Judge Evan J. Wallach was two days ago unanimously confirmed by the U.S. Senate to serve as a Circuit Judge at the U.S. Court of Appeals for the Federal Circuit (“CAFC”) in Washington, DC. For the previous sixteen years he presided at the U.S. Court of International Trade (“CIT”) in New York City. Although CIT decisions have been directly appealable to the CAFC since the specialized appellate court was established in 1982, Judge Wallach becomes the first CIT jurist to sit on the CAFC.
His confirmation contributes greatly to the international trade law expertise needed on the CAFC. Building on the 2011 appointment of Circuit Judge Jimmie V. Reyna, a seasoned trade practitioner, the CAFC now has a stronger technical background to resolve appeals from the CIT. While these cases constitute a minority of the CAFC docket, their resolution is central to the administration of our trade laws.
One significant issue that the CAFC will grapple with is the calculation methodology in antidumping (“AD”) proceedings known as “zeroing.” After years of consistently affirming the use of zeroing, the CAFC this year remanded for the U.S. Department of Commerce (“Commerce”) to explain its statutory basis in Dongbu Steel and JTEKT. The CAFC ruling on the validity of Commerce’s rationale for zeroing in AD administrative reviews will impact the availability of trade relief.
Another area of expected litigation involves the circumstances under which Commerce may apply an adverse facts available (“AFA”) rate to uncooperative respondents in AD proceedings. The CAFC last year issued a pair of opinions reaching opposite conclusions in Gallant Ocean (Thailand) and KYD (both on appeal from Judge Wallach). These rulings create uncertainty as to when an AFA rate can be employed.The CAFC is also likely to continue to wrestle with the bounds of CIT jurisdiction. In three decisions this year, the CAFC reversed CIT efforts to dismiss and remanded with instructions to reactivate cases: Almond Bros. Lumber; Hartford Fire Insurance; and Home Products International. Although this trio of cases involves different aspects of trade law, the common theme is an enlargement of CIT jurisdiction by the CAFC. For this issue – and, indeed, all trade-related matters – a former CIT judge sitting on the CAFC undoubtedly benefit the orderly administration of our trade laws.