Loper Bright Doesn't Affect Commerce's Differential Pricing Analysis, US Says
The Supreme Court's holding in Loper Bright Enterprises v. Raimondo, which eliminated the concept of deferring to federal agencies' interpretations of ambiguous statutes, "does not affect" the Court of International Trade's review of the differential pricing analysis, the U.S. argued in a Feb. 14 brief (Government of Canada v. United States, CIT # 23-00187).
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The government claimed that "Loper Bright did not disturb the deference owed to Commerce’s fact-finding under the substantial evidence standard." The Commerce Department used the "discretion that Congress committed to it" in telling the agency to find a pattern of export prices that "differ significantly among purchasers, regions, or periods of time" to "implement a statistical test," the brief said.
The statute at issue, 19 U.S.C. 1677f-1(d)(1)(B), "is written in general terms," indicating that Congress meant to delegate the question "of whether particular facts satisfy the statute's requirements to Commerce," the U.S. said. The brief highlighted the trade court's decision in Garg Tube Export v. U.S., which said that the "text of the statute and its legislative history indicate that Congress gave Commerce flexibility by its use of the open-ended term ‘differ significantly.’”
Responding to claims from various exporters, including a group of plaintiffs led by Resolute FP Canada, the U.S. argued that Garg Tube was not wrongly decided, as claimed by Resolute. The exporter said "significant' is not an open-ended term. The government said the term "significantly" is similar to "substantially" -- the word at issue in a 2024 U.S. Court of Appeals for the Federal Circuit case, Asemesa v. U.S.
In that case, CAFC said Congress' use of the term "substantially dependent," as opposed to stating a minimum percentage, showed "an expression of its well-considered judgment as to the degree of administrative authority which it was necessary to grant." The U.S. said the Canadian parties failed to "overcome the Federal Circuit’s holding and reasoning in Asemesa, and also cannot upset Garg Tube’s analysis."
The U.S. added that Loper Bright specifically said that courts shouldn't call into question past cases that relied on the Chevron framework, adding that mere "disagreement with the holding in a prior case 'cannot by itself justify scrapping settled precedent.'" Thus, "such precedent governs unless overturned by the Federal Circuit en banc," the brief said.
And while Resolute argued that CAFC left the door open on the meaning of the term "pattern" in the statute, given its supposed failure to consider certain waived arguments in the case Dillinger France v. U.S., the government argued that this isn't the case. The appellate court in Dillinger addressed claims that Commerce's ratio test fails to implement the pattern requirement since the agency aggregates prices found to differ among different purchasers, regions and time periods into a single pattern. In construing the statute at issue in this case, CAFC said Commerce's "aggregation" methodology is a "reasonable interpretation of the pattern requirement," the brief said.
In any case, Resolute's attempts to "constrict the meaning of 'pattern' fails," the brief said. The exporter only cites "one definition of many from the Merriam-Webster and the Oxford dictionaries," when other definitions would support Commerce's view.