Slip Op. 99 - 16
UNITED STATES COURT OF INTERNATIONAL TRADE
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WOLVERINE TUBE (CANADA), INC., :
Plaintiff, :
v. :
THE UNITED STATES, : Court No. 98-12-03241
Defendant, :
-and- :
HUSSEY COPPER, LTD. et al., :
Intervenor-Defendants. :
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Memorandum
[Plaintiff's application for preliminary
injunction denied; action dismissed.]
Decided: February 5, 1999
Rogers & Wells LLP (Carrie A. Simon and Ryan Trainer) for
the plaintiff.
David W. Odgen, Acting Asistant Attorney General; David M.
Cohen, Director, Velta A. Melnbrencis, Assistant Director, Com-
mercial Litigation Branch, Civil Division, U.S. Department of
Justice(Michele D. Lynch); and Office of Chief Counsel for Import
Administration, U.S. Department of Commerce (Linda S. Chang), of
counsel, for the defendant.
Collier, Shannon, Rill & Scott, PLLC (David A. Hartquist,
Jeffrey S. Beckington, Mary T. Staley and John M. Herrmann) for
the intervenor-defendants.
AQUILINO, Judge: The above-named parties agreed dur-
ing oral argument that this action raises an issue of first im-
pression, namely, whether the Court of International Trade has
Court No. 98-12-03241 Page 2
jurisdiction to enjoin administrative proceedings by the Inter-
national Trade Administration, U.S. Department of Commerce
("ITA") pending resolution of an appeal to a binational panel
constituted under the North American Free Trade Agreement
("NAFTA") that might obviate those proceedings. The court
concludes that it has such jurisdiction pursuant to 28 U.S.C §
1581(i), contingent upon a showing by an applicant that judicial
review of them in regular course pursuant to 28 U.S.C. §1581(c)
would be "manifestly inadequate". Compare Miller & Co. v. United
States, 824 F.2d 961 (Fed.Cir. 1987), cert. denied, 484 U.S. 1041
(1988), and Hylsa, S.A. de C.V. v. United States, 21 CIT , 960
F.Supp. 320 (1997), aff'd, 135 F.3d 778 (Fed.Cir. 1998), with
Techsnabexport, Ltd. v. United States, 16 CIT 420, 795 F.Supp.
428 (1992), and Makita Corp. v. United States, 17 CIT 240, 819
F.Supp. 1099 (1993).
I
The plaintiff commenced this action on the eve of a
deadline to supplement the record of an ITA administrative review
of Antidumping Duty Order; Brass Sheet and Strip From Canada, 52
Fed.Reg. 1,217 (Jan. 12, 1987), for the year 1997. See 63 Fed.
Reg. 10,002 (Feb. 27, 1998). Among other relief, it seeks to
enjoin further agency proceedings with regard to that year
pending resolution of a motion for remand that . . .
Wolverine has filed in a separate NAFTA Appeal con-
testing the final results of the Department's admin-
istrative review of entries of Wolverine products
during calendar year 1996 . . . in Brass Sheet and
Strip from Canada, NAFTA Secretariat File No. USA-
CDA 98-1904-03.
Court No. 98-12-03241 Page 3
According to the complaint, ITA annual reviews of 1994 and 1995
resulted in de minimis margins of dumping, and,
[b]ased on the verified evidence in the 1996 Review,
the Department preliminarily found Wolverine to have
a de minimis dumping margin of 0.42%, and decided to
revoke Wolverine from the underlying antidumping order.
Brass Sheet and Strip from Canada; Preliminary Results
of Antidumping Duty Administrative Review, 63 Fed.Reg.
64,666 (Dep't Comm. 1997). . ..
Complaint, para. 10. The plaintiff further avers that the final
margin for 1996, 0.67 percent1, was the direct result of an
agency calculation error, which the ITA "has admitted in the
NAFTA appeal"2.
When the Department corrects its admitted error
and reduces Wolverine's dumping margin to a de mini-
mis rate, the Department should also logically resolve
. . . whether Wolverine should have been revoked from
the underlying antidumping order.
Id., para. 9. Furthermore,
if Wolverine [had] been revoked from the antidumping
duty order at the conclusion of the 1996 Review, the
Department would have had no legal authority to con-
duct administrative reviews of post-1996 entries of
Wolverine's products. Nevertheless, since revocation
did not occur due to the Department's admitted error
in the 1996 Review, the Department has proceeded to
conduct the 1997 Review, at great expense and sub-
stantial burden to Wolverine.
14. As a result of the Department's admission
that the 1996 Review results were flawed, Wolverine
on November 2, 1998 filed a motion in the NAFTA Appeal
to remand the contested agency decision to the Depart
1
See 63 Fed.Reg. at 33,041.
2
Complaint, para. 7. But see Defendant's Memorandum, pp.
4-6, and compare with id., Appendix, Collective Exhibit 1b, 6th
and 10th to 12th pages. Cf. Defendant-Intervenors' Opposition
to Plaintiff's Motion, pp. 8-9 n. 2.
Court No. 98-12-03241 Page 4
ment to correct its admitted error. Wolverine rea-
soned that . . . a remand now would be the most le-
gally, procedurally, and pragmatically appropriate
course of action. . . .
Id., paras. 13, 14. The complaint also shows that the ITA
opposes remand at this time (as do the U.S. petitioners,
intervenor-defendants herein) and sets forth plaintiff's (un-
successful) efforts to get the agency to agree to suspend fur-
ther proceedings covering 1997. See id., paras. 15, 16.
The court held an immediate conference with all counsel
on plaintiff's request for a temporary restraining order, which
was denied. A hearing on plaintiff's application for a prelimi-
nary injunction was subsequently held in open court pursuant to
order to show cause, by which time the company had complied with
the ITA's request for supplemental data for 1997.
II
A temporary restraining order or preliminary injunction
is an extraordinary remedy which can only be granted upon show-
ing:
(1) A threat of immediate irreparable harm; (2) that
the public interest would be better served by issu-
ing than denying the injunction; (3) a likelihood of
success on the merits; and (4) that the balance of
hardship on the parties favor[s issuance].
S.J. Stile Assocs., Ltd. v. Snyder, 68 CCPA 27, 30, C.A.D. 1261,
646 F.2d 522, 525 (1981); American Stevedoring Inc. v. U.S.
Customs Service, 18 CIT 331, 335, 852 F.Supp. 1067, 1071 (1994).
While this and other courts have held that the severity of the
Court No. 98-12-03241 Page 5
injury the moving party will sustain without injunctive relief
is in inverse proportion to the showing of likelihood of success
on the merits3, they have also held that failure to bear the bur-
den of persuasion as to any one of these four factors is ground
for denial for such remedy. E.g., Bomont Industries v. United
States, 10 CIT 431, 638 F.Supp. 1334 (1986). See FMC Corpora-
tion v. United States, 3 F.3d 424, 427 (Fed.Cir. 1993).
Here, none of the four factors favors the plaintiff.
While there is no reason to doubt plaintiff's concern about
"out-of-pocket expenses" and that "active participation in an
antidumping case also places substantial burdens on key adminis-
trative staff th[at] are critical to the operations of the com-
pany"4, the court cannot conclude that those expectable costs are
the equivalent of "irreparable harm". Cf., e.g., Sampson v.
Murray, 415 U.S. 61 (1974); Wisconsin Gas Co. v. Federal Energy
Regulatory Comm'n, 758 F.2d 669 (D.C.Cir. 1985); Arbor Foods,
Inc. v. United States, 8 CIT 355, 600 F.Supp. 217 (1984).
The public interest, as the plaintiff properly points
out, is the "fair and efficient administration of U.S. trade
laws, as well as the appearance of such administration in the
3
See, e.g., Makita Corp. v. United States, 17 CIT 240, 250,
819 F.Supp. 1099, 1108 (1993); Ceramica Regiomontana, S.A. v.
United States, 7 CIT 390, 395, 590 F.Supp. 1260, 1264 (1984);
American Air Parcel Forwarding Co. v. United States, 1 CIT 293,
300, 515 F.Supp. 47, 53 (1981).
4
Plaintiff's Memorandum, p. 22.
Court No. 98-12-03241 Page 6
eyes of all who come within their realm"5, but the court cannot
also concur that requiring Wolverine to continue its compliance
with those laws is "patently unfair and inefficient". Plain-
tiff's Memorandum, p. 28. Indeed, their fair and efficient
administration may well soon lead, as the plaintiff believes, to
a determination by the ITA to revoke the antidumping-duty order
against it. But even if and when the ministerial error at issue
in the NAFTA proceedings is corrected, and thereby causes plain-
tiff's 1996 margin to become de minimis, revocation would not
be automatic, as the plaintiff seemingly pretends. The statute
governing the ITA in this regard, 19 U.S.C. §1675(d)(1), pro-
vides that, in general, it "may" revoke an order after an admin-
istrative review thereunder. The agency's published regulation
is to the same effect. See 19 C.F.R. §351.222(b) (1998). This
standard, combined with the traditional reluctance of courts to
intervene in administrative proceedings before they have run
their complete course6, leaves the likelihood of plaintiffs' suc-
cess on the merits, at best, debatable. Finally, with respect to
the balance of hardships, the intervenor-defendants point out
that
Wolverine itself requested that this review be con-
ducted and has already submitted its original and
supplemental questionnaire responses. No additional
5
Makita Corp. v. United States, 17 CIT at 250, 819 F.Supp.
at 1107.
6
See, e.g., Federal Trade Comm'n v. Standard Oil Co. of
Calif., 449 U.S. 232 (1980), and cases cited therein.
Court No. 98-12-03241 Page 7
duties can be imposed on Wolverine's imports until
the final determination is reached. Any hardship
imposed on Wolverine, therefore, is minimal. In con-
trast, a hardship would exist for the Department and
the domestic industry if this review were to be stopped
and then, at some time in the future, resume. Consider-
able resources have already been expended by both the
Department and the domestic industry in this review.
If Wolverine is found to be dumping in this review,
delaying the ultimate resolution of this administrative
review and the proper imposition of antidumping duties
by stopping the 1997 review at this point would be de-
trimental to the efficient administration of the law
and to the interests of the domestic industry.
Defendant-Intervenors' Opposition to Plaintiff's Motion, p. 4.
See generally Appendix to Defendant's Memorandum, Collective
Exhibit 2. Given these circumstances, there is little room for
even debate that any hardship(s) tip decidedly in plaintiff's
favor.
III
In short, in view of the foregoing, plaintiff's appli-
cation for a preliminary injunction must be denied. And in
failing to sustain its burden for this immediate, extraordinary,
equitable relief, the plaintiff has also failed to convince this
court that jurisdiction pursuant to 28 U.S.C. §1581(c) would be
manifestly inadequate. Ergo, this action should be dismissed.
Judgment will enter accordingly.
Decided: New York, New York
February 5, 1999
Judge