                               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
