19 U.S.C. 1581(c)-JUDICIAL REVIEW OF ANTIDUMPING & COUNTERVAILING DUTY DETERMINATIONS ISSUED BY THE DEPARTMENT OF COMMERCE

Georgetown Journal of International Law, Fall 2007 by Brightbill, Timothy C, Kwon, Jennifer, Fogarty, Matthew W

Decca appealed the final determination, asserting that Commerce had failed to properly notify Decca of its request for information and of the deadline for submitting such information.89 Consequently, Decca argued the CIT should consider and conclude from the rejected evidence that Decca was entitled to the separate rate assigned to all non-mandatory respondents: 6.65 percent.90 The Court sided with Decca, remanding the case to Commerce for a determination as to whether, notwithstanding Commerce's failure to follow its regulations, "Decca had nevertheless received actual and timely notice of the relevant submissions and deadlines."91 If the agency were unable to establish whether Decca had received proper notice, the CIT held, Commerce was to determine whether Decca was indeed entitled to a separate rate.

On remand, Commerce found it was not feasible to determine whether Decca had received actual and timely notice.93 Reviewing Decca's separate rate submissions, then, Commerce determined that Decca was indeed entitled to the 6.65 percent rate.94 During the remand proceedings, Decca requested that Commerce amend its cash deposit instructions, which had previously ordered Decca to pay a cash deposit equal to the 198.08 percent rate.95

The CIT affirmed Commerce's remand determination.96 However, Commerce refused to amend its cash deposit instructions on the grounds that, while Commerce had not appealed the CIT's decision, a Defendant-Intervenor had filed an appeal of the remand to the Federal Circuit; for this reason, Commerce refused to act until the court proceedings were concluded.97 As a result, Decca found itself subject to the 198.08 percent rate despite the Court's ruling that it was entitled to the 6.65 percent rate. In response, Decca filed a motion for the CIT to enforce its judgment, and, in the alternative, to issue a writ of mandamus ordering Commerce to adjust the cash deposit rate.98

No party contested that, were Decca ultimately afforded the 6.65 percent rate, Decca would be entitled to a refund of its cash deposit plus interest.99 However, Decca nonetheless moved for the court order, grounding its motion on the central premise that Decca had attempted but was unable to obtain enough credit to cover the 198.08 percent deposit.100 Consequently, Decca was essentially excluded from trading in the U.S. market. The Court summarized Decca's argument: "[U]nless the court directs Commerce to amend Decca's cash deposit rate ... Decca is blocked from the U.S. market until a final and conclusive court decision issues."101

The Court began its discussion of the issues by noting that Commerce's duty to issue orders to Customs is primarily a ministerial act. Commerce, the Court noted, may be required to revise its cash deposit order simply by virtue of having made a remand determination.102 And Commerce may not enforce a rate that the Court has already deemed unlawful.103

Given this, the Court's analysis focused on Decca's prayer for relief, which the Court interpreted as a motion for writ of mandamus.104 The Court set forth a three part test for determining whether mandamus relief was appropriate: (1) the party seeking the writ must have "no other adequate means" to achieve the relief requested; (2) the party seeking relief must demonstrate that his right to relief is "clear and indisputable," meaning that the defendant owes the petitioner a nondiscretionary duty; and (3) the Court must be satisfied that a writ is appropriate under the circumstances.105