Professor Matthew Schaefer, with Alumni Council Member Bill Dittrick, partner at Baird Holm in Omaha, acting as counsel of record, filed an amicus brief with the US Supreme Court on March 26, 2014 arguing that the current standard of review applied by the Court of Appeals for the Federal Circuit (CAFC) to Court of International Trade (CIT) decisions in antidumping and countervailing duty cases needs re-examination because it is inconsistent with congressional intent and is applied inconsistently, leaving litigants facing considerable uncertainty. This issue has troubled the trade community for decades. The brief was signed by law professors from Columbia Law School, George Washington Law School, American University, New York University Law School, and the University of Illinois Law School. 2L Samantha Ritter, a Yeutter Scholar, served as Professor Schaefer’s research assistant on the project. She provided invaluable research, drafting and editing assistance, as well as writing an independent study paper on aspects of the project. “Samantha’s involvement in this project led to a much stronger brief. The thoroughness and thoughtfulness of her research was invaluable as was the ability to discuss potential arguments and the framing of arguments with her,” stated Professor Schaefer, adding “Samantha is a great example of the exceptional students we have here at the Law College that are ready to make a real contribution out in practice.” The amicus brief asks the Supreme Court to accept cert in the NSK v ITC. The amicus brief hit the press when a key trade journal, the Washington Tariff and Trade Letter (see below), reported the contents of the brief on April 21, 2014 and has garnered considerable interest in the DC international trade community, including judges of the CIT. The University of Nebraska fielded a series of distinguished lectures in the area of international trade as part of the Clayton Yuetter International Trade Program funded by a Department of Commerce grant in 2012-13. Eight UNL law students were selected as Yeutter Scholars over the 18 month period of the grant. Clayton Yeutter is a graduate of the Law College and a former US Trade Representative and former Secretary of the US Dept. of Agriculture.
Washington Tariff and Trade Letter
Volume 34, No. 16
April 21, 2014
Appellate Court Should Give Deference to CIT, Professors Argue
The Court of Appeals for the Federal Circuit (CAFC) should give deference
to the opinions of the Court of International Trade (CIT) in antidumping
and countervailing duty cases, a group of seven law professors contend.
When Congress enacted the Customs Courts Act of 1980 (CCA80), which created
the CIT, it "expressly created a ‘substantial evidence' standard" for the
CIT to apply in trade remedy cases "but did not expressly create a standard
of review for the Court of Appeals for the Federal Circuit," they wrote in
an amicus brief filed in the Supreme Court in support of a petition for a
writ of certiorari that NSK Corporation submitted to the high court,
seeking to reverse a CAFC ruling in NSK v. ITC.
In a nonprecedential ruling in November, a divided CAFC rejected NSK's
request for en banc review of its decision to overturn the CIT's repeated
remands of an International Trade Commission (ITC) determination in a
"sunset" review of ball bearing imports. In that ruling, however, two of
the three judges hearing the case declared that the CAFC doesn't have to
give deference to the CIT's decisions and can conduct its own "substantial
evidence" review of cases de novo.
The CAFC's de novo standard of review "is inconsistent with both Congress'
recognition of CIT expertise and Congress' creation of a structure to
further advance CIT expertise in trade remedy matters expressed in the
CCA80," the professors said. "AD and CVD determinations involve complex,
detailed, and extensive factual matters and very intricate law, both
domestically and internationally," they added. "Thus, unsurprisingly,
Congress intended to have the most intensive review of those determinations
handled by experts on the CIT. Congress has expressly recognized that CAFC
is not a ‘specialized court' and less than 5% of CAFC's caseload is trade
cases." their brief said.
The professors also cited an earlier CAFC standard of review decision in
Atlantic Sugar, which they claimed "is also inconsistent with Congressional
intent to reduce duplicative and redundant review of AD and CVD
determinations and Congressional objectives to reduce the time frame for
deciding AD and CVD cases." The CAFC itself "has admitted the misguided
approach of Atlantic Sugar over the past two decades by beginning to accord
an ill defined level of deference to CIT decisions," they noted. "Amici
submits that CAFC has varied in the level of deference it enunciates, and
has inconsistently applied these adjustments to its original Atlantic Sugar
ruling, leaving trade litigants and lawyers facing considerable
uncertainty. It is respectfully submitted that CAFC should be applying a
‘misapprehended or grossly misapplied' standard of review to CIT decisions
in AD and CVD cases. Supreme Court clarification of the appropriate
standard of review to be applied by CAFC is now critically necessary
because of the split among CAFC judges and the decades of inconsistent CAFC
jurisprudence," they argued.
"Amici thus request that the Court accept certiorari in this case to
overturn the standard of review adopted in Atlantic Sugar, particularly
since CAFC has inconsistently applied the standard for decades," prayed the
brief filed by William G. Dittrick of Baird Holm LLP in Omaha, Neb., and
Matthew Schaefer, professor of law at the University of Nebraska College of
Law [original emphasis].
Joining in the brief were law professors Padideh Ala'i, American University
Washington College of Law; Steve Charnovitz, George Washington University
Law School; William Davey, University of Illinois College of Law; Robert
Howse, New York University School of Law; Petros Mavroidis, Columbia
University Law School; and Claire Wright, Thomas Jefferson School of Law.