Academic journal article American University Law Review

2015 International Trade Decisions of the Federal Circuit

Academic journal article American University Law Review

2015 International Trade Decisions of the Federal Circuit

Article excerpt

INTRODUCTION

In many ways, the 2015 term of the U.S. Court of Appeals for the Federal Circuit with respect to international trade felt like déjà vu. The Federal Circuit heard a number of significant cases this year that it addressed in one or more of the past several terms and either came back as an appeal on a related issue or for an en banc hearing.1 Despite these lengthening cases, very few appeals have found success, especially with regard to overturning antidumping orders.

As usual, most of the significant cases this year focused on dumping. Some familiar cases returned to the court with arguments over zeroing, which the U.S. Department of Commerce (Commerce) reversed after a negative World Trade Organization (WTO) ruling,2 and three cases on the Byrd Amendment, which Congress repealed following a negative WTO ruling.3 Additionally, the Federal Circuit heard a number of interesting procedural cases this term, including one establishing value calculations in dumping cases involving nonmarket economies,4 the exhaustion of remedies requirement for seeking relief at the Court of International Trade (CIT),5 and the timing of responses to questionnaires.6 Also, several significant cases arose under section 337 of the Tariff Act of 1930, which permits the International Trade Commission (ITC) to investigate and potentially exclude goods that unfairly or unlawfully infringe upon a patent or copyright.

This Article is divided into four parts, each designating a specific category of cases. Part I focuses on the prominent number of antidumping and countervailing duty cases. Part II addresses classification cases, which are much more fact specific than other cases in front of the Federal Circuit. Part III discusses procedural cases, which may also overlap with the antidumping topic. Part IV addresses intellectual property cases under section 337. This Article focuses on the significant precedential cases, while excluding nonprecedential and some narrow precedential cases. The Article briefly concludes by describing the Federal Circuit's pattern of deference to the ITC and Commerce.

I. ANTIDUMPING AND COUNTERVAILING DUTY CASES

Antidumping duties are fees that the United States imposes on "foreign merchandise . . . sold in the United States at less than its fair value."7 Countervailing duties are placed on goods that benefit from subsidies that foreign governments provide.8 Commerce investigates and determines whether foreign producers have sold or are likely to sell products or goods at less than fair value in the case of dumping or whether the government has provided a subsidy in the case of countervailing.9 The ITC continues the investigation by assessing whether the imported goods are causing or threatening to cause material injury to a domestic industry in the United States.10 "If both inquiries are answered in the affirmative, Commerce issues the relevant antidumping and countervailing duty orders."11

The antidumping or countervailing duty investigation process typically begins with a request filed by a domestic party. That initial petition will define the scope of the alleged dumping or subsidy, which will limit the extent of the investigation. Before the investigation begins, Commerce must ensure that the petition was filed on behalf of the relevant domestic industry.12 Numerically, this means that the petition is supported by producers who "account for at least [twenty-five] percent of the total production of the domestic like product."13

The first antidumping case of the 2015 term before the Federal Circuit addressed the scope of an antidumping order ("Order") issued against Chinese manufacturers of certain aluminum extrusions.14 An investigation began into these extrusions in 2010 and concluded with an antidumping order issued on May 26, 2011.15 In October 2012, Walters & Wolf, Bagatelos Architectural Glass Systems, Inc., and Architectural Glass and Aluminum Company "submitted an amended scope request to Commerce pursuant to 19 C. …

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