Timken Co. v. US, Court No. 87-06-00738.

Citation11 CIT 504,666 F. Supp. 1558
Decision Date14 July 1987
Docket NumberCourt No. 87-06-00738.
PartiesThe TIMKEN COMPANY, Plaintiff, v. UNITED STATES, Defendant.
CourtU.S. Court of International Trade

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

Richard K. Willard, Asst. Atty. Gen., David M. Cohen, Director, Civil Div., Commercial Litigation Branch, U.S. Dept. of Justice, Platte B. Moring, III, Washington, D.C., for defendant.

Graham & James, Lawrence R. Walders and Brian E. McGill, Washington, D.C., for China Nat. Machinery & Equipment Import and Export Corp., amicus curiae.

MEMORANDUM OPINION

TSOUCALAS, Judge:

This opinion is issued in conformity with this Court's order of June 24, 1987, denying plaintiff's application for a preliminary injunction. Plaintiff commenced this action to challenge a final affirmative determination by the Department of Commerce, which excluded one foreign exporter from the scope of the dumping finding. Tapered Roller Bearings from the People's Republic of China; Final Determination of Sales at Less Than Fair Value, 52 Fed.Reg. 19748 (May 27, 1987). Plaintiff concurrently applied for a temporary restraining order and preliminary injunction, seeking to enjoin liquidation of the entries from China National Machinery & Equipment Import & Export Corporation (CMEC), the exporter excluded from the final determination. On June 17, 1987, this Court denied plaintiff's application for a temporary restraining order and on June 23, 1987, oral arguments and a full hearing were had before this Court on whether a preliminary injunction should issue. CMEC's application to appear amicus curiae at the hearing was granted.

BACKGROUND

Plaintiff is a domestic producer of tapered roller bearings (TRBs), and was petitioner below in the antidumping investigation of TRBs from the People's Republic of China (PRC). The investigation covered two exporters: (1) CMEC, the only known exporter of TRBs from the PRC to the United States; and (2) Premier Bearing & Equipment, Limited (Premier), a Hong Kong based trading company, exporting TRBs produced in the PRC, from Hong Kong to the United States. In the PRC, the same factories produce TRBs for both companies. Therefore, when Commerce issued its preliminary determination of sales at less than fair value, a single margin of 9.65 percent was estimated for both companies, to prevent those factories from selling through the exporter with the lower margin. 52 Fed.Reg. 3833 (February 6, 1987). As of the date of that preliminary determination, liquidation of Chinese TRB entries was suspended. On May 27, 1987, Commerce published the results of its final determination that TRBs from the PRC are being sold at less than fair value with a weighted average dumping margin of .97 percent; however, no dumping margins were found for CMEC. 52 Fed.Reg. 19748 (May 27, 1987). Subsequently, the ITC determined that a domestic industry is suffering material injury or threat thereof by reason of imports from the PRC. Tapered Roller Bearings and Parts Thereof and Certain Housings Incorporating Tapered Rollers from Hungary, The PRC, and Romania, 52 Fed.Reg. 22399 (June 11, 1987).

As a result of the negative finding that CMEC exports were not subject to dumping duties, Commerce directed suspension of liquidation terminated for these entries. 52 Fed.Reg. 19748. Plaintiff alleges several errors committed by Commerce in its finding of no dumping by CMEC, and argues that if its contentions are ultimately sustained after the goods have been liquidated, then its remedy has been forfeited. This loss of complete relief, in conjunction with the proprietary losses, which it is alleged that plaintiff will incur, are the gravamen of plaintiff's claim of irreparable injury.

DISCUSSION

In order for a preliminary injunction to issue, plaintiff must clearly demonstrate: (1) the threat of immediate irreparable harm; (2) the likelihood of success on the merits; (3) that the public interest is better served by issuing rather than by denying the injunction; and (4) that the balance of hardships to the parties favors the issuance of an injunction. Zenith Radio Corp. v. United States, 710 F.2d 806, 809 (Fed.Cir. 1983); S.J. Stile Assocs., Ltd. v. Snyder, 68 CCPA 27, 30, C.A.D. 1261, 646 F.2d 522, 525 (1981). In a flexible balancing approach, the showing of ultimate success is inversely proportional to the severity of the injury. American Air Parcel Forwarding Co., Ltd. v. United States, 1 CIT 293, 298, 515 F.Supp. 47, 52 (1981). "The critical factors are the probability of irreparable injury to the movant should the equitable relief be withheld, and the likelihood of harm to the opposing party if the court were to grant the interlocutory injunction." 1 CIT at 299-300, 515 F.Supp. at 53; United States Steel Corp. v. United States, 9 CIT ___, ___, 614 F.Supp. 1241, 1243 (1985).

Since successful challenges to dumping determinations result in prospective relief only, the court, where appropriate, may enjoin liquidation pending the outcome of the litigation. See 19 U.S.C. § 1516a(c)(2) (1982); S.Rep. 96-249, 96th Cong., 1st Sess. 252-53 (1979), reprinted in 1979 U.S.Code Cong. & Admin.News 381, 638. In Zenith Radio Corp. v. United States, 710 F.2d 806 (Fed.Cir.1983), it was held that liquidation of entries, the subject of a challenged § 751 annual review determination, may constitute irreparable injury. In the context of an annual review, only one year's entries are subject to the determination. If the movant ultimately succeeds in challenging the results, the only remedy available is to liquidate the entries for that period at the corrected dumping rate. If the entries were liquidated prior to the court upholding the claim, there would be no entries upon which revised margins could be imposed. Absent an injunction, the domestic industry's only remedy would be eliminated. 710 F.2d at 810.

However, where the action contests either negative injury or negative dumping determinations in an investigation, not annual review results, recent cases have declined to hold that liquidation alone is sufficient to establish irreparable harm. American Spring Wire Corp. v. United States, 7 CIT 2, 578 F.Supp. 1405 (1984); accord Bomont Industries v. United States, 10 CIT ___, 638 F.Supp. 1334 (1986); U.S. Steel v. United States, 9 CIT ___, 614 F.Supp. 1241 (1985). If the agency's decision is overturned, then unliquidated and future entries may still be subject to corrected antidumping duties. Bomont, 10 CIT at ___, 638 F.Supp. at 1338; American Spring Wire, 7 CIT at 5, 578 F.Supp. at 1407.

In these situations as opposed to annual reviews, which focus on a discrete time period, the movant still has the opportunity to obtain meaningful judicial review. Even though some entries will be liquidated without additional duties, appropriate relief may be fashioned prospectively. American Spring Wire, 7 CIT at 5, 578 F.Supp. at 1407. The opportunity for adequate prospective relief weighs against granting the injunction. See National Juice Products Ass'n v. United States, 10 CIT ___, ___, 628 F.Supp. 978, 984 (1986) (and cases cited therein).

Congress statutorily recognized that the court must weigh the traditional four factors and issue injunctive relief as an "extraordinary measure" "not to be granted in the ordinary course of events." S.Rep. 96-249 at 253, 1979 U.S.Code Cong. & Admin.News at 639. This is not a situation where plaintiff's "statutory right to obtain judicial review of the determination would be without meaning for the only entries permanently affected by that determination." Zenith, 710 F.2d at 810. While plaintiff may not be satisfied that a successful challenge will result in only prospective relief, it retains both its statutory right and a remedy which may be pursued. Some further affirmative showing on plaintiff's part as to irreparable injury is required.

In Bomont Industries, the court similarly considered whether an injunction should issue pending the challenge to a final negative determination. In addressing the irreparable harm criteria the court considered whether admission of these goods "without the possibility of offsetting dumping duties will prevent Bomont from recovering profitability, prolong its period of losses, deprive it of working capital, and threaten its very existence." 10 CIT at ___, 638 F.Supp. at 1338. The court found that the requisite showing of irreparable harm was not met where the movant therein: (1) had difficulty competing in the marketplace; (2) experienced a drop in sales and net loss for the first third of that year; (3) achieved an operating profit for the previous year; and (4) for the year preceding that period, sustained a net loss.

Mr. John Hill, plaintiff's Director of Marketing, testified that U.S. import statistics reveal a fivefold increase in TRB consumption in the United States from 1986 to 1987 without a commensurate increase in domestic production but with a dramatic increase in shipments from China. While plaintiff experienced a slight increase in the volume of shipments of TRBs for the first quarter of 1987, this was offset by price depression (approximately 12% from the eight specific models under investigation for the period April 1986-1987). Mr. Hill testified this could have a significant effect on this price sensitive market. Based on field investigations by his sales representatives, Mr. Hill's opinion was that CMEC prices could be as low as 40% below U.S. prices for comparable products and sales; as a result of lost sales and depressed market from those eight parts, plai...

To continue reading

Request your trial
18 cases
  • NAT. CUSTOMS BROKERS & FORWARDERS ASS'N v. US
    • United States
    • U.S. Court of International Trade
    • August 16, 1994
    ...a grant of the relief requested. Zenith Radio Corp. v. United States, 710 F.2d 806, 809 (Fed.Cir. 1983); Timken Co. v. United States, 11 CIT 504, 506, 666 F.Supp. 1558, 1559 (1987). "If any one of the requisite factors has not been established by plaintiff, the motion for a preliminary inju......
  • Elkem Metals Co. v. U.S.
    • United States
    • U.S. Court of International Trade
    • March 15, 2001
    ...the basis of financial losses similar to those alleged herein. See, e.g., Neenah, 86 F.Supp.2d at 1313; Timken Co. v. United States, 11 CIT 504, 507-08, 666 F.Supp. 1558, 1560-61 (1987) (finding that evidence of "dramatic increase" in volume of imports, lower prices, lost sales, "several mi......
  • NATIONAL CUSTOMS BROKERS AND FORWARDERS v. US, Court No. 89-07-00400.
    • United States
    • U.S. Court of International Trade
    • October 10, 1989
    ...as a whole"); Algoma Steel Corp., Ltd. v. United States, 12 CIT ___, 696 F.Supp. 656, 658 n. 2 (1988); The Timken Co. v. United States, 11 CIT 506-07, 666 F.Supp. 1558, 1559-60 (1987); American Air Parcel Forwarding Co. v. United States, 1 CIT 293, 299-300, 515 F.Supp. 47, 53 At oral argume......
  • Smith Corona Corp. v. US
    • United States
    • U.S. Court of International Trade
    • December 31, 1987
    ...prospective relief, and the plaintiff "retains both its statutory right and a remedy which may be pursued". Timken Company v. United States, 11 CIT ___, 666 F.Supp. 1558, 1560 (1987). Moreover, there is no showing that any liquidation of entries during the time required for reconsideration ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT