                                             Slip Op. 12- 75

                UNITED STATES COURT OF INTERNATIONAL TRADE

 NTN BEARING CORPORATION OF
 AMERICA, NTN CORPORATION,
 NTN BOWER CORPORATION,
 AMERICAN NTN BEARING
 MANUFACTURING CORP.,
 NTN-BCA CORPORATION, and
 NTN DRIVESHAFT, INC.,

                          Plaintiffs,

                    and

 JTEKT CORPORATION, and KOYO                              Before: Timothy C. Stanceu, Judge
 CORPORATION OF U.S.A.,
                                                          Court No. 10-00286
                          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

      Kevin M. O’Brien and Christine M. Streatfeild, Baker & McKenzie, LLP, of Washington,
DC, and Diane A. MacDonald, Baker & McKenzie, LLP, of Chicago, IL, for plaintiffs.

        Neil R. Ellis and Jill Caiazzo, Sidley Austin, LLP, of Washington, DC, for
plaintiff-intervenors.
Court No. 10-00286                                                                   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, Lane S. Hurewitz and William A. Fennell, Stewart
and Stewart, of Washington, DC, for defendant-intervenor.

       Stanceu, Judge: 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” 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 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

challenge, inter alia, Commerce’s use of “zeroing”2 to calculate the dumping margin for U.S.



       1
         On October 12, 2010, the court granted the consent motion of JTEKT Corporation and
Koyo Corporation of U.S.A. (collectively, “JTEKT”) to intervene in this action as a matter of
right. Order (Oct. 12, 2010), ECF No. 34.
       2
         As defined by the Court of Appeals for the Federal Circuit in JTEKT Corp. v. United
States, 642 F.3d 1378 (Fed. Cir. 2011) and in a previous decision, Dongbu Steel Co. Ltd. v.
United States, 635 F.3d 1363 (Fed. Cir. 2011), “zeroing is the practice whereby the values of
positive dumping margins are used in calculating the overall margin, but negative dumping
margins are included in the sum of margins as zeroes.” JTEKT Corp., 642 F.3d. at 1383-85
(citing Dongbu, 635 F.3d at 1366).
Court No. 10-00286                                                                       Page 3

sales of the subject merchandise from Japan. Pls.’ Am. Compl. ¶¶ 19-26 (Feb. 1, 2011),

ECF No. 66.3 Citing determinations of the World Trade Organization (“WTO”), plaintiffs claim

that “the Department’s [zeroing] methodology fails to comply with U.S. law and U.S. obligations

under international law.” Id.

       Before the court is the motion of plaintiffs and plaintiff-intervenors 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.’ & Pl.-Intervenors’ Partial Consent Mot. for Stay of

Proceedings Pending Appeal in Union Steel v. United States (Apr. 17, 2012), ECF No. 81

(“Pls.’ & Pl.-Intervenors’ Partial Consent 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 the

Court of International Trade entered in that case is now on appeal before the United States Court

of Appeals for the Federal Circuit (“Court of Appeals”).4 Defendant-intervenor the Timken

Company (“Timken”) consents to the motion. Pls.’ & Pl.-Intervenors’ Partial Consent Mot. 6.

Defendant United States opposes the proposed stay. Def.’s Opp’n to Pls.’ & Pl.-Intervenors’

Mot. for Stay of Proceedings Pending Appeal in Union Steel v. United States (May 1, 2012),

ECF No. 83 (“Def.’s Opp’n”).




       3
          Plaintiffs bring two other claims in this action. They contest the application in the
review of a U.S. Department of Commerce policy of issuing duty assessment and liquidation
instructions to U.S. Customs and Border Protection (“Customs” or “CBP”) fifteen days after the
publication of the final results of the administrative reviews. Pls.’ Am. Compl. (Feb. 1, 2011),
ECF No. 66 ¶¶ 27-32. Joined by plaintiff-intervenors, they also seek correction of what they
claim is a ministerial error affecting the calculation of their credit expenses. Id. ¶¶ 33-35.
       4
          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. 10-00286                                                                        Page 4

       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. 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., whether the Department’s application of the zeroing

methodology in an administrative review of an antidumping duty order is permissible under the

antidumping law. A stay, therefore, will serve the interest of judicial economy and conserve the

resources of the parties. Moreover, defendant has failed to show, or even allege, that the

proposed stay would cause it 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). Although acknowledging that ordering a stay is a matter for the court’s exercise of

discretion, Def.’s Opp’n 2, defendant raises three arguments in opposing the motion for a stay.

       Defendant argues, first, that the movants fail to “satisf[y] their burden to show that they

will suffer clear hardship by proceeding with the litigation.” Id.. According to defendant, “NTN

and JTEKT shift the legal standard by suggesting that a stay would not harm the defendant or

defendant intervenor”; defendant submits that, instead, it is the movants who must show “they

will suffer hardship–economic harm, legal prejudice or inequity–by proceeding with litigation.”

Id. at 3. But it is defendant who misconstrues the standard. Although 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
Court No. 10-00286                                                                     Page 5

even a fair possibility that the stay for which he prays will work damage to some one else,”

Landis, 299 U.S. at 255, the court fails to see what harm would accrue to defendant should the

stay be ordered. In opposing the motion, defendant fails to identify any such harm. See Def.’s

Opp’n 3-4. As defendant-intervenor has consented to the motion, Pls.’ & Pl.-Intervenors’ Partial

Consent Mot. 6, the court sees no prospect that any party will be harmed by the proposed stay.

       Second, defendant argues that “the pending issues in this case do not match and will not

be resolved by the litigation in Union Steel” because “the pending issue that is relevant to zeroing

is whether NTN and JTEKT exhausted their administrative remedies before the agency.” Def.’s

Opp’n 4. The record reveals that NTN raised an issue pertaining to zeroing in its case brief

before the Department. Case Brief of NTN: Japan-specific Segment 5, A-588-804,

at 5 (Jun. 1, 2007) (Admin R. Doc. No. 492). It also reveals that JTEKT did not file an

administrative case brief. As to NTN’s obligation to exhaust administrative remedies, defendant

argues that NTN, in challenging zeroing below, did not raise the statutory construction issue now

before the Court of Appeals, which defendant characterizes as “whether Commerce may interpret

19 U.S.C. § 1677(35) to allow the use of zeroing in the underlying administrative review

involving average-to-transaction comparisons while Commerce is not using zeroing in original

investigations involving an average-to-average comparison methodology.” Def.’s Opp’n to Pls.’

and Pl.-Intervenors’ Mots. for J. on the Agency R. 2 (Mar. 16, 2012), ECF No. 76.

       The Court of International Trade “shall, where appropriate, require the exhaustion of

administrative remedies.” 28 U.S.C. § 2637(d) (2006). The Court of International Trade 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
Court No. 10-00286                                                                       Page 6

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). The court does not consider it a

prudent use of the parties’ resources and its own resources to decide, at this time, the exhaustion

issues raised by defendant. It is possible that the outcome of the Union Steel litigation will make

it unnecessary to reach those issues. Therefore, the court does not consider the exhaustion issues

presented by this case to be a sufficient ground upon which to deny the pending motion for a

stay.

        Finally, defendant argues that a stay is inappropriate because this case involves claims

other than those pertaining to the Department’s use of the zeroing methodology. Def.’s Opp’n 5.

Defendant, however, fails to identify any harm that will result to it from a delay in the court’s

adjudication of those other claims.

        In conclusion, the stay sought by plaintiffs and plaintiff-intervenors will serve the

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 pending

motion.

                                              ORDER

        Upon consideration of the Partial Consent Motion for Stay of Proceedings Pending
Appeal in Union Steel v. United States (“Motion for Stay”), as filed April 17, 2012 by NTN
Corporation, NTN Bearing Corporation of America, NTN-Bower Corporation, American NTN
Bearing Manufacturing Corporation, NTN-BCA Corporation, and NTN Driveshaft, Inc.
(collectively, “NTN”) and JTEKT Corporation and Koyo Corporation of U.S.A. (collectively,
“JTEKT”), the motion in opposition filed by the United States, the consent of
defendant-intervenor, and all other papers and proceedings herein, and upon due deliberation, it
is hereby
Court No. 10-00286                                                                   Page 7

       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
