NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

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.
______________________ 

2011-1362, -1382, -1383, -1454

______________________ 

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

PER CURIAM. 

LOURIE, DYK, PROST, MOORE, and O’MALLEY, Circuit 

Judges, concurring in the denial of the petition for 

rehearing en banc.

 WALLACH, Circuit Judge, with whom RADER, Chief 

Judge, and REYNA, Circuit Judge, join, dissenting from 

denial of the petition for rehearing en banc. 

______________________ 

 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 combined 

1 Circuit Judges Taranto and Hughes did not 

participate. 

 
petition 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. 

______________________ 

O R D E R

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. 

Upon consideration thereof, 

IT IS ORDERED THAT: 

(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.

FOR THE COURT

October 25, 2013

Date

/s/ Daniel E. O’Toole 

 Daniel E. O’Toole

 Clerk
NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

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.
2 NSK CORP v. USITC

______________________ 

2011-1362, -1382, -1383, -1454

______________________ 

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.

______________________ 

LOURIE, DYK, PROST, MOORE, and O’MALLEY, Circuit 

Judges, concurring in the denial of the petition for 

rehearing en banc. 

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 nondeferential 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); 
NSK CORP v. USITC 3

Thomas Brooks Chartered v. Burnett, 920 F.2d 634, 644 

(10th Cir. 1990); Druid Hills Civic Ass’n v. Federal Highway 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) (“Because 

we review the agency action on the identical basis as did 

the district court, no particular deference is accorded to 

the conclusions of the district court.” (internal quotation 

marks omitted)).

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 be 
4 NSK CORP v. USITC

called 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-tier 
NSK CORP v. USITC 5

substantial 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 antidumping cases, 

including the “duplicative” second review of the substantial evidence issue.

Prior to the enactment of the Trade Agreements Act of 

1979, which established the main components of the 

current system of judicial review in antidumping cases, 

the Customs Court and the CCPA (on review of Customs 

Court decisions) were both given very limited authority to 

review decisions of the Treasury Department and the 

Tariff Commission (predecessors to the Commerce Department and International Trade Commission, respectively). Ordinarily, those courts were not even permitted 

to review the agencies’ decisions for substantial evidence; 

review was limited, normally, to certain purely legal 

issues. See City Lumber Co. v. United States, 457 F.2d 

991, 994 (CCPA 1972); Kleberg & Co. v. United States, 71 

F.2d 332 (CCPA 1933). An exception to that highly deferential review by both reviewing courts was in cases in 

which the administrative record was deemed inadequate, 
6 NSK CORP v. USITC

in which case the Customs Court would conduct de novo 

review, creating a record of its own, which would then be 

reviewed deferentially by the CCPA. See Armstrong Bros. 

Tool Co. v. United States, 626 F.2d 168, 169 n.2 (CCPA 

1980) (citing ASG Indus., Inc. v. United States, 610 F.2d 

770 (CCPA 1979)). In those cases in which there was an 

adequate administrative record and review was conducted 

on that record, the scope of the review in the Customs 

Court and in the CCPA appeared to be the same, with the 

CCPA not deferring to the conclusion of the Customs 

Court as to the lawfulness of the agency’s action. See, e.g., 

Imbert Imports, Inc. v. United States, 475 F.2d 1189 

(CCPA 1973).

Because of congressional dissatisfaction with the 

scope of judicial review of antidumping orders pursuant to 

the Trade Act of 1974, the Trade Agreements Act of 1979 

created the scheme that is now in place. Congress made 

clear that the Customs Court was not to conduct de novo 

review of the pertinent administrative determinations, 

but was to review those determinations pursuant to 

traditional principles of administrative law, i.e., the APA. 

The legislative history of the 1979 Act explains:

Section 516A would make it clear that traditional 

administrative law principles are to be applied in 

reviewing antidumping and countervailing duty 

decisions where by law Congress has entrusted 

the decision-making authority in a specialized, 

complex economic situation to administrative 

agencies. . . . Review of determinations listed in 

subsection (a)(2) would proceed upon the basis of a 

formal administrative record and the standard of 

review provided is “unsupported by substantial 

evidence on the record or otherwise not in accordance with law” [i.e., language taken directly from 

the APA].
NSK CORP v. USITC 7

S. Rep. No. 96-249, at 252 (1979), reprinted in 1979 

U.S.C.C.A.N. 381, 638. Neither the 1979 Act nor the 

legislative history adverted to the standard of review to be 

applied by the CCPA in reviewing Customs Court decisions.1 However, various features of the legislation 

support the inference that, while both the Customs Court 

and the CCPA were expected to defer to the agencies, the 

CCPA was not supposed to defer to the Customs Court. 

Of particular significance in that regard are: 

(1) Congress’s decision to adopt the APA standard for 

Customs Court review of the agency decisions; 

(2) Congress’s determination that Customs Court review 

should be limited and based on the administrative record; 

and (3) Congress’s failure to suggest any deviation from 

standard APA practice for second-tier review support. 

Indeed, in a decision issued shortly after the 1979 Act, 

that is how the CCPA characterized its role in the review 

process. See Armstrong Bros., 626 F.2d at 170 (“[W]e 

conclude that the issue before this court in this case is 

properly stated to be whether the Customs Court correctly 

held that the Commission’s determination is supported by 

1 The dissenting opinion refers to a statement from 

the legislative history of the 1979 Act indicating Congress’s intent to “eliminate de novo review of assessments 

made pursuant to the antidumping and countervailing 

duty laws.” H.R. Rep. No. 96-317, at 181 (1979). The 

context of that statement and other similar statements in 

the legislative history makes clear that the reports were 

referring to eliminating de novo review of the agency’s 

determinations, not eliminating de novo appellate review 

of the trial court’s substantial evidence rulings. Shortly 

after the quoted material, the report explains that “the 

bill generally provides for a standard of review whereby 

the administrative level determination is upheld unless 

unsupported by substantial evidence.” Id. (emphasis 

added); see also S. Rep. No. 96-249, at 247-48 (1979).

 
8 NSK CORP v. USITC

substantial evidence in the record. . . . [T]he sole standard 

of review of factual determinations of injury or likelihood 

of injury in antidumping cases [is] whether the Commission’s determination is supported by substantial evidence.”). Thus, as of the time that the Customs Court was 

converted to the Court of International Trade and the 

CCPA was succeeded by this court, it appears that it was 

settled that judicial review of antidumping determinations was to be conducted pursuant to APA-type standards and that the review conducted by the trial court and 

by the second-tier reviewing court would be the same—

determining whether there was substantial evidence in 

the record before the agency to justify the agency’s determination. Under those circumstances, it is not surprising 

that, four years after Armstrong Bros., this court adopted 

the Atlantic Sugar de novo standard as the proper standard for our review of Court of International Trade decisions in substantial evidence cases.

As noted, the standards for review of administrative 

action set forth in section 1516a(b) are exactly the standards set forth in section 706 of the APA. Section 1516a(b) 

identifies certain determinations, findings, and conclusions that are to be held unlawful if found to be “arbitrary, capricious, an abuse of discretion, or otherwise not 

in accordance with law,” 19 U.S.C. §§ 1516a(b)(1)(A), 

1516a(b)(1)(B)(ii) (the same language that is found in the 

APA, 5 U.S.C. § 706(2)(A)), and it identifies other determinations, findings, and conclusions (including Commission findings as to material injury, at issue here), that are 

to be held unlawful if “unsupported by substantial evidence,” 19 U.S.C. § 1516a(b)(1)(B)(i) (the same language 

that is found in the APA, 5 U.S.C. § 706(2)(E)). See also

28 U.S.C. § 2640(b) (specifying section 1516a(b) as providing the standard of review in antidumping and countervailing duty cases). There is thus every reason to believe 

that Congress intended the judicial review process in the 

trade area to track the more general review process in 
NSK CORP v. USITC 9

district courts and courts of appeals under the APA. If 

that is so, the APA rule regarding de novo consideration 

of the issue of substantial evidence by courts of appeals 

comes into play.

4. Nor is there anything anomalous or peculiar about 

a court of appeals applying a de novo standard when 

reviewing a trial court’s determination regarding the 

sufficiency of evidence on which a particular tribunal 

based its decision.

Besides all the APA cases involving second-tier substantial evidence review of administrative action, there 

are several important categories of cases in which courts 

of appeals routinely conduct de novo review of trial court 

decisions as to the sufficiency of the evidence. For example, when a court of appeals reviews a district court’s 

grant or denial of JMOL, the court of appeals does not 

defer to the trial court’s decision. In reviewing the sufficiency of the evidence, the court of appeals applies the 

same standard that the trial court applied. Similarly, in 

the summary judgment context, the court of appeals does 

not defer to the trial court’s determination that the plaintiff’s evidentiary showing was insufficient to avoid summary judgment. While the summary judgment decision, 

like the JMOL decision, may involve facts, it presents a 

legal issue as to the sufficiency of those facts under the 

governing legal standard. The same is true of an administrative substantial evidence review. 

5. The dissenters argue that in light of the special expertise of the Court of International Trade, it would be 

sound policy to defer to the Court of International Trade’s 

substantial evidence decisions. Whether that is so or not, 

it is not the system that Congress created in 1979. Under 

these circumstances, a change in our review process is a 

matter that is appropriately left to legislative action, not 

judicial modification. Moreover, it is important to note 

that in conducting de novo review of substantial evidence 
10 NSK CORP v. USITC

determinations, this court does not ignore the decisions of 

the Court of International Trade; instead, as we have 

stated on numerous occasions, we pay close attention to 

the Court of International Trade’s analysis. See Nippon 

Steel Corp. v. United States, 458 F.3d 1345, 1351 (Fed. 

Cir. 2006) (“[W]e give great weight to the informed opinion of the Court of International Trade. . . . Indeed, it is 

nearly always the starting point of our analysis.” (internal 

quotation marks omitted)); Suramerica de Aleaciones 

Laminadas, C.A. v. United States, 44 F.3d 978, 983 (Fed. 

Cir. 1994) (“Although reviewing anew the ITC determination, this court will not ignore the informed opinion of the 

Court of International Trade. That court reviewed the 

record in considerable detail. Its opinion deserves due 

respect.”). Thus, it is incorrect to suggest that the Atlantic Sugar standard renders superfluous the Court of 

International Trade’s decisions on issues of substantial 

evidence. 

In sum, the Atlantic Sugar standard of review is consistent with principles of judicial review of administrative 

action as well as judicial review principles applied in 

other contexts, and the trade statutes make clear that 

Congress intended to apply those principles to this court’s 

review of the decisions of the Court of International 

Trade. There is thus no need or justification for this court 

to jettison the Atlantic Sugar rule.
NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

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.
2 NSK CORP v. USITC

______________________ 

2011-1362, -1382, -1383, -1454

______________________ 

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.

______________________ 

WALLACH, Circuit Judge, with whom RADER, Chief Judge, 

and REYNA, Circuit Judge, join, dissenting from denial of 

the petition for rehearing en banc. 

According to statute, the United States Court of International Trade (“CIT”) reviews the International Trade 

Commission’s (“ITC”) material injury determinations for 

substantial evidence. 19 U.S.C. § 1516a(b) (2006). This 

court currently reviews the CIT’s substantial evidence 

determinations de novo. Atlantic Sugar, Ltd. v. United 

States, 744 F.2d 1556, 1559 n.10 (Fed. Cir. 1984). Perhaps recognizing the duplicative and inefficient nature of 

de novo review, this court has inconsistently applied that 

standard in the almost thirty years since Atlantic Sugar

was decided. Most notably, the CIT’s remands to the ITC 

for additional explanation are reviewed deferentially for 

an abuse of discretion, but remands for additional findings are reviewed de novo. There is no statutory or practical basis to distinguish the two.

I believe this conflict should be resolved in favor of 

deferential review, consistent with the “misapprehended 

or grossly misapplied” standard articulated by the Supreme Court in Universal Camera Corp. v. National 

Labor Relations Board, 340 U.S. 474, 491 (1951).1 Under 

1 Universal Camera was an appeal from the Second 

Circuit’s review of a National Labor Relations Board 

 
NSK CORP v. USITC 3

that review, the CIT’s substantial evidence determinations would be reversed only if the CIT “misapprehended 

enforcement order, which is reviewed in the first instance 

by the regional circuit courts of appeal. 340 U.S. at 491. 

The Supreme Court has also applied the “misapprehended

or grossly misapplied” standard in other contexts where 

Congress placed the substantial evidence standard in the 

keeping of the courts of appeals. See, e.g., Am. Textile 

Mfrs. Inst., Inc. v. Donovan, 452 U.S. 490, 522–23 (1981) 

(regulations issued by Occupational Safety and Health 

Administration); Fed. Trade Comm’n v. Ind. Fed’n of 

Dentists, 476 U.S. 447, 453 (2009) (Federal Trade Commission’s order regarding unfair methods of competition). 

Appellant Timken Company argues the “misapprehended or grossly misapplied” standard is not appropriate 

for second-level review at the courts of appeals. See

Timken’s Resp. in Opp’n to Pet. 7. In other words, appellant contends the standard is used by the Supreme Court 

in deciding to grant certiorari when the circuit court 

“misapprehended or misapplied” the substantial evidence 

standard. This is not so. For example, in American 

Textile, the Supreme Court granted certiorari, but ultimately concluded the court of appeals did not misapprehend or misapply the substantial evidence standard, and 

thus affirmed that aspect of the decision. Am. Textile 

Mfrs., 452 U.S. at 530. Appellant is correct that the 

Universal Camera standard is not applied in all secondtier substantial review cases; rather, it addresses the role 

of a second-level reviewing court when Congress has 

allocated the substantial evidence review to a particular 

lower court. Universal Camera, 340 U.S. at 491. As 

discussed below, Congress has placed substantial evidence review of the ITC’s material evidence determinations in the keeping of the CIT, and the statute makes no 

mention of this court engaging in that same review. 19 

U.S.C. § 1516a(b).

 
4 NSK CORP v. USITC

or grossly misapplied” the substantial evidence standard.2 

Id. Deferential review is appropriate because of the CIT’s 

unique appellate role and its institutional expertise in 

trade matters. Because of the conflict in this court’s case 

law and the importance of this issue, I believe the de novo

standard should be reconsidered en banc. I dissent from 

this court’s contrary ruling. 

I. Atlantic Sugar

This court’s application of the de novo standard, and 

the perennial challenges to its appropriateness, began 

with a single, unsupported footnote in Atlantic Sugar. 

744 F.2d at 1559 n.10. Citing to no authority, the footnote 

stated: “We review [the CIT’s] review of an ITC determination by applying anew the statute’s express judicial 

review standard.”3 Id. “Other than citation to [19 U.S.C.] 

§ 1516a, Atlantic Sugar gave no explanation for according 

no deference to decisions of the [CIT].” Zenith Elecs. 

Corp. v. United States, 99 F.3d 1576, 1580 (Fed. Cir. 1996) 

(Rader, J., concurring). The statute upon which Atlantic 

Sugar relied is located in the “Scope and Standard of 

Review” section of the “Court of International Trade 

Procedure” chapter of Title 28, and specifies that “the

2 The appropriateness of the Universal Camera

standard has been recognized by judges of this court. See, 

e.g., Zenith Elecs. Corp. v. United States, 99 F.3d 1576, 

1579 (Fed. Cir. 1996) (Plager, J., concurring) (“The Universal Camera standard utilized by the Supreme Court in 

similar situations makes eminently good sense. I would 

apply it here, as well as in comparable situations in which 

we review the judgment of a reviewing court which has 

already applied the substantial-evidence-in-the-record 

test to an initial adjudication.”). See further discussion 

infra Part II.

3 Despite this pronouncement, the Atlantic Sugar

court’s “substantial evidence” analysis comprises only the 

final page of its decision.

 
NSK CORP v. USITC 5

court shall review the matter as specified in [19 U.S.C. § 

1516a(b)]” (which requires substantial evidence review).4 

28 U.S.C. § 2640(b). Thus, Congress assigned substantial 

evidence review to the CIT and the statute makes no 

grant to this court of that same standard of review. Nippon Steel Corp. v. United States, 458 F.3d 1345, 1350 

(Fed. Cir. 2006). Congress designated the substantial 

evidence standard as “Court of International Trade Procedure.” This court is bound by law to respect Congress’ 

decision. See Universal Camera, 340 U.S. at 491 (adopting the “misapprehended or grossly misapplied” standard 

because Congress had placed substantial evidence review 

“in the keeping of the Courts of Appeals”).

 The legislative history of § 1516a(b) further weighs 

against de novo review. Congress adopted § 1516a(b) to 

“eliminate de novo review of determinations or assessments made pursuant to the antidumping and countervailing duty laws” because such review was “timeconsuming and duplicative.” H.R. Rep. No. 96-317, at 181 

(1979). While this statement was made in reference to 

eliminating de novo review of agency determinations, to 

which “Congress has entrusted the decision-making 

authority in a specialized, complex economic situation,” S. 

Rep. No. 96-249, at 252 (1979), reprinted at 1979 

U.S.C.C.A.N. 381, 638, Congress clearly recognized the 

intense, fact-based nature of trade cases. Duplicative and 

burdensome review at the appellate level is inconsistent 

with Congress’ professed goal of streamlining trade cases 

at the agency and trial court levels. It is evident that the 

overarching intent of the 1979 legislation was to eliminate 

the “time-consuming and duplicative” work that the 

Atlantic Sugar standard later imposed.

4 This subsection of the statute has not been revised 

since Atlantic Sugar, other than some renumbering. See

19 U.S.C. § 1516a(b)(1)(B)(i) (2006); 19 U.S.C. § 1516a

(b)(1)(B) (1982).

 
6 NSK CORP v. USITC

II. This Court’s Case Law Under Atlantic Sugar

Members of this court have questioned the propriety 

of the Atlantic Sugar standard in the past and will continue to do so. See, e.g., Zenith, 99 F.3d at 1580 (Rader, 

J., concurring) (“Although bound to follow the Atlantic 

Sugar standard, I perceive that the statute and its history 

suggest that this court has misapprehended the proper 

standard of review.”); id. at 1582 (Rader, J., concurring) 

(“Since Atlantic Sugar, this court has questioned either 

directly or by implication the propriety of duplicating the 

review of the [CIT].”). Indeed, while purporting to apply 

de novo review, the court has sub silentio adopted a 

modification giving “due respect” and/or “great weight” to 

the opinion of the CIT, indicating some unpredictable 

amount of deference the court believes the CIT’s decisions 

command.5 Suramerica de Aleaciones Laminadas, C.A. v. 

United States, 44 F.3d 978, 983 (Fed. Cir. 1994); Nippon 

Steel, 458 F.3d at 1351.

5 This modified Atlantic Sugar standard is evident 

in this court’s more recent decisions: “When performing a 

substantial evidence review, . . . we give great weight to 

the informed opinion of the [CIT]. Indeed, it is nearly 

always the starting point of our analysis.” Cleo Inc. v. 

United States, 501 F.3d 1291, 1296 (Fed. Cir. 2007) (emphasis added) (citations and internal quotation marks 

omitted); see also Taiwan Semiconductors Indus. Ass’n v. 

Int’l Trade Comm’n, 266 F.3d 1339, 1343–44 (Fed. Cir. 

2001) (“On substantial evidence questions, this court 

reviews the [CIT’s] review of Commission decisions by 

stepping into the shoes of the [CIT] and duplicating its 

review under the standard in [the statute]. However, this 

court will not ignore the informed opinion of the [CIT] in 

performing its review. That court reviewed the record in 

considerable detail. Its opinion deserves due respect.”) 

(emphasis added) (citations and internal quotation marks 

omitted).

 
NSK CORP v. USITC 7

Even more peculiar is this court’s development of a bifurcated application of the Atlantic Sugar standard, 

which has no basis in the statute or in case law. Under 

this approach, as articulated in NSK itself:

The appropriate standard of review depends on 

the posture of the case. When the [CIT] orders 

the Commission to enter a negative determination, this court steps into the shoes of the trade 

court and conducts a de novo review of whether 

the Commission’s determinations are supported 

by substantial evidence. This court also reviews 

the Commission’s determinations for substantial 

evidence when the [CIT] “remand[s] to the Commission, giving it two options on how to proceed: 

[1] reopen the record in order to obtain substantial evidence to support its adverse impact conclusion or [2] make a determination that subject 

imports will have no adverse impact should the 

orders be revoked.” By contrast, we review remand orders issued by the [CIT] for abuse of discretion when the trade court does not assess the 

sufficiency of the evidence supporting the Commission’s determinations or require additional investigation by the Commission, but “merely 

remand[s] the matter for additional explanation 

that would clarify the Commission’s determination.”

NSK Corp. v. U.S. Int’l Trade Comm’n, 716 F.3d 1352, 

1363 (Fed. Cir. 2013) (quoting Nippon Steel Corp. v. U.S. 

Int’l Trade Comm’n, 494 F.3d 1371, 1378 (Fed. Cir. 2007); 

Altx, Inc. v. United States, 370 F.3d 1108, 1117 (Fed. Cir. 

2004)). The abuse of discretion standard in the court’s 

current framework appears to have been first articulated

in Taiwan Semiconductors Industrial Association v. 

International Trade Commission, which cites only to a 

Third Circuit case’s passing mention of that standard. 

266 F.3d 1339, 1344 (Fed. Cir. 2001) (citing Marshall v. 
8 NSK CORP v. USITC

Lansing, 839 F.2d 933, 940 (3d Cir. 1988)). Thus, this 

court currently applies two different standards of review 

depending upon its interpretation of the CIT’s remand 

instructions.

The distinction between remanding for additional explanation and remanding to reopen the record to provide 

additional support for adverse impact conclusions is not 

found in the trade statute, see 19 U.S.C § 1516a(c)(3), and 

does not follow common sense. There is simply no principled difference between when the CIT remands a case to 

the agency for further explanation or for additional evidence. In both situations, the CIT finds that a determination was not supported by substantial evidence and sends 

it back to the agency. Whether the CIT remands for 

clarification or for clarifying data is of little consequence. 

In fact, the CIT often gives the agency the choice of how to 

deal with the evidentiary insufficiency, suggesting the 

agency may reopen the record at its choosing. See, e.g., 

Tropicana Prods., Inc. v. United States, 484 F. Supp. 2d 

1330, 1354 (2007) (“If it finds it necessary or efficacious, 

the Commission may reopen the record.”). Allowing an 

agency to effectively choose at whim this court’s standard 

of CIT review is simply nonsensical.

In addition to its questionable provenance, this clumsy framework is unworkable. Indeed, even in NSK, the 

court wrestled with the question of whether the CIT had 

remanded for additional evidence or additional explanation in order to determine which standard to apply. NSK, 

716 F.3d at 1363–64. Other cases portray a similar 

struggle, for there is no substantive difference between 

the two. See, e.g., Diamond Sawblades Mfrs. Coal. v. 

United States, 612 F.3d 1348, 1356–58 (Fed. Cir. 2010) 

(providing a lengthy and labored analysis of whether the 

CIT’s remand was for additional explanation or based on 

a finding of insufficient evidence); Altx, 370 F.3d at 1117 

(including an extensive analysis of the appropriate standard of review). This court now applies two conflicting 
NSK CORP v. USITC 9

standards of review in ITC cases and this conflict must be

resolved en banc. 

III. Deference to the CIT’s Decisions Is Appropriate

Deference in appeals where the CIT reviewed the 

ITC’s material injury determinations is particularly 

warranted in light of the CIT’s recognized expertise in 

international trade. United States v. Haggar Apparel Co., 

526 U.S. 380, 394 (1999) (“The expertise of the [CIT] . . . 

guides it in making complex determinations in a specialized area of the law . . . .”). This court has also acknowledged the expertise of the CIT: “To be sure, judges of the 

[CIT] are experts in [cases reviewing the Commission’s 

material injury determinations], which form most of their 

docket, while this court’s judges are characterized as 

generalists, as trade cases comprise only about six percent 

of the Federal Circuit docket.” Nippon Steel, 458 F.3d at 

1350. The inappropriateness of de novo review given this 

expertise has likewise been noted: “In addition to adding 

unnecessary time and expense to the appeal process, the 

Atlantic Sugar standard undercuts the benefits this court 

derives from the experience and expertise of the [CIT].” 

Zenith, 99 F.3d at 1583 (Rader, J., concurring).

The legislative history of the Customs Courts Act of 

1980 repeatedly emphasizes the “specialized experience” 

of the Customs Court, the CIT’s predecessor.6 See, e.g., 

H.R. Rep. No. 96-1235 (1980), reprinted in 1980 

6 The legislative history also references the specialized experience of this court’s predecessor, the United 

States Court of Customs and Patent Appeals. However, 

the jurisdiction of that court was considerably altered in 

the Federal Courts Improvement Act of 1982, when it was 

merged with the U.S. Court of Claims. Accordingly, “this 

court’s judges are characterized as generalists,” whereas 

“judges of the Court of International Trade are experts in 

[trade] cases.” Nippon Steel, 458 F.3d at 1350. 

 
10 NSK CORP v. USITC

U.S.C.C.A.N. 3729. This experience can be traced back to 

1890, when the Customs Court began as “the board of 

general appraisers, an administrative unit within the 

Department of the Treasury, which was responsible for 

the review of decisions by Customs officials as to the rate 

and amount of duty imposed on imported merchandise, as 

well as the value of such merchandise.” Id. at 18, reprinted in 1980 U.S.C.C.A.N. 3729, 3730 (Statement by Rep. 

Rodino). In the years that followed, “the court gradually 

became an integral part of the Federal judicial system,” 

and in 1956 Congress declared it an Article III court. Id.

This unique appellate path from an agency to a specialized Article III court makes the CIT and its expertise 

in trade matters sui generis among Article III courts. 

This is especially true in reviewing antidumping issues, 

such as the ITC’s material injury determinations. See Ad 

Hoc Shrimp Trade Action Comm. v. United States, 618 

F.3d 1316, 1321 (Fed. Cir. 2010) (quoting Int’l Trading 

Co. v. United States, 281 F.3d 1268, 1274 (Fed. Cir. 2002) 

(“[T]he [CIT] ‘has expertise in addressing antidumping 

issues and deals on a daily basis with the practical aspects of trade practice.’”)).

In opposition to rehearing en banc, the Timken Company argues that there is nothing novel or anomalous 

about a court of appeals applying the de novo standard in 

reviewing a trial court’s sufficiency of evidence determination, even in the context of specialty courts. Timken’s

Resp. in Opp’n to Pet. 3–6. There is no indication, it 

argues, that trade cases require different treatment. 

Such arguments disregard the CIT’s unique procedures 

and its active role in supervising the development of 

administrative records in trade cases. The CIT is not 

simply a subject-specialty court; it also has a unique role 

in the litigation process.

Under its governing statute, the CIT either remands 

trade cases to the agency for further explanation or devel-
NSK CORP v. USITC 11

opment of the record, or it sustains the agency’s determination. 19 U.S.C. § 1516a(c), (e). Unlike other settings, 

the agency’s remand redetermination returns to the CIT 

(and to the same judge) for reexamination. In this typically multi-year, iterative process, the case is repeatedly 

remanded until the CIT finds the determination is supported by substantial evidence and therefore can be 

sustained. Parties cannot appeal a remand decision until 

the CIT ultimately sustains the agency’s decision. Thus, 

when an appeal arrives at this court, we are tasked with 

reviewing multiple dispositions made over a period of 

years by the same judge.

Therefore, by the time a case is finally appealed to 

this court, the length and complexity of the case history 

make true “de novo” review wasteful and impracticable. 

Moreover, such a unique procedural environment highlights the sui generis character of the CIT. In no other 

situation does a court identify gaps in the evidence in an 

administrative record and task the agency with further 

explaining its determination or supplementing the record, 

over and over again until the substantial evidence threshold is met. Beyond being subject specialists, the judges of 

the CIT assume a unique role in overseeing the development of each of their cases.

This court often takes note of the complex procedural 

history of cases from the CIT. See, e.g., Nippon Steel, 494 

F.3d at 1373 (“The complex procedural history of this 

sunset review spans more than six years and includes 

four determinations by the Commission and six opinions 

from the [CIT].”); Nippon Steel, 458 F.3d at 1348 (“This 

antidumping case has a procedural history spanning six 

years, which now includes four determinations by the 

Commission, four opinions from the [CIT], and one prior 

opinion from this court.”). Perhaps because no reviewing 

court could truly review such a process de novo, this court 

has opined on several occasions that a more appropriate 

standard may be whether the CIT “misapprehended or 
12 NSK CORP v. USITC

grossly misapplied” the substantial evidence standard of 

review. See, e.g., Suramerica, 44 F.3d at 982–83 n.1; see 

also Zenith, 99 F.3d at 1579 (Plager, J., concurring).

This case is a perfect example. As this court observed, 

the CIT engaged in “extensive” proceedings in which it 

authored six separate decisions and reviewed five successive injury determinations by the ITC. NSK, 716 F.3d at 

1355. The CIT reviewed thousands of pages of record 

evidence, identified gaps in the ITC’s findings, and ordered a series of targeted remands to resolve the insufficiencies, ultimately affirming a negative injury 

determination once it was satisfied with the ITC’s determination. Id. at 1355–63. This court purportedly reviewed all of this de novo by reapplying the substantial 

evidence analysis. It did so with five and half pages of 

analysis, and in one fell swoop, it reversed and vacated 

the CIT’s orders, and reinstated the ITC’s affirmative 

injury determination, seven years into litigation.

As is evident, then, by applying the same standard as 

the CIT, the Federal Circuit renders the CIT’s review 

superfluous and deprives litigants of the benefits of the 

CIT’s subject-expertise, as well as its case-specific experience.7 Replacing our current “de novo” standard with a 

more appropriate standard would restore the deference 

the CIT deserves as an expert court, and would remedy 

this inefficient and wasteful process. In addition, it would 

no longer “encourage[] disappointed litigants with deep 

pockets to seek a second bite at the apple, often with no 

visible benefits except to the litigators since generally we 

are not likely to reverse on that ground.” Zenith, 99 F.3d 

at 1579 (Plager, J., concurring).

IV. Developments in Trade Law and Administrative Law

7 As noted, the same judge, here Judge Barzilay, 

handled the case through all iterations of remand and 

redetermination. 

 
NSK CORP v. USITC 13

Significant developments in the areas of trade law 

and administrative law in the three decades since Atlantic 

Sugar was decided further weigh in favor of deference to 

the CIT. The trade regime has transformed dramatically 

over the past three decades, requiring the CIT to keep 

abreast of the near-constant developments in that area. 

These developments occur not just domestically, but at 

the international level. Hence, the judges of the CIT 

closely monitor the activity of international bodies, including the World Trade Organization. Predictably, then, 

there have been significant revisions to the trade statutes. 

Even the underlying legal standard in Atlantic Sugar—

the “best information available rule”— has been replaced 

with the complex “facts available framework.” Compare

19 U.S.C. § 1677e(b) (1982) with 19 U.S.C. § 1677e 

(2006).8 Such frequent developments in trade law further 

distinguish the CIT and highlight the appropriateness of 

a deferential standard of review. The transformative 

developments in trade law since Atlantic Sugar was 

decided vitiate our adherence to a three-decade-old case.

There have also been major developments in Supreme 

Court jurisprudence in the area of administrative law, 

including the advent of Chevron deference and the articulation of Mead deference. Chevron, U.S.A., Inc. v. Natural 

Res. Def. Council, Inc., 467 U.S. 837 (1984); United States 

v. Mead Corp., 533 U.S. 218, 226–27 (2001). Indeed, 

Chevron was decided just three months to the day before 

Atlantic Sugar, and its impact on administrative law is 

immeasurable. 

In the three decades since Atlantic Sugar was decided, the Supreme Court has reviewed four decisions of the 

8 In fact, part of the framework that replaced that 

in Atlantic Sugar was attributable to the Uruguay Round 

of negotiations of the General Agreement on Tariffs and 

Trade. Uruguay Round Agreements Act, Pub. L. No. 103–

465, 108 Stat. 4809 (1994).

 
14 NSK CORP v. USITC

CIT. Three of these cases dealt with Chevron deference.9 

In 1999, the Court examined whether customs classification regulations are entitled to Chevron deference. 

Haggar Apparel, 526 U.S. at 394 (“Like other courts, the 

[CIT] must, when appropriate, give regulations Chevron 

deference.”). Similarly, in United States v. Eurodif S.A., 

555 U.S. 305 (2009), the Court analyzed the reasonableness of the Department of Commerce’s interpretation of a 

statute. 555 U.S. at 316 (“[A] change in regulatory treatment . . . is not a basis for declining to analyze the agency’s interpretation under the Chevron framework. [T]he 

whole point of Chevron is to leave the discretion provided 

by the ambiguities of a statute with the implementing 

agency.”) (internal citation and quotation marks omitted). 

Finally, and most notably, the Court used a CIT customs 

classification case as a platform for reaffirming Skidmore

deference. Mead, 533 U.S. at 221 (“We agree that a tariff 

classification has no claim to judicial deference under 

Chevron, there being no indication that Congress intended such a ruling to carry the force of law, but we hold that 

under Skidmore v. Swift & Co., 323 U.S. 134 (1944), the 

ruling is eligible to claim respect according to its persuasiveness.”).

While these cases do not specifically address the legal 

issues involved in ITC injury cases, they illustrate the 

significant shift in administrative law that has occurred 

since Atlantic Sugar; in particular, a shift in which greater deference is granted to administrative agencies at the 

trial court level. Subjecting an agency’s work to duplicative substantial evidence review sails counter to the 

currents in administrative law.

9 The fourth case, United States v. U.S. Shoe Corp., 

523 U.S. 360 (1998), is a case dealing with a customs tax 

found to be unconstitutional under the Export Clause, 

U.S. Const., Art. I, § 9, cl. 5.

 
NSK CORP v. USITC 15

For the foregoing reasons, I believe the court should 

have taken this opportunity to review the propriety of 

continued adherence to Atlantic Sugar. Atlantic Sugar’s 

de novo review is inefficient, obsolete, and thwarts the 

will of Congress. It is, in short, bad law under any reasoned application of stare decisis.