Reliance on Decisions of the U.S. Court of Appeals for the Federal Circuit in Trade and Customs Litigation

By Stewart, Terence P.; Drake, Elizabeth J. | Georgetown Journal of International Law, Fall 2006 | Go to article overview

Reliance on Decisions of the U.S. Court of Appeals for the Federal Circuit in Trade and Customs Litigation


Stewart, Terence P., Drake, Elizabeth J., Georgetown Journal of International Law


I. INTRODUCTION

The U.S. Court of Appeals for the Federal Circuit ("CAFC") has exclusive jurisdiction over appeals from the U.S. Court of International Trade ("CIT"), and thus plays a central role in the development of trade and customs law. Yet appeals from the CIT account for a small percentage of the CAFC's caseload each year, totaling just 5.7% of all cases terminated by CAFC judges from October 1, 2000 to September 30, 2005. (1) For each CIT appeal disposed of by a CAFC judge, the CAFC disposes of nearly six appeals from the U.S. District Courts, almost five appeals from the Merit Systems Protection Board, and about six more cases arising under other areas of the court's jurisdiction.

Thus, the vast majority of jurisprudence generated by the CAFC is in the context of cases not appealed from the CIT. Much of this jurisprudence may be relevant to trade and customs litigation. For example, non-trade decisions handed down by the CAFC dealing with the appellate standard of review, general principles of administrative law, court procedures and rules, and other issues may have a direct bearing on how similar issues are dealt with in trade and customs litigation. To test this hypothesis, this article examines those instances in which recent CAFC decisions outside of the trade and customs area were cited by the CIT, and by the CAFC itself in reviewing CIT decisions, during 2005 and the first eight months of 2006.

This paper seeks to map the ways in which CAFC jurisprudence generated in the areas of its jurisdiction other than CIT appeals is being taken into consideration by the CIT and by the CAFC in its consideration of appeals from the CIT. The paper surveys decisions of the CAFC on appeal from the CIT that were issued from January 2005 through August 2006 to analyze the frequency with which non-trade decisions by the CAFC were cited, the general topics upon which such decisions were cited, and the areas of CAFC jurisdiction which generate the opinions cited most. The paper also surveys decisions issued by the CIT from January 2005 through August 2006 to discover which recent decisions of the CAFC in areas of its jurisdiction other than CIT appeals are now influencing CIT decisions. In an attempt to discern emerging areas of influence by the CAFC's broader strains of jurisprudence on trade and customs litigation, only CIT citations to CAFC opinions issued in 2004 and 2005 are examined.

The survey reveals a substantial reliance by the CAFC on its own decisions in other areas of its jurisprudence when deciding appeals from the CIT. Of fifty-seven opinions issued by the CAFC on appeals from the CIT from January 2005 through August 2006, a full twenty-two opinions cited CAFC jurisprudence outside of the trade and customs area, and many of these opinions cited more than one such non-trade decision. Discerning the impact of recent CAFC decisions in these other areas of its jurisdiction on the decisions of the CIT is a bit more challenging. Of 300 opinions issued by the CIT from January 2005 through August 2006, recent non-trade CAFC decisions (issued in 2004 and 2005) were only cited in only fifteen cases. Most of these cases cited only one such CAFC decision, often on a minor point or one already well-settled in law.

The most frequent issues, deriving from non-trade CAFC jurisprudence, cited in the surveyed opinions were standards of review and general principles of administrative law. This is not an unexpected result, given that the standards of review applied by the CAFC in its different areas of jurisdiction have many elements in common and are generally

consistent with administrative law principles articulated in the Administrative Procedures Act (see Section III infra). In fact, the areas of CAFC jurisdiction from which precedents are most often cited in trade and customs cases on the issue of standards of review or administrative law principles are not necessarily those areas of jurisdiction in which the applicable standards of review most closely match those applied in trade and customs cases. …

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