This morning, the Federal Circuit released two precedential opinions, one nonprecedential opinion, and three nonprecedential orders. Both precedential opinions come in trade cases on appeal from the Court of International Trade. Notably, Judge Reyna dissented in both appeals. The lone nonprecedential opinion comes in a pro se case on appeal from the Merit Systems Protection Board. All three nonprecedential orders dismiss appeals. Here is are the introductions to the opinions and links to the orders.
Dongkuk S&C Co. v. United States (Precedential)
Appellant Dongkuk S&C Co., Ltd. appeals a decision of the Court of International Trade, affirming the United States Department of Commerce’s final determination that utility scale wind towers from Korea were being sold in the United States at less than fair value. Dongkuk S&C, the sole respondent in Commerce’s investigation, is a Korean producer of utility scale wind towers. The final determination resulted in the imposition of an antidumping duty order. Because Commerce’s final determination is supported by substantial evidence and in accordance with law, we affirm.
Reyna, Circuit Judge, dissenting.
I agree with the majority’s affirmance of Commerce’s cost-smoothing determination. I, however, disagree with the majority that under 19 U.S.C. § 1677b(e)(2)(B)(iii), Commerce’s constructed value determination, which relied on SSHC’s financial statement as a proxy for Dongkuk’s profits and selling expenses of steel wind towers in Korea, is free from error. This statute requires Commerce to use a “reasonable method” for calculating constructed value. The majority characterizes this issue as simply a matter of whether Commerce’s weighing and selection of the better between two “imperfect” options was substantially supported by the record. But that is an oversimplification of the record and the issue on appeal, the result of which provides Commerce with cover in the future to make arbitrary constructed value determinations.
Part and parcel with substantial evidence review is determining whether the agency provided a rationale adequate to enable us to review its determination. Here, Commerce summarily concluded that SSHC’s twelve-month financial statement, almost entirely reflective of non-steel, non-Korean sales, is the better proxy than SeHC’s four-month financial statement, reflective of only steel sales in Korea. In other words, Commerce chose a seemingly unreasonable proxy over a seemingly reasonable proxy without explaining why. And even accepting the majority’s characterization of SSHC’s statement as “imperfect,” this is still problematic. Commerce does not adequately explain why using a seemingly unreasonable, or “imperfect,” financial statement to calculate constructed value is a “reasonable method” under 19 U.S.C. § 1677b(e)(2)(B)(iii). Without an adequate rationale as to why Commerce selected SSHC’s financial statement, over SeHC’s, as a reasonable method for calculating constructed value, we are unable to determine whether Commerce’s constructed value determination is supported by substantial evidence and comports with 19 U.S.C. § 1677b(e)(2)(B)(iii). I would thus remand Commerce’s constructed value determination for a more fulsome explanation. Perhaps Commerce has some reason for using SSHC’s financial statement over SeHC’s. But this reason is not in the record before us. I do not, and legally cannot, speculate as to this reason. I respectfully dissent.
Target Corp. v. United States (Precedential)
Target Corporation (Target) appeals from a United States Court of International Trade (CIT) decision granting the government’s motion to dismiss for failure to state a claim. Target Corp. v. United States, 647 F. Supp. 3d 1373, 1382 (Ct. Int’l Trade 2023) (Decision). In that decision, the CIT granted the motion to dismiss largely for the reasons it articulated in Home Products International, Inc. v. United States, 405 F. Supp. 3d 1368 (Ct. Int’l Trade 2019) (Home Products I). The CIT’s Home Products I decision, in turn, interpreted our decision in Cemex, S.A. v. United States, 384 F.3d 1314 (Fed. Cir. 2004), as amended on denial of reh’g and reh’g en banc (Dec. 14, 2004) (Cemex). At bottom, this appeal turns on the applicability of Cemex to the present dispute. For the following reasons, we reverse.
Reyna, Circuit Judge, dissenting.
The majority holds that the United States Court of International Trade (“CIT”) erred in dismissing Target Corporation’s (“Target”) action for failure to state a claim under CIT Rule 12(b)(6). Maj. Op. 2.
The majority opinion is incorrect in at least three important respects. First, the majority rests upon a mistaken belief that this appeal is controlled by our decision in Cemex, S.A. v. United States, 384 F.3d 1314 (Fed. Cir. 2004). Second, the majority’s analysis evidences a misapprehension of the protest procedures administered by U.S. Customs and Border Protection (“Customs”). And third, the majority limits the CIT’s authority to enforce its judgments to a level that is inferior to the full authority vested in and exercised by U.S. federal district courts under Article III of the U.S. Constitution.
For these and other reasons set out below, I dissent.
Tarrab v. Merit Systems Protection Board (Nonprecedential)
Alan Tarrab, appearing pro se, appeals the Merit Systems Protection Board’s final order dismissing his whistleblower Individual Right of Action appeal for lack of jurisdiction. Because the Board correctly concluded that Mr. Tarrab failed to nonfrivolously allege that he made any protected disclosures for which he had exhausted administrative remedies before the Office of Special Counsel, we affirm.