Slip Op. 12- 76
UNITED STATES COURT OF INTERNATIONAL TRADE
NSK CORPORATION, NSK PRECISION AMERICA, INC., and NSK LTD.,
Plaintiffs,
and Before: Timothy C. Stanceu, Judge JTEKT CORPORATION and KOYO CORPORATION OF U.S.A., Court No. 10-00288
Plaintiff-Intervenors,
v.
UNITED STATES,
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
Alexander H. Schaefer and Robert A. Lipstein, Crowell & Moring, LLP, of Washington, DC, for plaintiffs.
Neil R. Ellis and Jill Caiazzo, Sidley Austin, LLP, of Washington, DC, for plaintiff-intervenors.
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. Court No. 10-00288 Page 2
Geert M. De Prest, Terence P. Stewart, Lane S. Hurewitz and William A. Fennell, Stewart and Stewart, of Washington, DC, for defendant-intervenor.
Stanceu, Judge: Plaintiffs NSK Corporation, NSK Precision America, Inc., and NSK Ltd.
(collectively, “NSK” or “plaintiffs”) contest an antidumping determination 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 twentieth administrative review of antidumping duty orders covering ball bearings
and parts thereof (the “subject merchandise”) from France, Germany, Italy, Japan, and the United
Kingdom. Ball Bearings and Parts Thereof From France, Germany, Italy, Japan, and the
United Kingdom: Final Results of Antidumping Duty Admin. Reviews, Final Results of
Changed-Circumstances Review, and Revocation of an Order in Part, 75 Fed. Reg. 53,661
(Sept. 1, 2010). Joined by plaintiff-intervenors JTEKT Corporation and Koyo Corporation of
U.S.A. (collectively, “JTEKT” or “plaintiff-intervenors”),1 plaintiffs bring a single claim
challenging as unlawful the Department’s use of “zeroing” to calculate a weighted-average
dumping margin, under which U.S. sales of subject merchandise from Japan at prices above
normal value are deemed to have individual dumping margins of zero rather than negative
margins. Compl. ¶¶ 10-12 (Sept. 23, 2010), ECF No. 7. NSK argues that zeroing in an
administrative review violates the U.S. antidumping laws and is inconsistent with international
obligations of the United States. Id. ¶ 13.
Before the court is plaintiffs’ and plaintiff-intervenors’ joint motion 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”). Pls.’ Joint Mot. for Stay of Proceedings Pending Appeal in Union Steel v.
1 On November 30, 2010, the court granted the motion of JTEKT Corporation and Koyo Corporation of U.S.A. (collectively, “JTEKT”) to intervene in this action as a matter of right. Order (Nov. 30, 2010), ECF No. 32. Court No. 10-00288 Page 3
United States (May 2, 2012), ECF No. 54 (“Pls.’ Joint Mot.”). 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 is now on appeal before the United States
Court of Appeals for the Federal Circuit (“Court of Appeals”).2 Defendant United States and
defendant-intervenor the Timken Company (“Timken”) oppose the proposed stay. Def.’s Opp’n
to Pls.’ and Pl.-Intervenors’ Mot. to Stay (May 21, 2012), ECF No. 55 (“Def.’s Opp’n”); The
Timken Co.’s Resp. in Opp’n to NSK and JTEKT’s Joint Mot. to Stay Proceedings (May 21,
2012), ECF No. 56 (“Def-Intervenor’s Opp’n”).
For the reasons discussed herein, the court will grant the motion for a stay. In summary,
the pending litigation in the Court of Appeals is likely to affect the disposition of plaintiffs’ claim
challenging the Department’s zeroing practice. While 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 of whether the Department’s application of the zeroing methodology
in an administrative review of an antidumping duty order is lawful. A stay, 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
them 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
2 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. Court No. 10-00288 Page 4
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 issue
before the court is whether NSK exhausted its administrative remedies before the agency, not
whether Commerce reasonably interpreted the antidumping law to permit zeroing in the
twentieth administrative review. Def.’s Opp’n 3-4; Def-Intervenor’s Opp’n 4. The record
reveals that NSK raised an issue pertaining to zeroing in its case brief before the Department.
Case Brief of NSK, A-100-001, at 1-5 (Jun. 3, 2010) (Admin R. Doc. No. 28). As to NSK’s
obligation to exhaust administrative remedies, defendant and defendant-intervenor argue that
NSK, in challenging zeroing before the agency, did not raise the statutory interpretation issue
now before the Court of Appeals which they characterize as an inconsistent interpretation of
19 U.S.C. § 1677(35) in investigations and administrative reviews. Def.’s Opp’n to Pls.’ and
Pl-Intervenors’ Mots. for J. upon the Agency R. 8-9 (Nov. 1, 2011), ECF No. 46; Resp. Br. of the
Timken Co. Opposing the R. 56.2 Mots. of NSK Ltd., et. al., and JTEKT Corporation, et. al. 6-7
(Nov. 7, 2011), ECF No. 47.
The Court of International Trade “shall, where appropriate, require the exhaustion of
administrative remedies.” 28 U.S.C. § 2637(d) (2006). In trade cases, the court has discretion
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Slip Op. 12- 76
UNITED STATES COURT OF INTERNATIONAL TRADE
NSK CORPORATION, NSK PRECISION AMERICA, INC., and NSK LTD.,
Plaintiffs,
and Before: Timothy C. Stanceu, Judge JTEKT CORPORATION and KOYO CORPORATION OF U.S.A., Court No. 10-00288
Plaintiff-Intervenors,
v.
UNITED STATES,
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
Alexander H. Schaefer and Robert A. Lipstein, Crowell & Moring, LLP, of Washington, DC, for plaintiffs.
Neil R. Ellis and Jill Caiazzo, Sidley Austin, LLP, of Washington, DC, for plaintiff-intervenors.
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. Court No. 10-00288 Page 2
Geert M. De Prest, Terence P. Stewart, Lane S. Hurewitz and William A. Fennell, Stewart and Stewart, of Washington, DC, for defendant-intervenor.
Stanceu, Judge: Plaintiffs NSK Corporation, NSK Precision America, Inc., and NSK Ltd.
(collectively, “NSK” or “plaintiffs”) contest an antidumping determination 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 twentieth administrative review of antidumping duty orders covering ball bearings
and parts thereof (the “subject merchandise”) from France, Germany, Italy, Japan, and the United
Kingdom. Ball Bearings and Parts Thereof From France, Germany, Italy, Japan, and the
United Kingdom: Final Results of Antidumping Duty Admin. Reviews, Final Results of
Changed-Circumstances Review, and Revocation of an Order in Part, 75 Fed. Reg. 53,661
(Sept. 1, 2010). Joined by plaintiff-intervenors JTEKT Corporation and Koyo Corporation of
U.S.A. (collectively, “JTEKT” or “plaintiff-intervenors”),1 plaintiffs bring a single claim
challenging as unlawful the Department’s use of “zeroing” to calculate a weighted-average
dumping margin, under which U.S. sales of subject merchandise from Japan at prices above
normal value are deemed to have individual dumping margins of zero rather than negative
margins. Compl. ¶¶ 10-12 (Sept. 23, 2010), ECF No. 7. NSK argues that zeroing in an
administrative review violates the U.S. antidumping laws and is inconsistent with international
obligations of the United States. Id. ¶ 13.
Before the court is plaintiffs’ and plaintiff-intervenors’ joint motion 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”). Pls.’ Joint Mot. for Stay of Proceedings Pending Appeal in Union Steel v.
1 On November 30, 2010, the court granted the motion of JTEKT Corporation and Koyo Corporation of U.S.A. (collectively, “JTEKT”) to intervene in this action as a matter of right. Order (Nov. 30, 2010), ECF No. 32. Court No. 10-00288 Page 3
United States (May 2, 2012), ECF No. 54 (“Pls.’ Joint Mot.”). 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 is now on appeal before the United States
Court of Appeals for the Federal Circuit (“Court of Appeals”).2 Defendant United States and
defendant-intervenor the Timken Company (“Timken”) oppose the proposed stay. Def.’s Opp’n
to Pls.’ and Pl.-Intervenors’ Mot. to Stay (May 21, 2012), ECF No. 55 (“Def.’s Opp’n”); The
Timken Co.’s Resp. in Opp’n to NSK and JTEKT’s Joint Mot. to Stay Proceedings (May 21,
2012), ECF No. 56 (“Def-Intervenor’s Opp’n”).
For the reasons discussed herein, the court will grant the motion for a stay. In summary,
the pending litigation in the Court of Appeals is likely to affect the disposition of plaintiffs’ claim
challenging the Department’s zeroing practice. While 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 of whether the Department’s application of the zeroing methodology
in an administrative review of an antidumping duty order is lawful. A stay, 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
them 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
2 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. Court No. 10-00288 Page 4
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 issue
before the court is whether NSK exhausted its administrative remedies before the agency, not
whether Commerce reasonably interpreted the antidumping law to permit zeroing in the
twentieth administrative review. Def.’s Opp’n 3-4; Def-Intervenor’s Opp’n 4. The record
reveals that NSK raised an issue pertaining to zeroing in its case brief before the Department.
Case Brief of NSK, A-100-001, at 1-5 (Jun. 3, 2010) (Admin R. Doc. No. 28). As to NSK’s
obligation to exhaust administrative remedies, defendant and defendant-intervenor argue that
NSK, in challenging zeroing before the agency, did not raise the statutory interpretation issue
now before the Court of Appeals which they characterize as an inconsistent interpretation of
19 U.S.C. § 1677(35) in investigations and administrative reviews. Def.’s Opp’n to Pls.’ and
Pl-Intervenors’ Mots. for J. upon the Agency R. 8-9 (Nov. 1, 2011), ECF No. 46; Resp. Br. of the
Timken Co. Opposing the R. 56.2 Mots. of NSK Ltd., et. al., and JTEKT Corporation, et. al. 6-7
(Nov. 7, 2011), ECF No. 47.
The Court of International Trade “shall, where appropriate, require the exhaustion of
administrative remedies.” 28 U.S.C. § 2637(d) (2006). In trade cases, the court has discretion
with respect to whether to require exhaustion. See Corus Staal BV v. United States, 502 F.3d
1370, 1381 (Fed. Cir.2007) (stating that “applying exhaustion principles in trade cases is subject
to the discretion of the judge of the Court of International Trade”). The exhaustion requirement
has several recognized exceptions. See Gerber Food (Yunnan) Co. v. United States, 33 CIT ___, Court No. 10-00288 Page 5
___, 601 F. Supp. 2d 1370, 1377 (2009) (indicating situations where waiver of the exhaustion
requirement has been recognized as appropriate). Because it is possible that the outcome of the
Union Steel litigation will make reaching the exhaustion issues raised by defendant and
defendant-intervenor unnecessary, the court does not consider it a prudent use of the parties’
resources and its own resources to decide the exhaustion issues at this time. These issues,
therefore, are an insufficient basis upon which to deny the pending motion for a stay.
Although acknowledging that ordering a stay is a matter for the court’s exercise of
discretion, Def.’s Opp’n 2, defendant argues that “NSK and JTEKT are not enntitled to a stay
because they have not satisfied their burden to show that they will suffer clear hardship by
proceeding with the litigation.” Id. at 1-2. The Government submits that “NSK and JTEKT shift
the legal standard by suggesting that a stay would not harm the defendant or defendant
intervenor” when it is the movants who must show that “they will suffer hardship--economic
harm, legal prejudice or inequity--by proceeding with litigation.” Id. at 3. Defendant
misconstrues the 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 some one else,” Landis, 299 U.S. at 255. 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 makes the argument that unlike other cases stayed by this court
pending the resolution of Union Steel, this case is under submission and awaiting the court’s
judgment. The advanced stage of this litigation does not preclude a stay, and
defendant-intervenor has failed to identify any harm that a stay would cause.
In conclusion, the stay sought by plaintiffs and plaintiff-intervenors serves the interests of Court No. 10-00288 Page 6
judicial economy and conservation of the parties’ resources. No showing of harm resulting from
the proposed stay has been made by defendant or defendant-intervenor. The court, therefore, will
grant the pending motion.
ORDER
Upon consideration of Plaintiffs’ Joint Motion for Stay of Proceedings Pending Appeal in Union Steel v. United States (“Motion for Stay”), as filed on May 2, 2012 by NSK Corporation, NSK Precision America, Inc., and NSK Ltd. (collectively, “NSK”) and JTEKT Corporation and Koyo Corporation of U.S.A. (collectively, “JTEKT”), the motions in opposition filed by the United States and defendant-intervenor the Timken Company, and all other papers and proceedings herein, and upon due deliberation, it is hereby
ORDERED that the 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