Timken Co. v. United States, Court No. 82-6-00890.

CourtU.S. Court of International Trade
Citation569 F. Supp. 65,6 CIT 76
Docket NumberCourt No. 82-6-00890.
PartiesThe TIMKEN COMPANY, Plaintiff, v. UNITED STATES, et al., Defendants, NTN Bearing Corporation of America, Intervenor.
Decision Date01 August 1983

Eugene L. Stewart, Terence P. Stewart and Robert E. Ruggeri, Washington, D.C., for plaintiff.

J. Paul McGrath, Asst. Atty. Gen., David M. Cohen, Director, Commercial Lit. Branch, Washington, D.C. (Velta A. Melnbrencis, New York City, on briefs), for defendants.

Barnes, Richardson & Colburn, Chicago, Ill. (James H. Lundquist, Robert E. Burke and Donald J. Unger, Chicago, Ill., on briefs), for intervenor NTN Bearing Corp. of America.

Opinion and Order

MALETZ, Senior Judge:

Plaintiff The Timken Company (Timken) seeks through a motion for rehearing the issuance of a preliminary injunction enjoining the liquidation of entries of tapered roller bearings pending this court's review of the administrative record.1 A nearly identical request was denied on December 22, 1982 in The Timken Co. v. United States, 4 CIT ___, 553 F.Supp. 1060 (1982). During the intervening seven months, however, the Court of Appeals for the Federal Circuit (CAFC) issued its opinion in Zenith Radio Corp. v. United States, 710 F.2d 806 (1983). That decision has a direct bearing on this court's earlier determination that Timken had failed to make the requisite showing of irreparable harm. See Zenith, at 810 ("the consequences of liquidation ... constitute irreparable injury"). With this patina on the concept of irreparable harm, see S.J. Stile Assoc., Ltd. v. Snyder, 646 F.2d 522, 525 (CCPA 1981), it is now clear that Timken will suffer such harm or injury absent the issuance of a preliminary injunction.

For the reasons that follow, the court concludes that Timken has now met the four Stile criteria, id. at 525. Accordingly, its request for a preliminary injunction is hereby granted.

Before turning to the merits, the court first addresses several procedural issues which, intervenor submits, foreclose consideration of Timken's motion.

I

On July 1, 1983 Timken filed a motion for a rehearing pursuant to rule 59 of the rules of this court,2 and a motion to alter or amend the judgment. On July 8, 1983 Timken filed an application for a preliminary injunction as an alternative to the July 1 motions. The court considers Timken's motion to be one for rehearing. See 11 C. Wright & A. Miller, Federal Practice & Procedure § 2804 at 35 (1973) ("The concept of a new trial under Rule 59 is broad enough to include a rehearing of any matter decided by the court without a jury"). Intervenor NTN Bearing Corp. of America (NBCA) argues that either a rule 59 motion or a motion for a preliminary injunction is barred for at least two reasons. First, on February 10, 1983 a motion for a rehearing of the December 22, 1982 denial of Timken's first application for a preliminary injunction was denied. Res judicata, it argues, thus precludes relitigation of the issues finally determined in the December 22 and February 10 orders. If Timken was dissatisfied with those orders, NBCA contends, it should have taken an appeal. Second, any rule 59 motion at this late date is out of time, given the 30-day filing deadline of rule 59(b).

While NBCA's position would not be without force if the present rule 59 motion related to a final judgment or order, the short answer is that Timken's motion is directed to a rehearing of an order interlocutory in nature. Although it is true that an interlocutory order may be considered a final order in certain limited contexts, such as appeals under 28 U.S.C. § 1292(a), in the context of a rule 59 motion the court is of the view that in an action sub judice, where final judgment has not been entered, an order granting or denying a motion for a preliminary injunction is interlocutory. In other words, finality is not a monolithic, immutable concept, and hence an order may be final for some purposes, but interlocutory for others. See 1B J. Moore & T. Currier, Moore's Federal Practice ¶ 0.4091 (2d ed. 1982); 18 C. Wright, A. Miller & E. Cooper, Federal Practice & Procedure § 4432 at 301 n. 6 (1981). And the court retains the plenary power to modify or alter its prior non-final rulings, particularly where the equitable powers of the court are invoked. See United States v. Chicago, 395 F.Supp. 329, 339-40 (N.D.Ill.), aff'd, 525 F.2d 695 (7th Cir.1975); 7 J. Moore & J. Lucas, Moore's Federal Practice ¶ 65.07 (2d ed. 1982). As noted in Walsh v. ILA, Local 799, 630 F.2d 864, 875 (1st Cir.1980), "The doctrine of res judicata is an equitable one, and a court is not bound to give res judicata effect to a previous judgment if an inequitable situation would thereby result."3 In light of Zenith the interests of equity here dictate that Timken not be precluded from pressing its motion.

The court further finds nothing preclusive in Timken's decision not to take an appeal from this court's earlier orders. The appeal in Zenith was pending at the time, so that an appeal by Timken would clearly have been duplicative. Conservation of judicial resources is not something to be faulted.

Having concluded that Timken's motion involves a rehearing on an interlocutory rather than a final order, NBCA's second contention that the motion is out of time under rule 59(b) is easily disposed of. For the time constraints of rule 59(b) apply only to final judgments or orders. "A motion addressed to the trial court for reconsideration of an interlocutory order is proper at any time prior to the final determination of the merits." Graci v. United States, 301 F.Supp. 947, 950 (E.D.La.1969), aff'd, 456 F.2d 20 (5th Cir.1971) (construing F.R.Civ.P. 59(b)). See also 11 C. Wright & A. Miller, Federal Practice & Procedure § 2812 at 87 (1973) ("the time limits of Rule 59 do not apply to a motion seeking a new trial in connection with an interlocutory judgment").

In sum, Timken's motion for a rehearing is timely filed and not barred by either rule 59 or res judicata. The court turns to a consideration of the merits.

II

Although they have been stated so often in the course of this and other litigation as to resemble a litany, the four criteria for the issuance of a preliminary injunction still bear repeating. In order to prevail on a motion for a preliminary injunction the petitioner must show (1) that there is a substantial likelihood of success on the merits; (2) that without the relief requested the petitioner will be irreparably injured; (3) that the issuance of the relief requested will not substantially harm other interested parties; and (4) that the public interest would be served by the relief requested. Virginia Petroleum Jobbers Ass'n v. FPC, 259 F.2d 921, 925 (D.C.Cir.1958). See also S.J. Stile Assoc., Ltd. v. Snyder; Washington Metropolitan Transit Comm'n v. Holiday Tours, Inc., 559 F.2d 841 (D.C.Cir.1977). Inasmuch as the CAFC's recent opinion in Zenith furnished the impetus for Timken's present motions, the court will first consider the question of irreparable injury in light of that decision.

A Irreparable Injury

The burden that Timken must meet to establish irreparable injury was elaborated in the Stile decision:

Only a viable threat of serious harm which cannot be undone authorizes exercise of a court's equitable power to enjoin before the merits are fully determined.... A preliminary injunction will not issue simply to prevent a mere possibility of injury, even where prospective injury is great. A presently existing, actual threat must be shown.

646 F.2d at 525 (citations omitted). The gloss which the CAFC's Zenith opinion adds to Stile is that while the injury must be serious and genuine, it need not be commercial or economic in nature. At 809-10. In that case Zenith, like Timken, sought to enjoin the liquidation of entries pending its judicial challenge of a section 751 review determination by the ITA.4 In concluding that liquidation of those entries would constitute irreparable injury the CAFC provided the following detailed rationale:

Liquidation would indeed eliminate the only remedy available to Zenith for an incorrect review determination by depriving the trial court of the ability to assess dumping duties on Zenith's competitors in accordance with a correct margin on entries in the '79-'80 review period. The result of liquidating the '79-'80 entries would not be economic only. In this case, Zenith's statutory right to obtain judicial review of the determination would be without meaning for the only entries permanently affected by that determination. In the context of Congressional intent in passing the Trade Agreements Act of 1979 and the existing finding of injury to the industry underlying T.D. 71-76, we conclude that the consequences of liquidation do constitute irreparable injury.
Without a preliminary injunction, all of the entries occurring during the review period will be liquidated immediately, with dumping duties assessed in accordance with the margin set by the review determination. This result is required, in the absence of a preliminary injunction, by two sections of the Trade Agreements Act of 1979 19 U.S.C. §§ 1516a(e) and (c)(1) (Supp. IV 1980).
* * * * * *
The statutory scheme has no provision permitting reliquidation in this case or imposition of higher dumping duties after liquidation if Zenith is successful on the merits. Once liquidation occurs, a subsequent decision by the trial court on the merits of Zenith's challenge can have no effect on those liquidated entries....
* * * * * *
... Accordingly, the inability of reviewing courts to meaningfully correct the review determination is irreparable injury that must be considered by the trial court along with the other pertinent factors recited in Stile to determine whether or not an injunction should issue.

Id. at 810, 811-12. In the present case there remain unliquidated approximately 121 entries for the period April 1978 to the date of partial revocation of...

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