Timken Co. v. U.S.

• Citation: 893 F.2d 337
• Decision Date: 04 January 1990
• Docket Number: No. 89-1489,89-1489
• Parties: The TIMKEN COMPANY, Plaintiff-Appellee, v. The UNITED STATES, Defendant-Appellant, and China National Machinery and Equipment Import and Export Corporation, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals for the Federal Circuit

Page 337

893 F.2d 337

11 ITRD 2009

The TIMKEN COMPANY, Plaintiff-Appellee, v. The UNITED STATES, Defendant-Appellant, and China National Machinery and Equipment Import and Export

Corporation, Defendant-Appellee.

No. 89-1489.

United States Court of Appeals,

Federal Circuit.

Jan. 4, 1990.

Rehearing Denied March 12, 1990.

Terence P. Stewart, Stewart & Stewart, Washington, D.C., argued for plaintiff-appellee. With him on the brief were Eugene L. Stewart, James R. Cannon, Jr., and Jessica Wasserman. Also on the brief was Scott A. Scherff, Senior Corporate Counsel, The Timken Co., of counsel.

David M. Cohen, Director, Commercial Litigation Branch, Dept. of Justice, Washington, D.C., argued for defendant-appellant. With him on the brief were Stuart E. Schiffer, Acting Asst. Atty. Gen., Velta A. Melnbrencis, Asst. Director and Platte B. Moring, III. Also on the brief were Wendell L. Willkie, II, Gen. Counsel, Stephen J. Powell, Chief Counsel for Import Admin. and Craig R. Giesse, Attorney-Advisor, Office of the Chief Counsel for Import Admin., U.S. Dept. of Commerce, of Washington, D.C.

Lawrence R. Walders, Graham & James, of Washington, D.C., represented defendant-appellee, China National Machinery & Equipment Import and Export.

Before MARKEY, Chief Judge, RICH, Circuit Judge, and DUMBAULD, Senior Judge ^*.

RICH, Circuit Judge.

The United States Department of Commerce (Commerce) appeals from the May 26, 1989, order of the Court of International Trade (CIT) ¹, Court No. 87-06-00738, granting plaintiff-appellee Timken's application for a writ of mandamus and ordering Commerce to publish notice in the Federal Register of the CIT's decision in Timken Co. v. United States, 714 F.Supp. 535 (CIT 1989). We affirm.

BACKGROUND

In 1986, Timken filed an antidumping duty petition with Commerce, alleging that two companies were selling tapered roller bearings (TRBs) manufactured in the People's Republic of China (PRC) in the United States at less than fair value. Upon investigation, Commerce determined that only one of the companies, Premier Bearing and Equipment, Ltd., was selling TRBs at less than fair value, and so excluded the other company, defendant-appellee China National Machinery and Equipment Import and Export Corp. (CMEC), from the resulting antidumping duty order.

Timken appealed Commerce's final determination to the CIT, and sought a temporary restraining order (TRO) and a preliminary injunction to enjoin liquidation of TRBs imported by CMEC during the pendency of the appeal. The CIT denied both the TRO and the preliminary injunction. See Timken Co. v. United States, 11 CIT ----, 666 F.Supp. 1558 (1987). However, after hearing the merits of the appeal, the CIT found error in Commerce's determination of the dumping margin with respect to CMEC and so remanded to Commerce for a redetermination of the dumping margin. See Timken Co. v. United States, 699 F.Supp. 300 (CIT 1988). Upon remand, Commerce recalculated a dumping margin by CMEC of 4.69%. On March 22, 1989, the CIT affirmed Commerce's recalculation of the dumping margin in Timken Co. v. United States, 714 F.Supp. 535, and entered a final judgment dismissing the action.

Liquidation of entries after a final decision of the CIT or of this court is governed by 19 U.S.C. Sec. 1516a(e) (1988), which states in the last sentence thereof that "notice of the court decision shall be published within ten days from the date of issuance of the court decision." ² However, Commerce is of the opinion that a decision of the CIT is not final for the purposes of publication of notice until either (1) an appeal is decided by this court, or (2) the time for appeal expires. Therefore, Commerce did not publish notice of the CIT decision within 10 days of March 22, 1989.

On May 10, 1989, Timken filed an application for a writ of mandamus, seeking to compel Commerce to publish notice of the March 22, 1989 decision in the Federal Register. ³ On May 22, 1989, CMEC filed a timely notice of appeal to this court, appealing

the March 22, 1989 decision of the CIT. On May 26, 1989, the CIT granted Timken's application for a writ of mandamus, finding that Sec. 1516a(e) created a clear obligation on the part of Commerce to publish the CIT decision within 10 days of issuance, or April 1, 1989, regardless of whether an appeal is taken or the time for appeal has run. See Timken, 715 F.Supp. 373, 378.

OPINION

The parties do not dispute the requirements for issuing a writ of mandamus. In particular, there must be: (1) a clear duty on the part of the defendant to perform the act in question; (2) a clear right on the part of the plaintiff to demand the relief sought; and (3) an absence of an adequate alternative remedy. Maier v. Orr, 754 F.2d 973, 983 (Fed.Cir.1985); Kerr v. United States Dist. Court for the Northern Dist. of California, 426 U.S. 394, 402-03, 96 S.Ct. 2119, 2123-24, 48 L.Ed.2d 725 (1976). In the present case, the existence of both the right and the duty hinges on the proper interpretation of Sec. 1516a(e) and its companion provision Sec. 1516a(c)(1) ⁴, and in particular on whether these sections require publication of a CIT decision which has either been appealed or which is still appealable.

Both parties, as well as the CIT, concentrate heavily on what is meant by the word "final" in the heading and the body of Sec. 1516a(e). The term "final decision" can mean different things in different situations. Specifically, a court decision can be "final" in the sense that a court is done with the action and has entered final judgment. This is the meaning that is used, for example, in 28 U.S.C. Sec. 1295(a)(5) (1982), which states that this court has exclusive jurisdiction over "an appeal from a final decision of the United States Court of International Trade." Alternatively, a court decision can be final in the sense that the court has conclusively decided the controversy and the decision can no longer be attacked, either collaterally or by appeal. This is the meaning that is used, for example, in 28 U.S.C. Sec. 2645(c) (1982), which states that

[a] decision of the Court of International Trade is final and conclusive, unless a retrial or rehearing is granted ... or an appeal is taken to the Court of Appeals for the Federal Circuit....

Perhaps a better term for this second kind of final decision would be a "conclusive" decision.

Commerce maintains that the latter definition of "final" is intended in Sec. 1516a(e), relying on the above language in 28 U.S.C. Sec. 2645(c), various theories of statutory construction, and certain legislative history. On the other hand, Timken argues, and the CIT agreed, that the former definition is intended, also relying on theories of statutory construction and other legislative history.

We are of the opinion that an appealed CIT decision is not a "final court decision" within the plain meaning of Sec. 1516a(e). Most persuasive is the fact that the term "final court decision" must be read together with the words that follow, specifically, "in the action." An "action" does not end when one court renders a decision, but continues through the appeal process. Thus, an appealed CIT decision is not the final court decision in the action. In this context, the word "final" is used as it is used in 28 U.S.C. Sec. 2645(c), i.e., to mean "conclusive." Thus Sec. 1516a(e) does not require liquidation in accordance with an appealed CIT decision, since that section requires that liquidation take place in accordance with the final court decision in the action. ⁵

However, this conclusion is not dispositive of the present appeal, since the issue before us is not how liquidation should take place, but when notice of an adverse decision of this court or the CIT must be published. The word "final" is used only in two places in Sec. 1516a(e), whereas in the remainder of both Sec. 1516a(c)(1) and (e), the words "decision" or "court decision" are used by themselves. "It is a cardinal rule of statutory construction that significance and effect shall, if possible, be accorded to every word" in a statute. United States v. Lexington Mill & Elevator Co., 232 U.S. 399, 410, 34 S.Ct. 337, 340, 58 L.Ed. 658 (1914); United States v. Menasche, 348 U.S. 528, 538, 75 S.Ct. 513, 519, 99 L.Ed. 615 (1955). It follows that if a word is used in one phrase but omitted in another, the two phrases are intended to mean something different. We are of the opinion that Congress intentionally used the word "final" only once in Sec. 1516a(e) to convey one meaning, but omitted the word elsewhere in that section and in Sec. 1516a(c)(1) to convey another meaning.

In particular, the terms "decision" and "court decision" are used in Sec. 1516a(c)(1) and (e) to denote a decision which is final as far as the rendering court is concerned, even though that decision may be subject to appeal. In support of this interpretation, we merely point to the last sentence of Sec. 1516a(c)(1), which states: "Such notice of a decision shall be published within ten days from the date of the issuance of the court decision." It is nonsensical to say that a court decision issues only when the time for appeal expires; a decision issues when judgment is entered. Nor do we find it credible to say that a CIT decision does not exist until the time for appeal expires; such an interpretation is contrary to both the common meaning of the term and its use in statutes such as 28 U.S.C. Sec. 1295(a)(5) and 28 U.S.C. Sec. 2645. ⁶

Our interpretation is also supported by the legislative history. Unless the agency is required to publish notice of a CIT decision not in harmony within 10 days of the issuance of the decision (regardless of the time for appeal or of whether an appeal is taken), Sec. 1516a(c)(1) would require that the agency's determination continue to govern entries even after the CIT's decision. However, the House Committee report, in discussing Sec. 1516a, states that the agency's determination will govern only...