The CAFC currently employs a de novo standard when reviewing CIT decisions in antidumping and countervailing duty cases. While this standard is statutorily mandated for CIT review decisions by ITC and the U.S. Department of Commerce, there is no analogous statutory provision providing the applicable standard for CAFC review of CIT decisions. The CAFC has reviewed CIT decisions in AD/CVD cases using a de novo standard since articulating that approach in Atlantic Sugar, Ltd. v. United States, 744 F.2d 1556, 1559 n. 10 (Fed. Cir. 1984). The de novo standard comes from the Administrative Procedure Act, as emphasized in the concurring opinion by CAFC judges who agreed to both deny en banc review and maintain the de novo review standard.
Judge Wallach’s dissent advocates replacing the de novo standard articulated in Atlantic Sugar with the much more deferential “misapprehended or grossly misapplied” standard announced by the U.S. Supreme Court in Universal Camera Corp. v United States, 340 U.S. 474, 491 (1951). He is joined in his dissent by CAFC Chief Judge Radar as well as Judge Reyna – the only CAFC jurist with experience as a trade litigator. To support the view that the de novo standard is not required by statute, Judge Wallach points to the lack of statutory basis for CAFC’s current use of an abuse of discretion standard when reviewing CIT remands for agency explanation. While the concurrence belabors the slippery slope of applying a standard other than de novo, the dissent emphasizes the CIT’s “unique role” in shepherding trade cases that often results in multiple opinions and a supplemented administrative record.
While the CAFC did not grant en banc review in NSK, the CIT standard of review controversy has just been ignited. Judge Wallach, Judge Reyna, and Chief Judge Radar appear intent on continuing their efforts until the CAFC grants en banc review to reconsider Atlantic Sugar, which is characterized as “bad law.” It remains to be seen whether they will persuade enough colleagues to change the de novo standard as a means of promoting judicial economy and facilitating consistent trade law application. These benefits would flow directly to the international trade community, which would be better able to predict and evaluate appeals. The CAFC currently functions as a “wild card” in trade cases, with years of specialized administrative and judicial proceedings reviewed on a blank slate by a court principally occupied with intellectual property appeals. Judge Wallach’s position would positively minimize such uncertainty and enhance the orderly administration of our international trade laws.