
    725 F. Supp. 543
    Cambridge Lee Industries, Inc., plaintiff v. United States, defendant, and American Brass, et al., defendant-intervenors
    Court No. 88-09-00714
    
      (Decided November 1, 1989)
    
      Sharretts, Paley, Carter & Blauvelt (Gail T. Cumins, Beatrice A. Brickell, Ned H. Marshak) for plaintiff.
    
      Stuart M. Gerson, Assistant Attorney General, David M. Cohen, Director, Commercial Litigation Branch, Civil Division, United States Department of Justice (M Martha Ries); Lyn M. Schlitt, General Counsel, Judith M. Czako, Acting Assistant General Counsel, United States International Trade Commission (Calvin H. Cobb, III), for defendant.
    
      Collier, Shannon & Scott (Jeffery S. Beckington, David A. Hartquist, and Kathleen Weaver Cannon) for defendant-intervenors.
   Memorandum Opinion and Order

DiCarlo, Judge:

Cambridge Lee, a United States importer of brass sheet and strip, moves for an injunction pending appeal of this Court’s denial of a preliminary injunction against liquidation of entries of Japanese brass sheet and strip. Cambridge Lee Indus., Inc. v. United States, 13 CIT 847, Slip Op. 89-145 (Oct. 18, 1989).

The motion for an injunction pending appeal is granted.

Background

This court previously denied movant’s request for a preliminary injunction against liquidation of entries of Japanese brass sheet and strip, because movant failed to request an administrative review of the dumping order under 19 U.S.C. § 1675(a)(1). The court nonetheless recognized a continuing split of authority within the Court of International Trade on the question of whether a request for an administrative review is a prerequisite to obtaining injunctive relief against liquidation. Id. at 848, Slip Op. 89-145 at 4. The court stated that the issue is unlikely to be resolved until the Federal Circuit has an opportunity to address it. Id. at 849, Slip Op. 89-145 at 5.

Discussion

The criteria for the issuance of a preliminary injunction and an injunction pending appeal are identical. Fundicao Tupy S.A. v. United States, 11 CIT 635, 671 F. Supp. 27, 29 (1987); UST, Inc. v. United States, 11 CIT 111, Slip Op. 87-17 at 5-6 (Feb. 20, 1987). According to these criteria, the movant must demonstrate: (1) immediate and irreparable injury, (2) likelihood of success on the merits, (3) the balance of hardship favors the movant, and (4) an injunction will serve the public interest. Matsushita Elec. Indus. Co. v. United States, 823 F.2d. 505, 509 (Fed. Cir. 1987). The court has previously granted an injunction pending appeal after denying a preliminary injunction against liquidation. Fundicao Tupy S.A. v. United States, 11 CIT 635, 671 F. Supp. 27, 30 (1987); British Steel Corp. v. United States, 10 CIT 716, 649 F. Supp. 78, 80 (1986). Guided by the decisions in Fundicao Tupy and British Steel, the Court determines that the movant is entitled to the requested injunctive relief.

Absent an injunction pending appeal, movant would be immediately and irreparably injured because liquidation would moot its appeal, and would preclude movant from recovering its $55,000 cash deposit on the entries in issue should it prevail on the merits of its challenge to the underlying Commission determination. Movant has also met the second criterion by raising questions that are "serious, substantial, difficult, and doubtful.” As Customs has already collected cash deposits on the entries and would, at most, merely be required to delay liquidation should an injunction pending appeal issue, the third requirement is satisfied. Finally, an injunction best serves the public interest because of the need to resolve this issue at the appellate level. Fundicao Tupy, 11 CIT at 638, 671 F. Supp. at 30; British Steel, 10 CIT at 718, 649 F. Supp. at 80.

While movant failed to make the necessary showing for a preliminary injunction, it has sufficiently demonstrated the necessity of maintaining the status quo through an injunction pending appeal.

Conclusion

The motion for an injunction pending appeal is granted.  