Nippon Steel Corp. v. U.S. Intern. Trade Com'n

• Decision Date: 25 July 2007
• Docket Number: No. 2006-1502.,2006-1502.
• Parties: NIPPON STEEL CORPORATION, Plaintiff-Appellee, and JFE Steel Corporation (formerly Kawasaki Steel Corporation), Plaintiff-Appellee, and Thyssenkrup Acciai Speciali Terni S.P.A., Plaintiff, and Acciai Speciali Terni USA, Inc., Plaintiff, v. UNITED STATES INTERNATIONAL TRADE COMMISSION, Defendant-Appellee, v. Allegheny Ludlum Corporation and AK Steel Corporation, Defendants-Appellants, and Butler Armco Independent Union, Zanesville Armco Independent Union, United Steel Workers of America, and AFL-CIO/CLC, Defendants.
• Court: U.S. Court of Appeals — Federal Circuit

494 F.3d 1371

NIPPON STEEL CORPORATION, Plaintiff-Appellee, and JFE Steel Corporation (formerly Kawasaki Steel Corporation), Plaintiff-Appellee, and Thyssenkrup Acciai Speciali Terni S.P.A., Plaintiff, and Acciai Speciali Terni USA, Inc., Plaintiff, v. UNITED STATES INTERNATIONAL TRADE COMMISSION, Defendant-Appellee, v. Allegheny Ludlum Corporation and AK Steel Corporation, Defendants-Appellants, and Butler Armco Independent Union, Zanesville Armco Independent Union, United Steel Workers of America, and AFL-CIO/CLC, Defendants.

No. 2006-1502.

United States Court of Appeals, Federal Circuit.

July 25, 2007.

Gregory C. Gerdes, Gibson, Dunn & Crutcher LLP, of Washington, DC, argued for plaintiffs-appellees. With him on the brief for Nippon Steel Corporation were Daniel J. Plaine and Gracia M. Berg. Of counsel was John Christopher Woods. On the brief for JFE Steel Corporation (formerly Kawasaki Steel Corporation) were Robert H. Huey and Steven F. Hill, Hunton & Williams LLP, of Washington, DC. Of counsel was Christina C. Benson.

Gracemary R. Roth-Roffy, Attorney, Office of the General Counsel, United States International Trade Commission, of Washington, DC, argued for defendant-appellee. With her on the brief were James M. Lyons, General Counsel, and Neal J. Reynolds, Assistant General Counsel.

Kathleen W. Cannon, Kelley Drye Collier Shannon, of Washington, DC, argued for defendants-appellants. With her on the brief were David A. Hartquist and R. Alan Luberda.

Before NEWMAN, Circuit Judge, FRIEDMAN, Senior Circuit Judge, and MOORE, Circuit Judge.

MOORE, Circuit Judge.

Appellants Allegheny Ludlum Corporation and AK Steel Corporation appeal an interim remand order from the United States Court of International Trade instructing the United States International Trade Commission (Commission) either to re-open the record in this "sunset review" or enter a negative material injury determination. Nippon Steel Corp. v. United States, 391 F.Supp.2d 1258 (Ct. Int'l Trade 2005) (Nippon V). Appellants contend that the Commission's determination in Grain-Oriented Electrical Steel from Italy and Japan, USITC Pub. 3680, Inv. Nos. 701-TA-355, 731-TA-659-660 (Mar. 2004) (Second Remand Determination) was supported by substantial evidence and that the Court of International Trade erred in its remand order in Nippon V. We agree with Appellants. Therefore, we reverse the Court of International Trade's holding in Nippon V, vacate the Commission's subsequent decision on remand, Grain-Oriented Electrical Steel from Italy and Japan, USITC Pub. 3798, Inv. Nos. 701-TA-355, 731-TA-659-660 (Sept. 2005) (Third Remand Determination), and the Court of International Trade's decision in Nippon Steel Corp. v. United States, 433 F.Supp.2d 1336 (Ct. Int'l Trade 2006) (Nippon VI), and order the Court of International Trade to reinstate the Commission's affirmative material injury determination reached in the Second Remand Determination.

BACKGROUND

The complex procedural history of this sunset review¹ spans more than six years and includes four determinations by the Commission and six opinions from the Court of International Trade.² The relevant history begins in late 1999, when the Commission issued a notice that it was instituting a sunset review of the antidumping and countervailing duty orders involving grain-oriented silicon electrical steel ("GOES") imported from Italy and Japan. See Grain-Oriented Electrical Steel From Italy and Japan, 64 Fed.Reg. 67,318 (U.S. Int'l Trade Comm'n Dec. 1, 1999) (institution of sunset reviews).

In 2001, the Commission affirmatively determined, by a three-to-three³ vote of the Commissioners, that revocation of the antidumping and countervailing duty orders covering GOES from Italy and Japan was likely to cause material injury to an industry in the United States. Grain-Oriented Electrical Steel from Italy and Japan, USITC Pub. 3396, Inv. Nos. 701-TA-355, 731-TA-659-660 (Feb.2001) (Initial Determination). The subject importers appealed that decision to the Court of International Trade. The court remanded back to the Commission, directing the Commission to discuss the four volume factors set forth in the statute, 19 U.S.C. § 1675a(a)(2)(A)-(D), and to further explain whether the subject imports were likely to be significant in absolute terms or relative to U.S. production and consumption. Nippon Steel Corp. v. United States, 26 C.I.T. 1416 (2002) (Nippon III).

In the first remand, the Commission reaffirmed its original affirmative determination again by a tie vote and addressed each of the statutory sunset review factors in detail. Grain-Oriented Electrical Steel from Italy and Japan, USITC Pub. 3585, Inv. Nos. 701-TA-355, 731-TA-659-660 (Mar.2003) (First Remand Determination). The subject importers again appealed to the Court of International Trade. On appeal, the court remanded for the Commission to further explain its decision to cumulate the imports from Italy and Japan,⁴ for further discussion of the relevant impact on domestic volume and price, and to address the evidence that did not support an affirmative finding. Nippon Steel Corp. v. United States, 301 F.Supp.2d 1355 (Ct. Int'l Trade 2003) (Nippon IV).

In its second remand determination, the Commission again voted three-to-three that revocation of the orders would lead to a recurrence of material injury, providing even further detail on its affirmative findings. Second Remand Determination. The subject importers appealed again. On appeal, the Court of International Trade affirmed the Commission's decision to cumulate the subject imports, but the court held that the Commission's findings regarding the likely volume effect and impact were not supported by substantial evidence. Nippon V, 391 F.Supp.2d at 1283-84. The court directed that "[o]n remand, the [Commission] may either reopen the record and reexamine its findings with respect to both countries' likely volume as it relates to injury, or find that the likely volume on revocation of the orders would likely not be significant and complete its analysis accordingly." Id. at 1284.

The Commission thereafter re-opened the record and requested additional information from involved parties regarding the likely volume effects and impact of the Italian and Japanese GOES imports if the orders were revoked. After re-opening the record but before the voting, Commissioner Miller left the Commission. Neither the departing Commissioner nor her replacement took part in the subsequent September 15, 2005 vote. This time, the Commission had a negative determination, voting three-to-two that a revocation of the orders was not likely to cause material injury to the domestic industry. Third Remand Determination, slip. op. at 1. None of the Commissioners voted differently in the Second Remand Determination and Third Remand Determination; however, the loss of Commissioner Miller's affirmative vote made the outcome in the Third Remand Determination negative.

The domestic producers appealed the Commission's negative determination to the Court of International Trade. The court affirmed the Commission's negative determination in Nippon VI, finding that the negative determination was supported by substantial evidence. 433 F.Supp.2d at 1350. The domestic producers now appeal to this court. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(5).

DISCUSSION

I.

A.

The primary issue presented in this appeal is whether this court should review the Court of International Trade's decision to remand in Nippon V. Each of the three parties to this appeal has a different position on this issue. Appellants (the domestic producers) contend that we should review Nippon V and conclude that the remand order in that decision was improper because the Commission's decision in the Second Remand Determination was supported by substantial evidence. Appellees (the subject importers) argue that even if we were to review the remand order in Nippon V, we must affirm because the Commission's Second Remand Determination was not supported by substantial evidence. Appellees further contend that we should affirm the Court of International Trade's decision in Nippon VI because appellants have not disputed the propriety of that decision. The government, in contrast, argues that although the decision to remand in Nippon V was improper, that decision and the Second Remand Determination do not survive for our review because the Commission's subsequent decision in the Third Remand Determination constitutes the Commission's final position.

We reject the government's position because it does not provide for meaningful review of interim decisions from the Court of International Trade. That position directly conflicts with our precedent. See Nippon Steel Corp. v. United States, 458 F.3d 1345, 1347-48 (Fed.Cir.2006) (Nippon (Tin Mill)); Altx, Inc. v. United States, 370 F.3d 1108, 1117 (Fed.Cir.2004); Taiwan Semiconductors Indus. Assoc. v. Micron Tech., Inc., 266 F.3d 1339, 1344 (Fed. Cir.2001). In each of these cases, this court reviewed an interim decision by the Court of International Trade that either reversed findings or remanded back to the Commission for further clarification or fact finding. See Nippon (Tin Mill), 458 F.3d at 1347-48 (agreeing with the appellants that the Court of International Trade's interim remand order that reversed the Commission was in error); Altx, 370 F.3d at 1117 (stating "our jurisdiction attaches as the result of a final Court of International Trade decision . . . but nonetheless encompasses the entirety of the proceedings before the court, including intermediate remand orders that would not, independently, be appealable"); Taiwan Semiconductors Indus., 266 F.3d at 1344.

The government also argues that our decision in Tung Mung Development Co. v. United States, 354 F.3d 1371 (Fed.Cir. 2004), requires us to ignore any perceived error in the Court of International Trade's decision in Nippon V because the Commission's actions...