Slip Op. 99 - 16 

 UNITED STATES COURT OF INTERNATIONAL TRADE

- - - - - - - - - - - - - - - - - - -x

WOLVERINE TUBE (CANADA), INC., :

Plaintiff, :

 v. :

THE UNITED STATES, : Court No. 98-12-03241

Defendant, :

 -and- :

HUSSEY COPPER, LTD. et al., :

 Intervenor-Defendants. :

- - - - - - - - - - - - - - - - - - -x

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, Commercial 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 during oral argument that this action raises an issue of first impression, namely, whether the Court of International Trade has
Court No. 98-12-03241 Page 2

jurisdiction to enjoin administrative proceedings by the International 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 contesting the final results of the Department's administrative review of entries of Wolverine products

during calendar year 1996 . . . in Brass Sheet and

Strip from Canada, NAFTA Secretariat File No. USACDA 98-1904-03.
Court No. 98-12-03241 Page 3

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.

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 minimis 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 conduct 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 substantial 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
Court No. 98-12-03241 Page 4

ment to correct its admitted error. Wolverine reasoned that . . . a remand now would be the most legally, 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 (unsuccessful) efforts to get the agency to agree to suspend further 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 preliminary 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 showing:

(1) A threat of immediate irreparable harm; (2) that

the public interest would be better served by issuing 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

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.

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 burden 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 Corporation 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 administrative staff th[at] are critical to the operations of the company"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
Court No. 98-12-03241 Page 6

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.

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". Plaintiff'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 plaintiff'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), provides that, in general, it "may" revoke an order after an administrative 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' success 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 conducted and has already submitted its original and

supplemental questionnaire responses. No additional
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 contrast, 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. Considerable 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 detrimental 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 application 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