Reliance on decisions of the U.S. Court of Appeals for the Federal Circuit in trade and customs litigation.

Author:Stewart, Terence P.
Position:United States Court of International Trade 25th Anniversary Celebration

    The U.S. Court of Appeals for the Federal Circuit ("CAFC") has exclusive jurisdiction over appeals from the U.S. Court of International Trade ("CIT"), and thus plays a central role in the development of trade and customs law. Yet appeals from the CIT account for a small percentage of the CAFC's caseload each year, totaling just 5.7% of all cases terminated by CAFC judges from October 1, 2000 to September 30, 2005. (1) For each CIT appeal disposed of by a CAFC judge, the CAFC disposes of nearly six appeals from the U.S. District Courts, almost five appeals from the Merit Systems Protection Board, and about six more cases arising under other areas of the court's jurisdiction.

    Thus, the vast majority of jurisprudence generated by the CAFC is in the context of cases not appealed from the CIT. Much of this jurisprudence may be relevant to trade and customs litigation. For example, non-trade decisions handed down by the CAFC dealing with the appellate standard of review, general principles of administrative law, court procedures and rules, and other issues may have a direct bearing on how similar issues are dealt with in trade and customs litigation. To test this hypothesis, this article examines those instances in which recent CAFC decisions outside of the trade and customs area were cited by the CIT, and by the CAFC itself in reviewing CIT decisions, during 2005 and the first eight months of 2006.

    This paper seeks to map the ways in which CAFC jurisprudence generated in the areas of its jurisdiction other than CIT appeals is being taken into consideration by the CIT and by the CAFC in its consideration of appeals from the CIT. The paper surveys decisions of the CAFC on appeal from the CIT that were issued from January 2005 through August 2006 to analyze the frequency with which non-trade decisions by the CAFC were cited, the general topics upon which such decisions were cited, and the areas of CAFC jurisdiction which generate the opinions cited most. The paper also surveys decisions issued by the CIT from January 2005 through August 2006 to discover which recent decisions of the CAFC in areas of its jurisdiction other than CIT appeals are now influencing CIT decisions. In an attempt to discern emerging areas of influence by the CAFC's broader strains of jurisprudence on trade and customs litigation, only CIT citations to CAFC opinions issued in 2004 and 2005 are examined.

    The survey reveals a substantial reliance by the CAFC on its own decisions in other areas of its jurisprudence when deciding appeals from the CIT. Of fifty-seven opinions issued by the CAFC on appeals from the CIT from January 2005 through August 2006, a full twenty-two opinions cited CAFC jurisprudence outside of the trade and customs area, and many of these opinions cited more than one such non-trade decision. Discerning the impact of recent CAFC decisions in these other areas of its jurisdiction on the decisions of the CIT is a bit more challenging. Of 300 opinions issued by the CIT from January 2005 through August 2006, recent non-trade CAFC decisions (issued in 2004 and 2005) were only cited in only fifteen cases. Most of these cases cited only one such CAFC decision, often on a minor point or one already well-settled in law.

    The most frequent issues, deriving from non-trade CAFC jurisprudence, cited in the surveyed opinions were standards of review and general principles of administrative law. This is not an unexpected result, given that the standards of review applied by the CAFC in its different areas of jurisdiction have many elements in common and are generally

    consistent with administrative law principles articulated in the Administrative Procedures Act (see Section III infra). In fact, the areas of CAFC jurisdiction from which precedents are most often cited in trade and customs cases on the issue of standards of review or administrative law principles are not necessarily those areas of jurisdiction in which the applicable standards of review most closely match those applied in trade and customs cases. Given that the standards are largely similar across the different areas of the CAFC's jurisdiction, it appears that the frequency with which decisions in a particular area of jurisdiction are cited is, more than anything, a function of the volume of precedent generated by the CAFC in that particular area of jurisdiction.

    Thus, it is not surprising that the majority of non-trade CAFC cases cited in trade and customs decisions are cases arising from appeals from the district courts and appeals from the Court of Federal Claims ("CFC"), two areas of jurisdiction that together account for forty-six percent of the CAFC's caseload (see Section II infra). The one exception to this general rule is CAFC cases appealed from the Merit Systems Protection Board (MSPB). These cases make up a substantial portion of the CAFC's caseload (more than thirty percent), and the CAFC applies standards of review and administrative law principles in these MSPB appeals that mirror those applied in appeals from the CIT. Nevertheless, citations to these MSPB appeals by courts rendering opinions in trade and customs cases are far less frequent than citations to CAFC decisions rendered on appeal from the district courts and the CFC. One hypothesis to explain this result is that judicial appeals from the district courts and the Court of Federal Claims have more in common with trade and customs appellate litigation than direct administrative appeals from the MSPB. It may also result from a greater affinity between patent law, trade and customs law, and federal claims law that is not as readily appreciable in the context of federal employment law.

    Based on the results of this survey, the paper briefly reviews a few recent CAFC decisions issued outside of the court's CIT appeals jurisdiction that may have implications for trade and customs litigation. These cases articulate the court's analysis regarding standards of review, how to determine whether a party challenging agency action is a "prevailing party" for the purpose of recovering attorney's fees, and motion practice.

    This paper provides an initial survey of the relationship between different areas of the CAFC's jurisprudence that may suggest areas of further research. For example, a more thorough review of all CAFC decisions cited by the CIT (not just more recent CAFC cases) may reveal a deeper influence from other areas of the CAFC's jurisdiction on the CIT, but perhaps also a slight lag in catching up to these other areas of the CAFC's jurisprudence. In addition, a comparison that systematically contrasted those areas of law in which trade decisions cite to other trade decisions, and those areas of law in which citations to non-trade decisions are more likely, may also be of interest. Finally, the present survey could suggest areas of CAFC jurisprudence that may prove more fruitful for practitioners in trade and customs litigation to explore when seeking guidance on issues not yet squarely addressed by the courts within their traditional area of trade and customs practice.


    The CAFC was established by Congress in the Federal Courts Improvement Act of 1982 (the Act). (2) The new court merged the functions of the previous U.S Court of Customs and Patent Appeals and the appellate division of the U.S. Court of Claims. The CAFC was granted additional jurisdiction over appeals from various administrative agencies, and appeals of certain federal issues from district courts by the Act. The CAFC was designed to ensure uniformity in uniquely federal areas of law, such as patent law, and to help relieve the caseload of federal circuit courts of appeals. (3)

    In addition to appeals from the Court of International Trade, (4) the CAFC's other areas of jurisdiction can be classified into seven general areas:

    1) Appeals from decisions relating to federal intellectual property laws, including appeals from the Patent and Trademark Office (PTO) 's Board of Patent Appeals, appeals under [section] 71 of the Plant Variety Protection Act, and appeals from the United States District Courts in patent and Plant Variety Protection Act cases; (5)

    2) All appeals from the United States Court of Federal Claims and appeals from the United States District Court in non-tort claims against the United States for $10,000 or less; (6)

    3) Appeals or agency referrals from a federal agency's board of contract appeals; (7)

    4) Appeals from various federal employment arbitration bodies, including the MSPB and the Board of Directors of the Office of Compliance for the legislative branch; (8)

    5) Appeals from decisions by the Secretary of Veterans Affairs regarding veterans' benefits and from decisions of the Court of Appeals for Veterans Claims; (9)

    6) Appeals of decisions of the U.S. International Trade Commission (ITC) in cases regarding unfair practices in import trade under 19 U.S.C. [section] 1337 and appeals from determinations of the Secretary of Commerce regarding the tariff classification of scientific instruments and apparatus; (10) and

    7) Appeals from federal decisions under various economic emergency and energy policy statutes and appeals from petitions under the Vaccine Act. (11)

    While statistics detailing the court's caseload by statutory grant of jurisdiction are not available, data on the source of the appeals heard at the CAFC is available.

    The CAFC's caseload is fairly consistent from year to year. The majority of CAFC opinions are issued in appeals from the U.S. District Courts (primarily in patent cases) and from decisions of the MSPB. Together with appeals in federal claims and veterans affairs cases, these four areas of jurisdiction accounted for eighty-four percent of all of the cases terminated by CAFC judges in the twelve-month period ending on September 30, 2005. By contrast, appeals from the Court of International Trade accounted for less than six percent of the...

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