
    Brother Industries (USA), Inc., plaintiff v. United States, defendant, and Smith Corona Corp., defendant-intervenor
    Court No. 91-11-00794
    (Dated December 30, 1992)
    
      Hogan & Hartson (Lewis E. Leibowitz, Steven J. Routh and Joanne L. Leasure); Tanaka & O’Leary (Patrick F. O’Leary), for plaintiff.
    
      StuartM. Gerson, Assistant Attorney General, DavidM. Cohen, Director, United States Department of Justice, Civil Division, Commercial Litigation Branch (Patricia L. Petty)-, Dean A. Pinkert, Office of the Chief Counsel for Import Administration, United States Department of Commerce, of counsel, for defendant.
    
      Stewart and Stewart (Eugene L. Stewart, Terence P. Stewart, James R. Cannon, Jr. and Charles A. St. Charles), for defendant-intervenor.
   Opinion

Restani, Judge:

Defendant-intervenor Smith Corona Corporation moves for a stay pending appeal of the judgment entered in this matter ordering the Commerce Department to complete its inquiry into plaintiffs standing to file an antidumping petition. See Brother Industries (USA), Inc. v. United States, 16 CIT 789, 796, 801 F. Supp. 751, 759 (1992), appeal docketed, No, 93-1010 (Fed. Cir. Sept. 14,1992). The government supports the motion.

Brother’s first basis for opposition is that the judgment entered is not a final appealable judgment and therefore stay pending appeal would be improper. See Philip Brothers, Inc. v. United States, 10 CIT 448, 640 F. Supp. 261 (1986). While the Court of Appeals has taken a strict view of finality for purpose of appeal of international trade decisions (see Cabot Corp. v. United States, 4 Fed. Cir. (T) 80, 83, 788 F.2d 1539, 1543 (Fed. Cir. 1986); Badger-Powhatan v. United States, 5 Fed. Cir. (T) 72, 75, 808 F.2d 823, 825 (Fed. Cir. 1986)), this action may be factually distinguishable from the cited cases and the law as to finality generally may have shifted somewhat, We need not resolve these issues here. If the judgment is not an appealable one, the agency would be compelled to proceed as it would in the absence of a stay of a final judgment. See Brother Industries (USA), Inc. v. United States, 16 CIT 1006, Slip Op. 92-211 (Nov. 30, 1992). As the stay will not be granted because of the reasons discussed infra, the outcome is the same as it would be if the judgment were not final.

Brother also contends that the defendants have failed to satisfy the traditional four-part test for a stay. The court agrees.

As to the chances of success on appeal, Smith Corona has articulated the view that the court erred because it did not remand this matter for a new Commerce determination on Brother’s status as an interested party. As the court found that no reasonable interpretation of the record would support a finding of non-interestness under existing precedent, remand would not have been proper.

Assuming that the decision writer may have difficulty seeing potential error in her opinion, the court is more concerned with evidence of irreparable harm and the hardships to the parties. Given the extraordinary amount of time and expense “Japanese” owned Brother and “British” owned Smith Corona have spent for more than a decade warring over trade issues, including the issue of who represents the “American” industry, the court has a difficult time perceiving the irreparable harm to Smith Corona in participating in one more investigation. Moreover, Smith Corona has provided no detailed financial information which would demonstrate such harm.

The balance of hardships also does not favor Smith Corona. There has been a preliminary finding of injury. Any delay in obtaining antidump-ing relief presumably injures Brother. Smith Corona will be subjected to whatever duties are found owing under law. This is not a legally cognizable hardship.

If there is a public interest issue, it is in avoiding delay in obtaining relief from injury due to unfairly traded imports. The “countervailing” interest is in avoiding unnecessary waste of energy and expense, but no one has made a good case that denial of the stay likely would cause such a waste. While the government in particular has an understandable interest in avoiding administrative action if there is a possibility that appeal will moot its efforts, that is not a sufficient ground for a stay. The government raises no other grounds and Smith Corona has failed in its efforts to meet the four-part test.

Ordered, motion for stay pending appeal denied.

ORDER

(Dated January 29, 1993)

Restani, Judge: Smith Corona Corporation moves to edit Slip Op. 92-232 issued in this action. The court does not believe the parties could be misled by the court’s references to nationality of ownership, or could misperceive their purpose given the history of the underlying proceedings and the court’s central decision herein. The purpose is obviously to remind the parties that flag-waving is inappropriate and to encourage closer attention to the standards set forth in the statute. The court also does not believe any essential fact is misstated. 
      
       Una recent decision, the Court of Appeals retreated from its position in Cabot, and held that remands may or may not be final, depending on their nature. Travelstead v. Derwinski, 978 F.2d 1244, 1249 (Fed. Cir 1992) (citing Sullivan v. Finkelstein, 496 U.S. 617 (1990)).
     
      
       The court found that each underlying factual determination made by Commerce was supported. It was the ultimate application of the law to the facts which produced the erroneous result. See Brother, 16 CIT at 795-96, 801 F. Supp. at 758-59.
     
      
       Nationality of ownership is, of course, irrelevant to a determination of who may bring a petition for relief under the unfair trade laws of the United States. The threshold issue is whether thepetitioner manufactures the relevant product in the United States. See Brother Industries, Ltd. v. United States, 16 CIT 1006, Slip Op. 92-231 (Dec. 30, 1992); Brother Industries (USA), Inc. v. United States, 16 CIT 789, 801 F. Supp. 751 (1992).
     