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December 17, 2012


Dumb judges have been dumped on the CAFC for decades. The few decent ones are fed up. Old saws Dyk and Clevenger are called out by a dissent from Judge Reyna, the penultimate member, over an anti-dumping appeal from a Chinese company.

Changzhou Wujin Fine Chemical Factory and Jiangsu Jianghai Chemical Group v. United States and Compass Chemical International (CAFC 2011-1080) precedential; Judge Dyk (author), Clevenger, Reyna (dissent)

The majority's conclusion that the Department of Commerce ("Commerce") acted arbitrarily when it assigned appellant Jiangsu Jianghai Chemical Group, Ltd. a company-specific Adverse Facts Available ("AFA") rate is based on three fundamental errors.
First, the majority goes to great length to address an AFA issue that was neither appealed nor otherwise properly before this court. Appellant had conceded that specific issue in the underlying proceedings before Commerce and the Court of International Trade.
Second, the majority manifests a fundamental misunderstanding of the AFA statute and how AFA applies in the context of antidumping duty investigations. The majority writes to cure what it perceives to be an injustice created by Commerce applying AFA to a voluntary, cooperating respondent.
Third, the majority applies the wrong standard of review. The majority applies an arbitrary and capricious standard to Commerce's fact finding determinations. Our case law and that of the Court of International Trade makes clear that a substantial evidence standard of review applies with respect to factually based determinations.
In sum, the majority has created its own issue, which it hoists with non-existing terminology, it seeks to correct a wrong and sets the foundation for absurd results in the future, and it conducts its analysis under the wrong standard of review.

Having heard Judge Dyk talk one night a few years back, avoiding the very topic he had assigned himself, and spouting as much gibberish as sense, what was most striking was how mentally infirm the man was, in stark contrast to how he was introduced by a sycophantic accolade as a legal genius.

Posted by Patent Hawk at December 17, 2012 11:27 AM | Case Law