Mittal Steel Point Lisas Ltd. v. United States , 31 Ct. Int'l Trade 1589 ( 2007 )

Slip Op. 07 - 148
UNITED STATES COURT OF INTERNATIONAL TRADE
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MITTAL STEEL POINT LISAS LIMITED, :
Plaintiff, :
v. :
UNITED STATES, : Court No. 02-00756
Defendant, :
-and-
:
GERDAU AMERISTEEL CORP. et al.,
:
Intervenor-Defendants.
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Memorandum & Order
[Plaintiff’s motion for an injunction pend-
ing intervenor-defendants’ appeal from
amended final judgment herein denied.]
Dated: October 11, 2007
Steptoe & Johnson LLP (Mark A. Moran and Matthew S. Yeo)
for the plaintiff.
Kelley Drye Collier Shannon (Paul C. Rosenthal, Kathleen W.
Cannon and R. Alan Luberda) for the intervenor-defendants.
AQUILINO, Senior Judge: The intervenor-defendants
have commenced an appeal to the U.S. Court of Appeals for the
Federal Circuit (“CAFC”), Docket No. 07-1552, from this court’s
amended judgment that has been entered pursuant to its
Court No. 02-00756 Page 2
slip opinion 07-106, 31 CIT ___, 495 F. Supp. 2d 1374 (2007),
familiarity with which is presumed. While that entry was the
result of plaintiff’s earlier appeal to the CAFC, which vacated
this court’s judgment sub nom. Caribbean Ispat Ltd. v. United
States, 29 CIT ___, 366 F. Supp. 2d 1300 (2005), and remanded an
issue for consideration by the defendant U.S. International
Trade Commission (“ITC”) and this court1, come now counsel for
the plaintiff (“MSPL”) with a motion for an injunction pending
intervenor-defendants’ appeal2,
enjoining the U.S. Department of Commerce . . . and
U.S. Customs and Border Protection . . . from issuing
instructions to liquidate, or causing or permitting to
be liquidated, all unliquidated entries of certain
carbon and alloy steel wire rod (“CASWR”) from
Trinidad and Tobago that were: (1) subject to the
antidumping . . . order on CASWR from Trinidad and
Tobago that issued on October 29, 2002 (“AD Order”)
. . ., 67 Fed. Reg. 65945 . . .; and (2) produced and
exported by MSPL and were entered, or withdrawn from
warehouse, for consumption between October 1, 2003 and
September 30, 2004, inclusive.
1
See Caribbean Ispat Ltd. v. United States, 450 F.3d 1336(Fed.Cir. 2006).
2
On October 10, 2007, they also transmitted a Motion for
Leave to File Update on Subsequent Developments and Reply to
Defendant-Intervenors’ Opposition to Plaintiff’s Partial Consent
Motion for Injunction Pending Appeal, which, under the
circumstances, should be, and it hereby is, granted.
Court No. 02-00756 Page 3
The motion reports consent on the part of government counsel but
not by the intervenor-defendants.
I
Indeed, as the papers filed in opposition on their
behalf point out, plaintiff’s motion is problematic for a number
of reasons: To begin with, the court’s amended judgment of July
6, 2007 affirms plaintiff’s position (and, after remand, that of
certain members of the ITC) that
an industry in the United States is not materially
injured or threatened with material injury by reason
of imports of certain wire rod from Trinidad and
Tobago that is sold in the United States at less than
fair value[.]
Ergo, those parties to this case have not appealed.
Second, neither the entries of merchandise that
plaintiff’s proposed injunction would protect nor the results of
their AD Order administrative review pursuant to 19 U.S.C. '16753
are a predicate of the court’s subject-matter jurisdiction over
this case, which has entailed judicial review of the ITC’s
3
See Notice of Final Results of Antidumping Duty
Administrative Review: Carbon and Certain Alloy Steel Wire Rod
from Trinidad & Tobago, 70 Fed.Reg. 69,512 (Nov. 16, 2005).
Court No. 02-00756 Page 4
affirmative material-injury determination sub nom. Carbon and
Certain Alloy Steel Wire Rod From Brazil, Canada, Germany,
Indonesia, Mexico, Moldova, Trinidad and Tobago, and Ukraine, 67
Fed.Reg. 66,662 (Nov. 1, 2002). Hence, neither the U.S.
Department of Commerce nor Customs and Border Protection, which
plaintiff’s motion would enjoin, is or has been a party herein4.
Stays pending appeals are a common form of interim,
injunctive relief. See generally Federal Rule of Appellate
Procedure 8(a) and cases thereunder. Nonetheless, it is not now
clear how such relief is absolutely necessary to protect the
plaintiff in this case from the amended final judgment already
entered on its behalf.5 Were the situation otherwise, the
plaintiff does recognize that the
criteria for the issuance of an injunction pending
appeal are identical to those for the issuance of a
4
According to the motion, the consent thereto by ITC
counsel was given only after consultation with the Office of
Chief Counsel for Import Administration, U.S. Department of
Commerce.
5
The best counsel posit is the position Commerce apparently
has taken in another case if and when the CAFC were to affirm
the amended judgment herein. See Plaintiff’s Reply Memorandum,
p. 2. Cf. id. at 3 (“MSPL reiterates its willingness to have
this Court issue an injunction to be effective only upon the
dissolution of the pending injunction issued in that [other]
case”).
Court No. 02-00756 Page 5
preliminary injunction. . . . This Court employs a
four-prong test to determine whether an injunction
should be granted. The Court balances: (1) whether
the movant will suffer irreparable harm absent the
requested relief; (2) the movant’s likelihood of
success on the merits; (3) whether the balance of
hardships favors the movant; and (4) whether the
public interest would be served by granting the
requested relief.
Plaintiff’s Memorandum, p. 9, citing Fundicao Tupy S.A. v.
United States, 11 CIT 635, 637, 671 F. Supp. 27, 29 (1987);
Zenith Radio Corp. v. United States, 710 F.2d 806, 809 (Fed.Cir.
1983). Suffice it to state with regard to these strict
standards that this and other courts have not automatically
equated economic loss of the kind the plaintiff projects in this
instance6 with “irreparable harm”7, nor is it clear as to the
merits that this court’s amended judgment, if and when affirmed
on appeal, would be enforced retroactively. See, e.g., Corus
Staal BV v. United States, 31 CIT ___, Slip Op. 07-140 (Sept.
19, 2007). Cf. Plaintiff’s Reply Memorandum, p. 2.
6
See, e.g., Plaintiff’s Memorandum, p. 4; Plaintiff’s Reply
Memorandum, p. 2.
7
Cf. Plaintiff’s Reply Memorandum, p. 6 (“so long as MSPL’s
entries remained suspended, any claim of irreparable harm was
necessarily speculative”).
Court No. 02-00756 Page 6
Finally, both plaintiff’s motion and intervenor-
defendants’ papers in opposition point to proceedings in CIT No.
05-00681 sub nom. Mittal Steel Point Lisas Ltd. v. United
States, which have directly impleaded the results of the AD
Order administrative review of the entries that concern the
plaintiff. Those proceedings have given rise to an order of the
kind MSPL now also seeks herein. It decrees that Commerce and
Customs be
ENJOINED, during the pendency of th[e] litigation,
including any remands and all appeals, from making or
permitting liquidation of any unliquidated entries of
[MSPL] . . . CASWR[] from Trinidad and Tobago[.]
Plaintiff’s Memorandum, Attachment 1, first page. Moreover, the
court in that matter has issued slip opinion 07-120, 31 CIT ___
(Aug. 8, 2007), pursuant to which final judgment entered. And
this court now notes in passing MSPL’s notice on October 5, 2007
of an appeal from that judgment that extends the above-quoted
order on its face and arguably provides MSPL with sufficient,
immediate injunctive relief vis-à-vis its specified unliquidated
entries.
Court No. 02-00756 Page 7
II
In view of the foregoing, plaintiff’s motion for an
injunction pending intervenor-defendants’ appeal herefrom should
be, and it hereby is, denied.
So ordered.
Dated: New York, New York
October 11, 2007
/s/ Thomas J. Aquilino, Jr.
Senior Judge