Nsk Corp. v. U.S.

• Decision Date: 29 December 2008
• Docket Number: No. 06-00334.,08-145.,06-00334.
• Parties: NSK CORPORATION, et al., Plaintiffs, and FAG Italia SpA, et al., Plaintiff-Intervenors, v. UNITED STATES, Defendant, and The Timken Company, Defendant-Intervenor.
• Court: U.S. Court of International Trade

593 F.Supp.2d 1355

NSK CORPORATION, et al., Plaintiffs, and FAG Italia SpA, et al., Plaintiff-Intervenors, v. UNITED STATES, Defendant, and The Timken Company, Defendant-Intervenor.

Slip Op. 08-145.

Court No. 06-00334.

United States Court of International Trade.

December 29, 2008.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Crowell & Moring LLP, (Matthew P. Jaffe), Robert A. Lipstein, and Carrie F. Fletcher; Sidley Austin LLP, Neil R. Ellis and Jill Caiazzo, for Plaintiffs.

Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt, LLP, New York City (Max F. Schutzman), and Andrew T. Schutz; Steptoe & Johnson, Washington, DC, Herbert C. Shelley, for Plaintiff-Intervenors.

United States International Trade Commission, (James M. Lyons), David A.J. Goldfine, and Neal J. Reynolds, Office of the General Counsel, for Defendant, United States.

Stewart and Stewart, Washington, DC (Terence P. Stewart), and Eric P. Salonen for Defendant-Intervenor.

OPINION AND ORDER

BARZILAY, Judge.

The issue in this case arises from an opinion issued by the Federal Circuit in Mittal Steel Point Lisas Ltd. v. United States, 542 F.3d 867 (Fed.Cir.2008) ("Mittal"), on September 18, 2008 clarifying its decision in Bratsk Aluminium Smelter v. United States, 444 F.3d 1369 (Fed.Cir. 2006) ("Bratsk"). Nine days earlier on September 9, 2008, this court issued an opinion and order in NSK Corp. v. United States, 32 CIT ___, 577 F.Supp.2d 1322 (2008) ("NSK"). In NSK, the court determined that when certain conditions are present the causation analysis prescribed by Bratsk is required in the context of a sunset review. Defendant United States and Defendant-Intervenor The Timken Company ("Timken") move this court to rehear its opinion in NSK in light of Mittal pursuant to United States Court of International Trade ("USCIT") Rule 59(e).¹ Defendant and Defendant-Intervenor ask for rehearing here because they believe the decision issued by the Federal Circuit nine days after the court issued its remand instructions in this sunset review rendered those remand instructions contrary to controlling law. The specific issue before the court is whether the decision in Mittal is an intervening change in the controlling law such that this court's opinion in NSK is significantly flawed or manifestly erroneous. For the following reasons, the court denies Defendant and Defendant Intervenor's Motions for Rehearing.

I. Background

A. NSK September 2008 Opinion

In NSK, Plaintiffs NSK Corporation, NSK Ltd., NSK Europe Ltd., JTEKT Corporation, and Koyo Corporation of U.S.A. (collectively, "Plaintiffs") requested that the court remand certain determinations included in the final results to the United States International Trade Commission's ("ITC") second sunset review covering ball bearings from China, France, Germany, Italy, Japan, Singapore, and the United Kingdom. See Certain Bearings From China, France, Germany, Italy, Japan, Singapore, and the United Kingdom; Investigation Nos. 731-TA-344, 391-A, 392-A and C, 393-A, 394-A, 396 and 399-A (Second Review), 71 Fed.Reg. 51,850 (ITC Aug. 31, 2006) ("Final Results"). Representing both foreign and domestic producers of ball bearings, Plaintiffs challenged the ITC's conclusion that revocation of the underlying orders would likely lead to a continuation or recurrence of material injury to the domestic industry within a reasonably foreseeable time.² See Final Results, 71 Fed.Reg. at 51,850; 19 U.S.C. §§ 1675(c) & 1675a(a).

Plaintiffs' request was granted in part and denied in part. The principal reason the court remanded the Final Results was its conclusion that Bratsk applies to the ITC's analysis of whether material injury is likely to continue or recur if an antidumping order is revoked. Specifically, the court held that where the triggering factors are present—i.e., where (1) there is a commodity product at issue and (2) price competitive non-subject imports are a significant factor in the market—the "ITC must consider whether non-subject imports have captured or are likely to capture market share previously held by subject imports, and whether this level of displacement makes it unlikely that removal of the orders will lead to a continuation or recurrence of material injury as a result of subject imports." NSK, 577 F.Supp.2d at 1333 (citations omitted). Defendant had argued that any analysis under Bratsk requires a rigid "replacement-benefit" test that is inconsistent with the multifaceted sunset review analysis outline in the statute. Id. at 1331 (citations omitted). In response, the court made clear that "applying Bratsk to sunset reviews will not require the ITC to adopted a rigid `benefit' analysis or sacrifice discretion in determining the likelihood of material injury under § 1675a(a)." Id. at 1333 (citations omitted).³

The court found that the ITC's analysis was also incomplete in two other respects. First, the court remanded the ITC's decision to cumulate imports from the United Kingdom with subject imports from France, Germany, Italy and Japan because it failed to consider the significant rise in non-subject imports and large scale restructuring within the ball bearing industry. See id. at 1337-38. The court required that the ITC provide additional explanation as to whether the potential volume of the subject merchandise would likely have an adverse impact on the domestic industry if the order is removed. Second, the court held that a more thorough examination of the supply conditions of the domestic industry was warranted given the information that suggested global restructuring may have depressed certain economic measures of industry performance. See id. at 1338-39. The ITC had relied upon these measures to cast the U.S. market as vulnerable. See id.

B. Defendant's Motion for Rehearing

Defendant alleges that the Federal Circuit's decision in Mittal is an intervening change in the controlling law and, as a result, the court committed two significant legal errors making the decision in NSK manifestly erroneous. Defendant complains that the initial legal error committed by the court concerns the triggering factors. Def. Br. 18. Specifically, Defendant avers that the court, and not the ITC, determined "(1) whether subject ball bearings constitute a `commodity product' for purposes of determining substitutability and (2) whether non-subject imports are a significant factor in the U.S. market." Def. Br. 18 (quoting NSK, 577 F.Supp.2d at 1333). Defendant contends that the court usurped the ITC's authority when it allegedly (1) "found that the record indicated that the domestic and subject bearings were generally considered `always' or `frequently' interchangeable," and (2) "concluded that `non-subject imports were a significant factor in the domestic industry.'" Def. Br. 18-19 (quoting NSK, 577 F.Supp.2d at 1334) (brackets omitted).

The second alleged significant legal error committed by the court is its interpretation of Bratsk. Defendant argues that the court misread Bratsk in four respects. First, Defendant alleges that the Federal Circuit expressly rejected the application of Bratsk to sunset reviews in Mittal. Def. Br. 13-14. It claims that Mittal clarified that Bratsk is "not addressed to the potential effectiveness of any possible remedial order" but is "directed to determining the cause of the injury already suffered," and, thus, does not support the court's holding that Bratsk extends to sunset reviews. Second, the court erred when it found that Bratsk required the ITC to examine "`the effectiveness of the underlying antidumping order in relation to fundamental changes in the marketplace that might be more likely to cause injury to the domestic industry than unrestrained subject imports.'" Def. Br. 14 (quoting NSK, 577 F.Supp.2d at 1333). Defendant contends that Mittal makes clear that the principal aim of Bratsk is to determine the underlying cause of the injury, not the effectiveness of an antidumping order. Third, Defendant argues that Mittal stands for the proposition that Bratsk is limited to the retrospective causation analyses that occur in antidumping investigations and, therefore, Bratsk should not extend to prospective "threat of material injury" analyses and sunset reviews.⁴ Def. Br. 14-15. Fourth, Defendant argues that Mittal expressly rejects the idea that Bratsk is a required aspect of the ITC's threat of material injury analysis and, thus, should be excluded from sunset reviews. Def. Br. 15-16. Because a threat of material injury analysis and sunset review require the ITC to engage in similar assessments, Defendant alleges that the court erred when it held that Bratsk was a necessary element of the causation analysis in a sunset review. Def. Br. 15-16.

II. Rehearing under Rule 59 & Standard of Review

When made within thirty days of the Court's final judgment, a motion under Rule 59(e) "seeks vacature or alteration of [that] ... judgment." Ford Motor Co. v. United States, Slip Op. 06-145, 2006 WL 2789856, at *3 (Sept. 29, 2006) (not reported in F.Supp.); USCIT R. 59(e). "The major grounds justifying a grant of a motion to reconsider a judgment are an intervening change in the controlling law, the availability of new evidence, the need to correct a clear factual or legal error, or the need to prevent manifest injustice." Ford Motor Co., 2006 WL 2789856 at * 1. Even so, "a clear legal error will not require a court to grant a motion for reconsideration where that error does not affect the result reached in the first instance." Id. (citing USCIT R. 61).

Defendant's reliance on Rule 59(e), however, is misplaced. That rule permits the Court to alter or amend only a final judgment.⁵ USCIT R. 59(e) (emphasis added). Consistent with this understanding, "the federal courts generally have invoked Rule 59(e) only to support reconsideration of matters properly encompassed in a decision on the merits."⁶ White v. N.H. Dep't of Employment Sec., 455 U.S. 445, 451, 102 S.Ct. 1162, 71...