715 F.Supp. 373 (CIT. 1989), 87-06-00738, Timken Co. v. United States

Docket Nº:Court No. 87-06-00738.
Citation:715 F.Supp. 373
Party Name:The TIMKEN COMPANY, Plaintiff, v. UNITED STATES, Defendant, China National Machinery & Equipment Import and Export Corporation (CMEC), Defendant-Intervenor.
Case Date:May 31, 1989
Court:Court of International Trade
 
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715 F.Supp. 373 (CIT. 1989)

The TIMKEN COMPANY, Plaintiff,

v.

UNITED STATES, Defendant,

China National Machinery & Equipment Import and Export Corporation (CMEC), Defendant-Intervenor.

Court No. 87-06-00738.

United States Court of International Trade.

May 31, 1989

Page 374

Stewart and Stewart, Eugene L. Stewart, Terence P. Stewart, James R. Cannon, Jr. and Charles A. St. Charles, Washington, D.C., Scott A. Scherff, Sr. Corporate Atty., the Timken Co., of counsel for plaintiff.

Stuart E. Schiffer, Acting Asst. Atty. Gen.; David M. Cohen, Director, Commercial Litigation Branch, Civ. Div., U.S. Dept. of Justice, and Platte B. Moring, III, Washington, D.C., for defendant.

Graham & James, Lawrence R. Walders and Brian E. McGill, Washington, D.C., for defendant-intervenor.

MEMORANDUM OPINION

TSOUCALAS, Judge:

This opinion is issued in conformity with this Court's order of May 26, 1989, which granted plaintiff's application for a writ of mandamus. The issue in contention is whether 19 U.S.C. § 1516a(e) (1982) created a clear obligation on the United States Department of Commerce, International Trade Administration (Commerce) to publish in the Federal Register notice of this Court's opinion in Timken Co. v. United States, 13 CIT 238, 714 F.Supp. 535, (1989), notice of appeal filed (Fed.Cir. May 22, 1989), within ten days of entry of such decision. Under 19 U.S.C. § 1516a(e), an agency's publication of notice of final judicial decisions is a condition precedent to execution of final judgments for purposes of liquidation. The question of availability of relief in a mandamus action will be addressed after a discussion of the procedural history of this case.

Background

Plaintiff, a domestic producer of tapered roller bearings (TRBs), filed a petition with Commerce alleging that TRBs from the People's Republic of China were being sold in the United States at less than fair value. Commerce investigated two companies: defendant-intervenor China National Machinery & Equipment Import and Export Corporation, and Premier Bearing & Equipment, Ltd. They accounted for all sales of TRBs from the People's Republic of China. With Commerce's issuance of an affirmative preliminary determination that both companies were making sales at less than fair value, liquidation of Chinese TRB entries was suspended in accordance with 19 U.S.C. § 1673b(d)(1) (1982). 52 Fed.Reg. 3833 (Feb. 6, 1987). Suspension of liquidation for defendant-intervenor's entries was subsequently terminated pursuant to 19 U.S.C. § 1673d(c)(1)(B) (1982), however, because Commerce excluded defendant-intervenor from the scope of the final affirmative antidumping determination. 52 Fed.Reg. 19,748 (May 27, 1987).

Plaintiff commenced this action to challenge that determination and concurrently sought to enjoin liquidation of the entries from defendant-intervenor. This Court denied plaintiff's application for injunctive relief. Timken Co. v. United States, 11 CIT 504, 666 F.Supp. 1558 (1987). Upon the completion of the proceedings on the merits, the Court affirmed certain contested portions of Commerce's determination and remanded to Commerce the remaining issues. Timken Co. v. United States, 12 CIT 955, 699 F.Supp. 300 (1988). Recalculations of certain costs by Commerce consistent with the instruction of this Court yielded a 4.69 percent weighted-average dumping margin for defendant-intervenor. This Court affirmed Commerce's remand determination and dismissed the action on March 22, 1989.

On May 10, 1989, plaintiff applied for mandamus, claiming that 19 U.S.C. § 1516a(e) compels Commerce to publish notice of this Court's March 22, 1989 decision, which disposed of the entire controversy, within ten days of entry of that decision. Plaintiff concurrently petitioned for a temporary restraining order, seeking to enjoin liquidation of TRB entries from defendant-intervenor during judicial consideration

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of whether a writ is appropriate in this case. This Court granted plaintiff's application for a temporary restraining order and, on May 26, 1989, issued an order directing Commerce to publish notice of this Court's March 22, 1989 decision by May 30, 1989. Meanwhile, on May 22, 1989, defendant-intervenor appealed this Court's March 22, 1989 decision. Commerce has failed to comply with this Court's May 26, 1989 order.

Discussion

A. Standard for Mandamus

This Court may issue a writ of mandamus under 28 U.S.C. § 2643(c)(1) (1982). A writ may be properly issued in the presence of the following three elements: (1) a clear right of the plaintiff to the relief sought; (2) a clear duty on the part of the defendant to do the act in question; and (3) absence of an adequate alternative remedy. See Kerr v. United States Dist. Court for the Northern Dist. of California, 426 U.S. 394, 96 S.Ct. 2119, 48 L.Ed.2d 725 (1976); Maier v. Orr, 754 F.2d 973 (Fed...

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