*1 DIAMOND SAWBLADES MANU COALITION,
FACTURERS
Plaintiff-Appellee,
v. STATES, Defendant-Appellee,
UNITED
v. Abrasives, Inc.,
Saint Gobain
Defendant-Appellant, Co.,
EHWA Diamond Industrial
Ltd., Defendant-Appellant,
Shinhan Diamond Industrial
Co., Ltd., Defendant. 2009-1274,
Nos. 2009-1275. Appeals,
United States Court of
Federal Circuit.
July scienter, materiality, damages against prejudgment apply damages or interest to the evidence, great weight or that award. calculating district court erred rate of *2 Pickard, LLP, of Wiley B. Rein
Daniel DC, argued Washington, plaintiff-ap- for him on was Mau- pellee. With the brief Thorson. reen E. Charles, Attorney, A. St. Office
Charles Counsel, In- of the General United States Commission, Trade ternational Wash- DC, ington, argued defendant-appellee for With him the brief States. Counsel, Lyons, M. James General Reynolds, Neal J. Assistant General and Counsel. Fox, Fox
Lynn M. Fischer Fischer PLLC, DC, Global, Washington, argued defendant-appellant for Saint-Gobain Abrasives, Inc. Goldfeder, Gump M. Akin
Jarrod
LLP, Washing-
Hauer & Feld
Strauss
DC,
ton,
argued
defendant-appellant
Co.,
Diamong
Ltd. With
Ehwa
Industrial
Griffith,
Spencer
him on the brief were
S.
David Park
Lisa W. Ross.
J.
BRYSON,
DYK,
LINN, and
Before
Judges.
Circuit
for the court filed Circuit
Opinion
Judge
Opinion dissenting-in-part
LINN.
Judge DYK.
filed Circuit
LINN,
Judge.
Circuit
Go-
antidumping
is an
case. Saint
This
Gobain”)
(“Saint
Abrasives, Inc.
bain
tile,
Co.,
Ehwa
Industrial
Because
Diamond
Ltd.
stone.
various charac-
(“Ehwa”) (collectively, “Appellants”) chal
teristics of the sawblades affect how much
lenge
product
two decisions
the Court of Inter
the finished
will cost and how it
used,
national
will
producers
Trade. Both decisions reviewed
be
im-
*3
final
offer
porters collectively
determinations
the International
thousands of dif-
(“ITC”
Trade Commission
or “Commis
ferent
diamond
variations of
sawblades.
sion”)
injury
differentiating
on material
to a domestic The primary
characteristics
industry by
imports
rim,
reason
saw- are
type
of blade
the diameter of
parts
blade,
blades and
thereof from Korea and the
of attaching
and the method
First,
China.
Appellants challenge a blade to a
core. There
metal
are two
Court of International Trade decision re
types
segmented
of blade
and con-
rims —
manding
orig
for
consideration an
tinuous.
is some overlap
While there
be-
inal Commission determination that there
two,
tween
segmented
blades are more
injury
was neither material
nor threat of
employed
high-volume
often
construc-
material
injury to
domestic diamond
projects.
tion
typically range
The blades
industry.
sawblade
Diamond Sawblades
in diameter
4 inches
from
to 70 inches.
States,
Coal. v. United
No. 06-
greater
Sawblades
Mfrs.
than
inches in diam-
(Ct.
00247,
Background Manufacturers and its Coalition nine indi- (“DSMC”) Diamond are cutting sawblades circular vidual petition members filed a tools diamond-impregnated with a cutting alleging the Commission that its de- surface, blade, used primarily industry or fined to cut in the United States had cement, marble, brick, materials such been harmed finished diamond saw- parts significantly im- undersold domestic like sawblade and diamond blades (“subject product, industry Korea the domestic lost China and from ported However, it States at market found that this and sold in the United share. imports”) (“LTFV”). underselling did Than Fair increase in volume “Less Value” antidump- sought imposition prices not have a effect on petition imports. addition, Af- against product. the domestic ing duties findings by the preliminary ter affirmative noted that condition of the that the largely of Commerce Department industry positive: being indeed sold at question industry profitable, the indus- remained LTFV, in- commenced an try’s capacity produce saw- diamond *4 whether im- to determine the vestigation increased, capi- and aggregate blade cores caused threatened to cause a had or ports expenditures period tal increased over the industry in the injury to an Unit- material lack investigation. negative of This of ad- the investigation This covered ed States. verse attributed to the effects was Com- from 2003 to 2005. period mission’s between subject
the and the like imports domestic (1) in: product was limited differences Original The I. type the of end user to which sales are made; (2) sold; diameters of blades the conducting investigation, its Com- (3) and in blade and man- type differences data, sent out compiled relevant mission The process. ufacturing Commission producers and domestic questionnaires “large growing found that the and volume sawblades, and held of diamond importers subject largely imports of concentrat- variety Despite the wide of dia- hearings. types in size and other ranges ed customer sawblades, the Commission deter- mond principally by than the do- those served single there was domestic mined at industry.” Specifically, mestic 32. and most similar characteristics product subject imports found that Commission under foreign to the articles investi- uses for had been focused on demand (“domestic product”) consisting like gation diameter, general smaller use sawblades all diamond sawblades. Because (“nearly subject U.S. importer’s half’ of there “at least a reasonable found that for less shipment value was sawblades among and overlap between diameter), 10 domestic than inches while China, subject im- subject imports from for producers focused the demand were Korea, and the domestic like ports from diameter, professional-use saw- larger aggregated Commission product,” in commercial construction blades used subject imports purposes price (“nearly shipments were half’ of U.S. analysis. effect and volume Diamond larger). and sizes inches Commis- and Parts China Sawblades Thereof from “significant” percent- that a sion noted Korea, Inv. Nos. 731-TA-1092-1093 and age of were or import sales of sintered (Final), 3862, slip op. USITC Pub. “signifi- continuous rim sawblades and a 2006) Determination”). (July (“Original percentage cant” indus- Determination, try’s sales consisted of soldered or brazed In its the Com- Finally, the Com- segmented products. during period found that mission di- import mission sales were subject found investigation imports volume of increased, distributors primarily rected to “branded” significantly retailers, industry, who sold to end users and tion of the domestic will both result injury by material reason of im- producer primari- and that U.S. sales were ports antidumping is- unless orders are ly to “other distributors” end users. sued.” Id. at The dissent 43. findings segmen- Based on of market these majority’s competition theory limited competition, tation and the Com- limited (1) flawed, noting overlap usage that: mission found that there was “no causal mid-range existed in catego- diameter subject imports nexus between the and the ry, with 14 inch some blades used industry.” condition of the domestic Id. at markets; professional general both use (2) overwhelming majority of both U.S listed the following produced imported diamond sawblades in support facts conclusion that there blades; segmented were laser-welded price negative lack of effect on do- (3) ultimately products purchased products mestic despite under- and used the same end users. The (1) selling: importance non-price dissent concluded that the domestic indus- time, availability, delivery product factors— try profitable during period remained *5 consistency, quality, product and reliable of investigation aggressive due cost- (2) supply; price increase in the for the cutting measures, industry but the product during period domestic the in cer- options had for averting exhausted its ad- (3) instances; tain in price the decrease impacts likely verse thus was and to suffer the product subject domestic even when future injury rising material due to the import prices product for that increased or subject imports volume of large and under- instances; remained the same certain selling margins. (4)
and the fact that in 12 of 17 combina- tions in producers’ prices which U.S. II. of the The Decision Court downward, trended these decreases were of International Trade in accompanied by increased volumes of the DSMC I product “price/volume” U.S. tradeoff. —a challenged the Commission’s unanimously The commissioners concluded Original Determination of Court that the domestic diamond sawblade indus- arguing International Trade it was try injured materially was not reason of not supported by evidence subject imports from China and Korea. otherwise was not accordance with law Four of the six commissioners also con- 1516a(b)(1)(B)(i). § pursuant to 19 U.S.C. industry cluded that the domestic was not I, slip at 10. op. The ITC and injury by threatened with material reason Appellants review, opposed. On the Court subject of China from and Korea. of problems International Trade found majority based its conclusion on the with logic evidentiary underpin strong overall demand for diamond saw- nings of Original Deter market, blades in the U.S. the limited com- First, mination. court found that “the petition subject imports, with and the stur- Commission’s conclusion of attenuated dy performance financial of the domestic competition based on sawblade diameter is industry during period investigation. of not supported by substantial of evidence dissented, Two of the six commissioners any record” in of the three catego defined trends, “import together size, with manufacturing process, ries—blade declining prices weakening condi- channels of distribution. Id. at 13. that, within focusing on the ble error because was the Com- court noted However, discretion. half’ im- mission’s “nearly fact that “the cautioned that information contained under 10 inches sawblades ports comprised may in the sales allegations lost be shipments “nearly half’ while remand, inches, greater importance and that over were sawblades investigation incomplete some alle- take appear into Commission did then be gations may appropriate.” Id. at all the other half of account that addition, In the court remanded the diamond sawblades were and domestic volume, agency’s impact, and threat find- mid-range and therefore sizes sold ings they relied the flawed limited since The court also possibly competing. competition finding. all these found that almost mid-size laser-welded and diamond sawblades were Finally, court found that
segmented. III. The Determination Commission’s had not provided adequate on Remand to divide the explanation of decision In time between Commission’s channels into “branded” and distributor and the court’s “other” and its conclusion those dis- remand, composition of the Commis serve different end tributor channels changed. sion Two commissioners were light users. In determination that replaced new appointees. competi- of limited proceedings, “the remand supported explained, tion not be could *6 reopened the record obtain to additional the that the related find- court concluded purchasers information from about the volume, effects, ings dealing price with degree competition subject between along impact, analysis, and threat with the product.” imports and the domestic like all to competition, on limited need Diamond, Sawblades and Parts Thereof for reconsideration. be remanded Korea, and Inv. 731- China Nos. from The also found that the Commis- court TA-1092-1093, 14, slip 2 (May at op. adequate explana- provided sion had not 2008) (“Remand Determination”). The price/volume tion its the questions supplemental Commission sent any negative price tradeoff counteracted solely purchasers responded to that had any it had pointed effects because questionnaires initial during to the the indicating data the volume increase original investigation. par All interested an tradeoff for the lowered adequate was ties comments the filed on DSMC and n re- prices. “[o] The ordered record, supplemental but the Commission mand, provide the Commission must a hearing. did not hold an additional this thorough explanation finding, more May On the filed as well as an as to how the again, on determination remand. Once price/volume tradeoffs would in- purported unanimously found that among pro- domestic competition dicate industry the domestic as a whole had not I, slip. op. ducers.” DSMC by injury suffered material reason of the Finally, court found that the and imports the Com- from China Korea. allegations investigate although mission’s refusal Commission reiterated significantly and of lost and lost revenues because increased sales product by the like they incomplete was not remanda- undersold during period growth the od of margins investigation, was not industry investigation, addition, was able to expected to continue. In the ma- sales, maintain production, profita- and jority found that the volume of subject bility because of considerable increases in imports likely to continue to rise industry’s demand and the success in re- part increasing production because of the ducing expenses improving productivi- capacity importers. Based on those ty- findings, majority predicted a signifi- negative cant impact the domestic in- joined
The two new commissioners volumes, levels, dustry’s production sales remaining dissenting commissioner from share, profitability, prices. market Original in finding Thus, majority concluded that “based there was an affirmative threat of material trends, injury. import declining prices, tie vote of This led to a three to flatten- demand, three on ing the issue of threat of material industry’s the domestic weak- injury. Because a vote is tie deemed to be ening condition, and its diminished oppor- an pursuant affirmative determination expenses tunities to or improve reduce 1677(11), § U.S.C. Remand Deter- productivity, industry is threatened mination was a found there threat of ma- by injury material reason of the cu- terial injury to the domestic diamond saw- subject imports.” mulated Id. at 3-4. industry blade by imports from China and disagreed majori- dissent with the Korea. The Commission’s reversal of its ty’s conclusion that in the in- based, threat part, determination dustry was not limited market divided upon its competi- reversal on issue of Instead, sawblade characteristics. (the tion. The prevailing commissioners adopted majority’s dissent opinion “majority”) overlap found an in usage by Determination, finding that professional general-use market, severely limited by the especially in mid-range diameter cate- made, type of end user to which sales were gory. addition, majority found that ranges sold, size of the blades imported produced both and U.S. diamond *7 type differences in and laser-welded, blade manufactur- sawblades were segmented ing process. blades. Finally, majority The dissent noted that while found that (branded although “the there type competition of distributor was mid-range other) or imported sizes, for and dia- this was further limited mond frequently differs, sawblades by distribution, differences in channel of products ultimately purchased are and types, types. customer and blade It ex- used by thereafter largely types the same plained prices that prod- “because for the of end users.” Id. at 7. Based on these (domestic, China, uct from the same source findings, the majority concluded that “the Korea) many instances, or vary, in dramat- record leaves no that doubt there is con- ically, narrowly for the same prod- defined siderable in the overlap mid-range sizes uct depending product on whether the is U.S.-, Chinese-, and that and Korean-pro- distributor, sold to a or branded other duced finished diamond sawblades com- very there are real differences between pete with each other in the same end-user types.” these two customer Id. at 61. range markets and product across The that dissent also stated since the Com- sizes.” Id. at 12. practice mission’s customary is to examine majority only found although purchasers, purchas- that direct not those grew demand significantly during peri- chain, ers further down distribution we vacate the request that Appellants end was the ultimate users analysis of Trade’s affirmance of International Court irrelevant. Determination of the Remand DSMC remand the case to the Court of II and of the Court IV. The Decision proceed- Trade International Trade in International arguing that responds by ings. DSMC II DSMC Trade Court of International deci- both De challenged the Remand Appellants First, DSMC were correct. asserts sions in the of International Court termination Original Determi- that the Commission arguing Trade could on the bases nation not be sustained remand, when, incorrect agency therefore the proffered competition between substantial there was Trade’s remand or- Court of International like the domestic subject imports and Second, argues was correct. der The Court of International product. Trade’s the Court International the Remand Determina Trade affirmed the Remand Determination affirmance of (1) tion, that: substantial evidence finding correct and should be affirmed. is supports the ITC on behalf of Defen- size, process of attenuated blade not dant-Appellee, responds appeal by to user, manufacture, or channel type of end supporting both Commission decisions— (2) distribution; substantial evidence Original Re- flattening demand supports the being supported mand Determination —as (3) subject imports; sub increasing by substantial evidence and accordance finding that supports the stantial evidence Thus, Appellants joins law. ITC infil ability had the importers that we reinstate the requesting Com- sector; professional trate the sawblades Determination. How- mission’s (4) im cumulate decision ever, in the the Court of event we affirm unrea analysis threat ports the Origi- Trade’s remand of International (5) sonable; find the Commission’s threat Determination, joins the ITC nal evidence; ing was based the Court of requesting that we affirm (6) to exhaust their Appellants failed Trade’s affirmance the Re- and therefore remedies administrative mand Determination. any argument waived jurisdiction have to review both We at 7- the Bratsk test. apply failed pursuant II to 28 *8 and DSMC 26; v. DSMC see Bratsk Aluminium Smelter 1295(a)(5). Altx, (Fed.Cir. § v. States, Inc. United 444 1369 U.S.C. F.3d United (Fed.Cir.2004). 2006) States, 1108, 370 F.3d 1116 (outlining requirement explanation include of an non-subject in material of effect Discussion injury analysis).
I. of Review Standard v [*] [*] ‘We review the [Court of Inter of Commis evaluation Trade’s] In- national Court of Appellants challenge both by stepping factual sion determinations request Trade ternational decisions duplicating the Court and Origi- into the shoes of we reinstate the Commission’s alternative, review, evaluating whether Commission In nal Determination. 1356 by unsupported by
determinations are
sub
cision
explicitly rejecting the Commis-
competition findings
stantial evidence or otherwise not
ac
sion’s limited
on the
with
Allegheny
ground
they
unsupported by
cordance
law.”
Ludlum
States,
1365,
Therefore,
Corp.
they
v. United
287
argue
F.3d
evidence
record.
(citations
(Fed.Cir.2002)
omitted).
1369
we
review the
Origi-
should
Although
repeat
such review amounts to
nal Determination
for substantial evi-
ing
DSMC,
hand,
the work of
the Court
dence.
on the other
con-
Trade,
have
we
noted
“this court will
that the
tends
abuse-of-discretion standard
not
ignore
opinion
apply
informed
should
to our review of
DSMC
Court of International Trade.” Surameri
because to the extent the Court of Interna-
Laminadas,
ca de Aleaciones
v.
[Original
C.A.
tional Trade “declined to find the
(Fed.Cir.
978,
44
supported
F.3d
983
]
Determination
1994).
evidence,
Substantial evidence is “such rele
did so
the context of being
vant evidence as a
might
reasonable mind
unable
conduct substantial evidence re-
accept
adequate
view,
support
a conclu
due
explana-
to the need for further
NLRB,
Corp.
sion.” Universal Camera
v.
tion of the agency’s conclusions.” DSMC’s
474, 477,
(internal
456,
340 U.S.
71 S.Ct.
quotation
95 L.Ed. Br. 10-11
marks and
(1951) (internal
omitted).
quotation
456
omit
marks
citations
ted).
addition,
“substantiality
Appellants and the ITC assert that Altx
evidence must take into account whatever
and Taiwan Semiconductor allow for the
in the record fairly detracts
from
abuse-of-discretion standard of review only
weight.”
Id. at
All correctly, See, that we re the "context of this finding. e.g., view the Court of International Trade’s slip op. at 13 (stating that “the decision II considering Commission’s conclusion of attenuated whether Remand is based sawblade diameter is supported by substantial evidence. Alle supported by substantial evidence of Ludlum, gheny record”); F.3d at 1369. The id. at (stating that the “ITC’s however, parties disagree, appro as to attenuated based on *9 priate standard for of review the of manufacturing process Court unsupported by is evidence”). International Trade’s Ap However, DSMC order. substantial simply pellants and the ITC contend the using the words “substantial evidence” or Trade, Court of International in referring to the evidence of in record an squarely addressed the sufficiency opinion of the dispositive is not of the issue. supporting fact, Semiconductor, evidence the Commission’s de- in Taiwan this Court
1357
regarding
sig-
re
conclusion
standard to
Commission’s
an
used
abuse-of-discretion
import
In
nificance of
volumes as
a
order
the Court of
view remand
Trade,
light
on
language
which used
based
substantial evidence
ternational
explanations
potentially
I. 266
lack of
as to
to that used in DSMC
very similar
1344;
meaningful
In
conflicting
Semiconductor
evidence. The
at
Taiwan
F.3d
States,
to
F.Supp.2d
59
remands
the Commis-
v. United
court therefore
dus. Ass’n
1999) (“There
(Ct.
1324,
further
and clarifica-
Int’l Trade
sion for
consideration
1332
fore,
conclude that the
tion of
issues....”
the Court cannot
what standard
in order for
they are
tional
properly
nant
crease in volume
evidence
Trade].” Id.
Such
Instead,
er
cretion of the
Taiwan
significant
a
presence
Trade] need[ed]
record before
determination
Semiconductor,
Similarly,
Nippon
held
because
determination.”
Steel
v.
1371,
Comm’n,
re-
494
the two Court of International Trade
Int’l Trade
F.3d
(Fed.Cir.2007).
“require! ]
mand orders on review did not
The Court of Internation-
investigation by
Nippon
additional
the Commis-
Trade in
al
Steel evaluated the
sion,
lacking
did either of the remand deci-
and found it
to such an
nor
evidence
sions alter a Commission determination
extent that it
the Commission ei-
ordered
any
regard,”
change
review of the de-
ther to
data or
substantive
obtain more
thereby indicating an
position entirely,
cisions was under an abuse-of-discretion
ac-
such,
Again,
lating to substantial evidence review
case,
present
In the
the court re
Altx,
Inc.
example,
remand order. For
viewed the Commission’s
Deter
1353,
F.Supp.2d
v. United
(Ct.
under the Administrative Proce
2001),
mination
Int’l Trade
Court
Inter-
(“APA”)
Act
review
dure
standard of
set
national Trade stated
Commis-
“[t]he
in Motor
forth
Vehicle
support
reasoning
sion does
Manufacturers
v.
Farm Mutual Automobile
of Inter- Ass’n
State
substantial evidence.” The Court
Co.,
Insurance
103 S.Ct.
subsequently
national Trade in Altx
clari-
U.S.
(1983). Using this stan
failing,
tween and domestic indus- II. The Commission’s try was reduced because market was properties. divided based on various blade thus clarified was not question appeal The first in the
requiring the to change present case is whether the Court of Inter- *11 Therefore, nor I, type manu- Trade, its neither blade in abused DSMC national facturing process significantly limited com- a remand of the by ordering discretion mid-range category. in Final- petition for Original Determination Commission’s ly, the tri- the court noted that the Commission explanation. reviewing “In discretion, the subdivisions of “branded” and this court examines based court’s al type on the of customer to whom any legal for er- “other” reasons for remand (“branded” Semiconductor, primarily 266 F.3d at the distributors sold Taiwan ror.” to en- gave the court sold small sawblades predominantly reason primary mostly large and “other” sold saw- seeking explanation from dusers additional for blades), that the not but the court concluded was that it could reconcile support did not these classifications. finding compe- of limited data the Commission’s view, fact, referencing In at 16-18. data with the data of record. our Id. tition not that types suggest Trade’s decision customer did brand- Court of International justified or other distributors’ customer bases several ed to remand AId. reliably could be identified. remand grounds. confusing on the Commission’s based First, that pointed out the data the court analysis incorrect was not an potentially in support cited the Commission to which abuse discretion. “nearly that half’ of the supports the ground in sized An additional that subject shipments were smaller in blades, “nearly half’ of International Trade’s remand while domestic Court blades, adequately the failure to larger sized also DSMC was shipments were of subject that a explain half of both that the other showed any negative tradeoff price/volume concentrated offset imports were (10 imports. The subject effects due to ranges price the two middle diameter inches). I, no data slip before the court contained and 12 to 14 record inches production, meaning costs of argue regarding the Appellants at 8. and the ITC op. low- way was no to tell whether the justified the there properly the Commission that prof- translated into increased despite sig prices ered competition finding limited Appellants the ITC mid-range by ex its. 21-23. overlap nificant tradeoff con- argue price/volume at that this competition was further plaining that merely secondary the Com- type, blade clusion tenuated differences that conclusion type of end overall manufacturing process, mission’s However, imports this were not cause users.1 Instead, they point in effects. out price aspect on other fac- also relied adequate. Specifically, pointed the court subject imports record in the tors as evidence out that showed price negative cause of effects mid-range category, blade most of non-price fac- including: importance segmented and laser-welded blades were decisions; purchasing limited tors importers produc both and domestic 1). (Table I, overlap; limited correla- competitive slip op. at ers. DSMC II - table, 1-1, actually Table show Trade did err 1. The Court of International years only stating true for one of the three listed "more were con- However, categories this misstatement midrange than the table —2005. in the two centrated logic did not categories.” was harmless as Court’s two small-blade depend particular op. on this fact. slip in the relevant at 15. numbers *12 subject import tion prices showing between limited competition, as deter- s'awblades; prices by majority of domestic diamond in mined Determination. impact lack negative pro- Appellants on contend that only ducers’ in- Commission assumed the mere shipments; modest overlap of some in by existence sales goods percent- crease in cost of sold sub- as a ject and domestic producers was age sales; sufficient of net and the lack of they compete to conclude that head-to- confirmed sales or lost lost revenues. all ranges. Specifically, head across size acknowledged While the court multi- these Appellants assert ig- that- Commission ple price bases the Commission’s ef- nored the fact that much increase in fects finding, the court did find not subject import was in ranges volumes size discussion sufficient overcome what it types and to customer which the domes- saw as an regard- unreasonable conclusion industry sell, tic did not and that the Com- ing price/volume tradeoff. Id. It not also ignored mission differences between an abuse of discretion for the court to Appellants argue distributors. require additional from what it Commission’s threat material injury saw as a to adequately explain failure finding was based following on the unsup- regarding price/volume conclusion trade- (1) ported findings: demand was “flatten- off. (2) ing”; import volumes would continue to Finally, (3) increase; underselling by imports threat relied its inadequate on limited continue; (4) would industry the domestic competition analysis. The court thus stat- not strong would maintain profitability; ed that it was in “substantial doubt wheth- (5) subject imports could service the er the [Commission] would made have professional construction sector. Finally, same ultimate with the erroneous Appellants assert that the Commission im- findings from picture.” removed properly apply non-subject declined to (internal omitted). quotation marks outlined Bratsk. replacement test F.3d
Because the Commission’s determina- tion of limited was not ade- The Commission’s factual determi quately explained light of the record “presumed correct,” are nations to be evidence, the Court International proving “[t]he burden of otherwise shall Trade’s remand order was not an abuse of upon party rest challenging such deci discretion. We decline to disturb the deci- 2639(a)(1). § sion.” 28 U.S.C. After re sion DSMC I. viewing record, agree we with DSMC
and the ITC that substantial
sup
evidence
III. The Commission’s Remand
ports the views of the
Commission
each
by
the matters
Appellants
raised
appeal. Accordingly, finding
legal
neither
Having concluded that the Original De-
nor
error
insufficient
evidence
the Com
termination
reinstated,
should
be
we
Determination,
mission’s Remand
we af
turn to Appellants’ argument that the Re-
firm the decision of the Court of Interna
mand Determination
supported
was not
II.
Trade in
tional
Appellants’
substantial evidence.
main
argument
remand,
is that on
the Commis-
concern underlying
the Court of
sion majority ignored the record evidence
Trade’s remand
persuasive Appellants’
we find
adequate
had not
Nor do
I—that
regarding the
arguments
find
its limited
ly explained
injury.
on threat of
findings
material
cured
ing—was
*13
Determination,
that a
majority
majority
importers,
the
record shows
of
Remand
producers,
pur
limited.
and other U.S.
competition was not so
that
they
expect
not
Instead,
reported
chasers
did
the Commission found
change
thereby
mid- demand to
the
imported
and domestic
overlap
future —
substantial evidence for
providing
conclusion
range sawblades. This
finding
As ex
that demand
by substantial evidence.
Commission’s
supported
I,
“flattening.” Original
Report
II-33.
the record shows
plained DSMC
Staff
also based its
imports
half of
and domes The Commission
approximately
category
volumes would continue to increase
midrange
import
were in
products
tic
During
peri
evidence.
laser-welded.
on substantial
majority
a
of those were
and
(Table
1,
investigation,
shows
op. at 14-16
od of
the evidence
slip
I—
1).
addition,
subject
volume of
in
majority
imports
In
a
of both that
Table II—
significantly both in
and in
creased
value
and domestic sawblades
imported
App.
Remand
1.
quantity.
Inter
Determination
segmented.
laser-welded
both
subject
Report,
imports
I-23 The market share
Trade Comm’n
national
Staff
1-2) (June
2006)
(Table
5,
during
period
investiga
(“Original
increased
Staff
tion,
market
finding of
while the
share of domestic
The Commission’s
Report”).
addition,
supported
declined.
Id. In
sub
producers
is also
ject
relating
importers predicted
of distri
an increase
record
to methods
by the
inventory. Orig
example,
capacity, production,
record shows
For
bution.
(Table
VII-4,
Report,
responders reported that do
inal
VII-10
that half of
Staff
VII-7).
VII-2, Table
subject
importers
Commission’s
producers
mestic
subject importers
had the abil
frequently,
compete
or
always,
sometimes
midrange
pro
ity
larger-sized (greater
infiltrate
selling
sawblades to both
diameter)
inches in
general
professional-
and contractors for
than 20
fessional users
Report,
supported by
market was
the evidence
Int’l Trade Comm’n
use
use.
Staff
III-2)
2008) (“Re
(Table
importers
in
significantly
(April
III-4
addition,
during
Report”).
only
In
9
the sales
these blades
mand
creased
Staff
IV-9,
period
inquiry.
that saw-
Id.
IV-10
responders
out of 39
indicated
(Table IV-4) (indicating
sales of
by professionals and individual
that U.S.
blades used
(Table
than
from
more
compete.
large
never
Id. III-5
sawblades
China
consumers
II
).
sup
in value between 2003 and 2005
While there is also some
doubled
I
-3
large
from
finding,
sales of
sawblades
contrary
in the record
and U.S.
port
percent
in value dur
reached
Korea increased
the conclusion
period).
time
This evidence
only
ing
from the
that same
possible
not be the
one
need
conclusion that
supports
if it is
to draw two
possible
record. “Even
likely
from evidence
the volume
inconsistent conclusions
record,
underselling by
rise and that
possibility
pre
does not
continue to
such
rec
subject imports would continue. The
determination
Commission’s]
vent
[the
falling
that in
evi
also reveals
addition
being supported by substantial
ord
from
share,
industry’s ag
the domestic
Am. Silicon Techs. v. United market
dence.”
(Fed.Cir.2001).
income,
oper-
operating
aggregate
gregate
F.3d
margins,
aggregate
enough
income
re-
ating
not
to indicate that
ef-
Appellants
all
during
presented
turn
assets
fectively
decreased
this issue to the Com-
addition,
period
inquiry,
supporting
thus
mission.
before
Court of
Trade,
conclusion that the domestic
counsel for Ehwa ac-
industry would not
its strong
knowledged
maintain
that he did not
raise
issue
Remand
profitability.
before the Commission in a timely
manner.
rule
App.
general
is that courts “should
over
topple
not
decisions
administrative
have
argu-
We
considered the other
body
only
unless
administrative
*14
by Appellants regarding
ments made
but
objection
has erred
has
against
erred
of substantial
lack
evidence
the conclu-
appropriate
made at
time
under its
Determination,
Remand
sions
but
practice.” United States v. L.A. Tucker
unpersuasive.
find them
Lines, Inc.,
Truck
33, 37,
344
73
U.S.
S.Ct.
(1952).
Bratsk not apply “do[es] to affirmative de- terminations based on threat material AFFIRMED (ie., injury, prospective where a forward- looking) analysis is involved.” Remand DYK, Judge, Circuit dissenting-in-part. Determination at 25 n. 152. The Court of International Trade declined to address view, In my majority’s decision rests the issue because “at no point the inves- misreading on a of the Court Interna- tigation did respondents assert tional majority’s Trade’s decision. In the nonsubject imports played any causal role view, the Court of International Trade did in the condition of industry.” the domestic not set aside the International Trade Com- II, (“ITC” slip op. agree at “Commission”) 25. We original mission’s or Court International Trade that Ap- determination on substantial evidence pellants failed to exhaust grounds, their administra- solely but on ground that the tive remedies on this points issue. Ehwa provide Commission had failed an ade- several sentences its pre-hearing quate explanation for its determinations post-hearing briefs to the Commission dur- injury that there was neither material nor ing original investigation as evidence threat of material injury to the domestic they did not waive this issue. Howev- See industry. Majority diamond sawblade er, these isolated simply statements are Op. 1358-59. tion between the of International that the Court
I think two attenuat- upon product rested the domestic like decision Trade’s substantial evidence diameter differ- grounds ed based sawblade —lack adequate 13-15) explanation. an provide failure to (Slip at sawblade Op. ences v. Coal. Diamond Sawblades See (Slip manufacturing process differences Mfrs. 06-00247, 2008 WL No. 16) supported by at sub- Op. 15— 2008) (Ct. Int’l Trade Feb. evidence record. The Court stantial (“DSMC ”). repeatedly court stated farther of substantial evidence that it found lack explain its conclu- adequately failed at slip op. points. on various See sion, limited the context (“The finds competition analysis, that “branded dis- competition based of attenuated conclusion tributors” and “other distributors” is not supported diameter sawblade Slip Op. users. served different end record.”); at 15 evidence of id. 16-18. (“[The] compe- ITC’s of attenuated *15 The Court also instructed the Com- manufacturing is process on tition based provide mission on to a more remand by of substantial evidence unsupported thorough finding of its that sustained.”); at be id. record and cannot producers’ in price domestic declines Further, and re- the court vacated 23. a vol- certain instances reflected finding, volume the Commission’s manded determination, impact ume/priee tradeoff. its its price-effects analysis it and its threat as found finding, Parts Diamond Sawblades & Thereoffrom “rest, upon in part, to these conclusions Korea, & Inv. 731-TA- China Nos. fact, or subsidiary of inferences ‘findings (Int’l 1092-, -1093, 1-2 slip op. at Trade unsup- that the court deems therefrom’ added). 2008) 14, May (emphases Comm’n at portable.” Id. ITC, appeal, argues in its The brief on in in later decision Dia- Significantly, engaged the court substantial evidence Coalition mond Sawblades Manufacturers I, review, “the observing that States, 06-00247, 2009 WL v. No. United did not of International [Court Trade] 2009) (Ct. Int’l Trade Jan. 289606 merely remand the determi Commission’s (“DSMC ”), describing holding II Instead, explanation. nations for further Trade the Court of International rejected lim explicitly it opinion, n its “[i] stated findings grounds competition ited provide had failed to found that ITC ” Defendant they ‘unsupportable.’ explanation or ev- adequate an 22-23 n. 7. Appellee ITC’s Br. findings identiary support for certain ITC explana- the remand for further While relating degree competition to the be- justified, have been subject appears domestic tion imports tween II, slip op. (empha- remand, 2 as it product.” DSMC to me that the insofar seems added). Commission, The in its deter- sis on based on substantial evidence was remand, also viewed the Court mination Initially, was I note grounds, improper. Trade’s decision DSMC ap- Trade that the Court of International grounds, stating resting upon I both as to have mischaracterized the ITC’s pears finding “attenuat- finding involving competition.” primary definition ], ed that the the Court found [DSMC “thin” or imply “attenuated” would competi- conclusion that competition. “slender” Webster’s not err in requir- See International Trade did Dictionary ing further explain Third New International (unabr.2002). why competition that did exist did not The Commission never used injury, a threat create of material the lim- phrase, but rather com- described competition ited itself sup- “limited.” petition as by ported substantial evidence. view, In my the Commission’s limited long We have held that the Commission supported sub- is entitled to receive deference its rea stantial evidence. The See, fact findings. e.g., soned Nippon between the im- Corp. v. Steel 458 F.3d lim- ports and domestic merchandise (Fed.Cir.2006) (“So 1345, 1359 long as ited sawblade diameter size. is adequate support there basis nearly Commission observed that half of evidentiary Commission’s choice of weight, imports were sold within Trade, the Court of International and this market, small-diameter sector of court, reviewing under the substantial evi producers wherein the domestic made standard, dence must defer to the Com only percent 6.3 of their sales. commercial mission.”). It is not role of the review nearly Similarly, half of saw- ing court the facts ... or “refind[ ] blades were sold to large-diameter interpos[e] its own determinations” in such sector, only percent while Chinese proceedings. Nippon Corp. Steel v. Int’l imports percent and 14 Korean Comm’n, (Fed. Trade 345 F.3d *16 were. The Commission found that there Cir.2003). majority recognized The this physical were differences in domestic saw- principle reviewing opinion the court’s compared blades as evidence, II for substantial re and that these differences affected the marking that sawblades, end support- use of the [wjhile support there is also some in the ing a competition. limited for a contrary finding, record the conclu Commission competition also found that by sion reached the Commission need by type limited customer domestic be only possible one from the subject suppliers made the bulk of possible record. “Even if it is to draw their sales types, to different distributor two inconsistent conclusions from evi subject suppliers approxi- making record, dence a possibility such mately 74 percent their distributor not prevent does [the de Commission’s] distributors, sales to “branded” while the being supported termination from by industry domestic made percent 71.8 evidence.” Am. Silicon sales to non-“branded” distributors. The Techs. v. United 261 F.3d Commission also observed (Fed.Cir.2001). producers a significant sold share their Here, Majority Op. 1361. the Court of users, blades directly end sub- whereas appears International Trade to have ex ject blades more often used other its reviewing authority ceeded in DMSC I applications. Although there indeed in remanding the original sizes, mid-range some in the unsupported determination as being overlap, considered this substantial evidence. properly found overall between foreign the domestic and indus- Under these circumstances it seems to tries to limited. be Court of While the me that the remand right partly partly wrong partly — evi- of substantial finding a lack wrong in fur- remanding for
dence; right party then be- question explanation.
ther question ease—a how to resolve
comes has not been which complexity
of some I and as to which parties
briefed respectfully I dissent opinion. no
express insofar as majority’s decision
from the Court
holds not rest decision does
Trade’s grounds. evidence
on substantial TECHNOLOGIES,
TELCORDIA
INC., Plaintiff-Appellant,
v. *17 INC., SYSTEMS, Defendant-
CISCO Appellant.
Cross 2009-1175, 2009-1184.
Nos. Appeals, States Court
Federal Circuit.
July 6, 2010. En Banc Denied Oct.
Rehearing