JTEKT Corp. v. United States ( 2012 )

Slip Op. 12- 72
UNITED STATES COURT OF INTERNATIONAL TRADE
JTEKT CORPORATION and KOYO
CORPORATION OF U.S.A.,
Plaintiffs,
v.
Before: Timothy C. Stanceu, Judge
UNITED STATES,
Consol Court No. 06-00250
Defendant,
and
THE TIMKEN COMPANY,
Defendant-Intervenor.
OPINION AND ORDER
[Granting motion for stay of proceedings pending appeal in Union Steel v. United States, CAFC
Court No. 2012-1248]
Dated: June 4, 2012
Neil R. Ellis and Jill Caiazzo, Sidley Austin, LLP, of Washington, DC, for plaintiffs
JTEKT Corporation and Koyo Corporation of U.S.A..
Kevin M. O’Brien, Kevin J. Sullivan, Christine M. Streatfeild, and Sonal Majmudar,
Baker & McKenzie, LLP, of Washington, DC, and Diane A. MacDonald, Baker & McKenzie,
LLP, of Chicago, IL, for plaintiffs FYH Bearing Units USA, Inc. and Nippon Pillow Block
Company Ltd..
Alexander H. Schaefer and Robert A. Lipstein, Crowell & Moring, LLP, of Washington,
DC, for plaintiffs NSK Corporation, NSK Ltd., and NSK Precision America, Inc..
Kevin M. O’Brien, Christine M. Streatfeild, and Diane A. MacDonald, Baker &
McKenzie, LLP, of Washington, DC, and Chicago, IL, for plaintiffs American NTN Bearing
Manufacturing Corp., NTN Bearing Corporation of America, NTN Bower Corporation, NTN
Corporation, NTN Driveshaft, Inc., and NTN-BCA Corporation.
Nausheen Hassan and Greyson L. Bryan, O’Melveny & Myers, LLP, of Washington, DC,
for plaintiffs Nachi Technology, Inc., Nachi-Fujikoshi Corporation, and Nachi America, Inc..
Consol Court No. 06-00250 Page 2
L. Misha Preheim, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S.
Department of Justice, of Washington, DC, for defendant. With him on the briefs were Stuart F.
Delery, Acting Assistant Attorney General, Jeanne E. Davidson, Director, and Claudia Burke,
Assistant Director. Of counsel on the briefs was Deborah R. King, Office of the Chief Counsel
for Import Administration, Department of Commerce.
Geert M. De Prest, Terence P. Stewart, and William A. Fennell, Stewart and Stewart, of
Washington, DC, for plaintiff and defendant-intervenor the Timken Company.
Stanceu, Judge: In this consolidated action, plaintiffs JTEKT Corporation1 and Koyo
Corporation of U.S.A. (collectively, “JTEKT”), FYH Bearing Units USA, Inc. and Nippon
Pillow Block Company Ltd. (collectively, “NPB”), NSK Corporation, NSK Ltd., and NSK
Precision America, Inc. (collectively, “NSK”), American NTN Bearing Manufacturing Corp.,
NTN Bearing Corporation of America, NTN Bower Corporation, NTN Corporation, NTN
Driveshaft, Inc., and NTN-BCA Corporation (collectively, “NTN”), Nachi Technology, Inc.,
Nachi-Fujikoshi Corporation and Nachi America, Inc. (collectively, “Nachi”), and The Timken
Company (“Timken”), which is both a plaintiff and the defendant-intervenor, contest an
antidumping determination (“Final Results”) of the International Trade Administration, U.S.
Department of Commerce (“Commerce” or the “Department”). Specifically, they challenge
certain aspects of the final determination that Commerce issued to conclude the sixteenth
administrative reviews of antidumping duty orders covering ball bearings and parts thereof from
France, Germany, Italy, Japan, and the United Kingdom made during the period of May 1, 2004
through April 30, 2005. Ball Bearings & Parts Thereof from France, Germany, Italy, Japan, &
the United Kingdom: Final Results of Antidumping Duty Admin. Reviews, 71 Fed. Reg. 40,064(July 14, 2006) (“Final Results”). Four plaintiffs–JTEKT, NPB, NTN, and Nachi–asserted
claims challenging the application of Commerce’s “zeroing” methodology to calculate the
1
JTEKT Corporation is the successor-in-interest to Koyo Seiko Company, Ltd.. Notice
of Final Results of Antidumping Duty Changed-Circumstances Review: Ball Bearings & Parts
Thereof from Japan, 71 Fed. Reg. 26,452, 26,452-53 (May 5, 2006).
Consol Court No. 06-00250 Page 3
dumping margin in the review of the order pertaining to Japan.2 The plaintiffs challenging
zeroing claim the Department’s use of the zeroing methodology for non-dumped sales violates
the U.S. antidumping laws and is inconsistent with international obligations of the United States.
The court’s previous opinion in this action, issued on July 29, 2011, addressed the
Department’s first remand redetermination. In light of two intervening decisions of the Court of
Appeals for the Federal Circuit (“Court of Appeals”),3 the court ordered Commerce to reconsider
the decision to apply the zeroing methodology in determining the margins for the plaintiffs
challenging zeroing, and to either alter that decision or provide an explanation of how the
language of 19 U.S.C. § 1677(35) permissibly may be construed in one way with respect to
investigations and the opposite way with respect to administrative reviews. JTEKT Corp. v. U.S.,
35 CIT __, __, 780 F. Supp. 2d 1357, 1371 (2011).4 Both the Government and Timken seek
reconsideration of or relief from this remand order with respect to zeroing and ask the court to
2
The U.S. Department of Commerce (“Commerce” or the “Department”) applied its
“zeroing” methodology in the sixteenth administrative reviews, under which it assigned to U.S.
sales made above normal value a dumping margin of zero, instead of a negative margin, when
calculating weighted-average dumping margins. Issues & Decision Mem. for the Antidumping
Duty Admin. Reviews of Ball Bearings & Parts Thereof from France, Germany, Italy, Japan, &
the United Kingdom for the Period of Review May 1, 2004, through April 30, 2005, at 11-12
(July 14, 2006).
3
In JTEKT Corp. v. United States, 642 F.3d 1378, 1383-85 (Fed. Cir. 2011) and Dongbu
Steel Co. v. United States, 635 F.3d 1363, 1371-73 (Fed. Cir. 2011), the Court of Appeals for the
Federal Circuit (“Court of Appeals”) held that the final results of an administrative review in
which zeroing was used must be remanded for an explanation of the Department’s interpreting
the language of 19 U.S.C. § 1677(35) inconsistently with respect to the use of zeroing in
investigations and the use of zeroing in administrative reviews.
4
The court’s second remand order also instructed the Department to reconsider the
proposal of American NTN Bearing Manufacturing Corp., NTN Bearing Corporation of
America, NTN Bower Corporation, NTN Corporation, NTN Driveshaft, Inc., and NTN-BCA
Corporation (collectively, “NTN”) to incorporate additional design-type categories in the
Department’s model match methodology. JTEKT Corp. v. U.S., 35 CIT __, __, 780 F. Supp. 2d
1357, 1371-72 (2011).
Consol Court No. 06-00250 Page 4
uphold Commerce’s use of zeroing in the sixteenth administrative review of the antidumping
duty order on ball bearings from Japan. The Timken Co.’s Mot. for Reconsideration or Relief
from J. 5 (Aug. 10, 2011), ECF No. 171; Def.’s Mot. for Expedited Reconsideration or Relief
from J. 7 (Aug. 12, 2011), ECF No. 173. Further, the Government requests an extension of time
to file the second remand determination until 60 days after the court decides the motions for
reconsideration or relief. Def.’s Mot. for Enlargement of Time to File Remand Redetermination
(Sept. 21, 2011), ECF No. 177.
Also before the court is a joint motion of plaintiffs JTEKT, NTN, NPB, and NSK to stay
this case pending the final disposition of Union Steel v. United States, 36 CIT __, Slip Op. 12-24
(Feb. 27, 2012) (“Union Steel”). Joint Mot. for Stay of Proceedings Pending Appeal in Union
Steel v. United States (May 4, 2012), ECF No. 182 (“Joint Mot. for Stay”). Union Steel involves
the question of the legality of the Department’s zeroing methodology as applied to an
administrative review of an antidumping duty order. Union Steel, 36 CIT __, __, Slip Op. 12-24,
at 2. The judgment entered by the Court of International Trade in that case affirming the use of
zeroing in the subject administrative review is now on appeal before the Court of Appeals.5 Joint
Mot. for Stay 3. Nachi consented to the joint motion. Id. at 6. Defendant and
defendant-intervenor oppose the proposed stay. Def.’s Opp’n to Pls.’ Mot. to Stay
(May 23, 2012), ECF No. 183 (“Def.’s Opp’n”); The Timken Co.’s Resp. in Opp’n to JTEKT,
NTN, NPB, and NSK’s Joint Mot. to Stay Proceedings (May 23, 2012), ECF No. 184
(“Def.-intervenor’s Opp’n”).
5
The United States filed a Notice of Appeal of the judgment in Union Steel on
March 6, 2011. ECF No. 79 (Consol Ct. No. 11-00083). The appeal has been docketed as Union
Steel v. United States, CAFC Court No. 2012-1248.
Consol Court No. 06-00250 Page 5
For the reasons discussed herein, the court will grant the motion for a stay and will hold
in abeyance any ruling on the motions for reconsideration or relief. The pending litigation in the
Court of Appeals is likely to affect the court’s disposition of the claim of the plaintiffs
challenging the Department’s zeroing practice in the subject review. Although the case at bar
concerns a different antidumping duty order and administrative review than are involved in
Union Steel, both cases raise the same general issue, i.e., the permissibility under current law of
the Department’s application of the zeroing methodology in an administrative review. A stay at
this juncture, therefore, will serve the interest of judicial economy and conserve the resources of
the parties. Moreover, defendant and defendant-intervenor have failed to show, or even allege,
that the proposed stay would cause harm.
“[T]he power to stay proceedings is incidental to the power inherent in every court to
control the disposition of the causes on its docket with economy of time and effort for itself, for
counsel, and for litigants.” Landis v. North American Co., 299 U.S. 248, 254 (1936). The
decision when and how to stay a proceeding rests “within the sound discretion of the trial court.”
Cherokee Nation of Okla. v. United States, 124 F.3d 1413, 1416 (Fed. Cir. 1997) (citations
omitted). In making this decision, the court must “weigh competing interests and maintain an
even balance.” Landis, 299 U.S. at 257.
In opposing the motion for a stay, defendant and defendant-intervenor argue that the
zeroing issue being examined in Union Steel is different than the claim in this case. They assert
that at the time of the administrative review underlying this case, Commerce did not yet have
different interpretations of 19 U.S.C. 1677(35) in investigations using average-to-average
comparisons and administrative reviews using average-to-transaction comparisons.6 Def.’s
6
After a World Trade Organization (“WTO”) decision holding that zeroing in
(continued...)
Consol Court No. 06-00250 Page 6
Opp’n 1-2; Def.-intervenor’s Opp’n 3-4. As such, at the time of the final results,
defendant-intervenor argues, Commerce could not have provided an explanation for differing
interpretations of the statutory provision. Def-intervenor’s Opp’n 4. The court is not persuaded
by this argument. It is undisputed that Commerce used its zeroing methodology in the subject
review. Issues & Decision Mem. for the Antidumping Duty Admin. Reviews of Ball Bearings &
Parts Thereof from France, Germany, Italy, Japan, & the United Kingdom for the Period of
Review May 1, 2004, through April 30, 2005, at 11-12 (July 14, 2006). Because the zeroing
issue raised by this case involves the statutory interpretation of the U.S. antidumping laws, Union
Steel is likely to be pertinent to the court’s disposition of the zeroing issue in this case and, in
turn, to the court’s ruling on defendant and defendant-intervenor’s motions for reconsideration or
relief.
Although acknowledging that ordering a stay is a matter for the court’s exercise of
discretion, Def.’s Opp’n 2, defendant also argues that the “plaintiffs are not entitled to a stay
because they have not satisfied their burden” nor will a stay “benefit the public interest.” Id. The
Government submits that the movants “have neither established–nor, in fact, even alleged–a
‘clear case of hardship or inequity in being required to go forward’ with the litigation.” Id. at 4
(citing Landis, 299 U.S. at 255). Defendant misconstrues the applicable standard. A party
moving for a stay “must make out a clear case of hardship or inequity in being required to go
forward, if there is even a fair possibility that the stay for which he prays will work damage to
6
(...continued)
antidumping investigations was contrary to U.S. international obligations, Commerce abandoned
zeroing in such proceedings, effective February 22, 2007. Antidumping Proceedings:
Calculation of the Weighted-Average Dumping Margin During an Antidumping Investigation;
Final Modification, 71 Fed. Reg. 77,722 (Dec. 27, 2006); Antidumping Proceedings: Calculation
of the Weighted-Average Dumping Margins in Antidumping Investigations; Change in Effective
Date of Final Modification, 72 Fed. Reg. 3783 (Jan. 26, 2007). The final results of the appealed
annual review in this consolidated action were issued on July 14, 2006.
Consol Court No. 06-00250 Page 7
some one else,” Landis, 299 U.S. at 255 (emphasis added). However, the court fails to see what
harm would accrue to defendant should the stay be ordered, and defendant, in opposing the
motion, does not identify any such harm, see Def.’s Opp’n 3-4. Defendant-intervenor does not
argue that a stay will cause it harm, and the court perceives no harm that would accrue to
defendant-intervenor should the stay be ordered.
Defendant argues, further, that a stay is inappropriate because this case involves another
issue, NTN’s proposal for Commerce to incorporate additional design-type categories into its
model-match methodology, that has no connection to the Department’s use of the zeroing
methodology. Id. at 5. Defendant contrasts the current action with that of SKF v. United States,
Court No. 11-0343, which was stayed pending appeal in Union Steel, but whose “other issue
besides zeroing . . . a challenge to Commerce’s policy of issuing liquidating instructions 15 days
after publication of a final results of review . . . cannot result in relief other than an advisory
opinion.” Id. Defendant, however, fails to identify any harm that will result to it from a delay in
the adjudication of the model-match issue.
In conclusion, Union Steel is likely to affect the court’s disposition of the challenge to the
Department’s zeroing methodology and the pending motions for reconsideration or relief. The
stay sought by the plaintiffs challenging zeroing is warranted, as it will serve the dual interests of
judicial economy and conservation of the parties’ resources. No showing of harm resulting from
the proposed stay has been made. The court, therefore, will grant the joint motion for stay while
holding in abeyance the other motions currently before the court.
ORDER
Upon consideration of the Joint Motion for Stay of Proceedings Pending Appeal in Union
Steel v. United States (“Joint Motion for Stay”), as filed on May 4, 2012 by plaintiffs JTEKT
Corporation and Koyo Corporation of U.S.A. (collectively, “JTEKT”), NTN Corporation, NTN
Bearing Corporation of America, American NTN Bearing Manufacturing Corporation,
Consol Court No. 06-00250 Page 8
NTN-BCA Corporation, NTN-Bower Corporation, and NTN Driveshaft, Inc. (collectively,
“NTN”), FYH Bearing Units USA, Inc. and Nippon Pillow Block Company Ltd. (collectively,
“NPB”), and NSK Corporation, NSK Ltd., and NSK Precision America, Inc. (collectively,
“NSK”), the motions in opposition filed by the United States and defendant-intervenor The
Timken Company (“Timken”), and all other papers and proceedings herein, and upon due
deliberation, it is hereby
ORDERED that the Joint Motion for Stay be, and hereby is, GRANTED; and it is further
ORDERED that this case be, and hereby is, stayed until 30 days after the final resolution
of all appellate review proceedings in Union Steel v. United States, CAFC Court No. 2012-1248.
/s/ Timothy C. Stanceu
Timothy C. Stanceu
Judge
Dated: June 4, 2012
New York, New York