Ball Bearing Cos. Ask Supreme Court to Decide Review Standard in AD/CVD Cases
Two manufacturers of ball bearings based in Japan have asked the Supreme Court to decide the longstanding issue of judicial deference in antidumping and countervailing duty cases. In a petition for certiorari dated Feb. 21, NSK and JTEKT argue that the Court of Appeals for the Federal Circuit should only overturn AD/CVD cases at the Court of International Trade if it finds the trade court made an error. Currently, CAFC usually takes a fresh look at each side’s arguments. The Supreme Court appeal says that de novo review creates inefficiency and unpredictability for litigants.
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The topic has been the subject of disagreement between CAFC judges, who recently split over which standard to apply in the JTEKT/NSK case (see 13103122). The case revolved around antidumping duties on ball bearings from Japan and the United Kingdom. It had been the subject of multiple iterations of CIT remands between 2007 and 2011 before the International Trade Commission reversed its injury determination. That resulted in the end of AD/CV duties on ball bearings from Japan and the U.K. (see 11071517).
But CAFC, taking a fresh look at the record of the injury investigation in 2013, reversed the remands, reinstated the ITC’s finding of injury, and resurrected the AD/CV duty orders (see 13051716) and 13121216). NSK and JTEKT asked the Appeals Court to reconsider.
In a 7-3 decision in October, the full CAFC confirmed its earlier decision to reverse the trade court. The majority opinion from Circuit Judges Alan Lourie, Timothy Dyk, Sharon Prost, Kimberly Moore, and Kathleen O’Malley said CAFC had to take a fresh look at the ITC injury decision because that’s how federal Appeals Courts review cases from U.S. District Courts. CIT is in essence a district court, they said, and Congress didn’t pass a law that said the trade court should be treated differently.
Circuit Judges Jimmie Reyna, Evan Wallach, and Chief Judge Randall Rader dissented. They said CAFC should only reverse the trade court if it finds CIT “misapprehended or greatly misapplied” its standard of review. They cited CIT’s unique role as an issue-specific court, arguing that CAFC cannot afford the attention or expertise that CIT devotes to each AD/CVD case. They’ve since continued to criticize CAFC’s standard in public statements (see 13112201 and 14030329).
JTEKT and NSK say the split on the Appeals Court and the CAFC’s repeated reluctance to resolve the conflict means the case is ripe for Supreme Court review. “Although its judges are sharply divided over this standard, the Federal Circuit has repeatedly declined to reconsider the precedent establishing it,” says the petition for certiorari. JTEKT and NSK say the de novo review standard is absent from the law, but was instead plucked from a footnote in a 1984 CAFC decision that was unsupported by argument or citation. The Appeals Court further contributed to the confusion when it decided to give more deference to CIT decisions when they only request more explanation instead of further information.
As did Judges Reyna, Wallach and Rader, NSK and JTEKT are calling for the Appeals Court to use the “misapprehended or grossly misapplied” review standard for AD/CVD cases. Factors identified by the Supreme Court itself -- the law, better administration of justice, whether general appellate rules are appropriate, and policy goals -- support the higher standard of review, they argue.
The current practice’s detrimental effects on trade also mean the issue warrants the Supreme Court’s attention, they said. CAFC’s insistence on the de novo standard creates “a system in which parties can, as in this case, litigate for years before the trade court and the agency, only to roll the dice in an appeal in which even the standard of review is unclear,” said NSK and JTEKT. “Review is warranted to ensure that the Federal Circuit does not employ a standard of appellate review that simultaneously increases the number of appeals, undermines the predictability of their outcome, and extends and exacerbates periods of uncertainty in international markets.”
Email ITTNews@warren-news.com for a copy of the petition for certiorari.