SNR Roulements v. United States

Slip Op. 07-161

UNITED STATES COURT OF INTERNATIONAL TRADE

BEFORE: HONORABLE RICHARD W. GOLDBERG, SENIOR JUDGE

SNR ROULEMENTS, KOYO SEIKO CO.,
LTD., KOYO CORP. OF U.S.A., NSK
CORP., NSK BEARINGS EUROPE, LTD.,
NSK LTD., NTN-BCA CORP., NTN
BOWER CORP., NTN-DRIVESHAFT,
INC., AMERICAN NTN BEARING
MANUFACTURING CORP., NTN BEARING
CORP. OF AMERICA, NTN CORP., INA-
SCHAEFFLER KG, INA USA CORP.,

Plaintiffs,

v.
Consol. Court No. 01-00686
UNITED STATES,

Defendant,

and

TIMKEN U.S. CORP.,
f/k/a “THE TORRINGTON COMPANY”

Defendant-
Intervenor.

[Plaintiffs’ Motion for Extension of Preliminary Injunction is
denied]

Dated: November 2, 2007

Grunfeld, Desiderio, Lebowitz & Silverman & Klestadt, LLP (Bruce
Mitchell) for Plaintiff SNR Roulements.

Sidley Austin Brown & Wood, LLP (Neil R. Ellis) for Plaintiffs
Koyo Seiko Co., Ltd. and Koyo Corporation of U.S.A.

Crowell & Moring, LLP (Matthew P. Jaffe and Robert A. Lipstein)
for Plaintiffs NSK Corporation, NSK Bearings Europe, Ltd., and
NSK Ltd.

Baker & McKenzie, LLP (Donald J. Unger, Diane Alexa MacDonald and
Louisa Vassilova Carney) for Plaintiffs NTN-BCA Corporation, NTN
Court No. 01-00686 Page 2

Bower Corporation, NTN-Driveshaft, Inc., American NTN Bearing
Manufacturing Corp., NTN Bearing Corporation of America and NTN
Corporation.

Sonnenschein Nath & Rosenthal (Stephen L. Gibson) for Plaintiffs
INA-Schaeffler KG and INA USA Corporation.

Michael F. Hertz, Deputy Assistant Attorney General; Jeanne E.
Davidson, Director, Patricia M. McCarthy, Assistant Director,
Commercial Litigation Branch, Civil Division, U.S. Department of
Justice; (Claudia Burke); Office of the Chief Counsel for Import
Administration, U.S. Department of Commerce (Deborah King), Of
Counsel, for Defendant United States.

Stewart & Stewart (Geert M. DePrest and William A. Fennell) for
Defendant-Intervenor Timken U.S. Corp.

OPINION

GOLDBERG, Senior Judge: This case is before the Court on

Plaintiffs’ joint motion for extension of the existing

preliminary injunction. Plaintiffs also request that this motion

be heard on an expedited basis. For reasons indicated below,

this Court denies Plaintiffs’ motions.

I. BACKGROUND

In September 2001, Koyo Seiko Co. Ltd., Koyo Corp. of

U.S.A., NTN-BCA Corp., NTN Bower Corp., NTN-Driveshaft, Inc.,

American NTN Bearing Manufacturing Corp., NTN Bearing Corp. of

America, and NTN Corp. (collectively “Plaintiffs”) challenged the

results of the Department of Commerce’s (“Commerce”) 11th

administrative review of antidumping orders on ball bearings from

Japan and other countries. This Court granted Plaintiffs’

separate motions for preliminary injunction, enjoining Commerce

from issuing liquidation instructions for the pendency of the

action.
Court No. 01-00686 Page 3

This Court remanded several issues to Commerce for

reconsideration, eventually sustaining Commerce’s remand results.

See SNR Roulements v. United States, Slip. Op. 05-12, 2005 WL

189737 (CIT Jan. 27, 2005). Plaintiffs appealed to the Federal

Circuit, which affirmed this Court in an unpublished opinion.

See SNR Roulements v. United States, 210 Fed. Appx. 992 (Fed.

Cir. 2006). Subsequently, Plaintiffs filed a motion for a panel

rehearing. The Federal Circuit also denied this petition. See

NSK Ltd. et al. v. United States, 2007 U.S. App. LEXIS 11681

(Fed. Cir. 2007). Plaintiffs next filed a writ of certiorari to

the Supreme Court, which the Supreme Court denied on October 29,

2007.

During the course of the SNR Roulements litigation, the WTO

Appellate Body found that the United States had acted

inconsistently with the WTO antidumping agreement by utilizing

zeroing procedures in administrative reviews. Appellate Body

Report, United States—Measures Related to Zeroing and Sunset

Reviews, WT/DS322/AB/R (Jan. 9, 2007). The United States

announced “it intended to comply in this dispute with its WTO

obligations and would be considering carefully how to do so.”

Dispute Settlement Body, Minutes of the Meeting, WT/DSB/M/226,

¶ 34 (Mar. 26, 2007). Additionally, the United States and Japan

mutually agreed to provide the United States with a reasonable

amount of time to consider its response to the DSB

recommendations. This period will expire December 24, 2007.
Court No. 01-00686 Page 4

Agreement on Reasonable Time, United States—Measures Related to

Zeroing and Sunset Reviews, WT/DS322/20 (May 8, 2007).

II. DISCUSSION

This Court may issue a preliminary injunction to enjoin the

liquidation of covered entries. 19 U.S.C. § 1516a(c)(2) (2000);

see Yancheng Baolong Biochemical Prods. Co. v. United States, 28

CIT 578, 581-82, 343 F. Supp. 2d 1226, 1229 (2004). Under such

an injunction, all enjoined entries “shall be liquidated in

accordance with the final court decision in the action.” 19

U.S.C. § 1516a(e)(2). A decision becomes final when it can no

longer be appealed, and the preliminary injunction dissolves at

this point. Fujitsu Gen. Am., Inc. v. United States, 283 F.3d

1364, 1379 (Fed. Cir. 2002). Accordingly, the Supreme Court’s

decision to deny certiorari terminates the current preliminary

injunction, and constitutes a final decision mandating

liquidation under § 1516a(e)(2).

Even if it could be argued that this Court had the inherent

authority to modify an injunction beyond the final decision in an

action, it would not grant Plaintiffs’ motion. Courts have the

“discretion to modify injunctions for changed circumstances.”

Aimcor, Ala. Silicon, Inc. v. United States, 23 CIT 932, 938, 83

F. Supp. 2d 1293, 1299 (1999) (citing Sys. Fed’n No. 91 v.

Wright, 364 U.S. 642, 647 (1961)). However, the party seeking to

modify a preliminary injunction bears the burden of establishing
Court No. 01-00686 Page 5

a change in circumstances. Favia v. Ind. Univ. of Pa., 7 F.3d

332, 340 (3d Cir. 1993). Plaintiffs argue that Commerce’s

statement indicating their intent to comply with the WTO

Appellate Body decision merits extension of the current

injunction.

Plaintiffs’ argument is unavailing in light of the recent

decision in Corus Staal BV v. United States. 2007 WL 2741470

(Fed. Cir. Sept. 21, 2007). In Corus Staal, an importer argued

that the Federal Circuit should remand the final results of an

administrative review in light of U.S. statements indicating

Commerce was considering abandoning zeroing methodology, which

are the same statements at issue in this case. The Federal

Circuit noted that the United States has stated it “‘intends to

comply in this dispute with its WTO obligations,’ [and] ‘it will

be considering carefully how to do so.’” Id. at *3. Clearly,

“[t]hose statements do not amount to the unequivocal adoption of

the WTO decision.” Id. (citation omitted). The Court also noted

that Commerce had specifically declined to change its policy,

because no change had been made to its zeroing methodology within

the context of administrative reviews.

More recently, in its 17th administrative review of

antidumping duties on ball bearings, Commerce addressed similar

comments arguing that Commerce’s current interpretation of the

statute is unreasonable in light of the recent DSB

recommendations concerning zeroing. See Issues and Decision

Memorandum, Ball Bearings and Parts Thereof from France, Germany,
Court No. 01-00686 Page 6

Italy, Japan, Singapore, and the United Kingdom, A-100-101 (Oct.

12, 2007), at 9, available at

http://ia.ita.doc.gov/frn/summary/multiple/E7-2015101.pdf.

Commerce justified the continuing use of the current approach by

explaining that “because no change has yet been made with respect

to the issue of ‘zeroing’ in administrative reviews, the

Department has continued with its current approach to calculating

and assessing antidumping duties for those administrative

reviews.” Id.

In light of Corus Staal and Commerce’s recent statements,

it is clear that no change in circumstances has occurred. The

fact that the United States has stated that it will consider the

DSB recommendations, and has agreed to do so within a set time

frame, do not constitute changed circumstances as to merit

modification of the preliminary injunction.

III. CONCLUSION

In light of the foregoing, Plaintiffs’ motion for extension

of the preliminary injunction is denied.1 A separate order will

be issued in accordance with this opinion.

/s/ Richard W. Goldberg

Richard W. Goldberg
Senior Judge
Date: November 2, 2007
New York, New York

1
This Court need not discuss Plaintiffs’ additional motions for
expedited briefing and for a hearing in light of this opinion.
 UNITED STATES COURT OF INTERNATIONAL TRADE

BEFORE: HONORABLE RICHARD W. GOLDBERG, SENIOR JUDGE

SNR ROULEMENTS, KOYO SEIKO CO.,
LTD., KOYO CORP. OF U.S.A., NSK
CORP., NSK BEARINGS EUROPE, LTD.,
NSK LTD., NTN-BCA CORP., NTN
BOWER CORP., NTN-DRIVESHAFT,
INC., AMERICAN NTN BEARING
MANUFACTURING CORP., NTN BEARING
CORP. OF AMERICA, NTN CORP., INA-
SCHAEFFLER KG, INA USA CORP.,

Plaintiffs,

v.
Consol. Court No. 01-00686
UNITED STATES,

Defendant,

and

TIMKEN U.S. CORP.,
f/k/a “THE TORRINGTON COMPANY”

Defendant-
Intervenor.

ORDER

Upon consideration of Plaintiffs’ Joint Motion for Extension of
Preliminary Injunction, Joint Request for Emergency Hearing on Joint
Motion for Extension of Preliminary Injunction, and Joint Request for
Order to Show Cause Why Joint Motion for Extension of Preliminary
Injunction Should Not Be Heard on an Expedited Basis, Defendant United
States’ and Defendant-Intervenor Timken U.S. Corp.’s Responses
thereto, and all accompanying papers, and upon due deliberation, it is
hereby:

ORDERED that Plaintiffs’ Joint Motion for Extension of
Preliminary Injunction is DENIED; it is further

ORDERED that Plaintiffs’ Joint Request for Emergency Hearing on
Joint Motion for Extension of Preliminary Injunction is DENIED;
it is further
 ORDERED that Plaintiffs’ Joint Request for Order to Show Cause
Why Joint Motion for Extension of Preliminary Injunction is
DENIED.

IT IS SO ORDERED.

/s/ Richard W. Goldberg
Richard W. Goldberg
Senior Judge

Date: November 2, 2007
New York, New York