Papierfabrik August Koehler Ag v. United States

• Decision Date: 19 May 2011
• Docket Number: No. 2010–1147.,2010–1147.
• Citation: 646 F.3d 904,33 ITRD 1005
• Parties: PAPIERFABRIK AUGUST KOEHLER AG and Koehler America, Inc., Plaintiffs–Appellants,andMitsubishi International Corporation, Mitsubishi Hitec Paper Flensburg GMBH, and Mitsubishi Hitec Paper Bielefeld GMBH, Plaintiffs,v.UNITED STATES, Defendant,andInternational Trade Commission, Defendant–Appellee,andAppleton Papers Inc., Defendant–Appellee.
• Court: U.S. Court of Appeals — Federal Circuit

646 F.3d 904

33 ITRD 1005

PAPIERFABRIK AUGUST KOEHLER AG and Koehler America, Inc., Plaintiffs–Appellants,andMitsubishi International Corporation, Mitsubishi Hitec Paper Flensburg GMBH, and Mitsubishi Hitec Paper Bielefeld GMBH, Plaintiffs,

v.UNITED STATES, Defendant,andInternational Trade Commission, Defendant–Appellee,andAppleton Papers Inc., Defendant–Appellee.

No. 2010–1147.

United States Court of Appeals, Federal Circuit.

May 19, 2011.

OPINION TEXT STARTS HEREAppeal from the United States Court of International Trade in case no. 08–CV–0430, Judge Donald C. Pogue.On Petition for Panel Rehearing and Rehearing En Banc.Mark A. Bernstein, Attorney, Office of the General Counsel, United States International Trade Commission, of Washington, DC, filed a combined petition for panel rehearing and rehearing en banc for defendant-appellee International Trade Commission. With him on the petition were James M. Lyons, General Counsel, and Neal J. Reynolds, Assistant General Counsel for Litigation.Richard P. Ferrin, Drinker Biddle & Reath LLP, of Washington, DC, filed a response to the petition for plaintiffs-appellants.

With him on the response was William Silverman.Joseph W. Dorn, King & Spalding LLP, of Washington, DC, filed a response to the petition for defendant-appellee Appleton Papers Inc. With him on the response were Ashley C. Parrish and Steven R. Keener.Before RADER, Chief Judge, NEWMAN, LOURIE, BRYSON, GAJARSA, LINN, DYK, PROST, MOORE, O'MALLEY, and REYNA, Circuit Judges.REYNA, Circuit Judge, with whom NEWMAN and O'MALLEY, Circuit Judges, join, dissents from the denial of the petition for rehearing en banc.

ORDER

PER CURIAM.

A combined petition for panel rehearing and rehearing en banc was filed by Defendant–Appellee, International Trade Commission, and a response thereto was invited by the court and filed by Plaintiffs–Appellants and Defendant–Appellee, Appleton Papers, Inc.

The petition for panel rehearing was considered by 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 Defendant–Appellee for panel rehearing is denied.

(2) The petition of Defendant–Appellee for rehearing en banc is denied.

(3) The mandate of the court will issue on May 26, 2011.

REYNA, Circuit Judge, with whom NEWMAN and O'MALLEY, Circuit Judges, join, dissents from the denial of the petition for rehearing en banc.

I respectfully dissent from the court's denial of Appellee's Petition for Rehearing En Banc. The panel's opinion is a remarkable departure from binding precedent and applicable law. It reflects confusion about the statutory roles of the Department of Commerce (“Commerce”) and the U.S. International Trade Commission (“Commission”) in antidumping duty investigations, and it directs the Commission to take action that is contrary to its established, long-standing agency practice.

I. Review of Case

Light weight thermal paper (“LWTP”) is a thin paper with a thermal active coating, a mixture of dye and developer, that changes color upon contact with heat. LWTP products are classified by weight, measured in grams per square meter, and roll type, produced in either jumbo or slit rolls.

In the underlying antidumping duty investigation, Commerce established a single class or kind of merchandise that included 48 gram LWTP. Although the parties were afforded an opportunity to contest Commerce's class or kind determination, Koehler did not do so. See Lightweight Thermal Paper from Germany: Notice of Final Determination of Sales at Less Than Fair Value, 73 Fed.Reg. 57,327–28 (Oct. 2, 2008). Hence, when Commerce published its final antidumping duty margins, it set out a single dumping rate applicable to all products that constituted the single class or kind merchandise, including the 48 gram LWTP. Id. at 57,328.

Prior to the Commission making its final injury determination, Koehler requested that the Commission review certain computer printouts of intermediate antidumping duty calculations for the 48 gram LWTP product. Koehler requested that the Commission use the intermediate dumping margins, or a variation thereof, in place of the pricing data the Commission had developed for the 48 gram LWTP product. The Commission denied the request.

Koehler appealed the Commission's denial to the Court of International Trade. The Court of International Trade affirmed the Commission. Papierfabrik August Koehler AG v. United States, 675 F.Supp.2d 1172, 1191–92 (Ct. Int'l Trade 2009). Koehler appealed to this court, and upon briefs and oral argument, a panel of this court vacated and remanded the decision of the Court of International Trade. Papierfabrik August Koehler AG v. United States, 413 Fed.Appx. 227, 231–32 (Fed.Cir.2011) (“Panel Op.”).

The Commission petitioned for rehearing, which was denied by the panel. The Commission also petitioned for en banc rehearing of the panel's opinion, which also was denied by the court. I dissent from the denial of en banc review.

II. Standard of Review

The panel addressed a single issue: whether the Commission erred when it refused Koehler's request that it take into account sales prices for sales of 48 gram LWTP in the form of Commerce's intermediate dumping margin calculations. Panel Op. at 228–29.

This court reviews de novo the decisions of the Court of International Trade. U.S. Steel Corp. v. United States, 621 F.3d 1351, 1357 (Fed.Cir.2010). Like the Court of International Trade, we review the Commission's findings of fact for substantial evidence and its conclusions of law de novo. Atl. Sugar, Ltd. v. United States, 744 F.2d 1556, 1559 n. 10 (Fed.Cir.1984); see also 19 U.S.C. § 1516a(b)(1)(B) (1994). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal Camera Corp. v. NLRB, 340 U.S. 474, 477, 71 S.Ct. 456, 95 L.Ed. 456 (1951) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)).

The question in this case is not whether we agree with the Commission's decision, nor whether we would have reached the same result as the Commission had the matter come before us for decision in the first instance. Congress charged the Commission with the task of making these complex determinations. This court reviews those decisions for reasonableness. U.S. Steel Grp. v. United States, 96 F.3d 1352, 1356–57 (Fed.Cir.1996). Considerable weight should be accorded to the Commission's construction of a statutory scheme it is entrusted to administer. Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 844, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). The principle of administrative deference has been consistently followed whenever a decision as to the meaning or reach of a statute involves reconciling conflicting policies or depends upon more than ordinary knowledge respecting the matters subjected to agency regulations. See Thai I–Mei Frozen Foods Co. v. United States, 616 F.3d 1300, 1305 (Fed.Cir.2010) (citing Chevron, 467 U.S. at 844, 104 S.Ct. 2778).

III. The Panel's Confused Approach

The panel's opinion reflects confusion about the distinct roles of Commerce and the Commission in antidumping duty investigations. The respective roles of both agencies are clearly set out in the antidumping statute.¹ In pertinent part, this statute provides that an antidumping duty order shall be imposed with respect to imports of a class or kind of merchandise and that the Commission is required to make its final injury determination on the basis of imports or sales “of the merchandise with respect to which the administrating authority has made an affirmative determination” of sales at less-than-fair-value. 19 U.S.C. § 1673(b)(1) (1994). Put simply, Commerce investigates dumping, the Commission investigates injury, but the Commission's final determination must be based on the class or kind of merchandize reported by Commerce as sold at less than fair value. See id. § 1673. The panel improperly mixes the distinct statutory roles of Commerce and the Commission by requiring that the Commission ignore Commerce's class or kind determination. The statute does not provide that the Commission may disassemble Commerce's class or kind determination to select which products it will use in rendering its final determination. Yet, that precisely is what the panel has ordered the Commission to do.

IV. Departure from Precedent

The panel primarily relies on a single authority to support its holding that the Commission “must” use the dumping margins calculated by Commerce, Algoma Steel Corp. v. United States, 865 F.2d 240, 241 (Fed.Cir.1989). See Panel Op. at 230–32.

The panel misapplies Algoma to this case. In Algoma, counsel for Algoma procured computer printouts that were purported to show that a high percentage of a product under investigation was sold at more-than-fair-value. Algoma, 865 F.2d at 241. The Commission refused Algoma's request to consider these printouts in its injury determination. Id. at 242. This court affirmed the Commission's refusal. The court noted that there may be special circumstances when the Commission may decide to use such data, but no such circumstances were present in the case. Id. at 243.

The panel apparently accepted Koehler's proposition that this case is unique and presents special circumstances that were lacking in Algoma. See Panel Op. at 230–32. This belief, however, is not supported by the record or applicable law. While the record indicates that the Commission did not review the computer sheets in the context of its final injury determination, the panel failed to review whether the Commission's decision not to use the printouts was reasonable. Contrary to the applicable standard of review, the panel steps into the Commission's shoes...