US Says Absence in AD/CVD Scope Cases Doesn't Change CAFC's Standard of Review

The U.S. told the U.S. Court of Appeals for the Federal Circuit July 8 that its decision not to appear in an antidumping and countervailing duty scope case "has no effect on the Court's standard of review." Filing a supplemental brief as an amicus at the invitation of the court, the government said its decision not to join the appeal "merely reflects its reasoned consideration not to pursue the appellate process" (Worldwide Door Components v. U.S., Fed. Cir. # 23-1532) (Columbia Aluminum Products v. U.S., Fed. Cir. # 23-1534).

The two cases, from importers Worldwide Door Components and Columbia Aluminum Products, contest Commerce's inclusion of their door thresholds within the scope of the AD/CVD orders on aluminum extrusions from China (see 2308300031).

In asking the U.S. to appear, the court said supplemental briefs should answer two questions: (1) "Which of Commerce’s decisions does this court owe deference, given that Commerce’s decision comes after three remands and Commerce’s last decision was made under protest?" and (2) "What effect, if any, does the government’s decision not to appear or appeal in these consolidated cases have on our standard of review?"

Both questions reflect concerns some CAFC judges have shown in the past regarding the procedural posture of certain AD/CVD cases (see 2406040051). For instance, in June, three CAFC judges spent the beginning of an oral argument session case sorting out which position the AD petitioner was advocating. The attorney in that case was seeking a reversion to Commerce's initial determination and not its remand decision made under protest.

On the first question, the government said that the petitioner, the Aluminum Extrusions Fair Trade Committee, appealed the Court of International Trade's first remand order in the case. The Federal Circuit then "determines the propriety of that first remand order by reviewing Commerce’s original scope determination." The appellate court recently did this in a separate case, Saha Thai Steel Pipe Pub. Co. v. U.S., the U.S. noted.

The Federal Circuit "accords no particular deference to Commerce, other than what is required by the standard of review," the U.S. said. However, the government noted the petitioner's reference in its brief to the CAFC's prior ruling indicating the "significant deference" owed to Commerce's own interpretation of scope orders. This deference must still fall within the "confines of the statutory standard of review," the brief said, seemingly nodding to the Supreme Court's recent decision overruling the doctrine of deference to government agencies when interpreting ambiguous statutes (see 2406280051).

As part of its first question, the Federal Circuit also asked what effect Commerce's holdings in its final determination and three remand decisions have on the court's standard of review. To this, the U.S. said the court reviews the trade court's remand order and the original scope decision to see if the scope decision is supported by substantial evidence.

In the present cases, the trade court required Commerce to "reevaluate the evidence under the court's view of the scope's 'finished merchandise exclusion.'" Since this required Commerce to reconsider evidence, "the review is for substantial evidence," the government said. "This standard of review applies regardless of the number of or the content of Commerce’s three remand determinations."