US Says Stare Decisis Requires Sustaining Commerce's NME Policy in AD Cases

The U.S. told the U.S. Court of Appeals for the Federal Circuit that the principle of stare decisis requires the appellate court to sustain the legality of the Commerce Department's non-market economy policy (Jilin Forest Industry Jinqiao Flooring Group Co. v. United States, Fed. Cir. # 23-2245).

Filing a reply brief on May 13, the government responded to holdings from the Court of International Trade and claims from exporter Jilin Forest Industry Jinqiao Flooring Group Co. that stare decisis doesn't apply since the Federal Circuit's prior opinions weren't factually identical to the present situation. The U.S. said there's "no authority" to support the claim that CAFC's "answers to questions of law are not binding on a trial court if the case before the trial court is not factually identical to precedential authority from this Court.”

Instead, the Federal Circuit roundly answered whether the NME policy is legal in Sigma Corp v. U.S., Diamond Sawblades Manufacturers Coalition v. U.S., China Manufacturers Alliance v. U.S. and "binding cases too numerous to list in their entirety" in the 27 years since Sigma was decided.

In its brief, Jilin claimed that Sigma and its progeny don't apply since "Commerce failed to identify the statutory or regulatory source authorizing the application of the NME Policy" (see 2404090054). In response, the government said that the statute entrusts Commerce with the responsibility of setting AD margins, and the NME policy "is the manner in which Commerce carries out this responsibility."

As a result, the appellate court "has resolved the question of the statutory source and authority for Commerce’s NME Policy." While the exporter may disagree with the conclusion that the policy is statutorily authorized, "it cannot deny that this Court has already answered this legal question of the source of Commerce's authority to employ its NME Policy."

The U.S. added that Jilin's claim is at odds with the "binding caselaw." For instance, the exporter said Sigma's discussion of Commerce's "broad authority" to create procedures to carry out its mandate is "nonbinding 'dicta'" while also claiming the Federal Cirucit has upheld the NME policy based only on Commerce's "broad authority."

Jilin also claimed that Commerce's NME policy isn't entitled to deference under Chevron or "any other framework," since it's just a policy. The government said in response that Chevron doesn't even apply since Commerce was not trying to interpret a statute in enacting its NME policy but was instead trying to carry out its duty to calculate rates for AD respondents. Fundamentally, the policy is an "evidentiary presumption," and both CIT and Jilin offer "no authority for the proposition that" such a presumption can only be sustained if it warrants Chevron deference.

The government also sought to defend the policy as an evidentiary practice, claiming that putting the burden on firms to rebut the presumption of foreign state control "is consistent with Commerce's authority to apply a single country-wide rate in NME proceedings and helps ensure that Commerce attains the most accurate rate possible for" NME exporters. The policy "also helps avoid the paradoxical situation where a firm controlled by an NME-entity has a different rate from the NME-entity itself."

The "wide latitude that Congress has provided Commerce to enforce and implement the statute is a sufficient 'source' or 'authority' for the NME Policy," the brief said.