitable powers to compel reliquidation of entries if a preliminary injunction
has been sought and denied.” Id. at 828 (citing Shinyei, 355 F.3d at 1312). Thus, the
Court of Appeals continued to cast Shinyei in an extremely narrow light. Rather than
interpreting Shinyei as setting forth the CIT’s broad remedial powers based on clear,
wide-ranging statutory authority, the Court of Appeals limited Shinyei relief to an
undefined set of “certain circumstances” only where a preliminary injunction had
Case 1:21-cv-00052-3JP Document 329 Filed 07/06/21 Page 14 of 50

Court No. 21-00052 	Page 15
been sought and denied. 	Id. 	American Signature did not address the statutory
framework in its discussion of irreparable harm and did not provide any further
clarification as to when Shinyei applies. Id. at 828–29. 9
9 The Dissent notes that in Ugine the CIT did not analyze Shinyei in its denial of a
preliminary injunction, and that the Court of Appeals declined to decide whether
Shinyei relief would be available absent a ruling from the CIT or briefing from two of
the three parties. Dissent at 40–41. That the Court of Appeals in Ugine declined to
decide whether Shinyei relief was available and held that uncertainty over such relief
constitutes irreparable harm weigh strongly in favor of granting preliminary relief
here. 	The Dissent also states that the nature of the relief sought in Ugine
(challenging Commerce’s liquidation instructions) differs from the relief sought in
this case, and that Ugine was decided prior to Winter. 	Id. at 41. 	However, Ugine,
American Signature, and this case were all commenced under 28 U.S.C. § 1581(i), so
the court’s statutory authority for granting relief is the same, making the differing
theories of harm immaterial. See Ugine, 452 F.3d at 1296; Am. Signature, 598 F.3d
at 822; see also 28 U.S.C. § 2643. 	Although the Dissent concedes that American
Signature was decided post-Winter and that the CIT had denied a preliminary
injunction specifically because it found Shinyei to be applicable (thus satisfying two
of the Dissent’s three concerns regarding Ugine), Dissent at 41–42, the Dissent claims
that the Court of Appeals did not explain why Shinyei would not be available and
that the Court of Appeals has since distanced itself from Ugine and American
Signature by stating that those cases do not create a presumption of the uncertainty
of Shinyei relief in the preliminary injunction context. Id. at 42. 	Once again, the
Court of Appeals’ decision to find that Shinyei relief was uncertain weighs in favor of
granting an injunction here, particularly because the Court of Appeals declined to
explain the scope of Shinyei relief. Although we agree with the Dissent’s analysis of
the court’s statutory authority in Section 1581(i) cases to order reliquidation and/or
a refund of duties that may be found to have been unlawfully exacted, we are bound
to follow Court of Appeals precedent. The Court of Appeals has repeatedly called into
question this Court’s authority to grant reliquidation in Section 1581(i) cases,
declined to pronounce the scope of such authority or when Shinyei relief is available,
and held that the uncertainty over such relief sufficiently demonstrates the likelihood
of irreparable harm, even post-Winter. 	There is no need to rely on a “presumption”
of uncertainty of Shinyei relief here, as the Government expressly argues that it is
unavailable, unlike in Sumecht, where the Government conceded reliquidation was
an available remedy. See Sumecht, 923 F.3d at 1348. Since we cannot say that the
Court of Appeals would agree that this court has the authority to order reliquidation
under 28 U.S.C. § 2643, we must find that the availability of Shinyei relief is
uncertain and therefore that Plaintiffs have demonstrated irreparable harm.
Case 1:21-cv-00052-3JP Document 329 Filed 07/06/21 Page 15 of 50

Court No. 21-00052 	Page 16
Finally, in Sumecht, when affirming the denial of a preliminary injunction
because irreparable harm could not be shown, the Court of Appeals did not stop with
the statutory language, but rather went on to cast doubt upon the applicability of
Shinyei in 1581(i) cases. 923 F.3d at 1347–48. Indeed, the Court of Appeals did not
affirmatively analyze whether Shinyei relief would be available in Sumecht, but
rather held that the Government was judicially estopped from asserting that
reliquidation 	would 	be 	unavailable 	in 	the 	event 	the 	importer 	was 	ultimately
successful on the merits, eliminating even the possibility of irreparable harm. Id. at
1348.
Thus, despite the broad statutory language granting the Court authority to
order whatever relief is appropriate, the Court of Appeals has consistently refrained
from relying on that language in finding the CIT has authority to order reliquidation
or refunds in 1581(i) cases and has raised doubts about the CIT’s authority to do so.
It may be that on appeal the Court of Appeals will make clear that 28 U.S.C. §§ 1585
and 2643 empower the CIT to “enter a money judgment . . . against the United States
in any civil action commenced under section 1581” for the return of unlawfully
collected duties, 28 U.S.C. § 2643(a)(1), or “may . . . 	order any other form of relief”
including reliquidation, id. § 2643(c)(1), but, until it does, we must conclude that
liquidation will result in irreparable economic harm. 10 	The Government does not
10 We cannot disagree with our colleague in the Dissent that “Winter establishes that
it is not enough for a plaintiff to identify irreparable harm as a possible outcome of
the denial of the motion for a preliminary injunction.” 	Dissent at 30–31. 	However,
in Winter the Court took note that the government “strongly dispute[s]” the harm
alleged. Winter, 555 U.S. at 14. Here, the Government does not argue that there will
not be a harm, or that it will be reparable. 	The only contingency, and one the
(footnote continued)
Case 1:21-cv-00052-3JP Document 329 Filed 07/06/21 Page 16 of 50

Court No. 21-00052 	Page 17
argue that liquidation is not a harm, nor does it argue that it is a harm that can be
remedied. 	Defs.’ Opp’n at 34–42. 	Instead, the Government relies upon the truism
that financial harm alone is not irreparable. Id. at 34 (arguing the court “repeatedly
has declined to find irreparable harm based merely on claims of financial losses”).
The Government’s argument elides the sine qua non of reparability in this case,
namely the availability of reliquidation or refund. 11 Indeed, instead of arguing that
Plaintiffs’ 	alleged irreparable 	harm is 	reparable 	(because the 	court 	can 	order
reliquidation or refund), the Government asserts the opposite proposition, i.e., that
the court cannot order reliquidation or refunds. 	See Defs.’ Opp’n at 41. 	Thus, the
Government’s position is that any duties paid are permanently unrecoverable
regardless of whether they may have been collected unlawfully. Id. at 42. According
to Plaintiffs, the Government would stand to gain an undue windfall of “at least
hundreds of millions of dollars and probably billions.” 	Pls.’ Reply at 20. 	The
Government’s position, if correct, concedes irreparable harm. 	See Ohio Oil Co. v.
Conway, 279 U.S. 813, 815 (1929) (per curiam) (enjoining the collection of a state tax
where “[t]he laws of the state afford no remedy whereby restitution of the money so
Government argues against, is whether the Court of Appeals will rule that this Court
is empowered by 28 U.S.C. § 2643 to remedy that harm; whether the Court of Appeals
will so rule is uncertain. 	Under Federal Circuit precedent, that uncertainty is
irreparable harm. Am. Signature, 598 F.3d at 829.
11 The Government’s reliance on Corus Group PLC v. Bush, 26 CIT 937 (2002), and
Shandong Huarong General Group Corp. v. United States, 24 CIT 1286 (2000), is
misplaced. 	See Defs.’ Opp’n at 34. 	Unlike here, where Plaintiffs only seek limited
relief, i.e., the suspension of liquidation, both cases involved motions seeking to enjoin
the Government from the collection of duties. 	See Corus Grp., 26 CIT at 938;
Shandong Huarong, 24 CIT at 1286–87.
Case 1:21-cv-00052-3JP Document 329 Filed 07/06/21 Page 17 of 50

Court No. 21-00052 	Page 18
paid 	may 	be 	enforced, 	even 	where 	the 	payment 	is 	under 	both 	protest 	and
compulsion.”).
II. 	Likelihood of Success on the Merits
Plaintiffs raise sufficiently serious and substantial questions as to the proper
interpretation of Section 307 of the Trade Act to warrant injunctive relief in this case.
Plaintiffs argue that Sections 307(a)(1)(B)–(C) of the Trade Act limit the President’s
and the USTR’s authority to increase tariffs in the context of Section 301(b). 	Pls.’
Reply at 6–11. 	Defendants defend the President’s authority based upon, inter alia,
the plain language of the statute. Defs.’ Opp’n at 21–22. Plaintiffs’ interpretation of
the statute raises serious and substantial questions about the scope of the USTR’s
statutory authority to act, which should be resolved via full litigation of the merits of
these claims.
Plaintiffs need only demonstrate a fair chance of success on the merits because,
as discussed, the factor of irreparable harm weighs sharply in favor of granting a
preliminary injunction. See Qingdao, 581 F.3d at 1381–82; Wind Tower, 741 F.3d at
96 (a movant must only “demonstrate that it has at least a fair chance of success on
the merits”). 12 Under the sliding scale approach, “the greater the potential harm to
12 Although Defendants assert that the Court of Appeals’ “sliding scale” approach may
have been overruled by Winter, the Supreme Court did not expressly prohibit a
sliding scale approach in all circumstances, and instead found that the Ninth
Circuit’s diminished irreparable harm requirement was inappropriate. 	See Winter,
555 U.S. at 22. Furthermore, at least two Courts of Appeals have refused to interpret
Winter in the broad manner that Defendants urge the court to adopt. Reilly v. City
of Harrisburg, 858 F.3d 173, 176–79 (3d Cir. 2017); All. for the Wild Rockies v.
Cottrell, 632 F.3d 1127, 1131–35 (9th Cir. 2011). But see Am. Trucking Ass’ns v. City
of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009). Moreover, the Federal Circuit
has continued to apply the sliding scale even post-Winter. See Qingdao, 581 F.3d at
(footnote continued)
Case 1:21-cv-00052-3JP Document 329 Filed 07/06/21 Page 18 of 50

Court No. 21-00052 	Page 19
the plaintiff, the lesser the burden on Plaintiffs to make the required showing of
likelihood of success on the merits.” 	Ugine, 452 F.3d at 1293 (internal quotation
marks and citations omitted).
Where it is clear that the moving party will suffer substantially greater
harm by the denial of the preliminary injunction than the non-moving
party would by its grant, it will ordinarily be sufficient that the movant
has raised serious, substantial, difficult and doubtful questions that are
the proper subject of litigation. 13
Id. (internal quotation marks omitted) (quoting Ugine-Savoie Imphy v. United States,
24 CIT 1246, 1251 (2000)).
Section 301 of the Trade Act authorizes the President and the USTR to take
action to eliminate certain acts, policies, or practices of a foreign government that
burden U.S. commerce. 	See 19 U.S.C. § 2411. 	As relevant here, the USTR may
exercise discretionary authority when the USTR determines “an act, policy, or
practice of a foreign country is unreasonable or discriminatory and burdens or
restricts United States commerce” and action by the United States is appropriate. Id.
§ 2411(b)(1). 	Section 307(a)(1) of the Trade Act provides the USTR authority to
“modify” 	an 	action 	commenced 	under 	Section 	301 	under 	certain 	enumerated
1381–82. 	The Court of Appeals’ statement in Silfab, that it was “not deciding”
whether the sliding scale approach was still good law, falls far short of overruling
prior precedent. 	892 F.3d at 1345. 	Therefore, until the Federal Circuit states
otherwise, the sliding scale approach as articulated in Qingdao remains good law in
courts bound by Court of Appeals for the Federal Circuit precedent. 	See generally,
581 F.3d at 1381–82.
13 Other circuit courts have stated that a fair chance is less than 50%. See Citigroup
Glob. Mkts., Inc. v. VCG Special Opportunities Master Fund Ltd., 598 F.3d 30, 34–
38 (2d Cir. 2010) (rejecting claim that Winter requires a showing of greater than 50%
chance of success); D.M. v. Minn. State High Sch. League, 917 F.3d 994, 999–1000
(8th Cir. 2019) (defining “fair chance” as less than 50%); Leiva-Perez v. Holder, 640
F.3d 962, 967–68 (9th Cir. 2011) (movant does not need to show success is more likely
than not).
Case 1:21-cv-00052-3JP Document 329 Filed 07/06/21 Page 19 of 50

Court No. 21-00052 	Page 20
circumstances. 	See id. § 2417(a)(1). 	At issue here are the conditions and scope of
permissible modifications.
Section 307 provides, in relevant part,
(a) In general
(1) The Trade Representative may modify or terminate any action,
subject to the specific direction, if any, of the President with respect to
such action, that is being taken under section 2411 of this title [Section
301] if—
(A) any of the conditions described in section 2411(a)(2) of this title
[Section 301(a)(2)] exist,
(B) the burden or restriction on United States commerce of the denial
rights, or of the acts, policies, and practices, that are the subject of such
action has increased or decreased, or
(C) such action is being taken under section 2411(b) of this title [Section
301(b)] and is no longer appropriate.
Id. § 2417(a).
Plaintiffs contend that the text of Sections 307(a)(1)(B) and 307(a)(1)(C), both
of which Defendants claim as authority for promulgating the List 3 and List 4A
duties, limit the USTR’s authority to either reduce or terminate Section 301(b) tariffs,
or to increase the tariffs in limited circumstances not applicable here. Pls.’ Reply at
6–11. 	Plaintiffs argue the clause, “that are the subject of such action,” in Section
307(a)(1)(B) requires that any increase in an action relate to the same conduct that
formed the basis of the USTR’s initial action. Id. at 7. Moreover, Plaintiffs contend
that Section 307(a)(1)(C), when read as a counterpart to Section 307(a)(1)(A), must
be interpreted as only providing the President and the USTR with the authority to
“reduce or terminate” a Section 301(b) action when the USTR finds such action is “no
longer appropriate.” Id. at 9.
Plaintiffs’ proffered interpretation of the phrase “that are the subject of” the
Section 301 action undeniably raises a serious and substantial question as it would
Case 1:21-cv-00052-3JP Document 329 Filed 07/06/21 Page 20 of 50

Court No. 21-00052 	Page 21
limit the President’s ability to increase a Section 301 action only when there is a
change in the conduct giving rise to the Section 301 action, not when a country
retaliates against the Section 301 action by taking action that is adverse to U.S.
commerce, but not, at least superficially, the type of action that the initial Section
301 action sought to remedy. 	Id. at 6–8. 	If Plaintiffs’ interpretation is correct, the
USTR’s modification of the Section 301(b) action falls outside the scope of delegated
authority. 	Plaintiffs’ interpretation of Section 307(a)(1)(B) is a plausible literal
reading of the statute raising a serious and substantial question. 	Thus, Plaintiffs
have demonstrated a fair chance of success that their interpretation of Section
307(a)(1)(B) prevents the USTR from increasing a Section 301(b) action in response
to retaliatory, but superficially unrelated, tariffs. 14
That Plaintiffs’ interpretation is plausible does not diminish Defendants’
argument that “the increase in the tariffs was necessary to further encourage China
to eliminate the unfair policies identified in the USTR’s investigation (that List 1 and
List 2 had demonstrably failed to do), and thus to further support the effectiveness of
the initial section 301 action.” Defs.’ Opp’n at 22. Likewise, Defendants’ position that
China’s retaliatory tariffs were enacted with the goal of pressuring the President and
the USTR to drop the Section 301 action so that China could continue its unfair
practices is a compelling argument. Id. According to Defendants, the USTR’s List 3
and List 4A tariffs do constitute a modification of the Section 301(b) action in response
14 Here, Plaintiffs assert that the USTR’s stated justification for promulgating the
List 3 and List 4A tariffs was an increased burden on U.S. commerce resulting from
China’s retaliatory tariffs, which were not the subject of the initial Section 301(b)
action.
Case 1:21-cv-00052-3JP Document 329 Filed 07/06/21 Page 21 of 50

Court No. 21-00052 	Page 22
to an increased burden of the acts, policies, and practices that are the subject of the
action on U.S. Commerce. Id. However, at this stage of the proceedings without full
briefing, Defendants’ position is not so clearly correct as to prevent Plaintiffs from
preserving the status quo pending the resolution of the merits of the parties’ claims.
Likewise, Plaintiffs’ argument that Section 307(a)(1)(C) fails to supply the
needed authority in this case is not without merit and it too raises a difficult and
substantial question. 	Plaintiffs claim that Section 307(a)(1)(C) must be read as a
mirror of Section 307(a)(1)(A), but while Section 307(a)(1)(A) deals with modification
of mandatory actions commenced under Section 301(a), Section 307(a)(1)(C) deals
with modification of discretionary actions commenced under Section 301(b). 	Pls.’
Reply 	at 	8–10. 	According 	to 	Plaintiffs, 	the 	circumstances 	in 	which 	Section
307(a)(1)(A) permits “modification” make clear that only a reduction or termination
of the Section 301(a) action is permitted. 	Id. 	Thus, Plaintiffs urge the court to
interpret Section 307(a)(1)(C) as similarly limiting the USTR when it finds a Section
301(b) action to “no longer be appropriate.” 	Id. 	Although Defendants argue that
nothing in the plain text of Section 307(a)(1)(C) limits the USTR’s authority to
“modify” a Section 301(b) action when the USTR finds that action is “no longer
appropriate,” see Defs.’ Opp’n at 22–24, given that “[i]t is a fundamental canon of
statutory construction that the words of a statute must be read in their context and
with a view to their place in the overall statutory scheme,” Lal v. M.S.P.B., 821 F.3d
1376, 1378 (Fed. Cir. 2016) (citations omitted), and that neither party has cited any
case in which the Government has increased an action under Section 301(b) under
the 	claimed 	authority 	of 	Section 	307(a)(1)(C), 	Plaintiffs 	at 	this 	stage 	of 	the
Case 1:21-cv-00052-3JP Document 329 Filed 07/06/21 Page 22 of 50

Court No. 21-00052 	Page 23
proceedings raise substantial and serious questions, which should be determined
after full briefing.
Finally, Plaintiffs assert a plausible APA claim on which they have a fair
chance of success on the merits. Plaintiffs assert that the USTR failed to provide an
adequate opportunity to comment on its determination to implement the List 3 and
List 4A duties. 	See Pls.’ Reply at 16. 	The Government asserts that the action was
that of the President, rather than the USTR, and thus not subject to the APA. Defs.’
Opp’n at 26–27. 	Neither party adequately addresses the question of whether the
court should consider List 3 and List 4A the products of Presidential action or USTR
action. See Pls.’ Reply at 18–19; Defs’ Opp’n at 26. Further, the Government claims
that even if the challenged action is that of the USTR, the USTR provided adequate
opportunity to comment. Defs.’ Opp’n at 28. Both parties’ treatment of this issue is
cursory at best. Plaintiffs allege that “initial and rebuttal List 3 comments were due
simultaneously, while List 4 rebuttal comments were due just days after the hearing
(with over 300 witnesses) concluded.” Pls.’ Reply at 16. Plaintiffs also claim that the
USTR announced the imposition of List 3 duties “mere days after the comment period
ended,” which they suggest is evidence that the USTR did not consider the comments
prior to implementing the duties. 	Id. 	The Government contends that the USTR
imposed the duties “following seven weeks of public notice, hearings, and extensive
opportunities for comment.” Defs.’ Opp’n at 12. Defendants further assert that they
“provided sufficient notice,” “solicited comments from the public,” and “held a public
hearing, even though none was required.” Id. at 28. Neither party offers dispositive
evidence or argumentation on the adequacy of the comment period, so the court
Case 1:21-cv-00052-3JP Document 329 Filed 07/06/21 Page 23 of 50

Court No. 21-00052 	Page 24
concludes that Plaintiffs raise a serious question that warrants meaningful review.
Regardless, the amount of time given for interested parties to comment as well as the
amount of time the USTR had to consider public comments suggest that Plaintiffs
have a fair chance of success in their APA claim should the court conclude that the
APA applies. Pls.’ Reply at 16.
Although Defendants’ position as to the President’s and the USTR’s authority
to act under the statute may ultimately prevail, it is not “so clear-cut” as to foreclose
Plaintiffs’ ability to fully litigate the matter. See Ugine, 452 F.3d at 1295. Plaintiffs
raise a serious, substantial, and difficult question which, for the purposes of this
motion, meet their reduced burden to show a “fair chance” of success on the merits.
See Wind Tower, 741 F.3d at 96. 15
III. 	Balance of the Equities
The balance of the equities tips in Plaintiffs’ favor. 	Plaintiffs seek narrow
relief, the suspension of liquidation. 	Although the administrative burden on the
Government to effectuate the suspension of liquidation is not insignificant, see Decl.
of Thomas Overacker in Supp. of Defs.’ Opp’n to Pls.’ Mot. for a Prelim. Inj., May 13,
2021, ECF No. 304-1 (“Overacker Decl.”), ¶¶ 4–12, the court can fashion an injunction
which allows the Government to minimize that burden.
15 Defendants also raise a number of defenses to Plaintiffs’ action that they plan to
address more fully in the briefing on the merits and which they fault Plaintiffs for
not fully addressing. These defenses include: that the President is not subject to the
APA; that the determination was a non-justiciable political question; that the
determination falls in the foreign affairs function exception; and that even if the APA
applies, the USTR’s actions were not arbitrary and capricious. Defs.’ Opp’n at 25. It
is unclear at this stage in the proceedings whether any of these defenses may
ultimately prevail and none is so clear cut as to defeat the fair chance that Plaintiffs
may prevail.
Case 1:21-cv-00052-3JP Document 329 Filed 07/06/21 Page 24 of 50

Court No. 21-00052 	Page 25
Plaintiffs’ request for relief is narrow; Plaintiffs ask for the suspension of
liquidation. Pls.’ Mot. at 1. Suspension of liquidation maintains the status quo: the
Government will still collect the duties pending the merits determination, but as
liquidation is the final computation of duties, their finality is delayed. 	If Plaintiffs
are unsuccessful in their challenge, the Government will not lose any revenue.
Undeniably, implementing the stay will impose a burden on the Government. 16
Defendants explain that suspending liquidation for millions of entries is an enormous
task. 17 	See Overacker Decl. ¶¶ 4–12. 	To effectuate liquidation, each affected
importer would have to be identified by its importer number. Defs.’ Opp’n at 30–32;
Overacker Decl. ¶ 7. U.S. Customs and Border Protection would then need to identify
the relevant Customs Center for each importer. Overacker Decl. ¶ 7. 	Alternatively,
a task force could be established to handle mass suspensions. 	Id. 	A report would
need to be generated for each importer to identify any unliquidated entries subject to
the challenged tariffs. 	Id. 	The Government claims that it would have to run over
6,500 reports just to identify the unliquidated entries filed by each individual
importer. 	Id. 	Each entry would then need to be suspended, which could be
complicated by the fact that some entries may already be suspended. 	Id. ¶ 8. 	We
16 As of March 31, 2021, there had been approximately 12.7 million entries of subject
merchandise since the USTR commenced the Section 301(b) action. 	See Overacker
Decl. ¶ 4. There are approximately 6500 individual importers that would be subject
to this injunction. Id. ¶ 7(a). Customs would need to identify imports that are subject
to both the Section 301 tariffs and the injunction on a rolling basis and take the
administrative actions described in the Overacker Decl. in an expedient manner
given that without intervening action, entries will generally liquidate by operation of
law one year after entry. See 19 U.S.C. § 1504(a); 19 C.F.R. § 159.11.
17 Although Plaintiffs argue that the task of suspending liquidation is a routine
burden and is a fairly straightforward task, see Oral Arg. at 00:43:54, even the
simplest task can be overwhelming if one has to do it millions of times.
Case 1:21-cv-00052-3JP Document 329 Filed 07/06/21 Page 25 of 50

Court No. 21-00052 	Page 26
agree that the Government’s resources are not unlimited, and personnel required to
effectuate the suspension will necessarily be unable to perform other duties that are
important. Nonetheless there is a solution to these competing interests.
Plaintiffs argue that the Government could avoid the burden of suspending
liquidation during the pendency of these proceedings simply by conceding that the
court has the power to order refunds or reliquidate any liquidated entries. 18 	Pls.’
Reply at 1, 2, 24. 	Indeed, the Government has avoided the need to suspend
liquidation by conceding the availability of refunds. Sumecht, 923 F.3d at 1348. Such
a concession is problematic as it would estop the Government from challenging the
authority of the Court to grant reliquidation or refund. Id. The Government is within
its right to craft an argument that the Court of Appeals should not allow reliquidation
in this case based upon Court of Appeals precedent post-Shinyei. See Defs.’ Opp’n at
36–42. 	Indeed, the Government may also change its view of what the law allows. 19
If the Government has a good faith belief that the Court does not have the power to
order refunds or liquidation under the law, then it should not be forced to sacrifice
that 	position 	for 	the 	sake 	of 	administrative 	convenience. 	Nonetheless, 	the
Government’s right to make a good faith challenge to the Court’s power should not
leave Plaintiffs without a remedy should the exactions ultimately be determined to
18 The Government has admitted that the CIT can order reliquidation and stipulated
to such relief in the past. 	See Sumecht, 923 F.3d at 1347; J. Conrad Ltd. v. United
States, 44 CIT __, __, 457 F. Supp. 3d 1365, 1379 (2020); see also 28 U.S.C. §§ 1585,
2643(a)(1) (CIT has all the powers of a district court, including the authority to issue
a money judgement against the United States).
19 Plaintiffs do not dispute that the Government can change its position. 	See
generally, Pls.’ Mot. at 8–12.
Case 1:21-cv-00052-3JP Document 329 Filed 07/06/21 Page 26 of 50

Court No. 21-00052 	Page 27
have been unlawful. 	The absence of a remedy for an unlawful exaction is the
definition of inequity.
Therefore, the court will fashion an order that relieves some of the burden
imposed upon the Government while maintaining the status quo, i.e., preserving a
remedy for unliquidated entries subject to the challenged tariffs. 	It is within the
court’s power to issue an injunction that requires the Government to suspend
liquidation for each entry unless the Government opts to stipulate that it will refund
the unlawfully collected duties for that specific entry. Consequently, the Government
will not be conceding the availability of refunds for all Section 301 duties paid as a
result of List 3 and List 4A, rather it will be stipulating that it will refund only
unlawful duties paid in connection with entries for which it refuses to suspend
liquidation. 	Such an order maintains the status quo, preserves the Government’s
ability to challenge the Court’s power to refund or order reliquidation, and offers the
Government, at its option, a route to avoid the administrative burden of suspending
liquidation on millions of entries.
The consequences of this order sufficiently balance the equities. 	If Plaintiffs
are successful with their Section 301 challenge as well as their claim that the Court
has the power to order refunds or liquidation, then no harm will have been done. If
Plaintiffs are successful with their Section 301 challenge and not with their claim
that the Court has the power to order a refund and re-liquidation, then again no harm
will have been done because this order will have prevented the unlawful collection of
duties without a refund possibility, a clear irreparable harm. 	If Defendants are
successful in their defenses, then the Government will collect all the duties to which
Case 1:21-cv-00052-3JP Document 329 Filed 07/06/21 Page 27 of 50

Court No. 21-00052 	Page 28
it is entitled regardless of the Court’s power to refund or order reliquidation. Thus,
the only objection Defendants could have to the court issuing its order would be that
Defendants would potentially forgo a windfall of unlawfully paid and irrecoverable
duties. 	It is both inequitable and against the public interest for the Government to
retain unlawfully collected duties. 	At the same time, the order will allow the
Government to avoid the burden of effectuating suspension of liquidation for as many
entries as it wishes without conceding the issue of the Court’s power to order refund
or reliquidation.
IV. 	Public Interest
The Government’s argument that there should be no stay of liquidation and
that there is no right to refund would effectively deny judicial review of the imposition
of the Section 301 duties on liquidated goods. Short-circuiting judicial review violates
the public interest. Neo Solar Power Corp. v. United States, 40 CIT __, __, Slip Op.
16-58, at 5–6 (June 9, 2016).
The Government argues that the public interest is the “policy underlying the
specific legislation.” 	Defs.’ Opp’n at 30. 	Even accepting Defendants’ position as
correct, the issuance of an injunction does not undermine that interest, it merely
maintains the status quo. See Ugine, 452 F.3d at 1297; see also Am. Signature, 598
F.3d at 830 (“The public interest is served by ensuring that governmental bodies
comply with the law.”). 	Indeed, preserving judicial review of the application of the
underlying legislation fosters the public interest in the lawful application of that
legislation. 	Neo Solar Power, 40 CIT at __, Slip Op. 16-58 at 5. 	The Government
argues that “[a] suspension of liquidation would encourage China to maintain its
Case 1:21-cv-00052-3JP Document 329 Filed 07/06/21 Page 28 of 50

Court No. 21-00052 	Page 29
harmful practices while awaiting resolution of the [S]ection 301 cases” or might
encourage importers to rush to purchase Chinese goods. Defs.’ Opp’n at 30. The court
cannot understand this argument. 	Although Plaintiffs seek to suspend liquidation,
they do not seek to enjoin the collection of the Section 301 tariffs. 	Importers must
still deposit those tariffs and will not be able to have them refunded unless Plaintiffs
are successful. If the Government’s argument is that it serves the public’s interest to
retain 	duties 	ultimately 	determined 	to 	be 	unlawful, 	to 	render 	meaningless 	a
determination as to lawfulness, the Government is mistaken.
CONCLUSION
In sum, the court will grant Plaintiffs’ motion for leave to file a reply and
Plaintiffs’ motion for a preliminary injunction. Moreover, to give the parties time to
implement appropriate procedures, gather pertinent information, and otherwise take
necessary action to comply with this order, the court will temporarily restrain
liquidation of any unliquidated entries of merchandise imported from China by any
plaintiffs in the Section 301 Cases which are subject to List 3 or List 4A duties.
/s/ Claire R. Kelly
Claire R. Kelly, Judge
/s/ Jennifer Choe-Groves
Jennifer Choe-Groves, Judge
Dated: 	Tuesday, July 6, 2021
New York, New York
Case 1:21-cv-00052-3JP Document 329 Filed 07/06/21 Page 29 of 50

Court No. 21-00052 	Page 30
Barnett, Chief Judge, dissenting:
I must dissent from my colleagues’ grant of the preliminary injunction.
While I agree with much of their analysis, there is a critical area of disagreement
between us: namely, I find that Plaintiffs have failed to establish a likelihood of
irreparable harm and this failure is fatal to their motion for a preliminary
injunction.
The four-factor test the court considers in evaluating a motion for a
preliminary injunction is well established. See Winter v. Nat. Res. Def. Council,
Inc., 555 U.S. 7, 20 (2008). Nevertheless, in Winter, the U.S. Supreme Court
considered whether the lower court properly evaluated the irreparable harm factor
when the lower court found that the plaintiffs had demonstrated a “strong”
likelihood of success on the merits. Id. at 20–22. In that case, the lower court had
used a sliding scale analysis and concluded that the plaintiffs need only show “a
‘possibility’ of irreparable harm.” Id. at 21. The Supreme Court rejected that
approach and found, consistent with the extraordinary nature of preliminary relief,
that the plaintiffs must demonstrate not merely a possibility, but a likelihood, that
they would be irreparably harmed without an injunction. Id. at 22.
Regardless of the continuing validity of the sliding scale approach as it is
typically applied in trade cases post-Winter, 1 Winter establishes that it is not
1 In trade cases, it is often the situation that liquidation leads to irreparable harm
such that, in the context of evaluating a preliminary injunction motion, the court
has applied a sliding scale approach to analyzing the likelihood of success on the
merits. The sliding scale requires a plaintiff to demonstrate a “fair chance of
success on the merits” by raising “questions which are ‘serious, substantial, difficult
(footnote continued)
Case 1:21-cv-00052-3JP Document 329 Filed 07/06/21 Page 30 of 50

Court No. 21-00052 	Page 31
enough for a plaintiff to identify irreparable harm as a possible outcome of the
denial of the motion for a preliminary injunction. Instead, a plaintiff must establish
that any irreparable harm is likely. In this case, I cannot find that there is a
likelihood of irreparable harm when my colleagues and I agree that any harm
arising from liquidation would be reparable by the court by means of an order of
reliquidation or a money judgment pursuant to 28 U.S.C. § 2643(a)(1) or (c)(1). See
Sampson v. Murray, 415 U.S. 61, 90 (1974) (“The possibility that adequate
compensatory or other corrective relief will be available at a later date . . . weighs
heavily against a claim of irreparable harm.” (quoting Va. Petroleum Jobbers Ass’n
v. Fed. Power Comm’n, 259 F.2d 921, 925 (D.C. Cir. 1958) (per curiam))); Maj. Op. at
12 (“[W]e view the statute as providing this Court with the explicit power to order
reliquidation and refunds where the government has unlawfully exacted duties.”).
Defendants’ (“the Government”) arguments notwithstanding, where I disagree with
my colleagues is in my view of the binding precedent from the U.S. Court of Appeals
for the Federal Circuit (“Federal Circuit”). In contrast with the Majority, I find that
this binding precedent suggests no more than a remote chance that the appellate
court would find that this court is not empowered to provide relief with respect to
any liquidated entries and, therefore, that Plaintiffs have established a likelihood of
irreparable harm.
and doubtful.’” Kwo Lee, Inc. v. United States, 38 CIT __, __, 24 F. Supp. 3d 1322,
1326 (2014). Because I find that Plaintiffs have not established a likelihood of
irreparable harm, I do not address this aspect of the sliding scale approach post-
Winter.
Case 1:21-cv-00052-3JP Document 329 Filed 07/06/21 Page 31 of 50

Court No. 21-00052 	Page 32
The scope of the court’s powers in law and equity 2 are not often at issue given
the unique jurisdiction of the U.S. Court of International Trade (“CIT”), which
typically involves addressing customs protest challenges, reviewing administrative
determinations in unfair trade or evasion cases, and presiding over enforcement
actions against importers. See generally 28 U.S.C. §§ 1581, 1582 (stating the court’s
jurisdictional bases). This case generally, and Plaintiffs’ motion for a preliminary
injunction specifically, 3 requires the court to consider the scope of its remedial
powers in the context of alleged injury arising from liquidation. Notwithstanding
the investiture of broad equitable powers in the CIT, Congress also enacted specific
statutory provisions pursuant to which liquidation that is final and conclusive
precludes the court from awarding relief. While the vast majority of actions before
the CIT arise in connection with the statutory provisions for which Congress has
expressly spoken with respect to the effect of liquidation, this case arises under the
2 Pursuant to 28 U.S.C. § 1585, the CIT “shall possess all the powers in law and
equity of, or as conferred by statute upon, a district court of the United States.”
3 The Government asserts that the court need not reach the issue of refunds or
reliquidation because, according to the Government, the motion may be denied on
other grounds. See Defs.’ Opp’n to Pls.’ Mot. for Prelim. Inj. Limited to Suspension
(“Defs.’ Opp’n”) at 35, 42, ECF No. 304. The Government’s reluctance in this regard
likely stems from its precarious legal position. The Government’s position
regarding the lack of an available remedy for liquidated entries effectively amounts
to an argument against its position on the likelihood of irreparable harm, leaving it
to instead rely on assertions of undue delay and the insufficiency of economic harm
to undermine Plaintiffs’ case. See id. at 33–35. As discussed herein, however, the
Government’s arguments that the court lacks the authority to order reliquidation
are unpersuasive. Notwithstanding the Government’s suggestion, see infra note 8,
further briefing on remedy is not necessary at this time. The issue here is only
whether the court could provide a remedy—an issue plainly in play based on
Plaintiffs’ motion. The Government will have an opportunity to brief various
options for appropriate remedies, if necessary, when the court reaches the merits.
Case 1:21-cv-00052-3JP Document 329 Filed 07/06/21 Page 32 of 50

Court No. 21-00052 	Page 33
court’s residual jurisdiction provision, pursuant to which the court retains all its
powers in law and equity to provide relief consistent with 28 U.S.C. § 2643.
In cases arising pursuant to the court’s jurisdiction under 28 U.S.C.
§ 1581(a), the finality of liquidation is governed by 19 U.S.C. § 1514(a). That
provision provides:
[D]ecisions of the Customs Service . . . as to . . . (2) the classification
and rate and amount of duties chargeable; [or] . . . (5) the liquidation or
reliquidation of an entry . . . shall be final and conclusive upon all
persons . . . unless a protest is filed in accordance with this section, or
unless a civil action contesting the denial of a protest, in whole or in
part, is commenced in the [CIT].
19 U.S.C. § 1514(a)(2), (5). Thus, section 1514(a) precludes the CIT from reviewing
a challenge to—and ordering reliquidation based on—an erroneous decision by U.S.
Customs and Border Protection (“Customs” or “CBP”) unless the statutory protest
requirements are met. See, e.g., Juice Farms, Inc. v. United States, 68 F.3d 1344,
1345 (Fed. Cir. 1995); Mitsubishi Elecs. Am., Inc. v. United States, 18 CIT 167, 172,
848 F. Supp. 193, 197 (1994).
In litigation under 28 U.S.C. § 1581(c) seeking to challenge an antidumping
or countervailing duty determination, the finality of liquidation is governed by a
different statutory provision, 19 U.S.C. § 1516a. 4 That provision indicates that
4 Section 1581(c) also confers exclusive jurisdiction on the CIT to review civil actions
commenced pursuant to 19 U.S.C. § 1517, pursuant to which CBP investigates
allegations of evasion of antidumping and countervailing duty orders. That section
also provides for judicial review of Customs’ determinations in those investigations.
While the Government has consented to the entry of preliminary injunctions
suspending liquidation of entries subject to those determinations, see, e.g., Consent
Mot. for a Prelim. Inj., Royal Brush Mfg., Inc. v. United States, Court No. 19-cv-
00198 (CIT Nov. 26, 2019), the status of the court’s remedial authority in such cases
(footnote continued)
Case 1:21-cv-00052-3JP Document 329 Filed 07/06/21 Page 33 of 50

Court No. 21-00052 	Page 34
liquidation in accordance with the agency determination is generally final and
conclusive unless an interested party secures a statutory injunction to ensure
liquidation in accordance with any final court decision reviewing the agency
determination. See 19 U.S.C. § 1516a(c), (e). This statutory scheme was addressed
by the Federal Circuit at length in Zenith Radio Corp. v. United States, 710 F.2d
806 (Fed. Cir. 1983).
In Zenith, the appellate court reversed the CIT’s denial of a preliminary
injunction to suspend the liquidation of entries subject to an administrative review
conducted by the U.S. Department of Commerce (“Commerce”) under 19 U.S.C.
§ 1675. 710 F.2d at 808. 5 The appellate court explained that section 1516a
“permits liquidation in accordance with a favorable [final court] decision . . . only on
merchandise entered after the court decision is published or on earlier entries ‘the
liquidation of which was enjoined under subsection (c)(2).’” Id. at 810 (quoting 19
U.S.C. § 1516a(e)). In the absence of a “provision permitting reliquidation in this
case or imposition of higher dumping duties after liquidation if [Zenith Radio Corp.
(‘Zenith’)] is successful on the merits,” the appellate court concluded that, “[o]nce
liquidation occurs, a subsequent decision by the trial court on the merits of Zenith’s
challenge can have no effect on the dumping duties assessed on [subject] entries.” 6
absent preliminary relief has not been litigated and is immaterial to the court’s
disposition of this motion.
5 Determinations issued pursuant to 19 U.S.C. § 1675 are reviewable under 19
U.S.C. § 1516a(a)(2)(B)(iii).
6 While this discussion of the finality of liquidation was critical to the Zenith
opinion, that court’s finding of irreparable harm was based on the court’s finding
that the plaintiff’s entire case would be mooted by the combination of the finality of
(footnote continued)
Case 1:21-cv-00052-3JP Document 329 Filed 07/06/21 Page 34 of 50

Court No. 21-00052 	Page 35
Id.; cf. Mid Continent Steel & Wire, Inc. v. United States, 44 CIT __, __, 427 F. Supp.
3d 1375, 1382–84 (2020) (in litigation regarding the final determination in an
investigation in which success on the merits could lead to revocation of the
antidumping duty order, relying on Zenith, among other authorities, the court
preliminarily enjoined the liquidation of entries subject to the first and subsequent
administrative reviews).
Zenith, however, is limited to actions reviewable pursuant to 19 U.S.C.
§ 1516a and is not applicable to an action under the Administrative Procedure Act
(“APA”). Shinyei Corp. of Am. v. United States, 355 F.3d 1297, 1309 (Fed. Cir. 2004)
(“This court’s ruling in Zenith . . . was explicitly based on the liquidation and
injunction provisions in [19 U.S.C. § 1516a], and those provisions are inapplicable
here.”).
In contrast with the foregoing caselaw, this case implicates the court’s
jurisdiction pursuant to 28 U.S.C. § 1581(i), whereby the court is within its
authority to order reliquidation or other appropriate relief. Specifically, the court’s
remedial authority is set forth in 28 U.S.C. § 2643. 7 The statute provides, inter
alia, that the CIT “may enter a money judgment . . . for or against the United States
in any civil action commenced under section 1581 or 1582 of this title,” 28 U.S.C.
the liquidation of prior entries and the inability of any final court decision to
provide prospective relief because future entries could be subject to future
administrative review determinations. 710 F.2d at 810.
7 Congress enacted 28 U.S.C. §§ 1585 and 2643 as part of the Customs Courts Act of
1980, Pub. L. No. 96–417, 94 Stat. 1727 (1980).
Case 1:21-cv-00052-3JP Document 329 Filed 07/06/21 Page 35 of 50

Court No. 21-00052 	Page 36
§ 2643(a)(1), 8 and, with exceptions not relevant here, 9 may “order any other form of
relief that is appropriate in a civil action, including, but not limited to, declaratory
judgments, orders of remand, injunctions, and writs of mandamus and prohibition,”
id. § 2643(c)(1) (emphasis added). 10 The statute confers “broad remedial powers” on
the CIT, Shinyei, 355 F.3d at 1312, that are not constrained by liquidation in the
absence of a statutory limitation on reliquidation. “The legislative history of the
Customs Courts Act of 1980 leaves no doubt that 28 U.S.C. § 2643(c)(1) ‘is a general
grant of authority for the [CIT] to order any form of relief that it deems appropriate
8 At oral argument, the Government represented that the CIT lacks the authority in
this case to order a money judgment pursuant to 28 U.S.C. § 2643(a)(1) and
requested the opportunity to further brief the issue. Oral Arg. 07:40–08:20, 45:45–
47:15, available at https://www.cit.uscourts.gov/sites/cit/files/061721-21-00052-
3JP.mp3 (last visited July 6, 2021) (approximate time stamp from the recording).
As discussed supra note 3, further briefing at this time is unnecessary given my
clear view that relief would be available to prevailing Plaintiffs pursuant to 28
U.S.C. § 2643(c)(1).
9 While the exceptions are not germane to this case, Congress’s enumeration of
specific exceptions to the CIT’s broad remedial authority further indicates that
Congress did not intend the court to read additional exceptions into the statute
absent contrary congressional intent. See, e.g., United States v. Brockamp, 519 U.S.
347, 352 (1997) (declining to read an equitable exception into the detailed statutory
time limitations set forth in 26 U.S.C. § 6511 given Congress’s “explicit listing of
exceptions”); United States v. Smith, 499 U.S. 160, 166–67 (1991) (declining to infer
a third exception to the rule that the Federal Tort Claims Act constitutes the
exclusive remedy for torts by Government employees when Congress provided for
two exceptions by statute).
10 The list is not exhaustive. Moreover, the term “injunction” may include an
affirmative injunction compelling agency action. See generally Home Prods. Int’l,
Inc. v. United States, 43 CIT __, 405 F. Supp. 3d 1368 (2019) (relying, in part, on the
court’s authority pursuant to 28 U.S.C. § 2643(c)(1) to enforce a judgment through
an affirmative injunction requiring CBP to reliquidate entries at the rates
established in the court’s judgment), appeal dismissed, 846 F. App’x 890 (Fed. Cir.
2021).
Case 1:21-cv-00052-3JP Document 329 Filed 07/06/21 Page 36 of 50

Court No. 21-00052 	Page 37
under the circumstances.’” United States v. Mizrahie, 9 CIT 142, 146, 606 F. Supp.
703, 707 (1985) (quoting H.R. Rep. No. 96–1235, at 61 (1980)) (emphasis added). 11
In keeping with that view, the court has recognized its authority to order the
remedy of reliquidation when appropriate. See, e.g., PrimeSource Building Prods.,
Inc. v. United States, 45 CIT __, __, 505 F. Supp. 3d 1352, 1357–58 (2021) (ordering
a refund of any section 232 duties paid on entries liquidated despite the court’s
preliminary injunction suspending liquidation); J. Conrad Ltd. v. United States, 44
CIT __, __, 457 F. Supp. 3d 1365, 1379 (2020) (finding no irreparable harm given the
court’s authority to order reliquidation and noting the Government’s position that
liquidation would not preclude the court from ordering such relief); Gilda Indus.,
Inc. v. United States, 33 CIT 751, 760, 625 F. Supp. 2d 1377, 1385 (2009) (ordering
CBP to refund certain section 301 retaliatory duties without regard to liquidation
status), aff’d, 622 F.3d 1358 (Fed. Cir. 2010). While the Government has stipulated
to the refund or reliquidation of duties in certain cases, see Defs.’ Opp’n at 36, the
CIT’s authority to order refund or reliquidation is based on statute, not
stipulation. 12
11 Section 2643 of Title 28 complements section 1585. According to the legislative
history, section 1585 was enacted to “remove[] any doubt” as to the scope of the
CIT’s remedial powers and “make it clear that the [CIT] possesses all plenary
powers in law and equity, thereby completing the full transformation of the court to
article III status.” 126 Cong. Rec. 26,554–55 (1980) (statement of Rep. Rodino); see
also H.R. Rep. No. 96–1235, at 50 (1980) (“It is the Committee’s intent to make clear
that the [CIT] does possess the same plenary powers as a federal []district court.”).
12 I agree with the Majority that the Government is entitled to change its position
and litigate its new position. However, as a matter of statutory interpretation, I
believe this court may resolve the issue consistent with Federal Circuit precedent
and deny the motion for preliminary injunction.
Case 1:21-cv-00052-3JP Document 329 Filed 07/06/21 Page 37 of 50

Court No. 21-00052 	Page 38
The authority to order reliquidation was expressly addressed by the Federal
Circuit in Shinyei. Shinyei addressed a challenge to Commerce’s liquidation
instructions issued after litigation regarding an administrative review of the
antidumping duty order. See Shinyei, 355 F.3d at 1299–1304. The plaintiff,
Shinyei Corporation of America (“Shinyei”), had “deposited estimated antidumping
duties on the entries at issue at a rate of 45.83% ad valorem.” Id. at 1300.
Following litigation, Commerce’s amended results set forth rates ranging from 1.83
percent to 16.71 percent, depending on the manufacturer. Id. at 1302. Commerce’s
amended liquidation instructions did not specifically address Shinyei’s entries of
subject merchandise from certain manufacturers purportedly covered by the
amended results. Id. Commerce subsequently issued “clean-up” instructions
directing CBP to liquidate “as entered” any remaining entries of subject
merchandise that were not covered by the previous instructions. Id. at 1303. CBP
then liquidated Shinyei’s entries at the cash deposit rate. Id. Shinyei claimed that
the clean-up instructions violated 19 U.S.C. § 1675(a)(2) and sought reliquidation at
the lower rates. Id. at 1303–04, 1306.
The CIT dismissed Shinyei’s complaint for lack of subject matter jurisdiction
based on the court’s view that liquidation of the subject entries mooted Shinyei’s
action under the APA. Id. at 1304. On appeal, the Federal Circuit held that the
CIT retained jurisdiction pursuant to 28 U.S.C. § 1581(i) over an APA cause of
action challenging Commerce’s liquidation instructions notwithstanding Customs’
liquidation of the subject entries. Id. at 1305–12. The appellate court reasoned,
inter alia, that the finality of liquidation provided for in 19 U.S.C. § 1514(a) is
Case 1:21-cv-00052-3JP Document 329 Filed 07/06/21 Page 38 of 50

Court No. 21-00052 	Page 39
inapplicable when “the alleged agency error [is] on the part of Commerce, not
Customs.” Id. at 1311 (further stating that section 1514(a) “is not . . . fairly
construed to prohibit reliquidation in all cases”). Further, in recognition of the
CIT’s “broad remedial powers,” id. at 1312 (citing 28 U.S.C. § 2643 (2000)), the
Federal Circuit concluded that, in that case, reliquidation was “easily construed” as
an appropriate form of relief, id. More recently, in Sumecht NA, Inc. v. United
States, the Federal Circuit affirmed the CIT’s denial of preliminary relief because
Sumec North America (“Sumec”) failed to demonstrate irreparable harm. 923 F.3d
1340, 1347–48 (Fed. Cir. 2019). The appellate court based its decision, at least in
part, on its previous recognition of the CIT’s equitable power to order reliquidation
in section 1581(i) actions. Id. at 1347. 13
Consistent with these opinions, I find that the court possesses the authority
to order reliquidation and, if Plaintiffs prevail, reliquidation constitutes at least one
type of “relief that [would be] appropriate in [this] civil action.” See 28 U.S.C.
§ 2643(c)(1). 14
Although Plaintiffs largely agree with this view, see Pls.’ Mot. for Prelim. Inj.
Limited to Suspension of Liquidation (“Pls.’ Mot.”) at 6–9, ECF No. 287, they rely on
13 The court also noted that Sumec’s entries were covered by a statutory injunction
in a separate case, Sumecht, 923 F.3d at 1346, and that the Government conceded
that Sumec would be entitled to reliquidation if it prevailed, id. at 1348.
14 What constitutes “appropriate relief” is a case-specific determination. The
Government has not directly argued that reliquidation (and a corresponding refund
of List 3 and List 4A duties) would not be “appropriate” if Plaintiffs prevail on the
merits. However, in light of the Government’s arguments regarding the balance of
equities and public interest factors, the Government may, in fact, prefer a monetary
judgment to reliquidation to minimize the burden on the Government in such a
circumstance.
Case 1:21-cv-00052-3JP Document 329 Filed 07/06/21 Page 39 of 50

Court No. 21-00052 	Page 40
the Federal Circuit’s grant of preliminary relief in Ugine & Alz Belgium v. United
States, 452 F.3d 1289, 1297 (Fed. Cir. 2006), and American Signature, Inc. v. United
States, 598 F.3d 816, 829 (Fed. Cir. 2010), to contend that an injunction should
issue nevertheless, Pls.’ Mot. at 10–12. However, those cases are distinguishable
and, more importantly, do not obviate the requirement that a plaintiff must
establish a likelihood of irreparable harm.
Ugine addressed an importer’s challenge to Commerce liquidation
instructions. 452 F.3d at 1291. The importer obtained the parties’ consent to a
preliminary injunction to suspend the liquidation of unliquidated entries, but the
CIT denied the motion, in part, based on the absence of “unequivocal irreparable
harm.” Id. at 1292. While the court reasoned that the importer could protest any
liquidations occurring during the pendency of the action, the court did not, however,
discuss Shinyei. See id.
The Federal Circuit reversed the CIT’s denial of a preliminary injunction. Id.
at 1290. As to irreparable harm, the Federal Circuit recognized that although
“Shinyei appears to provide [the importer] with an avenue for seeking a judicial
remedy even if liquidation occurs,” there remained “the possibility that Shinyei will
not be interpreted to encompass the sort of claim at issue” in Ugine. Id. at 1296
(observing that the importer challenged Commerce’s liquidation instructions for
earlier review periods as inconsistent with the more recent, fourth, review with
respect to country of origin).
Notably, in Ugine, the CIT had not addressed Shinyei and the parties had not
fully briefed it before the Federal Circuit. Id. at 1296–97. Thus, “[r]ather than
Case 1:21-cv-00052-3JP Document 329 Filed 07/06/21 Page 40 of 50

Court No. 21-00052 	Page 41
deciding the scope of Shinyei in a preliminary injunction context, without a decision
by the trial court or briefing by two of the three parties, [the appellate court]
conclude[d] that the issue [was] sufficiently complex that we should resolve it only
in a setting in which it has been litigated by the parties and decided by the trial
court.” Id. at 1297. As a result, Ugine is distinguishable based on the nature of the
underlying claim and the lack of this court’s insight into the scope of its remedial
authority pursuant to 28 U.S.C. § 2643 in the event the importer prevailed on that
claim. Perhaps of most significance for this case, Ugine predates Winter by more
than two years and therefore lacks the benefit of the appellate court reconciling the
possibility of Shinyei relief with the Supreme Court’s clarification of the requisite
showing of a likelihood of irreparable harm. 15
In American Signature, the Federal Circuit also reversed the CIT’s denial of a
preliminary injunction in a case challenging Commerce’s liquidation instructions.
598 F.3d at 819. This time, the CIT had relied on Shinyei to find that the plaintiff
had “an available and adequate remedy to correct the erroneous liquidation of
entries caused by incorrect liquidation instructions, even if liquidation is permitted
to go forward.” Id. at 828 (citation omitted). Nevertheless, despite the CIT’s
reference to Shinyei, the Federal Circuit pointed to language in Ugine to conclude
again that “the possibility of Shinyei relief” did not defeat the plaintiff’s assertions
15 While the Ugine court found a “strong showing of irreparable harm,” that showing
appeared to be based on the notion “that the denial of a preliminary injunction
could result in denying [the importer] its opportunity for a decision on the merits of
its claim regarding the duties for merchandise imported” prior to the fourth
administrative review. 452 F.3d at 1297 (emphasis added).
Case 1:21-cv-00052-3JP Document 329 Filed 07/06/21 Page 41 of 50

Court No. 21-00052 	Page 42
of irreparable harm. Id. at 829 (discussing Ugine, 452 F.3d at 1297). The Federal
Circuit did not, however, explain why Shinyei relief might not be available or
explain why uncertainty as to the availability of Shinyei relief rendered the
plaintiff’s showing of irreparable harm sufficiently likely pursuant to Winter. See
id.
The Federal Circuit has since said that it does not interpret “Ugine and
American Signature as creating a presumption that, in the preliminary injunction
context, Shinyei relief is uncertain for purposes of irreparable harm in [section]
1581(i) actions because such a presumption runs counter to Shinyei’s holding that
the CIT has ‘broad remedial powers,’ including the ability to order reliquidation.”
Sumecht, 923 F.3d at 1348 (quoting Shinyei, 355 F.3d at 1312). The Federal Circuit
also observed that American Signature was distinct from Ugine because “the
underlying complaint [filed in American Signature] expressly referenced [19 U.S.C.]
§ 1675(a)(2)(C) to allege that Commerce’s corrected liquidation instructions were
erroneous as a matter of law.” Id. at 1347 n.8. While the American Signature court
did not completely reconcile its decision with Shinyei, the court’s discussion of
likelihood of success on the merits suggests that, in contrast to Shinyei, Commerce
had more closely incorporated its processes for developing the liquidation
instructions into the administrative review determination under 19 U.S.C.
§ 1675(a)(2)(A) such that jurisdiction under 28 U.S.C. § 1581(c) might be
appropriate. Am. Signature, 598 F.3d at 824–26. Notwithstanding these questions
about the appropriate jurisdictional basis for challenging Commerce’s liquidation
instructions, at issue here is the scope of the CIT’s remedial powers pursuant to 28
Case 1:21-cv-00052-3JP Document 329 Filed 07/06/21 Page 42 of 50

Court No. 21-00052 	Page 43
U.S.C. § 2643 in a case not involving antidumping or countervailing duties and the
associated interplay with 19 U.S.C. § 1516a and Zenith. Thus, Ugine and American
Signature do not require the court to find a likelihood of irreparable harm
particularly when, as here, the Parties have put the issue of remedy squarely before
the court and briefed their respective positions. See Pls.’ Mot. at 6–9; Defs.’ Opp’n
at 35–42. 16
The Government’s preservation of its right to appeal any determination that
reliquidation is an appropriate remedy fails to inject enough uncertainty into the
issue to render any irreparable harm likely. See Defs.’ Opp’n at 42 (preserving its
right to appeal); Pls.’ Mot. at 11–12 (arguing that the uncertainty generated by the
Government’s litigating position and preservation of its right to appeal establishes
irreparable harm). “Critically, irreparable harm may not be speculative.” Comm.
Overseeing Action for Lumber Int’l Trade Investigations or Negots. v. United States,
43 CIT __, __, 393 F. Supp. 3d 1271, 1276 (2019) (citation omitted). Rather, the
harm “must be both certain and great; . . . actual and not theoretical. . . . ‘[T]he
party seeking injunctive relief must show that the injury complained of [is] of such
imminence that there is a “clear and present need” for equitable relief to prevent
irreparable harm.’” Wis. Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985)
16 The Majority asserts that “the differing theories of harm” alleged in Ugine and
American Signature are “immaterial” to the question of remedy because both cases
arose under the court’s section 1581(i) jurisdiction and therefore implicate the same
statutory remedial authority. Maj. Op. at 15 n.9. The differing theories of harm are
relevant, however, because reliquidation would only be available when it constitutes
an “appropriate” form of relief in the particular action. See 28 U.S.C. § 2643(c)(1).
Accordingly, such differences must be considered in order to ascertain the degree to
which Ugine and American Signature compel the entry of an injunction.
Case 1:21-cv-00052-3JP Document 329 Filed 07/06/21 Page 43 of 50

Court No. 21-00052 	Page 44
(fourth alteration original) (quoting Ashland Oil, Inc. v. FTC, 409 F. Supp. 297, 307
(D.D.C.), aff’d, 548 F.2d 977 (D.C. Cir. 1976)); cf. Winter, 555 U.S. at 22. The
Government’s arguments as to why reliquidation is not an available remedy in this
case are unpersuasive.
The Government first points to language in 19 U.S.C. § 1514(a) concerning
the finality of liquidation to assert that, “[o]nce a liquidation becomes final and
conclusive, generally neither CBP nor the Courts may alter or set aside the
transaction, including the assessment of duties.” Defs.’ Opp’n at 37. The
Government omits that section 1514(a) refers to “decisions of the Customs Service”
as the decisions that are “final and conclusive” barring a protest and action
commenced pursuant to 28 U.S.C. § 1581(a). 19 U.S.C. § 1514(a); see also, e.g.,
Shinyei, 355 F.3d at 1311 (section 1514(a) is inapplicable when “the alleged agency
error [is] on the part of Commerce, not Customs”); Am. Signature, 598 F.3d at 829
(same). 17
17 By seeking to tie the court’s authority to order reliquidation to section 1514(a),
the Government implies the presence of a protestable Customs decision. In so
doing, the Government argues against the position it has taken in Koch Supply &
Trading, LP v. United States, Court No. 20-cv-00063 (“Koch Supply”). There, an
importer asserted jurisdiction pursuant to 28 U.S.C. § 1581(a) and (i) to challenge
the lawfulness of section 232 duties (under section 1581(i)) and a denied protest
contesting Customs’ collection of the allegedly unlawful duties (under section
1581(a)). Compl., Koch Supply (CIT Mar. 23, 2020). Customs denied the protest
shortly after it was filed as non-protestable. Id. ¶ 28. In a consent motion to stay
the case, the Government represented that the court lacked jurisdiction pursuant to
28 U.S.C. § 1581(a) to review the denied protest claim. Consent Mot. to Stay
Proceedings at 3, Koch Supply (CIT May 19, 2020). The Government’s position in
Koch Supply is inconsistent with its position here as to whether Customs collection
of section 232 or 301 duties is protestable and, therefore, a possible basis for
jurisdiction under 28 U.S.C. § 1581(a).
Case 1:21-cv-00052-3JP Document 329 Filed 07/06/21 Page 44 of 50

Court No. 21-00052 	Page 45
The Government next relies on Zenith to argue that “the rule of finality of
liquidations is not limited to Customs decisions that can be protested pursuant to
19 U.S.C. § 1514(a).” Defs.’ Opp’n at 37. According to the Government, Zenith
demonstrates that, absent an injunction suspending liquidation, “an entry will
liquidate in the normal administrative course and that liquidation will become final
and conclusive.” Id. at 38. While acknowledging the distinct jurisdictional bases,
the Government argues, in effect, that if finality attaches to liquidations that are
not protested and subject to judicial review pursuant to 28 U.S.C. § 1581(a) and
finality attaches to the liquidation of entries covered by a determination reviewable
pursuant to 28 U.S.C. § 1581(c) unless it is enjoined, then “reliquidation should not
be available upon a successful challenge under [28 U.S.C. §] 1581(i) either.” Id.
In making this argument, the Government overlooks the distinctions between
the statutory bases that govern the finality of liquidation in the context of actions
implicating the court’s jurisdiction under section 1581(a) and (c). As set forth above,
Zenith is limited to actions arising under 19 U.S.C. § 1516a and “is inapplicable” to
“an action under the APA.” Shinyei, 355 F.3d at 1309. Zenith therefore does not
support the Government’s assertion that reliquidation is not (or should not be)
available to a successful litigant in a section 1581(i) action. 18
18 The Government’s attempt to characterize Shinyei as in conflict with Zenith fails.
See Defs.’ Opp’n at 41. Moreover, the Government’s assertion that “no statutory
provision allows the liquidation of entries to be enjoined by the [c]ourt in section
1581(i) actions, and the liquidation of any entries at issue in the section 301 cases
should therefore be held to be final and conclusive,” id. at 41–42, lacks merit. The
Government does not seriously contest the court’s authority to enter the requested
injunction upon the requisite showing, see id. at 17–18 (summarizing the standard
(footnote continued)
Case 1:21-cv-00052-3JP Document 329 Filed 07/06/21 Page 45 of 50

Court No. 21-00052 	Page 46
The Government also attempts to limit the court’s authority to order
reliquidation to situations in which it is “necessary to protect a judgment of [the
CIT], rather than authority for reliquidation as a garden variety remedy in any case
brought pursuant to section 1581(i).” Defs.’ Opp’n at 40. The Government relies on
the following language from Shinyei:
[T]o accept the government’s argument would preclude enforcement of
court orders as to duty determinations as soon as entries subject to
those orders are liquidated, even where liquidation was under
erroneous instructions that fail to reflect the amended administrative
review results implementing the courts’ determinations, as required by
section 1675(a)(2)(C).
Id. (quoting Shinyei, 355 F.3d at 1312). 19
The Government omits, however, the immediately preceding paragraph, in
which the Federal Circuit explained that “the [CIT] has been granted broad
remedial powers.” Shinyei, 355 F.3d at 1312 (citing 28 U.S.C. § 2643 (2000)). The
appellate court noted that the CIT can enter a money judgment against the
of review), and the absence of express statutory authority beyond that already
provided by 28 U.S.C. § 2643 is immaterial. The Government also appears to
conflate the Zenith court’s reference to “the absence of a statutory provision
permitting reliquidation” in 19 U.S.C. § 1516a with the absence of a statutory
injunction applicable to section 1581(i). Id. at 41–42 (citing Zenith, 710 F.2d at
810). The Government does not, however, explain the basis for this attempted
analogy.
19 The Government also seeks to rely on Agro Dutch Industries Ltd. v. United States,
589 F.3d 1187, 1191–92 & n.1 (Fed. Cir. 2009). Defs.’ Opp’n at 41. Agro Dutch
affirmed the CIT’s authority to (1) amend the effective date of a statutory injunction
to remove a five-day grace period, and (2) order reliquidation of subject entries
liquidated within that grace period. 589 F.3d at 1190–94. While the Agro Dutch
court cited Shinyei for the proposition that “mootness does not occur when steps are
required to enforce a valid injunction,” id. at 1191, the Agro Dutch court did not
address the limits of Shinyei relief or otherwise suggest that this court’s authority
to provide reliquidation or other appropriate monetary relief is, in fact, limited to
judicial enforcement of prior orders.
Case 1:21-cv-00052-3JP Document 329 Filed 07/06/21 Page 46 of 50

Court No. 21-00052 	Page 47
Government in an action commenced under 28 U.S.C. § 1581, id. (citing 28 U.S.C.
§ 2643(a)(1)), and can “order any other form of relief that is appropriate in a civil
action,” id. (quoting 28 U.S.C. § 2643(c)(1)). The Federal Circuit thus found that
“[t]he absence of an express reliquidation provision should not be read as a
prohibition of such relief when the statute provides the [CIT] with such broad
remedial powers” and, in that case, reliquidation was “easily construed” as an
appropriate form of relief. 20 Shinyei does not, therefore, support the Government’s
20 While not expressly agreeing with the Government’s interpretation of the holding
of Shinyei, the Majority opines that the Government’s interpretation arguably is
correct. Maj. Op. at 13 & n.8. I disagree. The Federal Circuit’s observation
concerning the logical extent of the Government’s argument in that case was not
essential to the appellate court’s finding that reliquidation was authorized under
the CIT’s remedial statute and would be an appropriate remedy in the event
Shinyei established that its entries liquidated at rates that were inconsistent with
Commerce’s liquidation instructions. Such statements are not controlling. See, e.g.,
K-Tech Telecomms., Inc. v. Time Warner Cable, Inc., 714 F.3d 1277, 1287 n.1 (Fed.
Cir. 2013) (Wallach, J., concurring) (noting that “statements in judicial opinions
upon a point or points not necessary to the decision of the case” consist of “dictum”
that is neither “authoritative” nor controlling) (quoting In re McGrew, 120 F.3d
1236, 1238 (Fed. Cir. 1997)). Indeed, in the Federal Circuit’s second opinion in the
litigation concerning Shinyei’s rate, the appellate court characterized Shinyei as
[holding] that the liquidation of Shinyei’s entries did not preclude
judicial review of Shinyei’s Commerce-error claim under the APA,
because the Tariff Act [of 1930] does not expressly or impliedly forbid
the relief sought by Shinyei for erroneous liquidation instructions—
namely, “reliquidation of the subject entries at the lower rate so
[Shinyei] can receive a refund of the overpaid duties.”
Shinyei Corp. of Am. v. United States (“Shinyei II”), 524 F.3d 1274, 1282 (Fed. Cir.
2008) (quoting Shinyei, 355 F.3d at 1306); see also id. at 1280 (discussing the
holding of Shinyei in relatively broad terms). The Shinyei II court also clarified the
reason why reliquidation would be an appropriate form of relief in response to
Commerce’s error, namely, that, “[i]f there was an error in the instruction process,
then Shinyei is entitled to a judgment ordering reliquidation pursuant to new,
correct instructions.” Id. at 1284. So too here, there is no express or implied
prohibition on reliquidation of entries if they liquidated inclusive of unlawful
Section 301 duties. Further, if the court ultimately finds that there was legal error
(footnote continued)
Case 1:21-cv-00052-3JP Document 329 Filed 07/06/21 Page 47 of 50

Court No. 21-00052 	Page 48
suggested limitation on the court’s authority to provide appropriate relief.
Nevertheless, a finding by this court that it has the authority to order reliquidation
as a possible form of relief in this case, specifically, would not constrain the court’s
discretion in subsequent cases brought under the court’s residual jurisdiction to
determine what “relief . . . is appropriate.” 28 U.S.C. § 2643(c)(1).
In light of the CIT’s broad remedial authority, the court asked the Parties to
identify any cases in which “the Federal Circuit found that the CIT erred in its
exercise of discretion as to appropriate relief.” Letter from the Court at 1 (June 14,
2021), ECF No. 321. Plaintiffs pointed to Co-Steel Raritan, Inc. v. Int’l Trade
Comm’n, 357 F.3d 1294 (Fed Cir. 2004), and NTN Bearing Corp. of America v.
United States, 892 F.2d 1004 (Fed. Cir. 1989), while noting that those cases are
readily distinguished. The Government pointed to National Corn Growers Ass’n v.
Baker, 840 F.2d 1547 (Fed. Cir. 1988). Oral Arg. 04:30–10:40.
None of the identified cases suggest that the court would overstep its
authority to order reliquidation to prevailing Plaintiffs in this case. Co-Steel
Raritan recognized the CIT’s general authority to remand an agency determination
pursuant to 28 U.S.C. § 2643(c)(1) while finding that the CIT erred in ordering a
remand to the U.S. International Trade Commission to reconsider a negative
preliminary material injury determination in an antidumping investigation to
in the imposition of List 3 and List 4A duties on Plaintiffs’ entries, Plaintiffs are
entitled to a judgment ordering reliquidation exclusive of duties. Nothing in
Shinyei II suggests that the Shinyei court’s statement concerning the preclusion of
judicial enforcement of court orders consisted of anything more than a rejection of
the Government’s argument as opposed to a limitation on its holding.
Case 1:21-cv-00052-3JP Document 329 Filed 07/06/21 Page 48 of 50

Court No. 21-00052 	Page 49
account for subsequent developments. 357 F.3d at 1313–17. NTN Bearing
recognized the CIT’s “broad injunctive powers” pursuant to 28 U.S.C. §§ 1585 and
2643(c)(1) while finding that the CIT erred in entering what amounted to an
injunction enjoining the collection of antidumping duty cash deposits and ordering
the return of duties previously paid following the entry of partial summary
judgment, without the requisite final court decision pursuant to 19 U.S.C.
§ 1516a(e). 892 F.2d at 1006.
The Government’s reliance on National Corn Growers also is inapposite.
While the Government sought to rely on that case for the proposition that the CIT
cannot award monetary damages in a section 1581(i) case in circumvention of a
statutory limit on reliquidation authority, see Nat’l Corn Growers, 840 F.2d at 1560,
such discussion is purely dicta. The Federal Circuit first determined that the CIT
lacked jurisdiction pursuant to 28 U.S.C. § 1581(i); jurisdiction pursuant to 28
U.S.C. § 1581(b) was available; and any remedy pursuant to section 1581(b) was
limited, by statute, to prospective entries. Id. at 1550–59. Thus, National Corn
Growers would not limit the court’s authority to require the Government to return
wrongfully obtained duties through reliquidation when there is no particular
statutory prohibition on reliquidation or limitation to prospective relief.
In sum, given the CIT’s broad remedial authority and the absence of any
explicit disagreement from my colleagues concerning the court’s authority to order
reliquidation as a remedy in this case, I conclude that Plaintiffs’ showing of
irreparable harm is speculative, at best. My reading of the Federal Circuit
precedent does not allow me to conclude that Plaintiffs have established a likelihood
Case 1:21-cv-00052-3JP Document 329 Filed 07/06/21 Page 49 of 50

Court No. 21-00052 	Page 50
of irreparable harm. In the absence of such a showing, I would deny the motion for
a preliminary injunction without reaching the other requirements for issuing such
an injunction. Because I do not believe that Plaintiffs are entitled to the
“extraordinary remedy” of preliminary relief, see Winter, 555 U.S. at 22, I therefore
dissent.
/s/ 	Mark A. Barnett
Mark A. Barnett, Chief Judge
Case 1:21-cv-00052-3JP Document 329 Filed 07/06/21 Page 50 of 50