Slip Op. 11-54

UNITED STATES COURT OF INTERNATIONAL TRADE

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NSK CORPORATION, et al., : 

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Plaintiffs, :

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and :

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FAG ITALIA S.p.A., et al., :

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Plaintiff-Intervenors, :

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v. : Before: Judith M. Barzilay, Judge

: Consol. Court No. 06-00334

UNITED STATES, :

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Defendant, :

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and :

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THE TIMKEN COMPANY, :

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Defendant-Intervenor. :

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OPINION & ORDER

[The court denies The Timken Company’s motion to stay.]

 Dated: May 13, 2011

Crowell & Moring LLP (Matthew P. Jaffe, Robert A. Lipstein, and Carrie F. Fletcher), for

Plaintiffs NSK Corporation, NSK Ltd., and NSK Europe Ltd.

Sidley Austin LLP (Neil R. Ellis and Jill Caiazzo), for Plaintiffs JTEKT Corporation and Koyo

Corporation of U.S.A.

Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt, LLP (Max F. Schutzman and Andrew T.

Schutz), for Plaintiff-Intervenors FAG Italia S.p.A., Schaeffler Group USA, Inc., Schaeffler KG,

The Barden Corporation (U.K.) Ltd., and The Barden Corporation. 
Consol. Court No. 06-00334 Page 2

Steptoe & Johnson (Herbert C. Shelley and Alice A. Kipel), for Plaintiff-Intervenors SKF

Aeroengine Bearings UK and SKF USA, Inc.

United States International Trade Commission, James M. Lyons (General Counsel), Neal J.

Reynolds (Assistant General Counsel for Litigation), and David A.J. Goldfine, Office of the

General Counsel, for Defendant United States.

Stewart and Stewart (Terence P. Stewart, Eric P. Salonen, Elizabeth A. Argenti, and Philip A.

Butler), for Defendant-Intervenor The Timken Company.

BARZILAY, Judge: On April 26, 2011, Defendant-Intervenor The Timken Company

(“Timken”), with the consent of Defendant United States, moved to stay the court’s final

judgment in NSK Corp. v. United States, Slip Op. 11-43, 2011 WL 1491346 (CIT Apr. 20,

2011), which sustained the U.S. International Trade Commission’s negative injury determination

on antidumping duty orders covering the subject merchandise from Japan and the United

Kingdom, pending a final decision on appeal at the Federal Circuit. Specifically, Timken alleges

that it will suffer irreparable harm in the upcoming third sunset review in the absence of the

orders, that a revocation of the orders would run afoul of the statutory scheme, and that public

interest favors a stay. Timken Mem. of P. & A. 4-21. To avoid potentially improvident agency

action, the court granted Timken’s motion in part and temporarily stayed the effect of the

judgment until all parties could fully comment on the issue. NSK Corp. v. United States, Consol.

Court No. 06-00334 (CIT Apr. 28, 2011) (order granting temporary stay). Plaintiffs JTEKT

Corporation, Koyo Corporation of U.S.A., NSK Corporation, NSK Ltd., and NSK Europe Ltd.

(collectively, “Plaintiffs”) subsequently have filed a joint response, wherein they contend that the

U.S. Department of Commerce (“Commerce”) has a clear statutory duty to revoke the

antidumping duty orders and that Timken failed to sufficiently demonstrate the four factors to
Consol. Court No. 06-00334 Page 3

grant a stay of the court’s final judgment. Pls.’ Joint Opp’n 4-22. Today, the court granted

Timken leave to file a reply. NSK Corp. v. United States, Consol. Court No. 06-00334 (CIT May

13, 2011) (order granting leave to file reply). In that document, Timken more thoroughly

discusses the four factors needed to earn a stay. See generally Timken Reply Mem. Because

Timken fails to satisfy the applicable test, the court lifts the temporary stay and orders revocation

of the relevant antidumping duty orders. 

To succeed in its claim, Timken must prove the following: “(1) the threat of immediate

irreparable harm; (2) the likelihood of success on the merits; (3) [that] the public interest would

be better served by the relief requested; and (4) [that] the balance of hardship on all the parties

favors [the movant].” GPX Int’l Tire Corp. v. United States, 32 CIT ___, ___, 587 F. Supp. 2d

1278, 1284 (2008) (citation omitted). First, Timken has not shown that it likely will suffer the

requisite “presently existing, actual” irreparable harm, Zenith Radio Corp. v. United States, 710

F.2d 806, 809 (Fed. Cir. 1983), but instead posits only a speculative injury in an agency

proceeding that has not yet commenced. Moreover, Timken fails to meaningfully discuss the

second prong, offering substantial evidence arguments best suited for merit briefs on appeal at

the Federal Circuit, see Timken Reply Mem. 5-11, and thus does not demonstrate that it has at

least “a fair chance of success on the merits.” U.S. Ass’n of Imps. of Textiles & Apparel v. United

States, 413 F.3d 1344, 1347 (Fed. Cir. 2005). Thirdly, Timken’s request would have the court

ignore the clear language of the relevant statute, 19 U.S.C. § 1675(d)(2) (explaining that

Commerce must revoke antidumping duty order absent affirmative injury determination), and to

grant such a demand would run against the public interest. See Neenah Foundry Co. v. United
Consol. Court No. 06-00334 Page 4

States, 24 CIT 33, 43, 86 F. Supp. 2d 1308, 1317 (2000). Finally, the court does not view the

balance of the hardships to weigh in favor of Timken. A stay would deny Plaintiffs the statutory

relief provided by Congress and subject their imports from Japan and the United Kingdom to an

undue financial burden when no valid orders exist, whereas in the absence of a stay Timken

would still enjoy the continued suspension of imports entered into the United States prior to the

relevant negative determination dates. Therefore, upon review of the documents submitted by

the parties on the issue of a stay, the court’s previous opinions, and all other pertinent papers, the

court hereby

ORDERS that Timken’s motion is DENIED; 

ORDERS that the temporary stay issued on April 28, 2011 is VACATED; and further

ORDERS that Commerce shall revoke the antidumping duty orders covering subject

merchandise from Japan and the United Kingdom and take all necessary action to effect the

court’s final judgment issued on April 20, 2011 by comporting with the relevant statutes and

precedents of this Court and the Federal Circuit.

Dated: May 13, 2011 /s/ Judith M. Barzilay 

New York, NY Judith M. Barzilay, Judge