Nsk Corporation v. Usitc

NOTE: This disposition is nonprecedential.

United States Court of Appeals
for the Federal Circuit
______________________

NSK CORPORATION, NSK LTD.,
AND NSK EUROPE LTD.,
Plaintiffs-Appellees,
AND

FAG ITALIA, S.P.A., SCHAEFFLER GROUP USA,
INC., SCHAEFFLER KG, THE BARDEN
CORPORATION, AND THE BARDEN
CORPORATION (U.K.) LTD.,
Plaintiffs-Cross Appellants,
AND

JTEKT CORPORATION AND
KOYO CORPORATION OF U.S.A.,
Plaintiffs-Appellees,
AND

SKF AEROENGINE BEARINGS UK AND
SKF USA INC.,
Plaintiffs-Cross Appellants,
v.
UNITED STATES INTERNATIONAL TRADE
COMMISSION,
Defendant-Appellant,
AND

THE TIMKEN COMPANY,
Defendant-Appellant.
 ______________________

2011-1362, -1382, -1383, -1454

______________________

Appeals from the United States Court of
International Trade in consolidated Nos. 06-CV-0334, 06-
CV-0335, and 06-CV-0336, Judge Judith M. Barzilay.
______________________

ON PETITION FOR PANEL REHEARING AND
REHEARING EN BANC
______________________
Before RADER, Chief Judge, NEWMAN, LOURIE, DYK,
PROST, MOORE, O’MALLEY, REYNA, WALLACH, and CHEN,
Circuit Judges. 1
PER CURIAM.
LOURIE, DYK, PROST, MOORE, and O’MALLEY, Circuit
Judges, concurring in the denial of the petition for
rehearing en banc.
WALLACH, Circuit Judge, with whom RADER, Chief
Judge, and REYNA, Circuit Judge, join, dissenting from
denial of the petition for rehearing en banc.
______________________

ROBERT A. LIPSTEIN, Crowell & Moring, LLP, of
Washington, DC, filed a combined petition for panel
rehearing and rehearing en banc for plaintiffs-appellees
NSK Corporation, et al. With him on the petition was
ALEXANDER H. SCHAEFER. NEIL R. ELLIS, Sidley Austin
LLP, of Washington, DC, jointly filed the combined

1 Circuit Judges Taranto and Hughes did not
participate.
petition for plaintiffs-appellees JTEKT Corporation and
Koyo Corporation of U.S.A. With him on the petition was
CARTER G. PHILLIPS.

DAVID A.J. GOLDFINE, Attorney Advisor, Office of the
General Counsel, United States International Trade
Commission, of Washington, DC, filed a response to the
petition for defendant-appellant United States
International Trade Commission. With him on the
response were PAUL R. BARDOS, Acting General Counsel,
and NEAL J. REYNOLDS, Assistant General Counsel for
Litigation.

TERENCE P. STEWART, Stewart and Stewart, of
Washington, DC, filed a response to the petition for
defendant-appellant The Timken Company. With him on
the response were GEERT DE PREST, ERIC P. SALONEN and
PHILIP A. BUTLER.
______________________
ORDER
A combined petition for panel rehearing and
rehearing en banc was filed by plaintiffs-appellees, and
responses thereto was invited by the court and filed by
defendants-appellants. The petition for rehearing was
referred to the panel that heard the appeal, and
thereafter the petition for rehearing en banc and
responses were referred to the circuit judges who are
authorized to request a poll of whether to rehear the
appeal en banc. A poll was requested, taken, and failed.

Upon consideration thereof,

IT IS ORDERED THAT:

(1) The petition of plaintiffs-appellees for panel
rehearing is denied.
 (2) The petition of plaintiffs-appellees for rehearing
en banc is denied.

(3) The mandate of the court will issue on November
1, 2013.

FOR THE COURT

October 25, 2013 /s/ Daniel E. O’Toole
Date Daniel E. O’Toole
Clerk
 NOTE: This disposition is nonprecedential.

United States Court of Appeals
for the Federal Circuit
______________________

NSK CORPORATION, NSK LTD.,
AND NSK EUROPE LTD.,
Plaintiffs-Appellees,
AND

FAG ITALIA, S.P.A., SCHAEFFLER GROUP USA,
INC., SCHAEFFLER KG, THE BARDEN
CORPORATION, AND THE BARDEN
CORPORATION (U.K.) LTD.,
Plaintiffs-Cross Appellants,
AND

JTEKT CORPORATION AND
KOYO CORPORATION OF U.S.A.,
Plaintiffs-Appellees,
AND

SKF AEROENGINE BEARINGS UK AND
SKF USA INC.,
Plaintiffs-Cross Appellants,
v.
UNITED STATES INTERNATIONAL TRADE
COMMISSION,
Defendant-Appellant,
AND

THE TIMKEN COMPANY,
Defendant-Appellant.
2 NSK CORP v. USITC
______________________

2011-1362, -1382, -1383, -1454
______________________

Appeals from the United States Court of International
Trade in consolidated Nos. 06-CV-0334, 06-CV-0335, and
06-CV-0336, Judge Judith M. Barzilay.
______________________

LOURIE, DYK, PROST, MOORE, and O’MALLEY, Circuit
Judges, concurring in the denial of the petition for
rehearing en banc.
We concur in the decision of the court not to rehear
this case en banc. Contrary to the urgings of the dissent-
ers from the denial of rehearing en banc, there is no legal
justification for this court to adopt a rule requiring defer-
ence to the substantial evidence determinations of the
Court of International Trade.
1. Under the Administrative Procedure Act (“APA”),
when district courts review agency action for substantial
evidence, and the district court decisions are reviewed by
courts of appeals, the appellate courts conduct a non-
deferential second level of substantial evidence review,
applying the same standard as the district court.
Every circuit has adopted that position, including this
court. See Associated Fisheries of Maine, Inc. v. Daley,
127 F.3d 104, 109 (1st Cir. 1997); City of New York v.
Shalala, 34 F.3d 1161, 1166 (2d Cir. 1994); Farley v.
Celebrezze, 315 F.2d 704, 705-06 (3d Cir. 1963); Leftwich
v. Gardner, 377 F.2d 287, 288 (4th Cir. 1967); Knox v.
Finch, 427 F.2d 919, 920 (5th Cir. 1970); Lubrizol Corp. v.
Train, 547 F.2d 310, 317 (6th Cir. 1976); Hanson v. Espy,
8 F.3d 469, 472 (7th Cir. 1993); First Nat’l Bank of
Fayetteville v. Smith, 508 F.2d 1371, 1374 (8th Cir. 1974);
Asarco, Inc. v. EPA, 616 F.2d 1153, 1161 (9th Cir. 1980);
NSK CORP v. USITC 3
Thomas Brooks Chartered v. Burnett, 920 F.2d 634, 644
(10th Cir. 1990); Druid Hills Civic Ass’n v. Federal High-
way Admin., 772 F.2d 700, 714 (11th Cir. 1985); Polcover
v. Sec’y of the Treasury, 477 F.2d 1223, 1226 (D.C. Cir.
1973); cf. Rio Grande, El Paso and Santa Fe R. Co. v.
Dep’t of Energy, 234 F.3d 1, 6 (Fed. Cir. 2000) (“Because
we review the agency action on the identical basis as did
the district court, no particular deference is accorded to
the conclusions of the district court.” (internal quotation
marks omitted)).
2. The dissenters rely heavily on the Supreme Court’s
decision in Universal Camera v. National Labor Relations
Board, 340 U.S. 474 (1951). That case, however, ad-
dressed the special role of the Supreme Court in the
review of agency action. The Court declared that in such
cases it will confine itself to deciding whether courts of
appeals have “misapprehended or grossly misapplied” the
proper standard of review. Id. at 491. The Court did not
suggest that the “misapprehended or grossly misapplied”
standard should apply to court of appeals review of dis-
trict courts in administrative review proceedings.
All the courts of appeals that have addressed the is-
sue have read Universal Camera as applying to the Su-
preme Court’s role in the process, not the role of the
courts of appeals. See Celebrezze v. Bolas, 316 F.2d 498,
501 (8th Cir. 1963) (Blackmun, J.); Ward v. Celebrezze,
311 F.2d 115, 116 (5th Cir. 1962); Roberson v. Ribicoff,
299 F.2d 761 (6th Cir. 1962). Those courts have treated
the Supreme Court’s remarks in Universal Camera as
referring to its own role vis-à-vis the courts of appeals, not
the role of all second-level reviewing courts.
That is the correct reading of the pertinent passage
from Universal Camera. The full text of the Court’s
pertinent remarks in that case is as follows:
Our power to review the correctness of appli-
cation of the present standard ought seldom to be
4 NSK CORP v. USITC
called into action. Whether on the record as a
whole there is substantial evidence to support
agency findings is a question which Congress has
placed in the keeping of the Courts of Appeals.
This Court will intervene only in what ought to be
the rare instance when the standard appears to
have been misapprehended or grossly misapplied.
Universal Camera, 340 U.S. at 490-91. The references to
“our power” and the intervention of “this Court” speak to
the Court’s self-imposed limits on its reviewing authority;
the Court effectively announced that it would not exercise
that power frequently in such cases, and certainly not to
make routine corrections of wrong decisions in substantial
evidence agency review cases. That announcement is
entirely consistent with the Court’s regular characteriza-
tion of its role as not being a court of error. None of that
applies to courts of appeals, which are decidedly courts of
error.
That view of Universal Camera is buttressed by the
Supreme Court’s decision in FTC v. Standard Oil Co., 355
U.S. 396 (1958). There, citing Universal Camera among
other decisions, the Court explained that it had no inten-
tion of conducting review of the evidence in the case based
on the Court’s “usual rule of non-interference where
conclusions of Circuit Courts of Appeals depend on appre-
ciation of circumstances which admit of different interpre-
tations.” Standard Oil Co., 355 U.S. at 400-01. That
statement, like the similar statement in Universal Cam-
era, refers to the Court’s special (and necessarily limited)
role in judicial review of agency action; it does not suggest
a limited role for second-level reviewing courts engaged in
judicial review of administrative action.
A major problem with relying on Universal Camera as
the basis for deferring to the Court of International Trade
in substantial evidence cases is that it proves too much.
If Universal Camera requires deference in second-tier
NSK CORP v. USITC 5
substantial evidence review cases, it requires that defer-
ence in all such cases, not just trade cases coming from
the Court of International Trade. So if we rely on Univer-
sal Camera as the basis for adopting a deferential stand-
ard in Court of International Trade cases, our rationale is
necessarily contrary to all the other circuits (and at least
in tension with our own decision in the Rio Grande case,
cited above).
3. There is nothing in the statutes providing for re-
view of agency action by the Court of International Trade
that makes that kind of review different from convention-
al APA review. The pertinent review provisions of the
trade statutes track the APA. At the time it enacted
those statutes, Congress expressed a desire that agency
review by the Court of International Trade and this court
would be modeled on APA review. And the Court of
Customs and Patent Appeals (“CCPA”), our predecessor in
second-level administrative review in trade cases, ap-
proved the use of APA-type review in antidumping cases,
including the “duplicative” second review of the substan-
tial evidence issue.
Prior to the enactment of the Trade Agreements Act of
1979, which established the main components of the
current system of judicial review in antidumping cases,
the Customs Court and the CCPA (on review of Customs
Court decisions) were both given very limited authority to
review decisions of the Treasury Department and the
Tariff Commission (predecessors to the Commerce De-
partment and International Trade Commission, respec-
tively). Ordinarily, those courts were not even permitted
to review the agencies’ decisions for substantial evidence;
review was limited, normally, to certain purely legal
issues. See City Lumber Co. v. United States, 457 F.2d
991, 994 (CCPA 1972); Kleberg & Co. v. United States, 71
F.2d 332 (CCPA 1933). An exception to that highly defer-
ential review by both reviewing courts was in cases in
which the administrative record was deemed inadequate,
6 NSK CORP v. USITC
in which case the Customs Court would conduct de novo
review, creating a record of its own, which would then be
reviewed deferentially by the CCPA. See Armstrong Bros.
Tool Co. v. United States, 626 F.2d 168, 169 n.2 (CCPA
1980) (citing ASG Indus., Inc. v. United States, 610 F.2d
770 (CCPA 1979)). In those cases in which there was an
adequate administrative record and review was conducted
on that record, the scope of the review in the Customs
Court and in the CCPA appeared to be the same, with the
CCPA not deferring to the conclusion of the Customs
Court as to the lawfulness of the agency’s action. See, e.g.,
Imbert Imports, Inc. v. United States, 475 F.2d 1189
(CCPA 1973).
Because of congressional dissatisfaction with the
scope of judicial review of antidumping orders pursuant to
the Trade Act of 1974, the Trade Agreements Act of 1979
created the scheme that is now in place. Congress made
clear that the Customs Court was not to conduct de novo
review of the pertinent administrative determinations,
but was to review those determinations pursuant to
traditional principles of administrative law, i.e., the APA.
The legislative history of the 1979 Act explains:
Section 516A would make it clear that traditional
administrative law principles are to be applied in
reviewing antidumping and countervailing duty
decisions where by law Congress has entrusted
the decision-making authority in a specialized,
complex economic situation to administrative
agencies. . . . Review of determinations listed in
subsection (a)(2) would proceed upon the basis of a
formal administrative record and the standard of
review provided is “unsupported by substantial
evidence on the record or otherwise not in accord-
ance with law” [i.e., language taken directly from
the APA].
NSK CORP v. USITC 7
S. Rep. No. 96-249, at 252 (1979), reprinted in 1979
U.S.C.C.A.N. 381, 638. Neither the 1979 Act nor the
legislative history adverted to the standard of review to be
applied by the CCPA in reviewing Customs Court deci-
sions. 1 However, various features of the legislation
support the inference that, while both the Customs Court
and the CCPA were expected to defer to the agencies, the
CCPA was not supposed to defer to the Customs Court.
Of particular significance in that regard are:
(1) Congress’s decision to adopt the APA standard for
Customs Court review of the agency decisions;
(2) Congress’s determination that Customs Court review
should be limited and based on the administrative record;
and (3) Congress’s failure to suggest any deviation from
standard APA practice for second-tier review support.
Indeed, in a decision issued shortly after the 1979 Act,
that is how the CCPA characterized its role in the review
process. See Armstrong Bros., 626 F.2d at 170 (“[W]e
conclude that the issue before this court in this case is
properly stated to be whether the Customs Court correctly
held that the Commission’s determination is supported by

1 The dissenting opinion refers to a statement from
the legislative history of the 1979 Act indicating Con-
gress’s intent to “eliminate de novo review of assessments
made pursuant to the antidumping and countervailing
duty laws.” H.R. Rep. No. 96-317, at 181 (1979). The
context of that statement and other similar statements in
the legislative history makes clear that the reports were
referring to eliminating de novo review of the agency’s
determinations, not eliminating de novo appellate review
of the trial court’s substantial evidence rulings. Shortly
after the quoted material, the report explains that “the
bill generally provides for a standard of review whereby
the administrative level determination is upheld unless
unsupported by substantial evidence.” Id. (emphasis
added); see also S. Rep. No. 96-249, at 247-48 (1979).
8 NSK CORP v. USITC
substantial evidence in the record. . . . [T]he sole standard
of review of factual determinations of injury or likelihood
of injury in antidumping cases [is] whether the Commis-
sion’s determination is supported by substantial evi-
dence.”). Thus, as of the time that the Customs Court was
converted to the Court of International Trade and the
CCPA was succeeded by this court, it appears that it was
settled that judicial review of antidumping determina-
tions was to be conducted pursuant to APA-type stand-
ards and that the review conducted by the trial court and
by the second-tier reviewing court would be the same—
determining whether there was substantial evidence in
the record before the agency to justify the agency’s deter-
mination. Under those circumstances, it is not surprising
that, four years after Armstrong Bros., this court adopted
the Atlantic Sugar de novo standard as the proper stand-
ard for our review of Court of International Trade deci-
sions in substantial evidence cases.
As noted, the standards for review of administrative
action set forth in section 1516a(b) are exactly the stand-
ards set forth in section 706 of the APA. Section 1516a(b)
identifies certain determinations, findings, and conclu-
sions that are to be held unlawful if found to be “arbi-
trary, capricious, an abuse of discretion, or otherwise not
in accordance with law,” 19 U.S.C. §§ 1516a(b)(1)(A),
1516a(b)(1)(B)(ii) (the same language that is found in the
APA, 5 U.S.C. § 706(2)(A)), and it identifies other deter-
minations, findings, and conclusions (including Commis-
sion findings as to material injury, at issue here), that are
to be held unlawful if “unsupported by substantial evi-
dence,” 19 U.S.C. § 1516a(b)(1)(B)(i) (the same language
that is found in the APA, 5 U.S.C. § 706(2)(E)). See also
28 U.S.C. § 2640(b) (specifying section 1516a(b) as provid-
ing the standard of review in antidumping and counter-
vailing duty cases). There is thus every reason to believe
that Congress intended the judicial review process in the
trade area to track the more general review process in
NSK CORP v. USITC 9
district courts and courts of appeals under the APA. If
that is so, the APA rule regarding de novo consideration
of the issue of substantial evidence by courts of appeals
comes into play.
4. Nor is there anything anomalous or peculiar about
a court of appeals applying a de novo standard when
reviewing a trial court’s determination regarding the
sufficiency of evidence on which a particular tribunal
based its decision.
Besides all the APA cases involving second-tier sub-
stantial evidence review of administrative action, there
are several important categories of cases in which courts
of appeals routinely conduct de novo review of trial court
decisions as to the sufficiency of the evidence. For exam-
ple, when a court of appeals reviews a district court’s
grant or denial of JMOL, the court of appeals does not
defer to the trial court’s decision. In reviewing the suffi-
ciency of the evidence, the court of appeals applies the
same standard that the trial court applied. Similarly, in
the summary judgment context, the court of appeals does
not defer to the trial court’s determination that the plain-
tiff’s evidentiary showing was insufficient to avoid sum-
mary judgment. While the summary judgment decision,
like the JMOL decision, may involve facts, it presents a
legal issue as to the sufficiency of those facts under the
governing legal standard. The same is true of an admin-
istrative substantial evidence review.
5. The dissenters argue that in light of the special ex-
pertise of the Court of International Trade, it would be
sound policy to defer to the Court of International Trade’s
substantial evidence decisions. Whether that is so or not,
it is not the system that Congress created in 1979. Under
these circumstances, a change in our review process is a
matter that is appropriately left to legislative action, not
judicial modification. Moreover, it is important to note
that in conducting de novo review of substantial evidence
10 NSK CORP v. USITC
determinations, this court does not ignore the decisions of
the Court of International Trade; instead, as we have
stated on numerous occasions, we pay close attention to
the Court of International Trade’s analysis. See Nippon
Steel Corp. v. United States, 458 F.3d 1345, 1351 (Fed.
Cir. 2006) (“[W]e give great weight to the informed opin-
ion of the Court of International Trade. . . . Indeed, it is
nearly always the starting point of our analysis.” (internal
quotation marks omitted)); Suramerica de Aleaciones
Laminadas, C.A. v. United States, 44 F.3d 978, 983 (Fed.
Cir. 1994) (“Although reviewing anew the ITC determina-
tion, this court will not ignore the informed opinion of the
Court of International Trade. That court reviewed the
record in considerable detail. Its opinion deserves due
respect.”). Thus, it is incorrect to suggest that the Atlan-
tic Sugar standard renders superfluous the Court of
International Trade’s decisions on issues of substantial
evidence.
In sum, the Atlantic Sugar standard of review is con-
sistent with principles of judicial review of administrative
action as well as judicial review principles applied in
other contexts, and the trade statutes make clear that
Congress intended to apply those principles to this court’s
review of the decisions of the Court of International
Trade. There is thus no need or justification for this court
to jettison the Atlantic Sugar rule.
 NOTE: This disposition is nonprecedential.

United States Court of Appeals
for the Federal Circuit
______________________

NSK CORPORATION, NSK LTD.,
AND NSK EUROPE LTD.,
Plaintiffs-Appellees,
AND

FAG ITALIA, S.P.A., SCHAEFFLER GROUP USA,
INC., SCHAEFFLER KG, THE BARDEN
CORPORATION, AND THE BARDEN
CORPORATION (U.K.) LTD.,
Plaintiffs-Cross Appellants,
AND

JTEKT CORPORATION AND
KOYO CORPORATION OF U.S.A.,
Plaintiffs-Appellees,
AND

SKF AEROENGINE BEARINGS UK AND
SKF USA INC.,
Plaintiffs-Cross Appellants,
v.
UNITED STATES INTERNATIONAL TRADE
COMMISSION,
Defendant-Appellant,
AND

THE TIMKEN COMPANY,
Defendant-Appellant.
2 NSK CORP v. USITC
______________________

2011-1362, -1382, -1383, -1454
______________________

Appeals from the United States Court of International
Trade in consolidated Nos. 06-CV-0334, 06-CV-0335, and
06-CV-0336, Judge Judith M. Barzilay.
______________________

WALLACH, Circuit Judge, with whom RADER, Chief Judge,
and REYNA, Circuit Judge, join, dissenting from denial of
the petition for rehearing en banc.
According to statute, the United States Court of In-
ternational Trade (“CIT”) reviews the International Trade
Commission’s (“ITC”) material injury determinations for
substantial evidence. 19 U.S.C. § 1516a(b) (2006). This
court currently reviews the CIT’s substantial evidence
determinations de novo. Atlantic Sugar, Ltd. v. United
States, 744 F.2d 1556, 1559 n.10 (Fed. Cir. 1984). Per-
haps recognizing the duplicative and inefficient nature of
de novo review, this court has inconsistently applied that
standard in the almost thirty years since Atlantic Sugar
was decided. Most notably, the CIT’s remands to the ITC
for additional explanation are reviewed deferentially for
an abuse of discretion, but remands for additional find-
ings are reviewed de novo. There is no statutory or prac-
tical basis to distinguish the two.
I believe this conflict should be resolved in favor of
deferential review, consistent with the “misapprehended
or grossly misapplied” standard articulated by the Su-
preme Court in Universal Camera Corp. v. National
Labor Relations Board, 340 U.S. 474, 491 (1951). 1 Under

1 Universal Camera was an appeal from the Second
Circuit’s review of a National Labor Relations Board
NSK CORP v. USITC 3
that review, the CIT’s substantial evidence determina-
tions would be reversed only if the CIT “misapprehended

enforcement order, which is reviewed in the first instance
by the regional circuit courts of appeal. 340 U.S. at 491.
The Supreme Court has also applied the “misapprehended
or grossly misapplied” standard in other contexts where
Congress placed the substantial evidence standard in the
keeping of the courts of appeals. See, e.g., Am. Textile
Mfrs. Inst., Inc. v. Donovan, 452 U.S. 490, 522–23 (1981)
(regulations issued by Occupational Safety and Health
Administration); Fed. Trade Comm’n v. Ind. Fed’n of
Dentists, 476 U.S. 447, 453 (2009) (Federal Trade Com-
mission’s order regarding unfair methods of competition).
Appellant Timken Company argues the “misappre-
hended or grossly misapplied” standard is not appropriate
for second-level review at the courts of appeals. See
Timken’s Resp. in Opp’n to Pet. 7. In other words, appel-
lant contends the standard is used by the Supreme Court
in deciding to grant certiorari when the circuit court
“misapprehended or misapplied” the substantial evidence
standard. This is not so. For example, in American
Textile, the Supreme Court granted certiorari, but ulti-
mately concluded the court of appeals did not misappre-
hend or misapply the substantial evidence standard, and
thus affirmed that aspect of the decision. Am. Textile
Mfrs., 452 U.S. at 530. Appellant is correct that the
Universal Camera standard is not applied in all second-
tier substantial review cases; rather, it addresses the role
of a second-level reviewing court when Congress has
allocated the substantial evidence review to a particular
lower court. Universal Camera, 340 U.S. at 491. As
discussed below, Congress has placed substantial evi-
dence review of the ITC’s material evidence determina-
tions in the keeping of the CIT, and the statute makes no
mention of this court engaging in that same review. 19
U.S.C. § 1516a(b).
4 NSK CORP v. USITC
or grossly misapplied” the substantial evidence standard. 2
Id. Deferential review is appropriate because of the CIT’s
unique appellate role and its institutional expertise in
trade matters. Because of the conflict in this court’s case
law and the importance of this issue, I believe the de novo
standard should be reconsidered en banc. I dissent from
this court’s contrary ruling.
I. Atlantic Sugar
This court’s application of the de novo standard, and
the perennial challenges to its appropriateness, began
with a single, unsupported footnote in Atlantic Sugar.
744 F.2d at 1559 n.10. Citing to no authority, the footnote
stated: “We review [the CIT’s] review of an ITC determi-
nation by applying anew the statute’s express judicial
review standard.” 3 Id. “Other than citation to [19 U.S.C.]
§ 1516a, Atlantic Sugar gave no explanation for according
no deference to decisions of the [CIT].” Zenith Elecs.
Corp. v. United States, 99 F.3d 1576, 1580 (Fed. Cir. 1996)
(Rader, J., concurring). The statute upon which Atlantic
Sugar relied is located in the “Scope and Standard of
Review” section of the “Court of International Trade
Procedure” chapter of Title 28, and specifies that “the

2 The appropriateness of the Universal Camera
standard has been recognized by judges of this court. See,
e.g., Zenith Elecs. Corp. v. United States, 99 F.3d 1576,
1579 (Fed. Cir. 1996) (Plager, J., concurring) (“The Uni-
versal Camera standard utilized by the Supreme Court in
similar situations makes eminently good sense. I would
apply it here, as well as in comparable situations in which
we review the judgment of a reviewing court which has
already applied the substantial-evidence-in-the-record
test to an initial adjudication.”). See further discussion
infra Part II.
3 Despite this pronouncement, the Atlantic Sugar
court’s “substantial evidence” analysis comprises only the
final page of its decision.
NSK CORP v. USITC 5
court shall review the matter as specified in [19 U.S.C. §
1516a(b)]” (which requires substantial evidence review). 4
28 U.S.C. § 2640(b). Thus, Congress assigned substantial
evidence review to the CIT and the statute makes no
grant to this court of that same standard of review. Nip-
pon Steel Corp. v. United States, 458 F.3d 1345, 1350
(Fed. Cir. 2006). Congress designated the substantial
evidence standard as “Court of International Trade Pro-
cedure.” This court is bound by law to respect Congress’
decision. See Universal Camera, 340 U.S. at 491 (adopt-
ing the “misapprehended or grossly misapplied” standard
because Congress had placed substantial evidence review
“in the keeping of the Courts of Appeals”).
The legislative history of § 1516a(b) further weighs
against de novo review. Congress adopted § 1516a(b) to
“eliminate de novo review of determinations or assess-
ments made pursuant to the antidumping and counter-
vailing duty laws” because such review was “time-
consuming and duplicative.” H.R. Rep. No. 96-317, at 181
(1979). While this statement was made in reference to
eliminating de novo review of agency determinations, to
which “Congress has entrusted the decision-making
authority in a specialized, complex economic situation,” S.
Rep. No. 96-249, at 252 (1979), reprinted at 1979
U.S.C.C.A.N. 381, 638, Congress clearly recognized the
intense, fact-based nature of trade cases. Duplicative and
burdensome review at the appellate level is inconsistent
with Congress’ professed goal of streamlining trade cases
at the agency and trial court levels. It is evident that the
overarching intent of the 1979 legislation was to eliminate
the “time-consuming and duplicative” work that the
Atlantic Sugar standard later imposed.

4 This subsection of the statute has not been revised
since Atlantic Sugar, other than some renumbering. See
19 U.S.C. § 1516a(b)(1)(B)(i) (2006); 19 U.S.C. § 1516a
(b)(1)(B) (1982).
6 NSK CORP v. USITC
II. This Court’s Case Law Under Atlantic Sugar
Members of this court have questioned the propriety
of the Atlantic Sugar standard in the past and will con-
tinue to do so. See, e.g., Zenith, 99 F.3d at 1580 (Rader,
J., concurring) (“Although bound to follow the Atlantic
Sugar standard, I perceive that the statute and its history
suggest that this court has misapprehended the proper
standard of review.”); id. at 1582 (Rader, J., concurring)
(“Since Atlantic Sugar, this court has questioned either
directly or by implication the propriety of duplicating the
review of the [CIT].”). Indeed, while purporting to apply
de novo review, the court has sub silentio adopted a
modification giving “due respect” and/or “great weight” to
the opinion of the CIT, indicating some unpredictable
amount of deference the court believes the CIT’s decisions
command. 5 Suramerica de Aleaciones Laminadas, C.A. v.
United States, 44 F.3d 978, 983 (Fed. Cir. 1994); Nippon
Steel, 458 F.3d at 1351.

5 This modified Atlantic Sugar standard is evident
in this court’s more recent decisions: “When performing a
substantial evidence review, . . . we give great weight to
the informed opinion of the [CIT]. Indeed, it is nearly
always the starting point of our analysis.” Cleo Inc. v.
United States, 501 F.3d 1291, 1296 (Fed. Cir. 2007) (em-
phasis added) (citations and internal quotation marks
omitted); see also Taiwan Semiconductors Indus. Ass’n v.
Int’l Trade Comm’n, 266 F.3d 1339, 1343–44 (Fed. Cir.
2001) (“On substantial evidence questions, this court
reviews the [CIT’s] review of Commission decisions by
stepping into the shoes of the [CIT] and duplicating its
review under the standard in [the statute]. However, this
court will not ignore the informed opinion of the [CIT] in
performing its review. That court reviewed the record in
considerable detail. Its opinion deserves due respect.”)
(emphasis added) (citations and internal quotation marks
omitted).
NSK CORP v. USITC 7
Even more peculiar is this court’s development of a bi-
furcated application of the Atlantic Sugar standard,
which has no basis in the statute or in case law. Under
this approach, as articulated in NSK itself:
The appropriate standard of review depends on
the posture of the case. When the [CIT] orders
the Commission to enter a negative determina-
tion, this court steps into the shoes of the trade
court and conducts a de novo review of whether
the Commission’s determinations are supported
by substantial evidence. This court also reviews
the Commission’s determinations for substantial
evidence when the [CIT] “remand[s] to the Com-
mission, giving it two options on how to proceed:
[1] reopen the record in order to obtain substan-
tial evidence to support its adverse impact conclu-
sion or [2] make a determination that subject
imports will have no adverse impact should the
orders be revoked.” By contrast, we review re-
mand orders issued by the [CIT] for abuse of dis-
cretion when the trade court does not assess the
sufficiency of the evidence supporting the Com-
mission’s determinations or require additional in-
vestigation by the Commission, but “merely
remand[s] the matter for additional explanation
that would clarify the Commission’s determina-
tion.”
NSK Corp. v. U.S. Int’l Trade Comm’n, 716 F.3d 1352,
1363 (Fed. Cir. 2013) (quoting Nippon Steel Corp. v. U.S.
Int’l Trade Comm’n, 494 F.3d 1371, 1378 (Fed. Cir. 2007);
Altx, Inc. v. United States, 370 F.3d 1108, 1117 (Fed. Cir.
2004)). The abuse of discretion standard in the court’s
current framework appears to have been first articulated
in Taiwan Semiconductors Industrial Association v.
International Trade Commission, which cites only to a
Third Circuit case’s passing mention of that standard.
266 F.3d 1339, 1344 (Fed. Cir. 2001) (citing Marshall v.
8 NSK CORP v. USITC
Lansing, 839 F.2d 933, 940 (3d Cir. 1988)). Thus, this
court currently applies two different standards of review
depending upon its interpretation of the CIT’s remand
instructions.
The distinction between remanding for additional ex-
planation and remanding to reopen the record to provide
additional support for adverse impact conclusions is not
found in the trade statute, see 19 U.S.C § 1516a(c)(3), and
does not follow common sense. There is simply no princi-
pled difference between when the CIT remands a case to
the agency for further explanation or for additional evi-
dence. In both situations, the CIT finds that a determina-
tion was not supported by substantial evidence and sends
it back to the agency. Whether the CIT remands for
clarification or for clarifying data is of little consequence.
In fact, the CIT often gives the agency the choice of how to
deal with the evidentiary insufficiency, suggesting the
agency may reopen the record at its choosing. See, e.g.,
Tropicana Prods., Inc. v. United States, 484 F. Supp. 2d
1330, 1354 (2007) (“If it finds it necessary or efficacious,
the Commission may reopen the record.”). Allowing an
agency to effectively choose at whim this court’s standard
of CIT review is simply nonsensical.
In addition to its questionable provenance, this clum-
sy framework is unworkable. Indeed, even in NSK, the
court wrestled with the question of whether the CIT had
remanded for additional evidence or additional explana-
tion in order to determine which standard to apply. NSK,
716 F.3d at 1363–64. Other cases portray a similar
struggle, for there is no substantive difference between
the two. See, e.g., Diamond Sawblades Mfrs. Coal. v.
United States, 612 F.3d 1348, 1356–58 (Fed. Cir. 2010)
(providing a lengthy and labored analysis of whether the
CIT’s remand was for additional explanation or based on
a finding of insufficient evidence); Altx, 370 F.3d at 1117
(including an extensive analysis of the appropriate stand-
ard of review). This court now applies two conflicting
NSK CORP v. USITC 9
standards of review in ITC cases and this conflict must be
resolved en banc.
III. Deference to the CIT’s Decisions Is Appropriate
Deference in appeals where the CIT reviewed the
ITC’s material injury determinations is particularly
warranted in light of the CIT’s recognized expertise in
international trade. United States v. Haggar Apparel Co.,
526 U.S. 380, 394 (1999) (“The expertise of the [CIT] . . .
guides it in making complex determinations in a special-
ized area of the law . . . .”). This court has also acknowl-
edged the expertise of the CIT: “To be sure, judges of the
[CIT] are experts in [cases reviewing the Commission’s
material injury determinations], which form most of their
docket, while this court’s judges are characterized as
generalists, as trade cases comprise only about six percent
of the Federal Circuit docket.” Nippon Steel, 458 F.3d at
1350. The inappropriateness of de novo review given this
expertise has likewise been noted: “In addition to adding
unnecessary time and expense to the appeal process, the
Atlantic Sugar standard undercuts the benefits this court
derives from the experience and expertise of the [CIT].”
Zenith, 99 F.3d at 1583 (Rader, J., concurring).
The legislative history of the Customs Courts Act of
1980 repeatedly emphasizes the “specialized experience”
of the Customs Court, the CIT’s predecessor. 6 See, e.g.,
H.R. Rep. No. 96-1235 (1980), reprinted in 1980

6 The legislative history also references the special-
ized experience of this court’s predecessor, the United
States Court of Customs and Patent Appeals. However,
the jurisdiction of that court was considerably altered in
the Federal Courts Improvement Act of 1982, when it was
merged with the U.S. Court of Claims. Accordingly, “this
court’s judges are characterized as generalists,” whereas
“judges of the Court of International Trade are experts in
[trade] cases.” Nippon Steel, 458 F.3d at 1350.
10 NSK CORP v. USITC
U.S.C.C.A.N. 3729. This experience can be traced back to
1890, when the Customs Court began as “the board of
general appraisers, an administrative unit within the
Department of the Treasury, which was responsible for
the review of decisions by Customs officials as to the rate
and amount of duty imposed on imported merchandise, as
well as the value of such merchandise.” Id. at 18, reprint-
ed in 1980 U.S.C.C.A.N. 3729, 3730 (Statement by Rep.
Rodino). In the years that followed, “the court gradually
became an integral part of the Federal judicial system,”
and in 1956 Congress declared it an Article III court. Id.
This unique appellate path from an agency to a spe-
cialized Article III court makes the CIT and its expertise
in trade matters sui generis among Article III courts.
This is especially true in reviewing antidumping issues,
such as the ITC’s material injury determinations. See Ad
Hoc Shrimp Trade Action Comm. v. United States, 618
F.3d 1316, 1321 (Fed. Cir. 2010) (quoting Int’l Trading
Co. v. United States, 281 F.3d 1268, 1274 (Fed. Cir. 2002)
(“[T]he [CIT] ‘has expertise in addressing antidumping
issues and deals on a daily basis with the practical as-
pects of trade practice.’”)).
In opposition to rehearing en banc, the Timken Com-
pany argues that there is nothing novel or anomalous
about a court of appeals applying the de novo standard in
reviewing a trial court’s sufficiency of evidence determina-
tion, even in the context of specialty courts. Timken’s
Resp. in Opp’n to Pet. 3–6. There is no indication, it
argues, that trade cases require different treatment.
Such arguments disregard the CIT’s unique procedures
and its active role in supervising the development of
administrative records in trade cases. The CIT is not
simply a subject-specialty court; it also has a unique role
in the litigation process.
Under its governing statute, the CIT either remands
trade cases to the agency for further explanation or devel-
NSK CORP v. USITC 11
opment of the record, or it sustains the agency’s determi-
nation. 19 U.S.C. § 1516a(c), (e). Unlike other settings,
the agency’s remand redetermination returns to the CIT
(and to the same judge) for reexamination. In this typi-
cally multi-year, iterative process, the case is repeatedly
remanded until the CIT finds the determination is sup-
ported by substantial evidence and therefore can be
sustained. Parties cannot appeal a remand decision until
the CIT ultimately sustains the agency’s decision. Thus,
when an appeal arrives at this court, we are tasked with
reviewing multiple dispositions made over a period of
years by the same judge.
Therefore, by the time a case is finally appealed to
this court, the length and complexity of the case history
make true “de novo” review wasteful and impracticable.
Moreover, such a unique procedural environment high-
lights the sui generis character of the CIT. In no other
situation does a court identify gaps in the evidence in an
administrative record and task the agency with further
explaining its determination or supplementing the record,
over and over again until the substantial evidence thresh-
old is met. Beyond being subject specialists, the judges of
the CIT assume a unique role in overseeing the develop-
ment of each of their cases.
This court often takes note of the complex procedural
history of cases from the CIT. See, e.g., Nippon Steel, 494
F.3d at 1373 (“The complex procedural history of this
sunset review spans more than six years and includes
four determinations by the Commission and six opinions
from the [CIT].”); Nippon Steel, 458 F.3d at 1348 (“This
antidumping case has a procedural history spanning six
years, which now includes four determinations by the
Commission, four opinions from the [CIT], and one prior
opinion from this court.”). Perhaps because no reviewing
court could truly review such a process de novo, this court
has opined on several occasions that a more appropriate
standard may be whether the CIT “misapprehended or
12 NSK CORP v. USITC
grossly misapplied” the substantial evidence standard of
review. See, e.g., Suramerica, 44 F.3d at 982–83 n.1; see
also Zenith, 99 F.3d at 1579 (Plager, J., concurring).
This case is a perfect example. As this court observed,
the CIT engaged in “extensive” proceedings in which it
authored six separate decisions and reviewed five succes-
sive injury determinations by the ITC. NSK, 716 F.3d at
1355. The CIT reviewed thousands of pages of record
evidence, identified gaps in the ITC’s findings, and or-
dered a series of targeted remands to resolve the insuffi-
ciencies, ultimately affirming a negative injury
determination once it was satisfied with the ITC’s deter-
mination. Id. at 1355–63. This court purportedly re-
viewed all of this de novo by reapplying the substantial
evidence analysis. It did so with five and half pages of
analysis, and in one fell swoop, it reversed and vacated
the CIT’s orders, and reinstated the ITC’s affirmative
injury determination, seven years into litigation.
As is evident, then, by applying the same standard as
the CIT, the Federal Circuit renders the CIT’s review
superfluous and deprives litigants of the benefits of the
CIT’s subject-expertise, as well as its case-specific experi-
ence. 7 Replacing our current “de novo” standard with a
more appropriate standard would restore the deference
the CIT deserves as an expert court, and would remedy
this inefficient and wasteful process. In addition, it would
no longer “encourage[] disappointed litigants with deep
pockets to seek a second bite at the apple, often with no
visible benefits except to the litigators since generally we
are not likely to reverse on that ground.” Zenith, 99 F.3d
at 1579 (Plager, J., concurring).
IV. Developments in Trade Law and Administrative Law

7 As noted, the same judge, here Judge Barzilay,
handled the case through all iterations of remand and
redetermination.
NSK CORP v. USITC 13
Significant developments in the areas of trade law
and administrative law in the three decades since Atlantic
Sugar was decided further weigh in favor of deference to
the CIT. The trade regime has transformed dramatically
over the past three decades, requiring the CIT to keep
abreast of the near-constant developments in that area.
These developments occur not just domestically, but at
the international level. Hence, the judges of the CIT
closely monitor the activity of international bodies, includ-
ing the World Trade Organization. Predictably, then,
there have been significant revisions to the trade statutes.
Even the underlying legal standard in Atlantic Sugar—
the “best information available rule”— has been replaced
with the complex “facts available framework.” Compare
19 U.S.C. § 1677e(b) (1982) with 19 U.S.C. § 1677e
(2006). 8 Such frequent developments in trade law further
distinguish the CIT and highlight the appropriateness of
a deferential standard of review. The transformative
developments in trade law since Atlantic Sugar was
decided vitiate our adherence to a three-decade-old case.
There have also been major developments in Supreme
Court jurisprudence in the area of administrative law,
including the advent of Chevron deference and the articu-
lation of Mead deference. Chevron, U.S.A., Inc. v. Natural
Res. Def. Council, Inc., 467 U.S. 837 (1984); United States
v. Mead Corp., 533 U.S. 218, 226–27 (2001). Indeed,
Chevron was decided just three months to the day before
Atlantic Sugar, and its impact on administrative law is
immeasurable.
In the three decades since Atlantic Sugar was decid-
ed, the Supreme Court has reviewed four decisions of the

8 In fact, part of the framework that replaced that
in Atlantic Sugar was attributable to the Uruguay Round
of negotiations of the General Agreement on Tariffs and
Trade. Uruguay Round Agreements Act, Pub. L. No. 103–
465, 108 Stat. 4809 (1994).
14 NSK CORP v. USITC
CIT. Three of these cases dealt with Chevron deference. 9
In 1999, the Court examined whether customs classifica-
tion regulations are entitled to Chevron deference.
Haggar Apparel, 526 U.S. at 394 (“Like other courts, the
[CIT] must, when appropriate, give regulations Chevron
deference.”). Similarly, in United States v. Eurodif S.A.,
555 U.S. 305 (2009), the Court analyzed the reasonable-
ness of the Department of Commerce’s interpretation of a
statute. 555 U.S. at 316 (“[A] change in regulatory treat-
ment . . . is not a basis for declining to analyze the agen-
cy’s interpretation under the Chevron framework. [T]he
whole point of Chevron is to leave the discretion provided
by the ambiguities of a statute with the implementing
agency.”) (internal citation and quotation marks omitted).
Finally, and most notably, the Court used a CIT customs
classification case as a platform for reaffirming Skidmore
deference. Mead, 533 U.S. at 221 (“We agree that a tariff
classification has no claim to judicial deference under
Chevron, there being no indication that Congress intend-
ed such a ruling to carry the force of law, but we hold that
under Skidmore v. Swift & Co., 323 U.S. 134 (1944), the
ruling is eligible to claim respect according to its persua-
siveness.”).
While these cases do not specifically address the legal
issues involved in ITC injury cases, they illustrate the
significant shift in administrative law that has occurred
since Atlantic Sugar; in particular, a shift in which great-
er deference is granted to administrative agencies at the
trial court level. Subjecting an agency’s work to duplica-
tive substantial evidence review sails counter to the
currents in administrative law.

9 The fourth case, United States v. U.S. Shoe Corp.,
523 U.S. 360 (1998), is a case dealing with a customs tax
found to be unconstitutional under the Export Clause,
U.S. Const., Art. I, § 9, cl. 5.
NSK CORP v. USITC 15
For the foregoing reasons, I believe the court should
have taken this opportunity to review the propriety of
continued adherence to Atlantic Sugar. Atlantic Sugar’s
de novo review is inefficient, obsolete, and thwarts the
will of Congress. It is, in short, bad law under any rea-
soned application of stare decisis.