OPINION AND ORDER
Plaintiffs NTN Corporation, NTN Bearing Corporation of America, NTN-Bower Corporation, American NTN Bearing Manufacturing Corporation, NTN-BCA Corporation, and NTN Driveshaft, Inc. (collectively, “NTN”) contest the final determination (“Final Results”) issued by the International Trade Administration, U.S. Department of Commerce (“Commerce” or the “Department”), in periodic administrative reviews of antidumping duty orders on imports of ball bearings and parts thereof (the “subject merchandise”) from France, Germany, Italy, Japan, and the United Kingdom for the period from May 1, 2008 through April 30, 2009 (the “period of review”).
See 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)
(“Final Results”).
NTN brings three claims. First, NTN challenges Commerce’s use of its “zeroing” practice to calculate their dumping margin in the re
Before the court is the motion of plaintiff-intervenors JTEKT Corporation and Koyo Corporation of U.S.A. (collectively, “JTEKT”) for a preliminary injunction to prohibit Customs from liquidating entries of subject merchandise produced by or on behalf of JTEKT that were made during the period of review. Mot. of Pl.-Intervenors JTEKT Corp. and Koyo Corp. of U.S.A. for Prelim. Inj. (“Pl.-Intervenors’ Mot.”). Defendant United States and defendant-intervenor the Timken Company (“Timken”), oppose plaintiff-intervenors’ motion for a preliminary injunction. Def.’s Opp’n to JTEKT Corp. and Koyo Corp. of U.S.A.’s Mot. for Prelim. Inj. (“Def.’s Opp’n”); Timken’s Opp’n to JTEKT’s Mot. for Prelim. Inj. (“Timken’s Opp’n”).
The court concludes that JTEKT has failed to demonstrate any likelihood that plaintiffs will succeed on the merits of the claims in Counts One and Three of the complaint. Plaintiff-intervenors have not intervened with respect to Count Two, which challenges the Department’s fifteen-day policy. The court, therefore, must deny plaintiff-intervenors’ motion for an injunction against liquidation.
I. Background
Pursuant to 19 U.S.C. § 1675(a) (2006), Commerce initiated the administrative reviews of the orders on the subject merchandise. Initiation of Antidumping & Countervailing Duty Admin. Revieios and Requests for Revocation in Part, 74 Fed.Reg. 30,052 (June 24, 2009). On April 28, 2010, the Department published its preliminary results. Ball Bearings & Parts Thereof From France, Germany, Italy, Japan, and the United Kingdom: Preliminary Results of Antidumping Admin. Reviews, Preliminary Results of Changedr-Circumstances Review, Rescission of Antidumping Duty Admin. Reviews in Part, and Intent to Revoke Order in Part, 75 Fed.Reg. 22,384 (Apr. 28, 2010). On September 1, 2010, the Department published the Final Results, which assigned a weighted-average margin of 13.46% to plaintiffs and a 10.97% weighted-average margin to JTEKT. Final Results, 75 Fed.Reg. at 53,662.
On September 16, 2010, plaintiffs commenced this action. Summons; Compl. On September 17, 2010, plaintiffs moved for a preliminary injunction to prohibit Customs from liquidating entries of subject merchandise produced by or on behalf of plaintiffs that were made during the period of review. Consent Mot. for Prelim. Inj. Defendant consented to this motion, which was granted. Order, Sept. 27, 2010. On October 12, 2010, the court granted JTEKT’s motion to intervene as of right. Consent Mot. to Intervene by JTEKT Corp. and Koyo Corp. of U.S.A.; Order, Oct. 12, 2010. Plaintiff-intervenors filed their motion for a preliminary injunction on November 11, 2010, which defendant and defendant-intervenor oppose. Pl.-Intervenors’ Mot.; Def.’s Opp’n; Timken’s Opp’n. On November 22, 2010, defen
II. Discussion
The court has subject matter jurisdiction under 28 U.S.C. § 1581(c) (2006) to adjudicate Counts One and Three of the complaint. 28 U.S.C. § 1581(c). As provided in Section 201 of the Customs Courts Act of 1980, 28 U.S.C. § 1581(c), the court has jurisdiction to review actions commenced under Section 516A of the Tariff Act of 1930, 19 U.S.C. § 1516a (2006), including an action contesting a final determination issued in an administrative review conducted under 19 U.S.C. § 1675(a).
See id.
The court is provided subject matter jurisdiction by 28 U.S.C. § 1581(i) to adjudicate plaintiffs’ claim in Count Two, which challenges the decision to issue liquidation instructions to implement the Final Results fifteen days after publication of the Federal Register notice.
See
28 U.S.C. § 1581(f);
SKF USA Inc. v. United States,
In ruling on plaintiff-intervenors’ motion for preliminary injunctive relief, the court considers whether the movant is likely to succeed on the merits, whether the movant will suffer irreparable harm if the relief is not granted, whether the balance of the hardships tips in the movant’s favor, and whether a preliminary injunction will not be contrary to the public interest.
See Belgium v. United States,
A. Plaintiff-intervenors Have Not Intervened in Support of Plaintiffs’ Claim Contesting Commerce’s Fifteen-Day Policy
The court granted plaintiff-intervenors’ unopposed motion to intervene, which sought intervention as a matter of right according to 28 U.S.C. § 2631(j)(l)(B). Consent Mot. to Intervene by JTEKT Corp. and Koyo Corp. of U.S.A. 2; Order, Oct. 12, 2010. Under the statute, “in a civil action under section 516A of the Tariff Act of 1930 [19 U.S.C. § 1516a], only an interested party who was a party to the proceeding in connection with which the matter arose may intervene, and such person may intervene as a matter of right.” 28 U.S.C. § 2631(j)(l)(B). As expressly limited by
Moreover, were JTEKT now to move to intervene with respect to Count Two, it is probable that the court would be required to deny any such motion for lack of standing. According to 28 U.S.C. § 2631(j), permissive intervention is available only to persons “adversely affected or aggrieved by a decision in a civil action,” a requirement grounded in the standing requirement under Article III of the United States Constitution. It is unlikely that JTEKT would be able to demonstrate that they were affected in any way by the agency action NTN is challenging in Count Two, which is the Department’s application of the fifteen-day policy to implement the Final Results. In Count Two, NTN’s claim is that “[t]he Department’s determination to send liquidation instructions to Customs and Border Protection prior to the time allowed by law for initializing judicial review of the publication of the final determination is unsupported by substantial evidence of record and otherwise not in accordance with law.” Compl. ¶ 32. To demonstrate standing, NTN asserted as a fact that “[t]o prevent premature liquidation of its entries, NTN was required to file its summons and complaint within less than the statutorily permitted periods”; NTN did so in order to move for and obtain a preliminary injunction against liquidation. Id. ¶ 29. In referring to “the statutorily permitted periods” and the “time allowed by law for initializing judicial review,” NTN’s complaint must be construed to mean a period that is, at most, sixty days from the date of publication of the Final Results. See 19 U.S.C. § 1516a(a)(2) (allowing a party thirty days from the publication of final results of an administrative review to file a summons and thirty days from the filing of a summons to file a complaint). JTKET did not move for an injunction against liquidation until November 11, 2010, seventy-one days after publication of the Final Results. Pl.Intervenors’ Mot.; see Final Results. It is not apparent from these facts that the act of which NTN complains, i.e., issuance of liquidation instructions according to a policy requiring such issuance before the statutory period for commencing litigation has run, had or could have had any adverse effect on JTEKT.
B. Plaintiff-intervenors Fail to Show that Plaintiffs’ Claims in Counts One and Three Have Any Likelihood of Success on the Merits
Plaintiff-intervenors have failed to demonstrate that the plaintiffs in this case have any likelihood of succeeding on the merits of the claims stated in Counts One and Three of the complaint. In Count One, plaintiffs’ complaint alleges that due to recent developments in the World Trade Organization (“WTO”), the Department’s methodology in calculating NTN’s weighted-average dumping margin “fails to comply with U.S. law and U.S. obligations under international law.” Compl. ¶¶ 19-26 (citing to Appellate Body Report,
United States-Laws, Regulations and Methodology for Calculating Dumping Margins (“Zeroing”),
WT/DS294 (Apr. 18, 2006);
The U.S. Court of Appeals for the Federal Circuit (“Court of Appeals”) repeatedly has sustained Commerce’s application of the zeroing methodology in administrative reviews.
See Koyo Seiko Co. v. United States,
Plaintiff-intervenors are also unable to demonstrate that plaintiffs will have any likelihood of succeeding on the merits of the claim in Count Three. In Count Three, NTN asserts that:
[b]ased on information and belief, NTN alleges that the ITA may have made other programming, clerical, or methodological errors, including errors that can only be determined by reference to the confidential administrative record. The administrative record has not been filed with this Court, and, therefore, NTN has not yet been able to review it. 2
Compl. ¶ 34. The applicable pleading requirement for plaintiffs’ claim in Count Three is set forth in USCIT Rule 8(a), which provides that a complaint shall contain “a short and plain statement of the claim showing that the [plaintiff] is entitled to relief.” USCIT Rule 8(a)(2) (2010). Although a complaint need not contain detailed factual allegations, the “[fjactual allegations must be enough to raise a right to relief above the speculative level on the assumption that all the complaint’s allegations are true.”
Bell Atlantic Corp. v. Twombly,
Plaintiff-intervenors urge the court to consider the likelihood of plaintiffs’ success on the merits on a “sliding scale basis” that considers the showing of irreparable harm. Mem. of Pl.-Intervenors JTEKT Corp. and Koyo Corp. of U.S.A. in Support of Mot. for Prelim. Inj. 5 (“Pl.Intervenors’ Mem.”). Plaintiff-intervenors argue that “in the absence of an injunction, the Department and U.S. Customs and Border Protection will proceed with liquidation of the subject entries, once the litigation in
NSK
is completed .... [t]hus, without an
Nevertheless, even a showing of irreparable harm would not convince the court that an injunction against liquidation is warranted in this case, in which there has been shown no likelihood of success on the claims in Counts One and Three. The court reaches this conclusion even though the “balance of the hardships” and “public interest” factors are also in JTEKT’s favor. The government will not incur hardship if an injunction is granted, as it would be in a position to collect any additional duties owed upon eventual liquidation. Concerning the “public interest” factor, it is in the public interest that the entries at issue in this litigation be liquidated in accordance with the correct result on the merits. An injunction against liquidation of entries pursuant to 19 U.S.C. § 1516a(c)(2) should not be ordered without at least a showing that the issue presented is not “so clear-cut as to warrant disposing of this appeal,”
Belgium,
III. Conclusion and Order
Plaintiff-intervenors have failed to demonstrate that plaintiffs will have any likelihood of success on the merits of the claims stated in Counts One and Three of plaintiffs’ complaint. Plaintiff-intervenors have not intervened as to the claim stated in Count Two. Accordingly, the court declines to grant the injunction against liquidation sought in plaintiff-intervenors’ motion.
ORDER
Upon consideration of plaintiff-intervenors’ Motion for Preliminary Injunction, plaintiff-intervenors’ memorandum in support thereof, Defendant’s Opposition to JTEKT Corporation and Koyo Corporation of U.S.A.’s Motion for Preliminary Injunction, Timken’s Opposition to JTEKT’s Motion for Preliminary Injunction, and all other papers and proceedings herein, it is hereby
ORDERED that plaintiff-intervenors’ Motion for Preliminary Injunction be, and hereby is, DENIED without prejudice; and it is further
ORDERED that Plaintiffs’ Motion for Leave to File a Reply to the Government’s Response to JTEKT Corporation and Koyo Corporation of U.S.A.’s Motion for Preliminary Injunction be, and hereby is, DENIED as moot.
Notes
. The court held in SKF USA
Inc. v. United States
that jurisdiction over a claim challenging a previous fifteen-day policy does not fall under 28 U.S.C. § 1581(c), explaining that "[t]he language in the Federal Register notice to which plaintiffs direct the court's attention is a statement of a
present
intention on the part of Commerce to take, within fifteen days of the publication of the Final Results, the
future
action of instructing Customs to liquidate, in accordance with the Final Results, the affected entries.”
SKF USA Inc. v. United States,
. The confidential administrative record in this case was filed on December 10, 2010.