Timken Co. v. US

• Decision Date: 31 May 1989
• Docket Number: Court No. 87-06-00738.
• Citation: 715 F. Supp. 373,13 CIT 454
• Parties: The TIMKEN COMPANY, Plaintiff, v. UNITED STATES, Defendant, China National Machinery & Equipment Import and Export Corporation (CMEC), Defendant-Intervenor.
• Court: U.S. Court of International Trade

715 F. Supp. 373

13 CIT 454

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.

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 ___, 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 ___, 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 ___, 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 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.Cir.1985); 13th Regional Corp. v. U.S. Dep't of Interior, 654 F.2d 758 (D.C.Cir.1980). Relief in mandamus is available "only where the duty to be performed is ministerial and the obligation to act peremptory, and clearly defined. The law must not only authorize the demanded action, but require it; the duty must be clear and undisputable." 13th Regional Corp. v. U.S. Dep't of Interior at 760 (citing United States ex rel. McLennan v. Wilbur, 283 U.S. 414, 420, 51 S.Ct. 502, 504, 75 L.Ed. 1148 (1931)).

"The requirement that a duty be `clearly defined' to warrant issuance of a writ does not rule out mandamus actions in situations where the interpretation of the controlling statute is in doubt.... As long as the statute, once interpreted, creates a peremptory obligation for the government to act, a mandamus action will lie." Id. Furthermore, issuance of the writ is in large part left to the discretion of the court considering the petition. See, e.g., Kerr v. United States Dist. Court for the Northern Dist. of California, 426 U.S. at 403, 96 S.Ct. at 2124. When observed in the context of these factors, relief in mandamus is appropriate because requisite grounds exist in this case for providing such remedy.

B. Statutes Governing Liquidation of Entries

1. 19 U.S.C. § 1516a(e)

For purposes of liquidation, final court decisions are not executed until the administering agency publishes notice of such decisions in the Federal Register pursuant to 19 U.S.C. § 1516a(e). The parties appear to agree that this Court's March 22, 1989 decision, which affirmed Commerce's determination on remand, constitutes this Court's final pronouncement in the action. The Court therein determined the rights of the parties and disposed of all of the issues involved. The dispute in the instant action is whether that decision is "final" for the purposes of 19 U.S.C. § 1516a(e). This statute provides:

(e) Liquidation in accordance with final decision

If the cause of action is sustained in whole or in part by a decision of the United States Court of International Trade or of the United States Court of Appeals for the Federal Circuit—

(1) entries of merchandise of the character covered by the published determination of the Secretary, the administering authority, or the Commission, which is entered, or withdrawn from warehouse, for consumption after the date of publication in the Federal Register by the Secretary or the administering authority of a notice of the court decision, and

(2) entries, the liquidation of which was enjoined under subsection (c)(2) of this section, shall be liquidated in accordance with the final court decision in the action. Such notice of the court decision shall be published within ten days from the date of the issuance of the court decision. (Emphasis supplied).

Plaintiff argues that § 1516a(e) created a clear obligation on Commerce to publish notice of this Court's March 22, 1989 decision, which affirmed Commerce's determination on remand, by April 1, 1989. Publication of that decision would result in suspension of liquidation of the TRBs exported by defendant-intervenor and require the deposit of antidumping duties at 4.69 percent.

Defendant and defendant-intervenor counter that the final decision of this Court, which is adverse to the original Commerce determination, i.e., exclusion of defendant-intervenor from the scope of antidumping determination, is not "final" until the Court of Appeals for the Federal Circuit (Federal Circuit) upholds this Court's decision or until the time period for appeal (sixty days) expires. A coordinate contention is that the agency determination, which is incompatible with the final decision of this Court, nonetheless governs liquidation until the proceedings before the Federal Circuit have been exhausted or until appeal becomes time-barred.

For the reasons set forth below, the Court concludes that the arguments advanced by defendant and defendant-intervenor are not statutorily warranted and that plaintiff has a right to mandamus.

The statute does not bear defendant's assertion that "the final decision in the action" referred to in § 1516a(e)(2) is a decision of the Federal Circuit unless no appeal is taken. Section 1516a(e) uses a disjunctive: Commerce will publish "a decision of the United States Court of International Trade or of the United States Court of Appeals for the Federal Circuit," which sustains "the cause of action ... in whole or in part" (emphasis supplied). Subsection 1516a(e)(2) further states that "notice of such court decision shall be published within ten days from the date of the issuance of the court decision." It is thus unlawful for Commerce to hold in abeyance the effectiveness of the final decision of this Court beyond the ten-day period after entry of such decision.

2. 19 U.S.C. § 1516a(c)

To the extent that § 1516a(e) might be regarded as ambiguous, the Court is fortified in its reading of it by the specifications in § 1516a(c), the correlative provision of § 1516a(e). Section 1516a(c), which governs the effectiveness of agency determinations during the pendency of judicial review...