Changzhou Trina Solar Energy Co., Ltd. v. U.S. Int'l Trade Comm'n

879 F.3d 1377

CHANGZHOU TRINA SOLAR ENERGY CO., LTD., Trina Solar (U.S.) Inc., Yingli Green Energy Holding Company Limited, Yingli Green Energy Americas, Inc., Plaintiffs–Appellants

Wuxi Suntech Power Co., Ltd., Suntech America, Inc., Suntech Arizona, Inc., Plaintiffs

v.UNITED STATES INTERNATIONAL TRADE COMMISSION, SolarWorld Americas, Inc., Defendants–Appellees

2016-1053

United States Court of Appeals, Federal Circuit.

Decided: January 22, 2018

Neil R. Ellis, Sidley Austin LLP, Washington, DC, argued for plaintiffs-appellants.

Mary Jane Alves, Office of the General Counsel, United States International Trade Commission, Washington, DC, argued for defendant-appellee United States International Trade Commission. Also represented by Andrea C. Casson, Dominic L. Bianchi.

Timothy C. Brightbill, Wiley Rein, LLP, Washington, DC, argued for defendant-appellee SolarWorld Americas, Inc. Also represented by Tessa V. Capeloto, Laura El–Sabaawi, Usha Neelakantan.

Before Taranto, Plager, and Chen, Circuit Judges.

Taranto, Circuit Judge.

Changzhou Trina Solar Energy Co., Ltd., and Yingli Green Energy Holding Company, Ltd., are Chinese producers of crystalline silicon photovoltaic cells, modules, laminates, and panels (CSPV products). Those products were imported into the United States and were the "subject imports" in the proceeding at issue here. Trina Solar (U.S.), Inc., and Yingli Green Energy Americas, Inc., imported the subject imports into the United States. The two producers and two importers—collectively, the Chinese Respondents—are appellants in this court.

On October 19, 2011, appellee SolarWorld Americas, Inc., filed petitions seeking imposition on the subject imports of antidumping duties under 19 U.S.C. §§ 1673 – 1673h and countervailing duties under 19 U.S.C. §§ 1671 – 1671h. The U.S. Department of Commerce eventually agreed with SolarWorld that the subject imports were being sold in the United States at less than its fair value and were being unfairly subsidized by the Chinese government. Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled into Modules, from the People's Republic of China: Final Determination of Sales at Less Than Fair Value, and Affirmative Final Determination of CriticalCircumstances, in Part , 77 Fed. Reg. 63,791 (Oct. 17, 2012) (Commerce Antidumping Duty Determination ); Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled Into Modules, From the People's Republic of China: Final Affirmative Countervailing Duty Determination and Final Affirmative Critical Circumstances Determination , 77 Fed. Reg. 63,788 (Oct. 17, 2012) (Commerce Countervailing Duty Determination ). The International Trade Commission, performing its role in the statutory process for imposition of duties, then determined that "an industry in the United States is materially injured by reason of imports of crystalline silicon photovoltaic ('CSPV') cells and modules from China that [Commerce] has determined are subsidized and sold in the United States at less than fair value." Crystalline Silicon Photovoltaic Cells and Modules from China , Inv. (Nos. 701-TA-481 and 731-TA-1190), USITC Pub. 4360, at 3, 2012 WL 12850628 (Nov. 2012) (Final) ( ITC Final Decision ); Crystalline Silicon Photovoltaic Cells and Modules from China , 77 Fed. Reg. 72,884 (Dec. 6, 2012).

The Chinese Respondents appealed the Commission's determination to the United States Court of International Trade. As relevant here, they argued that the Commission had not properly found the required causal connection between the unfairly priced or subsidized imports and the weakened state of the domestic industry that it identified as "materially injured by reason of" the imports. The Court of International Trade rejected the challenge and sustained the Commission's determination. Changzhou Trina Solar Energy Co., Ltd. v. U.S. Int'l Trade Comm'n , 100 F.Supp.3d 1314, 1331–32, 1349 (Ct. Int'l Trade 2015).

The Chinese Respondents timely appealed. We have jurisdiction under 28 U.S.C. § 1295(a)(5). We review the Commission's determination using the same standard as the Court of International Trade: we ask whether it was "unsupported by substantial evidence on the record, or otherwise not in accordance with law." Siemens Energy, Inc. v. United States , 806 F.3d 1367, 1369 (Fed. Cir. 2015) (quoting 19 U.S.C. § 1516a(b)(1)(B)(i) ). We affirm.

I

Congress has directed the federal government, in defined circumstances, to impose antidumping duties on "foreign merchandise ... being, or ... likely to be, sold in the United States at less than its fair value." 19 U.S.C. § 1673(1). Congress has likewise directed the government, in defined circumstances, to impose countervailing duties on "merchandise imported, or sold (or likely to be sold) for importation, into the United States" for which "the government of a country or any public entity within the territory of a country is providing, directly or indirectly, a countervailable subsidy with respect to the manufacture, production, or export" of that merchandise. Id . § 1671(a)(1). This case involves a requirement of both regimes.

Each regime divides the authority to make the required judgments between Commerce and the Commission. Commerce determines the existence of the unfair pricing or subsidies—for antidumping duties, "whether the subject merchandise is being, or is likely to be, sold in the United States at less than its fair value," id . § 1673d(a)(1); see also id. § 1673(1) ; for countervailing duties, "whether or not a countervailable subsidy is being provided with respect to the subject merchandise," id . § 1671d(a)(1); see also id. § 1671(a)(1). The Commission determines, for both kinds of duties, whether

(A) an industry in the United States—(i) is materially injured, or (ii) is threatened with material injury, or (B) the establishment of an industry in the United States is materially retarded, by reason of imports, or sales (or the likelihood of sales) for importation, of the merchandise

for which Commerce has found unfair pricing or subsidies. Id . § 1673d(b)(1) (antidumping duty provision for final determination); see id. § 1671d(b)(1) (countervailing duty provision for final determination); see also id. §§ 1673(2), 1671(a)(2). For each of the antidumping and countervailing duty regimes, if both agencies answer their assigned questions affirmatively, Commerce issues the duty-imposing order. See id. §§ 1673d(c)(2), 1671d(c)(2); Duferco Steel, Inc. v. United States , 296 F.3d 1087, 1089 (Fed. Cir. 2002).

This case involves the Commission's determination that the domestic industry was, in the statutory phrase, "materially injured ... by reason of imports" of the Chinese Respondents' merchandise. See ITC Final Decision , at 3 (finding that domestic industry was "materially injured by reason of" the subject imports). We have noted the two parts of such a finding: that there is "present material injury"; and that "the material injury is 'by reason of' the subject imports." Gerald Metals, Inc. v. United States, 132 F.3d 716, 719 (Fed. Cir. 1997). Congress has further specified that, "[i]n making determinations" under the material-injury provisions for both antidumping and countervailing duties,

the Commission, in each case—

(i) shall consider

(I) the volume of imports of the subject merchandise,

(II) the effect of imports of that merchandise on prices in the United States for domestic like products, and(III) the impact of imports of such merchandise on domestic producers of domestic like products, but only in the context of production operations within the United States; and

(ii) may consider such other economic factors as are relevant to the determination regarding whether there is material injury by reason of imports.

19 U.S.C. § 1677(7)(B) ; see also id . § 1677(7)(C)(i)–(iv) (directing Commission to consider enumerated topics).

The language Congress used—injury "by reason of" specified conduct—is familiar in many legal contexts. Recently, the Supreme Court has repeatedly made explicit that, as a matter of settled ordinary legal meaning, the phrase requires, at a minimum, "but for" causation of the injury by the statutorily identified conduct. See Burrage v. United States , ––– U.S. ––––, 134 S.Ct. 881, 889, 187 L.Ed.2d 715 (2014) ("the phrase, 'by reason of,' requires at least a showing of 'but for' causation") (citation omitted); Gross v. FBL Fin. Servs., Inc. , 557 U.S. 167, 176, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009) (reasoning that adverse action "because of" age in the Age Discrimination in Employment Act means "by reason of" age, which has a settled meaning, so that "[t]o establish a disparate-treatment claim under the plain language of the ADEA[ ], a plaintiff must prove that age was the 'but-for' cause of the employer's adverse decision"); Holmes v. Sec. Inv'r Prot. Corp. , 503 U.S. 258, 265–68, 112 S.Ct. 1311, 117 L.Ed.2d 532 (1992) (reasoning that a statute permitting recovery for injuries suffered "by reason of" the defendant's violation "require[s] a showing that the defendant's violation ... was," among other things, "a 'but for' cause of his injury"); see also Univ. of Tex. Sw. Med. Ctr. v. Nassar , 570 U.S. 338, 133 S.Ct. 2517, 2527, 186 L.Ed.2d 503 (2013) ; Bridge v. Phx. Bond & Indem. Co. , 553 U.S. 639, 652–55, 128 S.Ct. 2131, 170 L.Ed.2d 1012 (2008).

A number of courts of appeals have recognized, in various contexts, that the Supreme Court's precedents establish a strong default interpretation requiring but-for causation, at a minimum, when a statute uses "by reason of." See , e.g. , Woods v. START Treatment & Recovery Ctrs., Inc. , 864 F.3d 158, 168 (2d Cir. 2017) (referring to "indicia of Congress's intent to create 'but for' causation—words like 'because' or 'by reason of' "); Torres v. S.G.E. Mgt., L.L.C. , 838 F.3d 629, 636 (5th Cir. 2016) (noting that "[t]he Supreme Court requires plaintiffs to establish both but-for cause and 'proximate cause in order to show injury "by reason of" a RICO vio...