Diamond Sawblades Manufacturers Coalition v. United States

Slip Op 09 - 107

UNITED STATES COURT OF INTERNATIONAL TRADE

:
DIAMOND SAWBLADES MANUFACTURERS :
COALITION, :
Plaintiff, :
:
v. : Before: Musgrave, Senior Judge
:
UNITED STATES, : Court No. 06-00247
Defendant, :
:
and :
:
ST. GOBAIN ABRASIVES, INC., EHWA DIAMOND :
INDUSTRIAL CO., LTD., and SHINHAN DIAMOND :
INDUSTRIAL CO., LTD., :
Defendant-Intervenors. :
:

:
DIAMOND SAWBLADES MANUFACTURERS :
COALITION, :
Plaintiff, :
:
v. :
:
UNITED STATES, : Court No. 09-00110
Defendant, :
:
and :
:
SAINT-GOBAIN ABRASIVES, INC., HEBEI JIKAI :
INDUSTRIAL GROUP CO., LTD., HUSQVARNA :
CONSTRUCTION PRODUCTS NORTH AMERICA, :
INC., EHWA DIAMOND INDUSTRIAL CO., LTD., :
and BOSUN TOOLS GROUP CO., LTD., :
:
Defendant-Intervenors. :
:
Court Nos. 06-00247 and 09-00110 Page 2

OPINION AND ORDER

[Granting application for a writ of mandamus as to the U.S. Department of Commerce and denying
as moot the mandamus action as to the U.S. International Trade Commission, this decision combines
two separate matters, more specifically identified in the foregoing captions, due to their having
similar and interrelated questions of law. While it may appear inconsistent that the court herein
reaches two different conclusions as to the two separate writs of mandamus requested, this apparent
anomaly is dictated by different aspects of the law.]

Dated: September 30, 2009

Wiley, Rein & Fielding LLP (Daniel B. Pickard), for the plaintiff.

James M. Lyons, General Counsel, Neal J. Reynolds, Assistant General Counsel, Office of
the General Council, U.S. International Trade Commission (Charles A. St. Charles), for the
defendant U.S. International Trade Commission.

Tony West, Assistant Attorney General; Jeanne E. Davidson, Director, Franklin E. White,
Jr., Assistant Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice,
(Delisa M. Sanchez); Office of the Chief Counsel for Import Administration, U.S. Department of
Commerce (Mark B. Lehnardt), Of Counsel, for the defendant U.S. Department of Commerce.

Akin Gump Strauss Hauer & Feld LLP (Spencer S. Griffith, J. David Park, Jarrod M.
Goldfeder, Lisa W. Ross, and Valerie A. Slater), for the defendant-intervenors Ehwa Diamond
Industrial Co., Ltd. and Shinhan Diamond Industrial Co., Ltd.

Fischer Fox Global PLLC (Lynn M. Fischer Fox), for the defendant-intervenor Saint-Gobain
Abrasives, Inc.

Alston & Bird, LLP (Kenneth G. Weigel and Elizabeth M. Hein), for the defendant-
intervenors Hebei Jikai Industrial Group Co., Ltd., and Husqvarna Construction Products North
America, Inc.

deKeiffer & Horgan (Gregory S. Menegaz), for the defendant-intervenor Bosun Tools Group
Co., Ltd.

Musgrave, Senior Judge: Before the court are two applications for relief in the nature

of writs of mandamus instituted by the plaintiff Diamond Sawblades Manufacturers Coalition

(“DSMC”), one of which (Court No. 06-00247) seeks to compel the United States International
Court Nos. 06-00247 and 09-00110 Page 3

Trade Commission (“ITC” or the “Commission”) to publish notice of its affirmative remand

determination in the Federal Register as a legal consequence of this court’s judgment in Diamond

Sawblades Mfr’s Coalition v. United States, Slip Op. 09-5, 2009 WL 289606 (CIT Jan. 13, 2009)

(“Slip Op. 09-5”) (sustaining the ITC’s affirmative remand determination), and the other (Court. No.

09-00110) seeking to compel the International Trade Administration, United States Department of

Commerce (“Commerce” or the “Department”) to issue antidumping duty orders and order the

collection of cash deposits. Both matters concern the question of whether, absent a stay, the ITC and

Commerce are legally obligated to effectuate the decisions of this Court if the case has been

appealed. For the reasons set forth below, the court concludes that they must. The court will grant

the plaintiff’s requested relief as to Commerce, but will deny the request, on the ground of mootness,

as to the ITC.

I. Background

A. Statement of Facts

Some familiarity with Court No. 06-00247 is presumed. In July 2006, the ITC

published its final determination that a domestic industry was not materially injured, or threatened

with material injury, by reason of imports of diamond sawblades from China and Korea. Diamond

Sawblades and Parts Thereof From China and Korea, 71 Fed. Reg. 39,128 (ITC) (July 11, 2006)

(“Original Determination”). DSMC, a domestic industry coalition of diamond-sawblade

manufacturers, challenged the ITC’s final negative injury determination in this Court.1 In reviewing

1
In an antidumping duty investigation, Commerce determines whether a product is being
sold in the United States at less than fair value (i.e., “dumped”), and the U.S. International Trade
Commission (“ITC”) determines whether an industry in the United States is materially injured or
(continued...)
Court Nos. 06-00247 and 09-00110 Page 4

the determination, the court found that the ITC had failed to provide an adequate explanation or

substantial evidentiary support for certain findings. The court remanded the matter to the ITC and

instructed the Commission to reconsider and explain more fully its negative-injury determination

in light of the court’s opinion. Diamond Sawblades Mfr’s Coalition v. United States, Slip Op. 08-18

2008 WL 576988 (Feb. 6, 2008). On remand, the Commission considered the court’s instructions

and reopened the record for the purpose of collecting additional information. It then considered the

new information it gathered and issued a new decision on May 14, 2008. In that decision, the

Commission again found that the domestic industry was not materially injured by reason of subject

imports but reversed its position on the issue of threat-of-material-injury. Diamond Sawblades and

Parts Thereof from China and Korea, Investigation Nos. 731-TA-1092 and 1093 (Final) (Remand),

1
(...continued)
threatened with material injury. 19 U.S.C. § 1673. Pursuant to the applicable statutory provisions,
if the ITC makes an affirmative preliminary injury determination, Commerce then issues its
preliminary and final dumping determinations. If Commerce makes a preliminary determination that
merchandise is being dumped, Commerce must suspend liquidation pending completion of the
investigation. 19 U.S.C. § 1671b(d)(2). In these instances, Customs will not know the exact amount
to assess, as antidumping duty, at the time when the goods are actually entered, because the duty is
necessarily determined after the goods enter the United States. See 19 C.F.R. § 351.213(a).
Accordingly, to secure payment of antidumping duties, an importer must make cash deposits of the
estimated duties at the time of entry. 19 U.S.C. §§ 1673b(d)(1)(B), 1671 d(c)(1)(B)(ii), 1671 e(a)(3).
At liquidation Customs collects any additional fees due or refunds excess moneys deposited, together
with interest. 19 U.S.C. § 1505(b).

If Commerce finds that dumping has occurred in its final determination, the ITC must make
a final determination as to whether the domestic industry has been materially injured or threatened
with material injury as a result of the dumped imports. See 19 U.S.C. §§ 1673, 1673b, 1673d. If the
ITC’s final determination is affirmative, Commerce must publish an antidumping duty order
“[w]ithin 7 days after being notified by the Commission of an affirmative determination under
section 1673d(b).” 19 U.S.C. § 1673e(a). If the ITC’s final determination is negative, however, the
investigation terminates, and Commerce is required to terminate the suspension of liquidation of
entries, release bonds and securities, and refund cash deposits. 19 U.S.C. § 1673d(c)(2).
Court Nos. 06-00247 and 09-00110 Page 5

USITC Pub. 4007 (May 2008) (“Remand Determination”). The court sustained the Remand

Determination on January 13, 2009. Diamond Sawblades, Slip Op. 09-5.

On January 22, 2009, the ITC notified Commerce that this court had issued a final

decision sustaining the ITC’s affirmative Remand Determination and that the court’s decision was

“‘not in harmony with’ the Commission’s original negative injury determination.” Pub. Doc. No.

3 at 1 (Court No. 09-110). As directed by 19 U.S.C. § 1516a(c)(1) and Timken Co. v. United States,

893 F.2d 337, 341 (Fed. Cir. 1990), Commerce published notice of the court’s decision in the

Federal Register on February 10, 2009. See Diamond Sawblades and Parts Thereof from the

People’s Republic of China and the People’s Republic of Korea: Notice of Court Decision Not In

Harmony With Final Determination of the Antidumping Duty Investigations (Commerce Dept.) 74

Fed. Reg. 6570 (Feb. 10, 2009) (“Timken Notice”). In the Timken Notice, Commerce stated that

liquidation of subject import entries would be suspended within ten days of that notice, and that an

antidumping duty order would be issued if notified by the ITC that Slip Op. 09-5 “is not appealed

or is affirmed on appeal.” Id.

Shortly after publication of the Timken Notice, DSMC submitted a letter to

Commerce suggesting that, in addition to suspension of liquidation, Commerce should order the

collection of cash deposits. Pub. Doc. 2 (Court No. 09-110). The Department responded that it

would not order the collection of cash deposits until issuance of a final and conclusive court decision

and that “[t]he Department interprets Timken to require suspension of liquidation, but not to direct

the Department to require cash deposits on or after the date of the notice.” Department of Commerce

(“DOC”) Mem. at 4.
Court Nos. 06-00247 and 09-00110 Page 6

In a similar correspondence with the ITC, DSMC requested that the Commission

publish notice of the affirmative Remand Determination in the Federal Register. DSMC noted that

although the ITC had, in a similar case, delayed notice publication until all appeals had been

exhausted, delay was not appropriate in the current matter. DSMC asserted that 19 U.S.C. § 1673(d)

“requires the Commission to also publish a notice in the Federal Register regarding the remand

determination[; therefore] . . . we ask that the Commission publish such a notice in order to dispel

serious confusion that has arisen with respect to the relief due to the domestic industry in this case

. . . .” DSMC Letter, ITC Mem. at Attach. B.

On March 13, 2009, the defendant-intervenors Ehwa Diamond Industrial Co., Ltd.,

and Saint-Gobain Abrasives, Inc., filed notices of appeal in the U.S. Court of Appeals for the Federal

Circuit (“Federal Circuit”). The ITC did not appeal. As promised in the Timken Notice, Commerce

did not publish an antidumping duty order and did not direct the collection of cash deposits. Further,

in a letter dated April 9, 2009, the Commission informed DSMC that, inter alia, it disagreed with

DSMC’s interpretation of section 1673d(d) and that it would not publish notice of its Remand

Determination at that point in time. ITC Mem. at Attach D. Thereafter, DSMC filed in this court

a petition for a writ of mandamus (Court No. 09-00110) to compel the Department of Commerce to

issue antidumping duty orders and to require the collection of cash deposits in the respective

investigations. One week later DSMC filed in this court a second application for a writ of

mandamus (Court No. 06-00247) to compel the ITC to publish notice of the affirmative Remand

Determination in the Federal Register.
Court Nos. 06-00247 and 09-00110 Page 7

B. Arguments of the Parties

1. ITC Action (Court No. 06-00247)

Before the court DSMC argues that it is clearly and indisputably entitled to the relief

it seeks because “[t]he Tariff Act of 1930 states that whenever the ITC makes a final threat of

material injury determination under [section] 1673d(b), it ‘shall publish notice of its determination

in the Federal Register.’” DSMC (No. 06-00247) Mem. at 3-4 (quoting 19 U.S.C. § 1673d(d)).

DSMC contends that it has no other means to obtain relief because publication of notice of the

affirmative determination is “necessary to effectuate this court’s judgment.” Id. at 1. This is so,

DSMC contends (and the defendant-intervenors concur), because 19 U.S.C. § 1673e(b)(2) specifies

that when the ITC’s determination is affirmative for threat-of-material-injury only, antidumping

duties may not be assessed for any time period prior to the date of publication. Under this scheme,

argues DSMC, the ITC’s refusal to publish notice of the affirmative Remand Determination until

after all appeals have been decided (which may take almost two years) fundamentally diminishes the

relief to which it is legally entitled.

The ITC presents two central arguments as to why it does not have a current duty to

publish notice of the Remand Determination. First, the ITC contends that delaying publication of

remand determinations is consistent with the requirements of the statutory scheme. According to

the Commission, “two separate sets of statutory provisions govern the publication of Commission

and Commerce determinations, depending on whether the determinations were issued during an

antidumping investigation or a court action.” ITC Mem. at 9. The Commission maintains that

section 1673d, which provides many of the procedural requirements governing investigations at the

administrative level (e.g., time limits, consequences of preliminary and final determinations), only
Court Nos. 06-00247 and 09-00110 Page 8

governs procedures in the context of the original investigation. Accordingly, says the ITC, the

publication requirement provided in section 1673d is, likewise, a procedure that applies only to the

original final determination that resulted from the administrative-level investigation. ITC Mem.

at 11.

On the other hand, the ITC explains, publication in the context of judicial review is

governed by sections 1516a(c) and (e). Those provisions “specify” that when the ITC issues a

remand determination adverse to the original determination that is subsequently affirmed by the

Court of International Trade (“CIT”), the only publication required at that point is governed by

section 1516a(c)(1). Consequently, notes the ITC, section 1516a(c)(1) provides that Commerce, not

the ITC, must publish notice of a court decision “not in harmony” with the original determination.

ITC Mem. at 12.

Second, the ITC argues that DSMC is simply not entitled to the relief it seeks because

the type of publication it requests is tantamount to treating the court’s decision as “final and

conclusive”2 and that, contrary to DSMC’s allegations, “the Federal Circuit has consistently stated

that a remand determination . . . is not to be given full and final effect until the end of [] all appellate

proceedings, even if the Court of International Trade has affirmed the determination.” ITC Mem.

at 14-15 (citing Timken Co. v. United States, 893 F.2d 337 (Fed. Cir. 1990). The Commission argues

further that section 1516a(c)(3) states expressly that the agencies (involved) may not take action to

2
Throughout this opinion, the court will use the phrase “final and conclusive” to describe
the type of finality that occurs when a court decision is no longer subject to appeal, as opposed to
the type of finality that simply “ends the litigation on the merits and leaves nothing for the court to
do but execute the judgment.” St. Louis I.M. & S.R. Co. v. Southern Express Co., 108 U.S. 24, 28
(1883)).
Court Nos. 06-00247 and 09-00110 Page 9

effectuate an adverse court decision until the matter has been remanded to the agency pursuant to

a final and conclusive court decision. According to the ITC, section 1516a(c)(3) provides “that the

courts may only remand the matter to the Commission for ‘disposition consistent with the final

disposition of the court’ only after there has been a ‘final disposition of {the} action . . . {that} is not

in harmony with the published {original} determination of . . . the Commission.’” ITC Mem. at 13

(quoting 19 U.S.C. § 1516a(c)(3)) (ITC’s alterations). In other words, the ITC maintains that

because the court’s decision in Slip Op. 09-5 is pending appeal before the Federal Circuit, the ITC

has no duty to effectuate that decision (by publishing notice of the affirmative Remand

Determination) until the matter has been remanded pursuant to a final and conclusive decision on

the appeal.

Finally, the ITC argues that, even if this court disagrees with the ITC’s interpretation of the

statutory scheme, the court must defer to that interpretation because it is reasonable. The

Commission notes that, pursuant to the doctrine set forth in Chevron, “a reviewing court must accord

substantial weight to the Commission’s reasonable interpretation of the statute it administers.” ITC

Mem. at 19 (referencing Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S.

837 (1984)); see also Def.-Int.’s (Court No. 06-00247) Joint Opp. at 13.

2. Commerce Action (Court No. 09-00110)

DSMC asserts that, pursuant to 19 U.S.C. §§ 1673d(c)(2) and 1673e(a), Commerce’s

obligation to issue and publish antidumping duty orders and collect cash deposits was triggered when

it received the ITC’s notice that this court had issued a final decision sustaining the affirmative

Remand Determination. DSMC No. 09-00110 Mem. at 5-6. See 19 U.S.C. § 1673d(c)(2) (requiring

Commerce to issue an antidumping duty order if the ITC and Commerce both issue affirmative final
Court Nos. 06-00247 and 09-00110 Page 10

determinations) and 1673e(a) (requiring Commerce to publish an antidumping duty order “[w]ithin

seven days after being notified by the Commission of an affirmative determination under 1673d(b)”).

DSMC contends further that in Decca Hospitality Furnishings, LLC v. United States, 30 CIT 357,

427 F. Supp. 2d 1249 (2006), the Court established that a remand determination legally replaces the

original determination, and that Commerce is obligated to take action in accordance with a final

determination regardless of whether it was issued in the original investigation or pursuant to a court-

ordered remand. DSMC thus asserts that the Department’s failure to issue antidumping duty orders

and collect cash deposits contravenes its statutory obligation under § 1673e(a), fails to give full

effect to the judgment of this court, “and denies [DSMC] relief to which it has an indisputable right.”

DSMC No. 09-00110 Mem. at 3.

Commerce argues that it presently has no authority to publish antidumping duty

orders or to require the posting of cash deposits in this case. Commerce asserts that it “derives its

statutory authority to publish an antidumping duty order from its receipt of notice from the ITC of

its final affirmative injury determination,” and that, although it had received the ITC’s notice that

the affirmative Remand Determination had been sustained by a final court decision, that notice was

issued for the “sole purpose” of enabling Commerce to publish the Timken Notice. DOC Mem. at

10. “Nowhere in the letter,” states Commerce, “does the ITC state that the Remand Determination

constitutes a section 1673d(b) ‘final determination’ of affirmative injury, as required by section

1673e(a) before Commerce may publish an order.” Id.

Commerce further notes that, other than Decca, DSMC is unable to provide any

support for its position that the Department has a duty to instruct the collection of cash deposits prior

to a conclusive court decision. DOC Mem. at 11. The Department contends that “the holding in
Court Nos. 06-00247 and 09-00110 Page 11

Decca – that Commerce was required to adjust the cash deposit rate to the rate determined in an

involuntary remand determination relating to a case that had been appealed to the Federal Circuit –

was erroneously based upon a misreading of Timken” and should be disregarded. It asserts further

that, contrary to DSMC’s arguments and the “aberrant” Decca opinion, “[t]he Timken court explicitly

stated” that when a CIT decision that is “adverse” to the original agency determination is appealed,

the sole effect of the CIT’s decision is the suspension of liquidation. DOC Mem. at 13 (citations

omitted). Commerce claims to be

[un]aware of any case in which any court has held that Commerce has a clear
duty to treat a decision of this Court as a “final” and “conclusive” decision
during the pendency of an appeal to the Federal Circuit. As Timken made
clear, a decision of this Court not in harmony with the agency determination
merely removes the agency’s presumption of correctness.

Id.

Finally, Commerce asserts that denying the writ of mandamus would be “the right

outcome because suspension of liquidation preserves the status quo and parties’ substantive rights

to the eventual outcome while the agency’s determination is no longer presumed correct and the

conclusive outcome is uncertain.” DOC Mem. at 21.

For the most part, the defendant-intervenors echo the arguments set forth by the

Commission and Commerce, adding that DSMC does not have a clear and indisputable right to the

relief it seeks from either agency because the ITC’s Remand Determination is not a “final decision.”

The defendant-intervenors further echo that DSMC’s arguments are essentially unsupported because

they are premised upon the “aberrant Decca case.” Def.-Int’s (Court No. 06-00247) Joint Opp. at

15-16. They assert that the Federal Circuit’s decisions in Timken and Hosiden Corp. v. Advanced

Display Manufacturers of America, 85 F.3d 589 (Fed. Cir. 1996) clearly establish that Decca was
Court Nos. 06-00247 and 09-00110 Page 12

based upon a misreading of Timken and that, contrary to the observations set forth in that opinion,

“the Commission’s remand determination does not replace the original determination until the end

of all appellate proceedings.” Def.-Int’s (Court No. 09-00110) Joint Resp. at 16.

II. Jurisdiction and Standard of Review

This court has “exclusive jurisdiction of any civil action commenced under section

516A of the Tariff Act of 1930.” 28 U.S.C. § 1581(c). Because the court has jurisdiction to

determine the effect of, and enforce its own judgments, the court retains jurisdiction over the action

to decide the current mandamus actions. Without the power to enforce its judgments, “[t]he judicial

power would be incomplete, and entirely inadequate to the purposes for which it was intended.”

Bank of the United States v. Halstead, 23 U.S. (10 Wheat.) 51, 53 (1825).

This court possesses all the powers in law and equity of, or as conferred by statute

upon, a district court of the United States. 28 U.S.C. § 1585. The powers conferred by statute upon

the district courts include supplemental jurisdiction provided in 28 U.S.C. § 1367(a) and mandamus

jurisdiction set forth in 28 U.S.C. § 1361 (providing that “[t]he district courts shall have original

jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United

States or any agency thereof to perform a duty owed to the plaintiff.”). Section 1367 further provides

that in any civil action where district courts have original jurisdiction, those courts shall have

supplemental jurisdiction over all other claims that are so related to claims in the action within its

original jurisdiction that they form part of the same case or controversy. 28 U.S.C. § 1367(a).
Court Nos. 06-00247 and 09-00110 Page 13

III. Discussion

The common-law writ of mandamus, as codified in 28 U.S.C. §§ 1361, 1651(a)

(2006), is a drastic remedy, “to be invoked only in extraordinary situations.” Kerr v. U. S. Dist. Ct.

N.D. Cal., 426 U.S. 394, 402 (1976). Because a writ of mandamus is “one of the most potent

weapons in the judicial arsenal,” Cheney v. United States Dist. Court for D.C., 542 U.S. 367, 380

(2004), three conditions must be met before the court may issue a writ. First, the petitioner must

demonstrate a clear and indisputable right to the writ. Second, the petitioner must demonstrate that

he or she lacks adequate alternative means to obtain the desired relief. And third, “even if the first

two prerequisites have been met, the issuing court, in the exercise of its discretion, must be satisfied

that the writ is appropriate under the circumstances.” Cheney, 542 U.S. at 380-81.

A. DSMC’s Clear and Indisputable Right to the Writ

The defendants contend that DSMC does not have a “clear and indisputable” right

to the writs because neither the ITC nor Commerce has a duty to perform the actions that DSMC

seeks. The defendants assert that, except for suspension of liquidation, the decisions of this court

are to be given no effect if the case has been appealed to the Federal Circuit. For the reasons set

forth below, this proposition must be rejected.

1. Disposition of Judicial Decisions Pending Appeal

“We begin with the basic proposition that all orders and judgments of courts must be

complied with promptly.” Maness v. Meyers, 419 U.S. 449, 458 (1975). If a litigant believes the

judgment is incorrect, “the remedy is to appeal, but, absent a stay, he must comply promptly with

the order pending appeal.” Id. (emphasis added). The principle that all orders and judgments of

courts must be complied with promptly is fundamental to the expeditious and efficient
Court Nos. 06-00247 and 09-00110 Page 14

administration of justice by the courts. United States v. United Mine Workers, 330 U.S. 258, 293

(1947). See also Smith Corona v. United States, 915 F.2d 683, 688 (Fed. Cir. 1990). In enacting

the Customs Courts Act of 1980, Congress confirmed the status of this Court as one “established

under Article III of the Constitution of the United States,” and empowered the Court with the same

plenary powers in law and equity as those possessed by the United States district courts. 28 U.S.C.

§§ 251, 1585, 2643(c)(1).

It is without debate that liquidation must await a final and conclusive decision on the

matter, and that, as a result, the filing of an appeal essentially stays the effect of the court’s decision

as far as liquidation is concerned. But the defendants here advocate that the relevant statutes and

caselaw should be interpreted to expand this “stay” to encompass all other legal consequences of the

court’s final decision. The practical effect of this interpretation (which defendants do not dispute)

would mean that the filing of an appeal by any party essentially nullifies the judgments of this Court

to the status of advisory opinions rendered for the purpose of nondeferential Federal Circuit review.

On its face, such an interpretation appears contrary to the express intent of Congress to expand the

powers of this Court and to provide expeditious judicial review in antidumping cases. In the absence

of clear and express statutory language, it cannot be accepted that Congress intended that appealed

decisions of this Court would not demand the same fundamental compliance that is to be accorded

decisions rendered by the district courts. Accord Isbrandtsen Co. v. Johnson, 343 U.S. 779, 783

(1952) (holding that “[s]tatutes which invade the common law . . . are to be read with a presumption

favoring the retention of long-established and familiar principles, except when a statutory purpose

to the contrary is evident.”).
Court Nos. 06-00247 and 09-00110 Page 15

2. 19 U.S.C. § 1516a(c) & (e): Effects of Judicial Review

The defendants’ arguments focus primarily on 19 U.S.C. §§ 1516a(c) and (e), which

provide, in pertinent part:

(c) Liquidation of entries.

(1) Liquidation in accordance with determination.

Unless such liquidation is enjoined by the court under
paragraph (2) of this subsection, entries of merchandise of the
character covered by a determination of the Secretary, the
administering authority, or the Commission contested under
subsection (a) shall be liquidated in accordance with the
determination of the Secretary, the administering authority, or the
Commission, if they are entered, or withdrawn from warehouse, for
consumption on or before the date of publication in the Federal
Register by the Secretary or the administering authority of a notice of
a decision of the United States Court of International Trade, or of the
United States Court of Appeals for the Federal Circuit, not in
harmony with that determination. Such notice of a decision shall be
published within ten days from the date of the issuance of the court
decision.

(2) Injunctive relief.

In the case of a determination described in paragraph (2) of
subsection (a) by the Secretary, the administering authority, or the
Commission, the United States Court of International Trade may
enjoin the liquidation of some or all entries of merchandise covered
by a determination of the Secretary, the administering authority, or
the Commission, upon a request by an interested party for such relief
and a proper showing that the requested relief should be granted
under the circumstances.

(3) Remand for final disposition.

If the final disposition of an action brought under this section
is not in harmony with the published determination of the Secretary,
the administering authority, or the Commission, the matter shall be
remanded to the Secretary, the administering authority, or the
Court Nos. 06-00247 and 09-00110 Page 16

Commission, as appropriate, for disposition consistent with the final
disposition of the court.

***

(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.

19 U.S.C. §§ 1516a(c), (e).

The Commission asserts that it owes no duty to the plaintiff because “the Federal

Circuit has consistently stated that, under [sections] 1516a(c) [and] (e), a remand determination is

not to be given final and conclusive effect until the end of the entire appellate process, even if the

Court of International Trade has sustained that determination.” ITC Mem. at 22. The Commission’s

assertions are beside the point, however, because contrary to the implications of this argument,

requiring prompt compliance with the court’s judgment is not synonymous with “treatment of that

judgment as final and conclusive.” As noted above, it is well established that under section

1516a(e), liquidation must await a final and conclusive decision on the matter. The defendants,
Court Nos. 06-00247 and 09-00110 Page 17

however, and with little support, intentionally conflate liquidation with any and all other effects that

flow as a consequence of the court’s decision.

The fact that liquidation must await a final and conclusive court decision does not

imply that all other legal obligations resulting from the court’s decision must likewise await a

conclusive decision. Liquidation for customs duty purposes is the “final computation or

ascertainment of duties . . . accruing upon entry” of goods from abroad into the United States.

19 U.S.C. § 1500(d). See Norsk Hydro Can., Inc. v. United States, 472 F.3d 1347, 1351 (Fed. Cir.

2006). Final liquidation occurs only once for each entry of goods, and as a general principle may

not be subsequently undone.3 See Cambridge Lee Indus. v. United States, 916 F.2d at 1579 (Fed.

Cir. 1990) (holding that “[o]nce an entry has been liquidated, the duties paid cannot be recovered

even if the payor subsequently prevails in its challenge to the antidumping order.”); Zenith Radio

Corp. v. United States, 710 F.2d 806, 810 (Fed. Cir. 1983). Liquidation is not the same as the

collection of cash deposits, nor is it the same as issuance of an antidumping duty order, and has little

to do with the publication notice of an affirmative-injury determination. The statutes refer to each

concept distinctly. Compare 19 U.S.C. §§ 1673b(d), 1673d(c)(1)(B)(ii), 1673e(a), 1673e(c)(3),

1675, 1673f(b)(2) and 1677g (referring to cash deposits) with 19 U.S.C. §§ 1500, 1504, 1505, 1514,

1516a and 1520 (referring to liquidations) and 1673 (referring to antidumping duty orders) and

1673d(b) (referring to publication). Accordingly, it is inappropriate to presume that Congress used

the term “liquidation” in 19 U.S.C. § 1516a to refer to cash deposits or issuance of an antidumping

3
Consequently, several statutes under Title 19 of the United States Code provide for the
suspension of liquidation, which require expressly, or have been interpreted to require, that
suspension of liquidation continues until the matter has been finally and conclusively decided. See,
e.g., 19 U.S.C. §§ 1514; 1516(c)(2).
Court Nos. 06-00247 and 09-00110 Page 18

duty order. See SKF USA Inc. v. United States, 263 F.3d 1369, 1381 (Fed. Cir. 2001) (noting that

“where Congress has included specific language in one section of a statute but has omitted it from

another, related section of the same Act, it is generally presumed that Congress intended the

omission.”). Accordingly, the fact that liquidation must await a final and conclusive court decision

has no bearing on Commerce’s duty to issue antidumping duty orders or instruct the collection of

cash deposits, or on the ITC’s obligations to publish notice of an affirmative determination.

3. Precedential Interpretation of 19 U.S.C. § 1516a

The most detailed analysis of sections 1516a(c)(1) and (e) is set forth in Timken Co.

v. United States, 893 F.2d 337 (Fed. Cir. 1990), to which all parties reference as supportive of their

positions. In Timken, this Court, after having previously issued a final decision sustaining the

Department’s remand determination, ordered Commerce to publish (under § 1516a(c)(1)) notice of

a court decision “not in harmony” with the original determination. Prior to the mandamus action,

Commerce had refused to publish the notice because it had interpreted section 1516a(c)(1)

publication to require a final and conclusive decision, and the CIT decision—which was pending

appeal—was not. Hence, when the mandamus order was appealed, the only question to be resolved

by the Federal Circuit was when (or whether) Commerce was required to publish a Federal Register

notice of an adverse court decision, regardless of the fact that the case had been appealed. The

Federal Circuit affirmed the CIT’s issuance of mandamus and noted its disagreement with

Commerce’s interpretation, stating:

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), § 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 § 1516 (a), states that the agency’s
Court Nos. 06-00247 and 09-00110 Page 19

determination will govern only that merchandise which is “entered prior to the first
decision of a court which is adverse” to that determination.

Timken, 893 F.2d at 340.

The Federal Circuit’s analysis of the term “final” as it is used in section 1516a(c)(1)

and (e) was central to its holding in Timken. The Court distinguished between the finality that occurs

when the district court “is done with the matter,” and issues final judgment, and the finality that is

achieved when the appellate process has run its course and the decision is no longer subject to appeal

or collateral attack (i.e., for purposes of this opinion, “final and conclusive,” see note 2). See 893

F.2d at 339. Although Commerce in that case had taken the position that the latter definition applied

to its duty to publish notice of a court decision not in harmony with an agency determination under

the judicial review provisions of 19 U.S.C. §§ 1516a(c)(1) and (e), the Federal Circuit concluded

otherwise:

[T]he terms “decision” and “court decision” are used in § 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 § 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. § 1295(a)(5) and 28 U.S.C. § 2645.[FN]6

[FN]6. We do, however, agree that a decision must be “final” in the sense that the
CIT has entered final judgment in order to require publication of notice under §
1516a(c)(1) and (e). This is the strict holding of Melamine Chemicals, Inc. v. United
States, 732 F.2d 924 (Fed. Cir.1984) . . . .

Timken, 893 F.2d at 340.
Court Nos. 06-00247 and 09-00110 Page 20

In sum, the Timken Court determined that, although the section1516a(e) liquidation

directive required a final and conclusive court decision, the publication directed by section

1516a(c)(1) did not: Publication was required if the CIT had issued a final judgment on the matter–

regardless of whether that judgment had been appealed. This case gave rise to the term “Timken

Notice,” because it established the parameters of section 1516a(c)(1) notice-publication. See Timken,

893 F. 2d at 340.

However, other than a footnote in Timken that is arguably dictum, the Federal Circuit

has never addressed directly the question of whether filing of an appeal suspends any other legal

consequence of a CIT decision sustaining a remand determination, such as those at issue here. That

footnote, which discusses cash deposits, appears to be the only clear indication of the Federal

Circuit’s position on the matter:

The timing of publication of notice is of great importance to the
parties. Under section 1516a(c), unless liquidation is enjoined by the
CIT, liquidation continues under the original Commerce
determination until publication of a CIT or Federal Circuit decision
not in harmony with Commerce's determination. Thus, in the present
case, liquidation of CMEC’s entries is currently taking place without
assessment of antidumping duties, but would be suspended and made
subject to collection of estimated antidumping duties of 4.69% upon
publication of notice of the March 22, 1989 CIT decision.

Id. (emphasis added). Even if dictum, the above-quoted passage is persuasive evidence that the

Federal Circuit, at least in the context of Timken, assumed that (1) the collection of cash deposits

would commence upon publication of the Timken Notice and that (2) publication was of “great

importance” to the litigants precisely because of its effect on cash deposits. At a minimum, this

passage significantly undermines the defendants’ contention that Timken “forbids” the collection of
Court Nos. 06-00247 and 09-00110 Page 21

cash deposits (or any other action beyond suspension of liquidation) prior to a conclusive court

decision.4

The ITC also points to Hosiden Corp. v. Advanced Display Manufacturers of

America, 85 F.3d 589 (Fed. Cir. 1996) as support for its position; the defendant-intervenors echo this

assertion with force, asserting that the Hosiden Court “ruled explicitly on the issue of cash deposits

and found that a change in cash deposits is not required as a result of a decision of this Court that

is not yet ‘conclusive.’” Def.-Int’s No. 09-00110 Resp. at 18.

The court is unable to agree that Hosiden stands for the proposition the defendants

advocate. This Court has never interpreted Hosiden to be more than a reaffirmation of the

proposition that, regardless of the circumstances, this Court may not order liquidation of any of the

affected merchandise prior to a final and conclusive court decision. It is worth noting that the CIT

action on appeal in Hosiden was a writ of mandamus that contained five separate decretal

paragraphs, and that the majority of these paragraphs contained more than one specific order. Hence,

the Court’s directive ordering Commerce to modify cash deposits and revoke the existing

antidumping duty order, and the Court’s directive ordering Commerce to revoke the suspension of

liquidation and return previously collected cash deposits, were only two orders among many;

however, only the latter order was discussed in the opinion. See Hosiden Corp. v. United States, 861

4
It also appears that the Federal Circuit has indicated an assumption that antidumping duty
orders are modified pursuant to judgments of this Court regardless of whether an appeal has been
filed. See Atlantic Sugar Ltd., v. United States, 744 F.2d 556, 564 (Fed. Cir. 1984) (reversing this
Court’s finding of insubstantial evidence, reinstating the original ITC determination, and ordering
reinstatement of the antidumping duty order— indicating an assumption that the antidumping order
had been revoked pursuant to the CIT decision).
Court Nos. 06-00247 and 09-00110 Page 22

F. Supp. 115, 120-21 (1994). While it is true that the Federal Circuit subsequently vacated the writ

of mandamus as contrary to law, the sole focus of that rather brief opinion was that section 1516a(e)

and relevant precedent precluded this Court from ordering liquidation prior to the issuance of the

final decision on appeal. Specifically, the Court stated:

Statute and precedent are clear that the decision of the Court of International Trade
is not a “final court decision” when appeal has been taken to the Federal Circuit. The
Court of International Trade does not have discretion to require liquidation before the
final decision on appeal. 19 U.S.C. § 1516a(e) requires that liquidation, once
enjoined, remains suspended until there is a “conclusive court decision which decides
the matter, so that subsequent entries can be liquidated in accordance with that
conclusive decision.”

Hosiden, 85 F.3d 591 (Fed. Cir. 1996) (quoting Timken, 893 F. 2d at 342). Although Hosiden

contains the very broad language quoted by the defendants (in the first sentence of the passage

quoted above), the sentence that follows limits the holding to matters regarding liquidation and

section 1516a(e). At best, Hosiden might be construed to prohibit the return of previously collected

cash deposits (which may only be returned upon liquidation, see 19 U.S.C. § 1505), but defendant-

intervenors assertion that the Hosiden Court “ruled explicitly on the issue of cash deposits,” is

simply not credible.

4. Chevron Deference and 19 U.S.C. § 1516a

Before addressing further the ITC’s interpretation of section 1516a, the court must

clarify that the ITC’s interpretation of that statute is not entitled to Chevron deference. The familiar

two-part analysis set forth in Chevron guides the court’s analysis when determining the lawfulness

of an agency’s construction of a statute it administers, and in the first part of the analysis, the court

must look to “whether Congress has directly spoken to the precise question at issue.” Chevron, 467

U.S. at 842. If the court finds that Congress has clearly spoken to the question at issue, the analysis
Court Nos. 06-00247 and 09-00110 Page 23

is at an end, “for the court, as well as the agency, must give effect to the unambiguously expressed

intent of Congress.” Id. at 843. However, if the court finds the statute to be silent or ambiguous,

it reaches the second step of the analysis, where it must determine whether the agency’s

interpretation is reasonable; the court must defer to that interpretation if it “reflects a plausible

construction of the plain language of the statute and does not otherwise conflict with Congress’

express intent.” Rust v. Sullivan, 500 U.S. 173, 184 (1991); Koyo Seiko Co. v. United States, 36 F.3d

1565, 1570 (Fed. Cir. 1994).

Implicit in the first step of the Chevron analysis, however, is a third question, which

must be answered in the affirmative before proceeding: Has Congress truly delegated to the agency

the task of administering the statute in question? That is, if there is an interpretive “gap” in the

statute, is it reasonable to conclude that the “gap” is one that Congress expected the agency to fill?

The Supreme Court touched upon the issue in Smiley v. Citibank (S.D.), N.A, explaining:

We accord deference to agencies under Chevron, not because of a presumption that
they drafted the provisions in question, or were present at the hearings, or spoke to
the principal sponsors; but rather because of a presumption that Congress, when it
left ambiguity in a statute meant for implementation by an agency, understood that
the ambiguity would be resolved, first and foremost, by the agency, and desired the
agency (rather than the courts) to possess whatever degree of discretion the ambiguity
allows.

Smiley, 517 U.S. 735, 740-741 (1996) (italics added).

In brief, the two-step Chevron analysis is warranted only when (a) Congress appears

to have delegated authority to the agency; and (b) the agency interpretation in question “was

promulgated in the exercise of that authority.” United States v. Mead Corp., 533 U.S. 218, 226-227

(2001). See also Gonzales v. Oregon, 546 U.S. 243, 255-256 (2006); FDA v. Brown & Williamson

Tobacco Corp., 529 U.S. 120 (2000). The particular statue the ITC would interpret, however, is
Court Nos. 06-00247 and 09-00110 Page 24

unlike the provision accorded interpretive deference in Chevron (the definition of “point source”)

or United States v. Haggar Apparel Co., 526 U.S. 380 (1999) (interpreting a particular exemption

in HTSUS), and a multitude of other cases. Here, the ITC and the defendant-intervenors contend

that the court should accord deference to the ITC’s interpretation of section 1516a of Title 19 of the

United States Code, which the ITC itself describes as governing “[j]udicial review in countervailing

duty and antidumping duty proceedings.” In other words, the ITC contends it is entitled to deference

on its interpretation of the very statutes governing aspects of the judicial proceedings to which it is

a party. Such a proposition is patently unreasonable and must be rejected. See Marbury v. Madison,

1 U.S. (1 Cranch) 137 (1803). Accordingly, the court affords no deference to the ITC’s

interpretation of section 1516a.5

5. 19 U.S.C. § 1516a(c)(3): Remand for Final Disposition

In proceedings before this Court, references to section 1516a(c)(3) have been used

almost universally as support for the Court’s ability to issue remands. See, e.g., United States Steel

Group v. United States, 24 CIT 1326, 1332, 123 F. Supp. 2d 1365, 1372 (2000); Nippon Steel Corp.

v. United States, 19 CIT 827 (1995). However, the ITC proposes that section 1516a(c)(3) means

something entirely different. The Commission asserts that, based upon the analysis set forth in

Timken, the term “final” used in section 1516a(c)(3) clearly means “final and conclusive.” Hence,

says the Commission, section 1516a(c)(3) is, in reality a provision that “instructs that the courts may

only remand the matter to the Commission for disposition consistent with the final disposition of the

5
The court expresses no opinion on whether deference should be accorded to the
Commission’s interpretation of 19 U.S.C. § 1673.
Court Nos. 06-00247 and 09-00110 Page 25

court” after there has been a “final disposition of {the} action . . .{that} is not in harmony with the

{original} published determination . . . of the Commission.” ITC Mem. at 13 (ITC’s alterations).

In other words, the Commission states that it has no duty to take action “consistent with the final

disposition of the court” unless the matter has been remanded pursuant to a final and conclusive

decision, which has not yet occurred in this case.

As noted above, the ITC’s interpretation of section 1516a(c)(3) is derived, in part,

from the Timken Court’s conclusion that the term “final” in section 1516a(e) referred to a final and

conclusive decision. Specifically, where that Court notes:

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. § 2645(c), i.e., to mean
“conclusive.” Thus, § 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.

Timken, 839 F.2d at 339-40. According to the ITC, the above analysis combines with the “canons

of statutory construction” to demonstrate that the term “final” as it is used in section 1516a(c)(3)

must likewise refer only to a final and conclusive court decision:

Congress used the word “final” to describe court action only in these two subsections
of section 1516a. The canons of statutory construction instruct that use of an
identical term within various provisions of a statute should normally be given the
same meaning. By using the term “final” to refer to court action in subsection 19
U.S.C. § 1516a(c)(3) and 19 U.S.C. § 1516a(e), while omitting that modifier in other
sections, Congress made clear that these sections were intended to cover only “final”
appellate action. . . . As a result, the references in 19 U.S.C. § 1516a(c)(3) to the
“final disposition of an action” and “the final disposition of the court” refer to the
court decision that finally and conclusively disposes of the action.
Court Nos. 06-00247 and 09-00110 Page 26

ITC Mem. at 21-22, n.21 (citations omitted). Thus, the Commission argues essentially that the

Timken Court’s conclusion as to the meaning of the term “final” in section 1516a(e) must also be

applied to that term as it is used in section 1516a(c)(3).6

The court finds this analysis flawed in several respects. First, the analysis ignores that

it is also a basic canon of statutory construction that the words of a statute “must be read in their

context and with a view to their place in the overall statutory scheme.” Davis v. Michigan Dept. of

Treasury, 489 U.S. 803, 809 (1989). The Timken court’s conclusion that the term “final” as it is

used in section 1516(e) means “final and conclusive” was not simply the result of applying a single

canon of statutory construction. On the contrary, that conclusion resulted from an observation as to

the plain meaning of the text, an analysis as to whether that meaning was consistent with the

statutory scheme, and confirmation that the proposed meaning of the term was supported by

legislative history and could be harmonized with existing caselaw. See Timken, 839 F.2d at 339-40.

Second, the ITC focuses on the term “final” at the expense of ignoring the rest of the

statute—particularly the term “remand.” Unlike the term “final,” the definition of a remand is rarely

subject to ambiguity or debate. A remand is a type of court order; it means “[t]o send (a case or

6
Section 1516a(c)(3) provides

(3) Remand for final disposition.

If the final disposition of an action brought under this section
is not in harmony with the published determination of the Secretary,
the administering authority, or the Commission, the matter shall be
remanded to the Secretary, the administering authority, or the
Commission, as appropriate, for disposition consistent with the final
disposition of the court.
Court Nos. 06-00247 and 09-00110 Page 27

claim) back to the court or tribunal from which it came for some further action.” Black’s Law

Dictionary 1407 (9th ed. 2009). See Ford Motor Co. v. N.L.R.B., 305 U.S. 364, 374 (1939) (noting

that a remand “means simply that the case is returned to the administrative body in order that it may

take further action in accordance with the applicable law.”). A remand order is generally considered

to be “an interlocutory order that does not divest a court of jurisdiction.” Avery v. Secretary of

Health and Human Services, 762 F.2d 158 (1st Cir. 1985).

However, when combined with the ITC’s definition of “finality,” the ordering of a

remand makes no sense. Under the ITC’s interpretation, the conclusive finality of a judgment – and

the alleged duty to issue a remand—ripens at a point in time when “remand” (as the term is used in

American jurisprudence) is no longer possible. That is, once a case has achieved the “conclusive”

finality that the ITC asserts is a prerequisite for a 1516a(c)(3) remand, no further action may be taken

on that case. Although a court may enforce its judgments, that is not the same as a remand. A court

remands a matter for action on the case, which cannot occur subsequent to a final and conclusive

decision.7 The ITC’s interpretation of section 1516a(c)(3) would require the court, inter alia, to

expand the definition of a thoroughly-understood term to mean something entirely different. This

the court is unwilling to do.

It is perhaps worth noting that the Commission’s proposed interpretation attempts

to fashion section 1516a(c)(3) in the likeness section 1514(a). Section 1514(a) provides that “[w]hen

a judgment or order of the United States Court of International Trade has become final, the papers

transmitted shall be returned, together with a copy of the judgment or order to the Customs Service,

7
And does not occur. The court is unable to find any record of any court issuing a
1516a(c)(3) “remand” of the nature proposed by the ITC.
Court Nos. 06-00247 and 09-00110 Page 28

which shall take action accordingly.” 19 U.S.C. § 1514(a). In this provision, Congress expressly

provided that the U.S. Customs and Border Protection (“CBP”)—directly, and without remand—

is to effectuate the Court’s decision upon receipt of a judgment or order that “has become final.”

Because a judgment of this Court is final and appealable on the date it is issued, a judgment can only

“become final” in the sense that it is no longer subject to appeal or collateral attack, i.e., final and

conclusive. See Heraeus Amersil v. United States, 10 CIT 438, 638 F. Supp. 342 (1986).

Accordingly, the existence of such a clear statutory directive demonstrates that when Congress

intended to delay the enforcement of this Court’s decisions, it did so explicitly.8

In any event, the court is not persuaded that the Timken Court’s interpretation of “the

final court decision in the action” as it is used in section 1516a(e) may be so readily applied to

section 1516a(c)(3), because the language of that latter provision is slightly different. The Timken

Court focused on the phrase “in the action” as persuasive evidence that “the final court decision in

the action” referred to a final and conclusive court decision, as opposed to the finality that occurs

from this Court’s entry of judgment. By contrast, section 1516a(c)(3) refers to “the final disposition

of an action brought under this section,” which, arguably, means something entirely different. The

phrase “an action brought under this section” (or “this subsection” or “paragraph”) is used several

times in section 1516a simply to describe which causes of action are governed by the particular

provision. Moreover, the Commission overlooks that a “final disposition” is not necessarily the

same as a “final court decision.” Under CIT Rule 16, a matter is submitted “for final disposition”

when the deadline for the submission of pleadings or evidence has passed and the matter is submitted

8
Because section 1514(a) applies only to CBP entry decisions, the only practical result of
the section 1514(a) “stay” is to suspend liquidation pending appeal.
Court Nos. 06-00247 and 09-00110 Page 29

to the Court so that it may render a decision. See CIT Rule 16(e); see also CIT Rules 16(a)(4), 16(e),

16(b)(3)(B)(v), 30(f)(1), 84(h).9 Hence, under the Court’s Rules (which were adopted in the

Customs Courts Act of 1980, shortly after the Trade Agreements Act of 1979), a “final disposition”

would include not only judgments that are “final and appealable,” but interlocutory decisions as well,

such as a remand.

Moreover, as noted above, the vast majority of judicial references to section

1516a(c)(3) do not support the ITC’s interpretation. In one of the few (perhaps only) judicial

discussions of that specific provision, the Federal Circuit interpreted section 1516a(c)(3) as curtailing

this Court’s ability to reverse or modify the agency decision, stating:

Section 1516a limits the Court of International Trade to affirmances
and remand orders; an outright reversal without a remand does not
appear to be contemplated by the statute: “If the [Court of
International Trade’s] final disposition of an action brought under this
section is not in harmony with the published determination [of] the
Commission, the matter shall be remanded to . . . the Commission, as

9
Another potential problem with the ITC’s interpretation surrounds its characterization of
the section (c)(3) reference to “the published determination” as necessarily or only referring to the
agency’s original determination. In fact, the standard canons of statutory construction would seem
to indicate otherwise, because the “determination” at issue is referred to as “the published
determination” only in sections (c)(3) and (e), whereas sections (c)(1) and (c)(2) refer to “a
determination . . . contested under subsection (a) of this section” and “a determination described in
paragraph (2) of subsection (a) of this section.” Unfortunately, the term “published determination”
in itself is problematic, because not all of the “determinations” reviewable under 1516a are
published. As shown in sections 1516a(a)(1) and (a)(2)(A), final determinations such as the one at
issue here require only “publication of notice” of the decision. At the risk, perhaps, of certain
impropriety in this assumption, this designation is probably an oversight: historically speaking, most
of what is now section 1516a was previously found in section 1516. See 19 U.S.C. § 1516(g) (1977).
Section 1516 required (and still does require) publication of the decision as a part of the protest
procedure at the administrative level. Moreover, previous versions of the bill that eventually became
the Tariff Agreements Act of 1979 required publication of the actual decision. It is therefore more
reasonable to conclude that “published decision” in section (c)(3) refers to the original agency
decision.
Court Nos. 06-00247 and 09-00110 Page 30

appropriate, for disposition consistent with the final disposition of the
[Court of International Trade].”

Altx v. United States, 370 F.3d at 1108, 1111 n.2 (Fed. Cir. 2004) (quoting 1516a(c)(3)) (alterations

in original).10 By contrast, the ITC’s interpretation implies that the Court is not so restricted. Case

law suggests that, prior to the enactment of the Trade Agreements Act of 1979, the powers of the

Court were viewed in a manner that might charitably be described as the exact opposite of how they

are viewed today. During that time, this Court’s predecessor voided the agency decision and ordered

liquidation in accordance with its own opinion, eschewing remands in all but the most unusual

circumstances. See, e.g., AS Industries, Inc. v. United States, 82 Cust. Ct. 101, 149-52, 467 F. Supp.

1200, 1239-41 (1979).

Finally, the court cannot agree with the ITC’s assertion that its interpretation is

supported by legislative history. The “support” to which the Commission refers is a single comment

found in the Senate Finance Committee Report on H.R. 4537 (signed into law as the Trade

Agreements Act of 1979). That comment describes the new section 1516a(c)(3) as providing “that

if the final disposition of an action instituted under the section is not in harmony with the challenged

decision, the matter shall be remanded to the decision-maker for disposition consistent with the

court’s decision.” S. Rep. No. 96-249, 96th Cong., 1st Sess. at 249. The court finds this statement

profoundly unilluminating as to the issue here; this comment simply repeats the language of the

10
The Court’s authority to remand matters to the appropriate agency appears to stretch
beyond the “if-then” mandate of section 1516a(c)(3), see 28 U.S.C. § 2643(c)(1) and Borlem
S.a.-empreedimentos Industriais v. United States, 913 F.2d 933 (Fed. Cir. 1990) (holding that Court
had power to remand ITC decision for reconsideration where Commerce remand decision may have
an effect on the ITC’s material injury finding).
Court Nos. 06-00247 and 09-00110 Page 31

statute with no indication of a deliberate effort to interpret it. However, three pages later the same

Senate Report contains the following statement:

It is . . . unclear under the current law whether the Customs Court can
or should remand a matter to an administrative agency when it holds
that the agency’s decision is erroneous. Section [1516a] will make it
clear that the court has the power to remand the matter to the agency.

Id. at 252. This statement is clearly inconsistent with the interpretation advocated by the ITC, and,

unlike the previous comment, it reflects a deliberate effort to interpret the provision. In toto, the

Senate Report comments are, at best, in equipoise; though more accurately, the Senate Report

appears to contravene the ITC’s position.11

11
The court is likewise unable to find support for the ITC’s interpretation anywhere in the
legislative history associated with the Act at issue, Public Law 96-39, 93 Stat 144 (1979) or the
previous versions thereof. On the other hand, there seems to be ample support for the view that the
provision referred to remands issued by this Court. Every previous version of the eventually-
codified bill contained a provision similar to section 1516a(c)(3) that clearly referred to remands
issued by this Court. See Title VI of S. 2857, § 516(g)(2) Congressional Record – Senate (Apr. 7,
1978) at 9196 (providing that “upon the filing of an action for judicial review under subsection (1)
of this subsection, the Customs Court shall review the record of the decision of the Secretary or the
United States International Trade Commission . . . [t]he Court may affirm the decision or order that
the entire matter be returned for further consideration, but the Court may not modify the decision”);
Title I of S. 223 (providing that “if the court determines in favor of the petitioning party as to actions
commenced under paragraph (3) or (4) of this subsection, it shall remand the matter to the Secretary
or the Commission, whichever is appropriate, for action, not inconsistent with the court’s
determination”); Congressional Record – Senate (Jan. 25, 1979) at 1143 (“[r]eview is not expanded
to the extent that reversing an[] administrative determination would be so easy as to maintain a
considerable degree of uncertainty in the marketplace following the completion of agency action[;
r]ather, the greater review ability should induce the administrative agencies to be more careful in
applying the law consistently to the facts, and induce greater disclosure of the issues decided and the
reasons for those decisions”). Hence, although some legislative history is ambiguous, most would
appear to be in contravention of the ITC’s position.
Court Nos. 06-00247 and 09-00110 Page 32

6. Consequences of An Affirmative Determination

Commerce takes the position that because it has not received “formal” notice of an

affirmative ITC decision issued under section 1673d(b), it therefore cannot lawfully issue

antidumping duty orders or collect cash deposits. See, e.g., DOC Mem. at 9-10. More specifically,

Commerce argues:

Although the January 22 letter briefly recounts the history of DSMC Slip Op. 09-5,
and includes a copy of the administrative remand determination, the letter does not
provide notice “of an affirmative determination under section 1673d(b).” The sole
purpose of the January 22, 2009 letter was “to inform [Commerce] of the final
decision of the U.S. Court of International Trade . . . regarding the Commission’s
[original negative injury] determinations.” The letter explains that the ITC made an
affirmative determination upon remand, and that this Court’s opinion in DSMC Slip
Op. 09-5 affirming that remand constitutes a decision not in harmony. . . . Nowhere
in the letter does the ITC state that the remand determination constitutes a section
1673d(b) “final determination” of affirmative injury, as required by section 1673e(a)
before Commerce may publish an order.

DOC Mem. at 10 (citations omitted) (DOC’s alterations).

Under Commerce’s logic, the ITC’s Remand Determination was reached only

pursuant to 19 U.S.C. § 1516a. A remand determination is not so insulated. The third branch of

government does not “take over” an antidumping matter from the executive branch; the role of the

Court is statutorily confined to deciding whether or not there is substantial evidence on the record

to support the executive determination reached. Further, section 1516a(c)(3) provides that “[i]f the

final disposition of an action brought under this section is not in harmony with the published

determination of the Secretary, the administering authority, or the Commission, the matter shall be

remanded to the Secretary, the administering authority, or the Commission, as appropriate, for

disposition consistent with the final disposition of the court.” The matter in this instance was, of
Court Nos. 06-00247 and 09-00110 Page 33

course, the ITC’s final negative determination that it made pursuant to 19 U.S.C. § 1673d, see 19

U.S.C. § 1516a(2)(B)(ii), which this court found “unlawful” in accordance with 1516a(b)(1)(B)(i).

The ITC does not comment directly on the legal implications of its notice to the

Department. Instead, it argues that section 1673 publication does not apply to determinations that

result from judicial review. The ITC contends that separate statutory provisions govern the

publication of agency determinations “depending on whether the determinations were issued during

an antidumping investigation or a court action” (ITC Mem. at 9), a contention that is apparently

based only on an observation of the overall statutory scheme. More specifically, the ITC reasons that

because the provisions contained in section 1673d govern procedure undertaken “within the specific

time frames during an investigation specified in sections 1673d(b)(2) & (3), it is clear that the

publication requirement in section 1673d(d) is . . . directly applicable only to final determinations

issued by the Commission during the course of an injury investigation.” Id. at 10. Conversely, says

the ITC, section 1516a governs publication during judicial review and section 1516a(e) supports the

Commission’s practice of not publishing notice of a remand determination until a final and

conclusive decision in the matter. Id. at 17.

The main problem with the ITC’s argument, of course, is that nowhere in the text of

section 1673d(d) or the related subsections is there any indication that those provisions do not apply

to determinations issued pursuant to a court-ordered remand. Further, even if the court were to

accept such a premise, ITC’s interpretation is not entirely consistent with its own argument. That

is, because a final and conclusive decision is, by definition, still a product of judicial review, it would

still not constitute the section 1673d(b) determination that Commerce argues is strictly required, and,

seemingly, would not trigger the section 1673d(d) notice-publication requirement.
Court Nos. 06-00247 and 09-00110 Page 34

7. Legal Replacement of the Original Determination

In Decca Hospitality Furnishings, LLC v. United States, the court observed that

“Commerce’s own remand determination, as a matter of law, replaces Commerce’s original, final

determination.” 30 CIT 357, 363, 427 F. Supp. 2d 1249, 1255 n.11 (2006). The defendants roundly

attack that proposition as “unsupported,” but, ironically, provide no support to the contrary.

Whatever the reasons for this lack of support, the court is compelled to agree with Decca.

That a remand determination replaces the original determination is a notion so basic

to administrative law that few courts have found the need to articulate it expressly. If the remand

determination did not legally replace the original determination (which the court has, by definition

deemed unlawful or inadequate), orders of remand would be pointless; the court would have no

reason (and likely no jurisdiction) to review remand determinations. Furthermore, because a judicial

holding that an agency decision is unlawful essentially constitutes a vacatur of that decision, a new

determination is logically necessary to fill the void. See 5 U.S.C. § 706(2) (providing that the

reviewing court shall “hold unlawful and set aside” agency actions unsupported by substantial

evidence); Timken U.S. Corp. v. United States, 421 F.3d 1350, 1355 (Fed. Cir. 2005) (holding that

an agency’s “failure to provide the necessary clarity for judicial review requires that the action be

vacated” ) (quoting Camp v. Pitts, 411 U.S. 138, 142-43 (1973); Sugar Cane Growers Co-op of Fla.

v. Veneman, 289 F.3d 89 (D.C. Cir. 2002) (stating that “[n]ormally, when an agency so clearly

violates the APA we would vacate its action . . . and simply remand for the agency to start again.”).
Court Nos. 06-00247 and 09-00110 Page 35

Even without vacatur, the entire purpose of a remand is to allow the lower tribunal to rectify or

replace a decision that a court has found to be deficient.12

Although the practical effect of the Federal Circuit’s decision in Melamine Chemicals

essentially operates to stay the legal effects of the vacatur until the Court’s issuance of judgment

(which may only occur when the court sustains a (remand) determination), that fact is irrelevant here

because the court has rendered the requisite final decision and issued the judgment necessary to give

that decision legal effect. Tembec, Inc. v. United States, 31 CIT __, 475 F. Supp. 2d 1393, n.2

(2007) (noting that “judgment is the legal pronouncement of [the] decision and the act that gives the

decision legal effect.”). Accordingly, the contention that the original vacated or unlawful

determination continues to “govern” after issuance of judgment is simply a legal impossibility. Cf.

Co-Steel Raritan, Inc. v. International Trade Commission, 357 F. 3d 1294,1319 (Fed. Cir. 2004)

(dissent) (observing that “[i]ndeed, once the Commission issued its remand determination, the

negative preliminary determination ceased to exist and the current posture of the case was that the

Commission had issued an affirmative preliminary determination, with continuing administrative

proceedings to come”).

The process of judicial review reveals no distinction between original determinations

and remand determinations and lends no support to the inference that remand determinations do not

have the same legal status as the original determination. The court’s review of agency

determinations issued pursuant to a court-ordered remand is governed by the same standard of

12
See Daniel B. Rodriguez, Of Gift Horses and Great Expectations: Remands Without
Vacatur in Administrative Law, 36 Ariz. St. L.J. 599, 612-17 (2004) (noting that ordering remand
without vacatur allows the challenged agency action to stand during remand proceedings).
Court Nos. 06-00247 and 09-00110 Page 36

review used in reviewing the original determination. The statutory “presumption of correctness”

afforded to agency decisions contains no distinction between determinations issued within the

context of an original investigation and those issued as a result of a remand from this court. See

28 U.S.C. §§ 2639(a)(1), 2640.

Likewise, the Federal Circuit’s review of CIT decisions does not turn on whether the

agency determination being reviewed was the original determination or a determination issued on

remand. See Altx, 370 F.3d 1108, 1117 (Fed. Cir. 2004) (holding that appellate review

“encompasses the entirety of the proceedings before the Court of International Trade, including

intermediate remand orders that would not, independently be appealable” although court remand

orders are generally reviewed under the more lax “abuse of discretion” standard). Moreover,

reversals of this Court’s decisions frequently necessitate orders to “reinstate” the original

determination or a previous remand determination. See Nippon Steel Corp. v. United States Intern.

Trade Comm’n, 494 F.3d 1371 (Fed. Cir. 2007); Viraj Group v. United States, 476 F.3d 1349, 1359

(Fed. Cir. 2007); Nippon Steel Corp. v. United States, 458 F.3d 1345 (Fed. Cir. 2006); Tak Fat

Trading Co. v. United States, 396 F.3d 1378, 1386 (Fed. Cir. 2005).

While the court can agree that requiring immediate publication of every remand

determination would present grave logistical complications (not least because it is not unusual to find

cases resulting in two, three, or even four remand determinations), the court need not determine the

precise legal posture of a remand determination as it exists on the date of issuance, because the

Federal Circuit’s holding in Timken, as well as the text of section 1516a(c)(1), establish that except

for liquidation, which is governed by section 1516a(e), a remand determination becomes legally

operative on the date that this Court issues a final decision sustaining it. Hence, if an agency’s
Court Nos. 06-00247 and 09-00110 Page 37

refusal to publish notice of such a determination alters that scheme (such as the potential delay under

section 1673e discussed below) the withholding of publication would be contrary to law. However,

in this case the ITC need not publish notice of its affirmative determination because, consistent with

Timken and the ITC’s own arguments, publication of notice of the court’s decision also serves to

give notice of the affirmative remand determination that it sustained. Simply stated, in the context

of judicial review, Commerce’s publication of the Timken Notice under section 1516a(c)(1)

effectively stands in the place of 1673d(d) notice publication. Such a conclusion flows logically

from the Timken holding and reflects the related doctrine that court decisions adjudicating the

lawfulness of lower-tribunal determinations essentially replace (or encompass) the determination(s)

on review. See Disabled American Veterans v. Gober, 234 F.3d 682, 693 (Fed. Cir. 2000) (holding

that “[i]f a superior court, such as the Court of Appeals for Veterans Claims, affirms the

determination of the Board on a particular issue, that Board decision is replaced by the Court of

Appeals for Veterans Claims decision on that issue.”); Zhejiang Native Produce & Animal By-

Products Imp. & Exp. Group Corp. v. United States, No. 2008-1106, 2009 U.S. App. LEXIS 16179

(Fed. Cir. July 23, 2009) (unpublished) (holding that “[a]lthough the trial court’s 2004 judgment was

final, that final judgment was reversed on appeal and remanded to the trial court[; t]here is thus no

longer any final judgment in this case as to which a Rule 60(b) motion could properly be filed”).

Accordingly, because the ITC’s affirmative determination has been published, DSMC’s request for

a writ of mandamus as it applies to the ITC will be denied as moot.

8. Presumption of Correctness

Finally, the defendant-intervenors contend, inter alia and nonetheless, that the

question of the legal effectiveness of CIT decisions on appeal was resolved when the Timken Court
Court Nos. 06-00247 and 09-00110 Page 38

“stated that an agency’s determination is ‘presumed correct’ and that, if the Court or Federal Circuit

renders a decision which is contrary to that determination, the presumption of correctness disappears

. . . until there is a conclusive court decision which decides the matter.” Def.-Int’s No. 09-00110

Resp. at 10.13 The arguments in this regard are, in the very least, misguided. The presumption of

correctness has no bearing on this matter. Several cases issued subsequent to Timken established that

the presumption of correctness is “a procedural device” that allocates the burdens of

proof/production between the two litigating parties, and “is analytically distinct from the deference

afforded to [an agency] decision, which is instead governed by standards of review.” Universal

Elecs. v. United States, 112 F.3d 488, 493 (Fed. Cir. 1997); Anhydrides & Chemicals, Inc., v. United

States, 130 F.3d 1481, 1486 (Fed. Cir. 1997) (holding that “when there is no factual dispute the

presumption of correctness under § 2639(a)(1) is irrelevant”); Goodman Mfg., L.P. v. United States,

69 F.3d 505, 508 (Fed. Cir. 1995) (finding that “[b]ecause there was no factual dispute between the

parties, the presumption of correctness is not relevant”).

B. DSMC Lacks Adequate Means to Obtain the Desired Relief

The defendants argue that the current suspension of liquidation is an adequate

alternative remedy to the relief DSMC is seeking because suspension of liquidation preserves

DSMC’s rights if Slip Op. 09-5 is affirmed on appeal. DOC Mem. at 17-18; ITC Mem. at 26. In

this regard, the ITC points out that Commerce suspended liquidation on imports of subject

13
Counsel for the defendant-intervenors must be cautioned that a more scrupulous attention
to detail may be warranted when quoting language from Court decisions. Omission of language
within quotations that results in a substantive change may be seen as a deliberate attempt to mislead
the court. See Precision Specialty Metals, Inc. v. United States, 315 F.3d 1346 (2003).
Court Nos. 06-00247 and 09-00110 Page 39

merchandise entered after January 23, 2009, and that, less certainly, “all appropriate antidumping

duties will be collected fully and accurately, on these entries of subject merchandise” if the decision

is affirmed on appeal. ITC Mem. at 26.

The court finds these arguments inadequate. First, Commerce and the Commission

fail to address whether section 1673e(b)(2) may effectively deprive the plaintiff of relief. That

section provides:

(b) Imposition of duty.

***
(2) Special rule. If the Commission, in its final determination under
[19 U.S.C. § 1673d(b)], finds threat of material injury, other than
threat of material injury described in paragraph (1), or material
retardation of the establishment of an industry in the United States,
then subject merchandise which is entered, or withdrawn from
warehouse, for consumption on or after the date of publication of
notice of an affirmative determination of the Commission under [19
U.S.C. § 1673d(b)] shall be subject to the assessment of antidumping
duties under section [19 U.S.C. § 1673], and the administering
authority shall release any bond or other security, and refund any cash
deposit made, to secure the payment of antidumping duties with
respect to entries of the merchandise entered, or withdrawn from
warehouse, for consumption before that date.

19 U.S.C. § 1673e(b)(2) (emphasis added).

The plain meaning of this provision implies that where the Commission’s final

determination is affirmative for threat of material injury only, any delay in publication of the

affirmative decision literally pushes forward the date that duties will be assessed: duties will be

assessed only on subject merchandise entered “on or after the date of publication of notice of an

affirmative determination of the Commission . . . .” 19 U.S.C. § 1673e(b)(2). And, in accordance

with the plain meaning of 19 U.S.C. § 1516a(c)(1), once the decision becomes final and conclusive,
Court Nos. 06-00247 and 09-00110 Page 40

the suspension of liquidation is removed, and all subject merchandise entered after the Timken

Notice (that is required as a consequence of the first “adverse” court decision) is liquidated in

accordance with the adverse court decision (or, more accurately, in accordance with the remand

determination that the court sustained). This plain timeline is illustrated below as line “A,” while

the interpretation the ITC effectively contemplates in this matter is demarcated as line “B”:

A

Original ITC determination controls Court decision controls

B

The Commission’s interpretation is inaccurate, because section 1516a(c)(1)

contemplates that adversity towards the administrative determination is established at the point in

time when the first “final” adverse judicial decision is issued, which is not the same point in time

at which such decision becomes “final and conclusive.” The Commission’s interpretation does not

impact the ultimate relief to which a plaintiff is entitled in the “ordinary” instance of a judicial

decision adverse to a final negative Commission determination on the issue of material injury

(because subject merchandise entered after the adverse judicial decision— or, more accurately, after

publication of notice of that decision, and provided liquidation is enjoined—is to be liquidated in
Court Nos. 06-00247 and 09-00110 Page 41

accordance with such adverse judicial decision and not in accordance with the agency’s original

negative determination), but plainly that is not so in the instance of an adverse judicial decision on

a final negative Commission determination on threat of material injury. If the Commission delays

“notice of publication” until all appeals have been exhausted, then the plain operation of section

1673e(b)(2), in the context of section 1516a(c)(1), necessarily results in the elimination of a

substantial portion of the relief to which the plaintiff is legally entitled. As observed above, that

interpretation is not in accordance with Timken, and it is difficult to comprehend the government’s

assertion that DSMC’s rights are “preserved” by the suspension of liquidation: even if the Court of

Appeals for the Federal Circuit were to affirm this court’s decision, section 1673e(b)(2) would

prevent the retroactive assessment of duties upon entries of subject merchandise until “notice of

publication” (in accordance with the Commission’s interpretation) and regardless of the “suspension

of liquidation” existent to such point in time.

Second, even without the operation of section 1673e(b)(2), the court cannot agree that

the future collection of cash deposits (or, as the case may be, the collection of retroactive duties, with

interest) provides the same benefit to the plaintiff as would immediate issuance of an order and the

collection of cash deposits.14 The antidumping laws were intended to protect United States industries

against the domestic sale of foreign manufactured goods at prices below the fair market value of

those goods in the foreign country, Aimcor v. United States, 141 F.3d 1098, 1101 (Fed. Cir. 1998),

and Congress has long recognized that, unlike traditional customs cases, antidumping and

countervailing duty cases demand expeditious resolution. See S. Rep. No. 96-249, 96th Cong., 1st

14
Indeed, there would be no contest here today if the parties all agreed that future payments
and current cash deposits were essentially the same.
Court Nos. 06-00247 and 09-00110 Page 42

Sess. 37 (1979). That is, in traditional customs-valuation cases, the only consequences of the Court’s

decision was “whether an overpayment of duty would eventually be refunded, [and] the

enforceability of the lower court’s judgment was normally not a pressing matter.” American Grape

Growers Alliance for Free Trade v. United States, 9 CIT 568, 569, 622 F. Supp. 295, 297 (1985).

In this case however, the Commission’s affirmative determination, albeit on remand, constitutes a

finding that the domestic industry is imminently threatened with material injury by reason of dumped

subject imports. 19 U.S.C. §1677(7)(F)(ii). Accordingly, the defendants’ assertion that the

postponement of the relief to which the plaintiff is entitled and that is designed to alleviate or prevent

such injury (postponed, as it were, by the defendant-intervenors appeal) is adequately compensated,

they claim, by the “fact” that interest will accrue on the duties when they are finally collected is not

credible.

C. The Writ is Appropriate Under the Circumstances

Commerce asserts that the court should deny relief in the nature of a writ of

mandamus “because suspension of liquidation preserves the status quo and parties’ substantive rights

to the eventual outcome . . . .” DOC Mem. at 21. What Commerce means by the term “the status

quo” is, in reality, the condition of having the original determination govern imports of subject

merchandise entered subsequent to the issuance of a court decision “not in harmony” with the

original determination. Not only is this contention inconsistent with section 1516a(c)(1), as

discussed above, it is inconsistent with “the basic proposition that all orders and judgments of courts

must be complied with promptly.” Manness, 419 U.S. at 458. This court’s entry of judgment

changed the legal relationship of the parties. If a litigant wishes to stay the effect of the court’s

judgment, it may motion requesting a stay under Rule 62 of the Court’s Rules, “but, absent a stay,
Court Nos. 06-00247 and 09-00110 Page 43

[a litigant] must comply promptly with the order pending appeal . . . [p]ersons who make private

determinations of the law and refuse to obey an order generally risk criminal contempt even if the

order is ultimately ruled incorrect.” Id. A judgment of this Court that is adverse to an agency

determination has the immediate effect of altering the administrative status quo and changes the legal

relationship between the litigants, and Congress considered that suspending liquidation pending the

final conclusive judicial decision was the means by which parties would be protected. Accordingly,

the court finds issuance of the writ appropriate under the circumstances of this case. The court has

not only the power “but also a duty to enforce [its] prior mandate to prevent evasion,” Iowa Utilities

Bd. v. F.C.C., 135 F.3d 535, 541 (8th Cir. 1998), vacated on other grounds, 525 U.S. 1133 (1999),15

and failure to enforce judgments would “reward bureaucratic misconduct and encourage

[administrative] anarchy.” Id. See, e.g., United States v. Hanover Ins. Co., 82 F.3d 1052 (Fed. Cir.

1996) (CIT has “inherent power to determine the effect of its prior judgments”).

15
See AT&T Corp. v. Iowa Utilities Bd., 525 U.S. 1133 (1999).
Court Nos. 06-00247 and 09-00110 Page 44

IV. Conclusion

With respect to Court No. 06-00247, DSMC’s requested writ of mandamus to compel

the ITC to publish notice of the Remand Determination is hereby denied as moot in light of de facto

publication of that determination, by implication, in Commerce’s Timken Notice.

With respect to Court No. 09-00110, the court concludes that DSMC’s requested writ

of mandamus shall be granted. Therefore, in accordance with this opinion and in accordance with

the Notice of January 22, 2009 from the ITC to Commerce, the Department of Commerce and

Secretary Gary Locke, together with his successors in office, delegates, officers, agents, servants and

employees, will be ordered to issue and publish antidumping duty orders and require the collection

of cash deposits on subject merchandise.

SO ORDERED.

/s/ R. Kenton Musgrave
R. KENTON MUSGRAVE, Senior Judge

Dated: September 30, 2009
New York, New York