893 F.2d 337 (Fed. Cir. 1990), 89-1489, Timken Co. v. United States
|Citation:||893 F.2d 337|
|Party Name:||The TIMKEN COMPANY, Plaintiff-Appellee, v. The UNITED STATES, Defendant-Appellant, and China National Machinery and Equipment Import and Export Corporation, Defendant-Appellee.|
|Case Date:||January 04, 1990|
|Court:||United States Courts of Appeals, Court of Appeals for the Federal Circuit|
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.
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.
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.
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