                                            Slip Op. 12- 77

                UNITED STATES COURT OF INTERNATIONAL TRADE

 NSK BEARINGS EUROPE LTD.,
 NSK EUROPE LTD., and
 NSK CORPORATION,

                          Plaintiffs,

                     v.                                Before: Timothy C. Stanceu, Judge

 UNITED STATES,                                        Court No. 10-00289

                          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.

       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 Shana Hofstetter, Office of the Chief Counsel
for Import Administration, Department of Commerce.

       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 Bearings Europe, Ltd., NSK Europe LTD., and NSK

Corporation (collectively, “NSK” or “plaintiffs”) contest an antidumping determination of the

International Trade Administration, U.S. Department of Commerce (“Commerce” or the
Court No. 10-00289                                                                      Page 2

“Department”) that the Department 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). Plaintiffs’ complaint contains a single claim

challenging Commerce’s use of “zeroing” in the review of the order, whereby U.S. sales of

subject merchandise from the United Kingdom above normal value are assigned a dumping

margin of zero, instead of a negative margin, in the calculation of the weighted-average dumping

margins. Compl. ¶ 10 (Sept. 23, 2010), ECF No. 6. 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. ¶¶ 11-13.

       Before the court is plaintiffs’ 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.’ Mot. for Stay of Proceedings Pending Appeal in Union Steel v. United States (May 2, 2012),

ECF No. 45 (“Pls.’ 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”).1 Defendant United States and defendant-intervenor the

Timken Company (“Timken”) oppose the proposed stay. Def.’s Opp’n to Pls.’ Mot. to Stay



       1
        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. 10-00289                                                                        Page 3

(May 21, 2012), ECF No. 46 (“Def.’s Opp’n”); The Timken Co.’s Resp. in Opp’n to NSK’s Mot.

to Stay Proceedings (May 21, 2012), ECF No. 47 (“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

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.
Court No. 10-00289                                                                       Page 4

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 in administrative reviews. Def.’s Opp’n to Pls.’ Mot.

for J. upon the Agency R. 8 (Nov. 1, 2011), ECF No. 38; Resp. Br. of the Timken Co. Opposing

the R. 56.2 Mot. of NSK Bearings Europe, Ltd., et. al. 6-7 (Nov. 7, 2011), ECF No. 39.

       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 ___,

___, 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.

       Defendant argues that “NSK is not entitled to a stay because it has not satisfied its burden

to show that it will suffer clear hardship by proceeding with the litigation.” Def.’s Opp’n 1. The

Government submits that “NSK shifts the legal standard by suggesting that a stay would not

harm the defendant or defendant intervenor” when it is the movant who must show that “it will
Court No. 10-00289                                                                        Page 5

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 serves the interests of 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’ Motion for Stay of Proceedings Pending Appeal in
Union Steel v. United States (“Motion for Stay”), as filed on May 2, 2012 by NSK Bearings
Europe, Ltd., NSK Europe Ltd., and NSK Corporation (collectively, “NSK”), 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
