Ntn Corp.. v. United States

• Decision Date: 17 December 2010
• Docket Number: Slip Op. 10–136.Court No. 10–00286.
• Citation: 744 F.Supp.2d 1370
• Parties: NTN CORPORATION, et al., Plaintiffs,andJtekt Corporation and Koyo Corporation of U.S.A., Plaintiff–Intervenors,v.UNITED STATES, Defendant,andThe Timken Company, Defendant–Intervenor.
• Court: U.S. Court of International Trade

744 F.Supp.2d 1370

NTN CORPORATION, et al., Plaintiffs,andJtekt Corporation and Koyo Corporation of U.S.A., Plaintiff–Intervenors,

v.UNITED STATES, Defendant,andThe Timken Company, Defendant–Intervenor.

Slip Op. 10–136.Court No. 10–00286.

United States Court of International Trade.

Dec. 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 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.

OPINION AND ORDER

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 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 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.

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. 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 Motions 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.

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...