Nsk Corp. v. U.S.

• Decision Date: 15 February 2008
• Docket Number: Slip Op. 08-21. Court No. 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

547 F.Supp.2d 1312

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. 08-21. Court No. 06-00334.

United States Court of International Trade.

February 15, 2008.

COPYRIGHT MATERIAL OMITTED

Crowell & Moring, LLP, (Matthew P. Jaffe), Robert A. Lipstein, Alexander H. Schaefer, and Sobia Haque; Sidley Austin,

LLP, Neil R. Ellis and Jill Caiazzo, Washington, DC, for Plaintiffs.

Grunfeld Desiderio Lebowitz Silverman & Klestadt, LLP, (Max F. Schutzman), Adam M. Dambrov, New York City, and William F. Marshall; Steptoe & Johnson, LLP, Herbert C. Shelley, Alice A. Kipel, and Susan R. Gihring, Washington, DC, for Plaintiff-Intervenors.

Jeffrey S. Bucholtz, Acting Assistant Attorney General; (Claudia Burke), Commercial Litigation Branch, Civil Division, United States Department of Justice; (Mark B. Rees), David A.J. Goldfine, James M. Lyons, and Neal J. Reynolds, Office of the General Counsel, United States International Trade Commission, for Defendant, United States.

Stewart and Stewart, (Eric P. Salonen), Geert De Prest, Elizabeth A. Argenti, and Terence P. Stewart, Washington, DC, for Defendant-Intervenor.

OPINION

BARZILAY, Judge.

On December 10, 2007, this court granted Plaintiffs' motion for a preliminary injunction to suspend liquidation of their entries of ball bearings from the United Kingdom and Japan over the objection of Defendant-Intervenor, The Timken Company. See NSK Corp. v. United States, 2007 WL 4296636, 31 CIT ___ (CIT 2007) (not reported in F.Supp.). Now Plaintiff-Intervenors FAG Italia SpA, Schaeffler Group USA, Inc., Schaeffler KG, The Barden Corporation (U.K.), Ltd., and The Barden Corporation (collectively, "Schaeffler"), move this court for a preliminary injunction to: (1) enjoin U.S. Customs and Border Protection ("Customs") from liquidating entries of ball bearings (and parts thereof) imported from Italy, Germany and the United Kingdom during the eighteenth period of review ("POR") (May 1, 2006 through April 30, 2007); and (2) order the U.S. Department of Commerce ("Commerce") to instruct Customs to suspend liquidation of said entries pending judicial review of the underlying litigation. See USCIT Rule 65. This motion is opposes by Defendant, the United States. The Court has subject matter jurisdiction over this case pursuant to 28 U.S.C. § 1581(c), and may review Schaeffler's motion for a preliminary injunction pursuant to 19 U.S.C. § 1516a(c)(2). Because Plaintiffs did not contest injury determinations covering merchandise from Italy and Germany in their original claim, Schaeffler's motion for a preliminary injunction is denied in part and granted in part.

I. BACKGROUND

On June 1, 2005, the U.S. International Trade Commission (the "ITC") initiated a second five-year review, pursuant to section 751(c) of the Tariff Act of 1930, as amended, 19 U.S.C. § 1675(c), to determine whether revocation of the antidumping duty orders on certain ball bearings from China, France, Germany, Italy, Japan, Singapore, and the United Kingdom would be likely to lead to continuation or recurrence of material injury. See Certain Bearings from China, France, German it, Italy, Japan, Singapore, and the United Kingdom, 70 Fed.Reg. 31,531 (ITC June 1, 2005); see also Antidumping Duty Orders: Ball Bearings, Cylindrical Roller Bearings, and Spherical Plain Bearings and Parts Thereof From the Federal Republic of Germany, France, Italy, Japan, Romania, Singapore, Sweden, Thailand, and the United Kingdom, 54 Fed.Reg. 20,900-911 (Dep't Commerce May 15, 1989) ("AD Orders"); Continuation of Antidumping Duty Orders: Certain Beatings From France, Germany, Italy, Japan, Singapore, the United Kingdom, and the People's Republic of China, 65 Fed.Reg 42,665 (Dep't Commerce July 11, 2000). Approximately one year later, the ITC issued its final decision and concluded that revocation of the antidumping duty orders on ball bearings from, inter alia, Italy, Japan, Germany, and the United Kingdom, would be likely to lead to the continuation or recurrence of material injury to an industry in the United States within a reasonably foreseeable time. See Certain Bearings from China, France, Germany, Italy, Japan, Singapore, and the United Kingdom; Investigation Nos. 731-TA-344, 391-A and C, 393-A, 396 and 399-A (Second Review), 71 Fed.Reg. 51,850 (ITC Aug. 31, 2006) ("Final Results"). After Plaintiffs commenced the Underlying action challenging the Final Results of the second sunset review. Schaeffler intervened as a matter of right. See 28 U.S.C. § 2631(j)(1)(B); USCIT R. 24.

Since Commerce's periodic administrative review of the subject entries was never completed, Schaeffler's entries for the eighteenth POR remain subject to antidumping duties and would normally be liquidated at a "rate established in the completed review covering the most recent prior period or, if no review has been completed, the cash deposit rate applicable at the time merchandise was entered." 19 C.F.R. § 351.212(a) & (c); see NMB Sing. Ltd. v. United States, 24 CIT 1239, 1240, 1241-42, 120 F.Supp.2d 1135, 1136, 1138 (2000); see also Ball Bearings and Parts Thereof from France, Germany, Italy, Japan, and the United Kingdom: Notice of Partial Rescission of Antidumping Duty Administrative Reviews, 72 Fed.Reg. 64,577 (Dep't Commerce Nov. 16, 2007). Accordingly, Schaeffler has filed this application for a preliminary injunction to suspend liquidation of said entries during the pendency of the underlying litigation.

II. DISCUSSION

A. Enlargement of the Action

Before undertaking the traditional four-part analysis of factors necessary to secure a preliminary injunction, the court must first address whether it has jurisdiction to suspend liquidation of the subject entries. Defendant argues that as a mere intervenor, Schaeffler is not entitled to a preliminary injunction on any of its entries because it did not file a summons and complaint within the statutorily required time period and thus, may only intervene in support of Plaintiffs' claim. Commerce Br. 3-4; ITC Br. 4-5. Defendant further contends that suspending liquidation of Schaeffler's entries would enlarge the scope of the litigation by adding new entries to those already designated for review in the original complaints. Commerce Br. 4-5; ITC Br. 5-7. In advancing these arguments, Defendant relies on the recent opinion Laizhou Auto Brake Equip. Co. v. United States, 31 CIT ___, 477 F.Supp.2d 1298 (2007) ("Laizhou"). Commerce Br. 3-4; ITC Br. 5-6. The court, however, is convinced that the analysis in Laizhou misconstrues the cases it relies upon for support.

In Laizhou, a Chinese exporter intervened in a case to challenge the final results of an administrative review on automotive brake rotors from China, and sought a preliminary injunction to suspend liquidation of its entries pending judicial review. The Court denied the motion, citing Vinson v. Washington Gas Light Co., 321 U.S. 489, 498, 64 S.Ct. 731, 88 L.Ed. 883 (1944) and Torrington Co. v. United States, 14 CIT 56, 59, 731 F.Supp. 1073, 1076 (1990) ("Torrington") for the proposition that granting such a motion would improperly enlarge the issues beyond the scope of the original litigation. See Laizhou, 31 CIT at ___, 477 F.Supp.2d at 1300-01. Notably, both the plaintiff and plaintiff-intervenor sought judicial review of an administrative determination covering merchandise from China.¹ See id. at ___, 477 F.Supp.2d at 1299. The rationale provided in Laizhou for denying the intervener's preliminary injunction overlooks essential distinctions in the cases it relies upon for support and consequently applies the principle of enlargement too broadly.

As in Laizhou, Defendant cites Vinson only for the basic principle that "an intervenor is admitted to the proceeding as it stands, and in respect of the pending issues, but is not permitted to enlarge those issues or compel an alteration of the nature of the proceeding." Vinson, 321 U.S. at 498, 64 S.Ct. 731. Vinson, a Supreme Court case from 1944, is factually distinguishable and therefore of minimal value in determining whether a plaintiff-intervenor in an ITC injury determination is entitled to a preliminary injunction. The petitioner-intervenor in that case sought review of a rate order issued by the Public Utilities Commission of the District of Columbia during World War II. As the Supreme Court characterized the case in its opinion:

Thus it appears that the controversy is essentially one between two governmental agencies as to whether the powers of the one or the other are preponderant in the circumstances.

In view of the petitioners' insistence that they were entitled, in effect, to control and direct the inquiry without regard to the statutory powers of the Commission, we shall first examine the extent of the authority conferred upon petitioners by Congress.

Vinson, 321 U.S. at 497, 64 S.Ct. 731. The Supreme Court then went on to analyze the Emergency Price Control Act of 1942 to determine whether it conferred a right of intervention. The Court did not find that the Act clearly conferred such a right. It then went on to conclude:

If the petitioners were admitted as intervenors by a state commission, or by the District Commission, which is a respondent here, they might, of course, be admitted to participation in the proceeding upon reasonable terms; and one of the most usual, procedural rules is that an intervenor is admitted to the proceeding as it stands, and in respect of the pending issues, but is not permitted to enlarge those issues or compel an alteration of the nature of the proceeding. To this effect was the Commission's rule on the subject. It would seem then that, in the absence of clear legislative mandate to the contrary, the petitioners should not possess greater rights than other intervenors.

Id. at 498, 64 S.Ct. 731 (emphasis added). It is this language that De...