NSK Corp. v. U.S. Int'l Trade Comm'n, 2011-1362
| Decision Date | 25 October 2013 |
| Docket Number | 2011-1454,2011-1382,2011-1383,2011-1362 |
| Parties | 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. |
| Court | U.S. Court of Appeals — Federal Circuit |
NOTE: This disposition is nonprecedential.
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
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 combinedpetition 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.
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.
(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.
v.
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.
We concur in the decision of the court not to rehear this case en banc. Contrary to the urgings of the dissenters from the denial of rehearing en banc, there is no legal justification for this court to adopt a rule requiring deference 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);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) .
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, addressed 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 district courts in administrative review proceedings.
All the courts of appeals that have addressed the issue have read Universal Camera as applying to the Supreme 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 application of the present standard ought seldom to becalled 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 characterization 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 intention 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 appreciation of circumstances which admit of different interpretations." Standard Oil Co., 355 U.S. at 400-01. That statement, like the similar statement in Universal Camera, 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-tiersubstantial evidence review cases, it requires that deference in all such cases, not just trade cases coming from the Court of International Trade. So if we rely on Universal Camera as the basis for adopting a deferential standard 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 review of agency action by the Court of International Trade that makes that kind of review different from conventional 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, approved the use of APA-type review in...
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