Slip Op. 10-136
UNITED STATES COURT OF INTERNATIONAL TRADE
NTN CORPORATION, et al.,
Plaintiffs,
and
JTEKT CORPORATION and KOYO
CORPORATION OF U.S.A.,
Plaintiff-Intervenors,
v. Before: Timothy C. Stanceu, Judge
UNITED STATES, Court No. 10-00286
Defendant,
and
THE TIMKEN COMPANY,
Defendant-Intervenor.
OPINION AND ORDER
[Denying plaintiff-intervenors’ motion for preliminary injunction without prejudice]
Dated: December 17, 2010
Baker & McKenzie LLP (Donald J. Unger, Kevin M. O’Brien, Kevin J. Sullivan, and
Diane A. MacDonald) for plaintiffs, NTN Corporation, NTN Bearing Corporation of America,
NTN-Bower Corporation, American NTN Bearing Manufacturing Corporation, NTN-BCA
Corporation, and NTN Driveshaft, Inc.
Sidley Austin LLP (Neil R. Ellis, Jill Caiazzo, Lawrence R. Walders, and Rajib Pal) for
plaintiff-intervenors JTEKT Corporation and Koyo Corporation of U.S.A.
Tony West, Assistant Attorney General, Jeanne E. Davidson, Director, Patricia M.
McCarthy, Assistant Director, Commercial Litigation Branch, Civil Division, United States
Court No. 10-00286 Page 2
Department of Justice (L. Misha Preheim); Deborah R. King, Office of the Chief Counsel for
Import Administration, United States Department of Commerce, of counsel, for defendant.
Stewart and Stewart (Geert M. De Prest, Terence P. Stewart, William A. Fennell, and
Lane S. Hurewitz) for defendant-intervenor.
Stanceu, Judge: Plaintiffs NTN Corporation, NTN Bearing Corporation of America,
NTN-Bower Corporation, American NTN Bearing Manufacturing Corporation, NTN-BCA
Corporation, and NTN Driveshaft, Inc. (collectively, “NTN”) contest the final determination
(“Final Results”) issued by the International Trade Administration, U.S. Department of
Commerce (“Commerce” or the “Department”), in periodic administrative reviews of
antidumping duty orders on imports of ball bearings and parts thereof (the “subject
merchandise”) from France, Germany, Italy, Japan, and the United Kingdom for the period from
May 1, 2008 through April 30, 2009 (the “period of review”). See Ball Bearings and Parts
Thereof From France, Germany, Italy, Japan, and the United Kingdom: Final Results of
Antidumping Duty Admin. Reviews, Final Results of Changed-Circumstances Review, and
Revocation of an Order in Part, 75 Fed. Reg. 53,661 (Sept. 1, 2010) (“Final Results”). NTN
brings three claims. First, NTN challenges Commerce’s use of its “zeroing” practice to calculate
their dumping margin in the review of the order pertaining to Japan, under which practice
Commerce deems sales of subject merchandise made in the United States at prices above normal
value to have individual dumping margins of zero rather than negative margins. Compl.
¶¶ 19-26 (“Count One”). Second, NTN contests the application in the review of the
Department’s policy of issuing duty assessment and liquidation instructions to United States
Customs and Border Protection (“Customs” or “CBP”) fifteen days after the publication of the
final results of the administrative reviews (“fifteen-day policy”). Compl. ¶¶ 27-32 (“Count
Court No. 10-00286 Page 3
Two”). Third, NTN asserts that Commerce “may have made other programming, clerical, or
methodological errors, including errors that can only be determined by reference to the
confidential administrative record.” Compl. ¶ 34 (Count Three).
Before the court is the motion of plaintiff-intervenors JTEKT Corporation and Koyo
Corporation of U.S.A. (collectively, “JTEKT”) for a preliminary injunction to prohibit Customs
from liquidating entries of subject merchandise produced by or on behalf of JTEKT that were
made during the period of review. Mot. of Pl.-Intervenors JTEKT Corp. and Koyo Corp. of
U.S.A. for Prelim. Inj. (“Pl.-Intervenors’ Mot.”). Defendant United States and defendant-
intervenor the Timken Company (“Timken”), oppose plaintiff-intervenors’ motion for a
preliminary injunction. Def.’s Opp’n to JTEKT Corp. and Koyo Corp. of U.S.A.’s Mot. for
Prelim. Inj. (“Def.’s Opp’n”); Timken’s Opp’n to JTEKT’s Mot. for Prelim. Inj (“Timken’s
Opp’n”).
The court concludes that JTEKT has failed to demonstrate any likelihood that plaintiffs
will succeed on the merits of the claims in Counts One and Three of the complaint. Plaintiff-
intervenors have not intervened with respect to Count Two, which challenges the Department’s
fifteen-day policy. The court, therefore, must deny plaintiff-intervenors’ motion for an injunction
against liquidation.
I. BACKGROUND
Pursuant to 19 U.S.C. § 1675(a) (2006), Commerce initiated the administrative reviews
of the orders on the subject merchandise. Initiation of Antidumping & Countervailing Duty
Admin. Reviews and Requests for Revocation in Part, 74 Fed. Reg. 30,052 (June 24, 2009). On
April 28, 2010, the Department published its preliminary results. Ball Bearings & Parts Thereof
Court No. 10-00286 Page 4
From France, Germany, Italy, Japan, and the United Kingdom: Preliminary Results of
Antidumping Admin. Reviews, Preliminary Results of Changed-Circumstances Review,
Rescission of Antidumping Duty Admin. Reviews in Part, and Intent to Revoke Order in Part,
75 Fed. Reg. 22,384 (Apr. 28, 2010). On September 1, 2010, the Department published the Final
Results, which assigned a weighted-average margin of 13.46% to plaintiffs and a 10.97%
weighted-average margin to JTEKT. Final Results, 75 Fed. Reg. at 53,662.
On September 16, 2010, plaintiffs commenced this action. Summons; Compl. On
September 17, 2010, plaintiffs moved for a preliminary injunction to prohibit Customs from
liquidating entries of subject merchandise produced by or on behalf of plaintiffs that were made
during the period of review. Consent Mot. for Prelim. Inj. Defendant consented to this motion,
which was granted. Order, Sept. 27, 2010. On October 12, 2010, the court granted JTEKT’s
motion to intervene as of right. Consent Mot. to Intervene by JTEKT Corp. and Koyo Corp. of
U.S.A.; Order, Oct. 12, 2010. Plaintiff-intervenors filed their motion for a preliminary injunction
on November 11, 2010, which defendant and defendant-intervenor oppose. Pl.-Intervenors’
Mot.; Def.’s Opp’n; Timken’s Opp’n. On November 22, 2010, defendant moved to dismiss all
three counts set forth in plaintiffs’ complaint. Def.’s Mot. to Dismiss (“Def.’s Mot.”).
Responses to this motion are due on January 21, 2011. On December 9, 2010, plaintiffs moved
for leave to file a reply to defendant’s response to plaintiff-intervenors’ motion for a preliminary
injunction. Pl.’s Mot. for Leave to File a Reply to the Government’s Resp. to JTEKT Corp. and
Koyo Corp. of U.S.A.’s Mot. for Prelim. Inj.
Court No. 10-00286 Page 5
II. DISCUSSION
The court has subject matter jurisdiction under 28 U.S.C. § 1581(c) (2006) to adjudicate
Counts One and Three of the complaint. 28 U.S.C. § 1581(c). As provided in Section 201 of the
Customs Courts Act of 1980, 28 U.S.C. § 1581(c), the court has jurisdiction to review actions
commenced under Section 516A of the Tariff Act of 1930, 19 U.S.C. § 1516a (2006), including
an action contesting a final determination issued in an administrative review conducted under
19 U.S.C. § 1675(a). See id. The court is provided subject matter jurisdiction by 28 U.S.C.
§ 1581(i) to adjudicate plaintiffs’ claim in Count Two, which challenges the decision to issue
liquidation instructions to implement the Final Results fifteen days after publication of the
Federal Register notice. See 28 U.S.C. § 1581(i); SKF USA Inc. v. United States, 31 CIT 405,
409-10 (2007) (citing Shinyei Corp. of Am. v. United States, 355 F.3d 1297, 1304-05 (Fed. Cir.
2004), and Consol. Bearings Co. v. United States, 348 F.3d 997, 1002-03 (Fed. Cir. 2003)).1
In ruling on plaintiff-intervenors’ motion for preliminary injunctive relief, the court
considers whether the movant is likely to succeed on the merits, whether the movant will suffer
irreparable harm if the relief is not granted, whether the balance of the hardships tips in the
movant’s favor, and whether a preliminary injunction will not be contrary to the public interest.
1
The court held in SKF USA Inc. v. United States that jurisdiction over a claim
challenging a previous fifteen-day policy does not fall under 28 U.S.C. § 1581(c), explaining that
“[t]he language in the Federal Register notice to which plaintiffs direct the court’s attention is a
statement of a present intention on the part of Commerce to take, within fifteen days of the
publication of the Final Results, the future action of instructing Customs to liquidate, in
accordance with the Final Results, the affected entries.” SKF USA Inc. v. United States,
31 CIT 405, 409 (2007). The court reached the same conclusion in subsequent actions regarding
plaintiffs’ claim challenging the Department’s revised fifteen-day policy. SKF USA Inc. v.
United States, 34 CIT __, __, Slip Op. 10-57, at 6-7 (May 17, 2010); SKF USA Inc. v. United
States, 33 CIT __, __, Slip Op. 09-121, at 17-18 (Oct. 27, 2009).
Court No. 10-00286 Page 6
See Belgium v. United States, 452 F.3d 1289, 1292 (Fed. Cir. 2006) (quoting U.S. Ass’n of
Importers of Textiles & Apparel v. U.S. Dep’t of Commerce, 413 F.3d 1344, 1346 (Fed. Cir.
2005). “No one factor, taken individually, is necessarily dispositive.” FMC Corp. v. United
States, 3 F.3d 424, 427 (Fed. Cir. 1993).
A. Plaintiff-Intervenors Have Not Intervened in Support of Plaintiffs’ Claim Contesting
Commerce’s Fifteen-Day Policy
The court granted plaintiff-intervenors’ unopposed motion to intervene, which sought
intervention as a matter of right according to 28 U.S.C. § 2631(j)(1)(B). Consent Mot. to
Intervene by JTEKT Corp. and Koyo Corp. of U.S.A. 2; Order, Oct. 12, 2010. Under the statute,
“in a civil action under section 516A of the Tariff Act of 1930 [19 U.S.C. § 1516a], only an
interested party who was a party to the proceeding in connection with which the matter arose may
intervene, and such person may intervene as a matter of right.” 28 U.S.C. § 2631(j)(1)(B). As
expressly limited by § 2631(j)(1)(B), the intervention as a matter of right that JTEKT was
granted pertains only to the counts within the complaint that arise under section 516A, which in
this case are Counts One and Three. Plaintiffs’ claim in Count Two challenging the
Department’s fifteen-day policy, which depends on 28 U.S.C. § 1581(i) for subject matter
jurisdiction, does not arise under Section 516A and instead arises under the Administrative
Procedure Act, 5 U.S.C. § 702 (2006). See Motion Systems v. Bush, 437 F.3d 1356, 1359 (Fed.
Cir. 2006). Therefore, JTEKT could intervene with respect to the claim in Count Two only as a
matter of permissive intervention. See 28 U.S.C. § 2631(j). Plaintiff-intervenors have not filed a
motion for permissive intervention as to that claim.
Court No. 10-00286 Page 7
Moreover, were JTEKT now to move to intervene with respect to Count Two, it is
probable that the court would be required to deny any such motion for lack of standing.
According to 28 U.S.C. § 2631(j), permissive intervention is available only to persons “adversely
affected or aggrieved by a decision in a civil action,” a requirement grounded in the standing
requirement under Article III of the United States Constitution. It is unlikely that JTEKT would
be able to demonstrate that they were affected in any way by the agency action NTN is
challenging in Count Two, which is the Department’s application of the fifteen-day policy to
implement the Final Results. In Count Two, NTN’s claim is that “[t]he Department’s
determination to send liquidation instructions to Customs and Border Protection prior to the time
allowed by law for initializing judicial review of the publication of the final determination is
unsupported by substantial evidence of record and otherwise not in accordance with law.”
Compl. ¶ 32. To demonstrate standing, NTN asserted as a fact that “[t]o prevent premature
liquidation of its entries, NTN was required to file its summons and complaint within less than
the statutorily permitted periods”; NTN did so in order to move for and obtain a preliminary
injunction against liquidation. Id. ¶ 29. In referring to “the statutorily permitted periods” and the
“time allowed by law for initializing judicial review,” NTN’s complaint must be construed to
mean a period that is, at most, sixty days from the date of publication of the Final Results. See
19 U.S.C. § 1516a(a)(2) (allowing a party thirty days from the publication of final results of an
administrative review to file a summons and thirty days from the filing of a summons to file a
complaint). JTKET did not move for an injunction against liquidation until November 11, 2010,
seventy-one days after publication of the Final Results. Pl.-Intervenors’ Mot.; see Final Results.
It is not apparent from these facts that the act of which NTN complains, i.e., issuance of
Court No. 10-00286 Page 8
liquidation instructions according to a policy requiring such issuance before the statutory period
for commencing litigation has run, had or could have had any adverse effect on JTEKT.
B. Plaintiff-Intervenors Fail to Show that Plaintiffs’ Claims in Counts One and Three Have Any
Likelihood of Success on the Merits
Plaintiff-intervenors have failed to demonstrate that the plaintiffs in this case have any
likelihood of succeeding on the merits of the claims stated in Counts One and Three of the
complaint. In Count One, plaintiffs’ complaint alleges that due to recent developments in the
World Trade Organization (“WTO”), the Department’s methodology in calculating NTN’s
weighted-average dumping margin “fails to comply with U.S. law and U.S. obligations under
international law.” Compl. ¶¶ 19-26 (citing to Appellate Body Report, United States - Laws,
Regulations and Methodology for Calculating Dumping Margins (“Zeroing”), WT/DS294
(Apr. 18, 2006); Appellate Body Report, United States - Measures Relating to Zeroing and
Sunset Reviews, ¶¶ 137, 156, 165 and 185, WT/DS322/AB/R (Jan. 9, 2007)). Plaintiffs report
that, as a result, “the United States agreed to implement the WTO decision on zeroing by
December 24, 2007.” Compl. ¶ 24 (citing to U.S. Zeroing, WT/DS322/20 (May 8, 2007)).
The U.S. Court of Appeals for the Federal Circuit (“Court of Appeals”) repeatedly has
sustained Commerce’s application of the zeroing methodology in administrative reviews. See
Koyo Seiko Co. v. United States, 551 F.3d 1286 (Fed. Cir. 2008); SKF USA, Inc. v. United States,
537 F.3d 1373 (Fed. Cir. 2008); NSK Ltd. v. United States, 510 F.3d 1375 (Fed. Cir. 2007);
Corus Staal BV v. United States, 502 F.3d 1370 (Fed. Cir. 2007). Under this binding precedent,
the court previously has denied a party’s motion for an injunction where the sole claim in the
case was contesting Commerce’s zeroing practice, on the ground that the party failed to
Court No. 10-00286 Page 9
demonstrate any likelihood of success on the merits. NSK Ltd. v. United States, 34 CIT __, Slip
Op. 10-117 (Oct. 15, 2010); NSK Bearings Europe Ltd. v. United States, 34 CIT __, Slip Op. 10-
118 (Oct. 15, 2010). Because plaintiffs’ claim challenging zeroing is contrary to binding
precedent established and repeatedly reaffirmed by the Court of Appeals, the court concludes that
plaintiff-intervenors have failed to demonstrate a likelihood that plaintiffs will succeed on the
merits of the claim stated in Count One.
Plaintiff-intervenors are also unable to demonstrate that plaintiffs will have any
likelihood of succeeding on the merits of the claim in Count Three. In Count Three, NTN asserts
that:
[b]ased on information and belief, NTN alleges that the ITA may have made other
programming, clerical, or methodological errors, including errors that can only be
determined by reference to the confidential administrative record. The
administrative record has not been filed with this Court, and, therefore, NTN has
not yet been able to review it.2
Compl. ¶ 34. The applicable pleading requirement for plaintiffs’ claim in Count Three is set
forth in USCIT Rule 8(a), which provides that a complaint shall contain “a short and plain
statement of the claim showing that the [plaintiff] is entitled to relief.” USCIT Rule 8(a)(2)
(2010). Although a complaint need not contain detailed factual allegations, the “[f]actual
allegations must be enough to raise a right to relief above the speculative level on the assumption
that all the complaint’s allegations are true.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 545
(2007). Because plaintiff-intervenors are seeking to intervene in support of a claim that is based
only upon speculation that something contrary to law may have happened, the court concludes
2
The confidential administrative record in this case was filed on December 10, 2010.
Court No. 10-00286 Page 10
that plaintiff-intervenors have failed to demonstrate that plaintiffs will succeed on the merits of
their claim in Count Three.
Plaintiff-intervenors urge the court to consider the likelihood of plaintiffs’ success on the
merits on a “sliding scale basis” that considers the showing of irreparable harm. Mem. of Pl.-
Intervenors JTEKT Corp. and Koyo Corp. of U.S.A. in Support of Mot. for Prelim. Inj. 5 (Pl.-
Intervenors’ Mem.”). Plaintiff-intervenors argue that “in the absence of an injunction, the
Department and U.S. Customs and Border Protection will proceed with liquidation of the subject
entries, once the litigation in NSK is completed. . . .[t]hus, without an injunction, JTEKT will be
deprived of its right to judicial review to a significant degree.” Pl.-Intervenors’ Mem. 4-5.
Pursuant to court order in connection with other pending litigation, liquidation of JTEKT’s
entries for the period of review at issue in this action is currently enjoined. See NSK Corp. v.
United States, Court No. 06-00334, Order, Sept. 13, 2010 (in which NSK appeals the second
sunset review determination of the U.S. International Trade Commission). Without deciding the
question, the court presumes, for purposes of considering the other three factors, that upon
completion of that other litigation JTEKT may be in a position to be harmed irreparably by any
liquidation of the affected entries that does not reflect the outcome of this litigation.
Nevertheless, even a showing of irreparable harm would not convince the court that an
injunction against liquidation is warranted in this case, in which there has been shown no
likelihood of success on the claims in Counts One and Three. The court reaches this conclusion
even though the “balance of the hardships” and “public interest” factors are also in JTEKT’s
favor. The government will not incur hardship if an injunction is granted, as it would be in a
position to collect any additional duties owed upon eventual liquidation. Concerning the “public
Court No. 10-00286 Page 11
interest” factor, it is in the public interest that the entries at issue in this litigation be liquidated in
accordance with the correct result on the merits. An injunction against liquidation of entries
pursuant to 19 U.S.C. § 1516a(c)(2) should not be ordered without at least a showing that the
issue presented is not “so clear-cut as to warrant disposing of this appeal,” Belgium, 432 F.3d
at 1295, a showing plaintiff-intervenors are unable to demonstrate with respect to those claims.
Therefore, the court will deny plaintiff-intervenors’ motion for a preliminary injunction.
III. CONCLUSION AND ORDER
Plaintiff-intervenors have failed to demonstrate that plaintiffs will have any likelihood of
success on the merits of the claims stated in Counts One and Three of plaintiffs’ complaint.
Plaintiff-intervenors have not intervened as to the claim stated in Count Two. Accordingly, the
court declines to grant the injunction against liquidation sought in plaintiff-intervenors’ motion.
ORDER
Upon consideration of plaintiff-intervenors’ Motion for Preliminary Injunction, plaintiff-
intervenors’ memorandum in support thereof, Defendant’s Opposition to JTEKT Corporation
and Koyo Corporation of U.S.A.’s Motion for Preliminary Injunction, Timken’s Opposition to
JTEKT’s Motion for Preliminary Injunction, and all other papers and proceedings herein, it is
hereby
ORDERED that plaintiff-intervenors’ Motion for Preliminary Injunction be, and hereby
is, DENIED without prejudice; and it is further
ORDERED that Plaintiffs’ Motion for Leave to File a Reply to the Government’s
Response to JTEKT Corporation and Koyo Corporation of U.S.A.’s Motion for Preliminary
Injunction be, and hereby is, DENIED as moot.
/s/ Timothy C. Stanceu
Timothy C. Stanceu
Judge
Dated: December 17, 2010
New York, New York