United States Court of International Trade.
Frederick L. Ikenson, P.C., Frederick L. Ikenson, J. Eric Nissley and Larry Hampel, Washington, DC, for plaintiff Federal-Mogul Corp.
Stewart and Stewart, Eugene L. Stewart, Terence P. Stewart, James R. Cannon, Jr., William A. Fennell, Wesley K. Caine, Christopher J. Callahan and Amy S. Dwyer, Washington, DC, for plaintiff-intervenor Torrington Co.
Stuart M. Gerson, Asst. Atty. Gen., David M. Cohen, Director, Commercial Litigation Branch, Civ. Div., U.S. Dept. of Justice (Velta A. Melnbrencis, of counsel), Dean A. Pinkert, Atty.-Advisor, Office of the Chief Counsel for Import Admin., U.S. Dept. of Commerce, Washington, DC, for defendant.
Howrey & Simon, Herbert C. Shelley, Scott A. Scheele, Alice A. Kipel and Thomas Trendl, for defendant-intervenors SKF USA Inc. and SKF (U.K.) Ltd.
Donohue and Donohue, William J. Phelan, for defendant-intervenor Pratt & Whitney Canada Inc.
TSOUCALAS, Judge:
Defendant-intervenor, Pratt & Whitney Canada Inc. ("P & WC"), moves this Court to modify the preliminary injunction issued by this Court in this case on August 9, 1991 to allow liquidation of P & WC's entries of antifriction bearings from the United Kingdom exported to the United States from November 9, 1988 through April 30, 1990.
Defendant and plaintiff, Federal-Mogul Corporation ("Federal-Mogul"), oppose P & WC's motion. Plaintiff-intervenor, The Torrington Company ("Torrington"), and defendant-intervenors SKF USA Inc. and SKF (U.K.) Limited, take no position in regard to P & WC's motion.
On July 25, 1991 Federal-Mogul filed a summons and on July 29, 1991 a complaint, challenging certain aspects of the Department of Commerce, International Trade Administration's ("ITA") final results in the first administrative review of the antidumping duty order covering ball bearings and cylindrical roller bearings from the United Kingdom. Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof From the United Kingdom; Final Results of Antidumping Duty Administrative Reviews ("Final Results"), 56 Fed.Reg. 31,769 (1991).
On August 5, 1991, Federal-Mogul filed a consent motion for a preliminary injunction enjoining liquidation of all entries of antifriction bearings from the United Kingdom subject to the first administrative review. On August 9, 1991, this Court issued an order granting Federal-Mogul's request for a preliminary injunction. Federal-Mogul Corp. v. United States, Court No. 91-07-00528 (August 9, 1991) (order granting preliminary injunction). This preliminary injunction enjoined liquidation of P & WC's imports of antifriction bearings from the United Kingdom. P & WC was not a party to this action at the time the preliminary injunction was issued.
On July 14, 1992, P & WC filed a motion to intervene and to modify the preliminary injunction. On August 19, 1992, this Court granted P & WC's motion to intervene. Federal-Mogul Corp., Court No. 91-07-00528 (August 19, 1992) (order granting P & WC's motion to intervene). P & WC's motion to modify the preliminary injunction was deemed as filed on August 19, 1992.
In order for a preliminary injunction to issue, plaintiff must clearly demonstrate: (1) the threat of immediate irreparable harm; (2) the likelihood of success on the merits; (3) that the public interest is better served by issuing rather than denying the injunction; and (4) that the balance of hardships to the parties favors the plaintiff. Zenith Radio Corp. v. United States, 710 F.2d 806, 809 (Fed.Cir.1983); Timken Co. v. United States, 11 CIT 504, 506, 666 F. Supp. 1558, 1559 (1987).
In Zenith, the Court of Appeals for the Federal Circuit found that failure to grant a request for a preliminary injunction enjoining the liquidation of entries subject to the results of a contested administrative review constituted irreparable harm to a plaintiff. Zenith, 710 F.2d at 810. The object of the Zenith Court's concern was the maintenance of the reviewing court's jurisdiction over the entries at issue. Id.
Following Zenith, it is clear that if any of the allegations made by Federal-Mogul or Torrington in this case may result in an adjustment in P & WC's dumping margin, then P & WC's entries must be enjoined from liquidation.
P & WC argues that "the allegations made by plaintiff and plaintiff-intervenor are either irrelevant to P & WC or, even if proven, would not materially increase the amount of antidumping duties to be assessed." Memorandum in Support of Motion to Intervene and to Modify the Preliminary Injunction ("P & WC's Memorandum") at 6.
P & WC alleges that only two of the issues raised by Federal-Mogul and Torrington in this case may apply to P & WC's entries. P & WC's Memorandum at 6-10. The two issues which P & WC admits may affect its margin are: (1) the failure to *841 deduct all antidumping related legal expenses from exporter's sales price, and (2) the failure to deduct estimated dumping duties from United States price. Id. at 8-9. P & WC argues that there is little likelihood of success on the merits regarding these issues based on prior decisions of this court, and that even if successful, any resulting change in P & WC's margin would be de minimis. Id.
Federal-Mogul argues that in addition to the two allegations which P & WC admits may affect P & WC's margin, and which Federal-Mogul believes are likely to be successful on the merits, Federal-Mogul's allegations regarding the ITA's treatment of value added taxes also applies to P & WC. Federal-Mogul Corporation's Opposition to Pratt & Whitney Canada Inc.'s Motion to Modify the Preliminary Injunction at 4-5. Federal-Mogul points out that it is likely to succeed on the merits of these value added tax allegations on the basis of prior decisions of this court. Id. at 6.
This Court finds that the ITA's treatment of value added taxes may affect P & WC's dumping margin and that Federal-Mogul and Torrington may be successful on the merits in regard to these allegations. See Administrative Record UK Confidential Doc. 101; see also Zenith Elecs. Corp. v. United States, 15 CIT ___, ___, 770 F. Supp. 648, 650-51 (1991); Daewoo Elecs. Co. v. United States, 15 CIT ___, 760 F. Supp. 200 (1991); Zenith Elecs. Corp. v. United States, 14 CIT ___, ___, 755 F. Supp. 397, 403-11 (1990), appeals pending, Fed.Cir. Nos. 92-1043 through 92-1046; Daewoo Elecs. Co. v. United States, 13 CIT 253, 280-82, 712 F. Supp. 931, 954-56 (1989); Zenith Elecs. Corp. v. United States, 10 CIT 268, 633 F. Supp. 1382 (1986), appeals dismissed, 875 F.2d 291 (Fed.Cir.1989). As a result, P & WC's motion to modify the preliminary injunction to allow for the liquidation of P & WC's entries of antifriction bearings from the United Kingdom must be denied.
