Siemens Energy, Inc. v. United States

United States Court of Appeals
for the Federal Circuit
______________________
SIEMENS ENERGY, INC.,
Plaintiff-Appellant
TITAN WIND ENERGY (SUZHOU) CO., LTD., CS
WIND TECH CO., LTD., CS WIND VIETNAM CO.,
LTD., CHENGXI SHIPYARD CO., LTD.,
Plaintiffs
v.
UNITED STATES, WIND TOWER TRADE
COALITION,
Defendants-Appellees
______________________
2014-1725
______________________
Appeal from the United States Court of International
Trade in No. 1:13-cv-00104-MAB, 1:13-cv-00107-MAB,
Judge Mark A. Barnett.
______________________
Decided: November 25, 2015
______________________
MICHAEL S. SNARR, Baker & Hostetler LLP, Washing-
ton, DC argued for plaintiff-appellant. Also represented
by ELLIOT JAY FELDMAN, SHAWNNA YASHAR.
MICHAEL HALDENSTEIN, Office of the General Counsel,
International Trade Commission, Washington, DC argued
2 SIEMENS ENERGY, INC. v. US
for defendant-appellee United States. Also represented
by RHONDA HUGHES, DOMINIC L. BIANCHI.
DANIEL B. PICKARD, Wiley Rein, LLP, Washington, DC
argued for defendant-appellee Wind Tower Trade Coali-
tion. Also represented by DERICK HOLT, MAUREEN E.
THORSON, USHA NEELAKANTAN.
______________________
Before NEWMAN, O’MALLEY, and WALLACH, Circuit
Judges.
Opinion for the court filed by Circuit Judge NEWMAN.
Concurring in part opinion filed by Circuit Judge
WALLACH.
NEWMAN, Circuit Judge.
Siemens Energy, Inc., an importer of utility scale
wind towers, appeals the decision of the Court of Interna-
tional Trade, which upheld the International Trade
Commission’s (ITC or Commission) final affirmative
injury determination in the antidumping and countervail-
ing duty investigations of utility scale wind towers from
the People’s Republic of China and in the antidumping
duty investigation of utility scale wind towers from the
Socialist Republic of Vietnam (together, the subject mer-
chandise). 1 The judgment is affirmed.
1 See Siemens Energy, Inc. v. United States, 992 F.
Supp. 2d 1315 (Ct. Int’l Trade 2014) (“CIT Op.”); see also
Utility Scale Wind Towers from China and Vietnam, 78
Fed. Reg. 10,210 (Int’l Trade Comm’n Feb. 2, 2013) (“ITC
Op.”); Utility Scale Wind Towers from China and Vi-
etnam, Inv. Nos. 701-TA-486 and 731-TA-1195-1196,
USITC Pub. 4372 (Feb. 2013) (Final) (“ITC Views”).
SIEMENS ENERGY, INC. v. US 3
DISCUSSION
The Department of Commerce determined that the
subject merchandise was sold in the United States at less
than fair value and that it received countervailable subsi-
dies, and the ITC made an affirmative determination of
material injury to the domestic industry. The determina-
tion was by divided vote of the six-member Commission;
the issues on appeal concern the interpretation and effect
of the divided vote.
19 U.S.C. § 1677(11) (2012) provides that an evenly
divided vote is deemed an affirmative determination:
Affirmative determinations by divided Commis-
sion. . . . If the Commissioners voting on a de-
termination by the Commission . . . are evenly
divided as to whether the determination should be
affirmative or negative, the Commission shall be
deemed to have made an affirmative determina-
tion.
§ 1677(11). The issue arises because the divided vote was
not a simple three-to-three split on the question of mate-
rial injury to the domestic industry; instead, two Commis-
sioners found present material injury and one
Commissioner found threat of material injury, while three
Commissioners found that there was neither material
injury nor threat of material injury. Siemens challenges
the protocol of including threat of injury with actual
injury, and argues that since four Commissioners found
no present material injury, the ITC and the Court of
International Trade erred in deeming the vote a tie.
Siemens also argues that the findings of present material
injury and threat of injury are incorrect.
I
On appeal from the Court of International Trade’s re-
view of Title 19 determinations by the ITC, this court
applies the same standard of review as did the Court of
4 SIEMENS ENERGY, INC. v. US
International Trade. Fedmet Res. Corp. v. United States,
755 F.3d 912, 918 (Fed. Cir. 2014). Thus we determine
whether the Commission’s determination is “unsupported
by substantial evidence on the record, or otherwise not in
accordance with law.” 19 U.S.C. § 1516a(b)(1)(B)(i).
Substantial evidence is “such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.” Universal Camera Corp. v. NLRB, 340 U.S.
474, 477 (1951). It need not be a preponderance, but must
be “more than a scintilla.” Id. (quoting Consol. Edison Co.
v. NLRB, 305 U.S. 197, 229 (1938)).
Support by substantial evidence is determined on the
entirety of the record, taking into account the evidence
that supports and the evidence that detracts from the
agency’s conclusion. Id. at 488. In turn, when reviewing
a divided vote of the Commission, each category of inquiry
that contributes to the tie is separately determined, in
implementation of the statute:
19 U.S.C. § 1677(11). For the purpose of applying
this paragraph when the issue before the Com-
mission is to determine whether there is—
(A) material injury to an industry in the
United States,
(B) threat of material injury to such an
industry, or
(C) material retardation of the establish-
ment of an industry in the United States,
by reason of imports of the merchandise, an af-
firmative vote on any of the issues shall be treated
as a vote that the determination should be affirm-
ative.
The ITC statute thus foresaw possible factual variations,
and Congress established that a tie vote produces an
affirmative determination of injury.
SIEMENS ENERGY, INC. v. US 5
A. Finding of Material Injury
The criteria for determination of material injury are
set by statute:
19 U.S.C. § 1677(7)(B). When considering whether a
domestic industry is materially injured by imports of
like products, the Commission:
(i) shall consider—
(I) the volume of imports of the subject
merchandise,
(II) the effect of imports of that merchan-
dise on prices in the United States for do-
mestic like products, and
(III) the impact of imports of such mer-
chandise on domestic producers of domes-
tic 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.
The period of investigation for this petition covered 2009
through the first six months of 2012.
Two Commissioners, Chairman Williamson and
Commissioner Aranoff, found material injury to the
domestic industry. As to the volume of imports of subject
merchandise, these Commissioners found “the volume of
subject imports and the increase in volume to be signifi-
cant, both in absolute terms and relative to consumption
and production in the United States.” ITC Views at *15.
These Commissioners found that the imports’ continuing
growth in market share, accompanied by price suppres-
sion, “played a role in precluding the domestic industry
6 SIEMENS ENERGY, INC. v. US
from increasing production to take advantage of the
increase in apparent consumption.” Id. at *16.
Turning to the price effects of the subject imports,
these Commissioners found that although both import
and domestic prices were rising and the imported wind
towers had a higher total delivered cost than comparable
domestic wind towers, the price gap was shrinking and
potential customers were using the imports to put pres-
sure on domestic prices. They stated:
We find that although [original equipment manu-
facturers] ultimately are concerned with total de-
livered cost, they do not agree to purchase wind
towers from the closest available source without
regard to f.o.b. pricing. Rather, they negotiate
with the domestic producers regarding f.o.b. pric-
es, the largest component of delivered cost.
Id. at *18.
With respect to the impact of subject imports, these
Commissioners found that the growing volume of the
imports suppressed domestic prices, and that the domes-
tic industry experienced “steep declines in operating
income” between 2009 and 2012. Id. at *21. Taken
together, Commissioners Williamson and Aranoff deter-
mined that there was material injury to the domestic
industry.
On appeal to the Court of International Trade, and
now to this court, Siemens argued that these findings are
not supported by substantial evidence. Siemens states
that these two Commissioners incorrectly compared the
f.o.b. prices of the imports, instead of delivered costs, and
that they accepted the false information that domestic
producers had the capacity to supply the domestic mar-
ket, at least at certain locations in the United States.
Siemens also states that the domestic industry was sub-
ject to operational inefficiencies, and that production
SIEMENS ENERGY, INC. v. US 7
during the period of investigation was slowed by the
expected non-renewal of the Production Tax Credit and
other tax incentives, whereby domestic producers chose
not to expand capacity, in view of potential reduced
demand.
The Court of International Trade considered the ar-
guments, and concluded that the two Commissioners’
findings of material injury are supported by substantial
evidence on the record as a whole. The evidence of in-
creasing import volume, price pressure and price suppres-
sion, unused domestic capacity, reduced income, and
enlarging operating losses, supports these Commissioners’
finding of material injury to the domestic industry. See
Consol. Edison Co., 305 U.S. at 229.
B. Finding of Threat of Material Injury
Commissioner Pinkert found that the domestic indus-
try was threatened with material injury, applying the
statutory factors for determining threat of injury:
19 U.S.C. § 2677(7)(F)(i). In determining whether
an industry in the United States is threatened
with material injury by reason of imports (or sales
for importation) of the subject merchandise, the
Commission shall consider, among other relevant
economic factors:
(I) if a countervailable subsidy is involved, such
information as may be presented to it by the ad-
ministering authority as to the nature of the sub-
sidy (particularly as to whether the
countervailable subsidy is a subsidy described in
Article 3 or 6.1 of the Subsidies Agreement), and
whether imports of the subject merchandise are
likely to increase,
(II) any existing unused production capacity or
imminent, substantial increase in production ca-
pacity in the exporting country indicating the like-
8 SIEMENS ENERGY, INC. v. US
lihood of substantially increased imports of the
subject merchandise into the United States, tak-
ing into account the availability of other export
markets to absorb any additional exports,
(III) a significant rate of increase of the volume or
market penetration of imports of the subject mer-
chandise indicating the likelihood of substantially
increased imports,
(IV) whether imports of the subject merchandise
are entering at prices that are likely to have a
significant depressing or suppressing effect on
domestic prices, and are likely to increase demand
for further imports,
(V) inventories of the subject merchandise,
[…]
(VIII) the actual and potential negative effects on
the existing development and production efforts of
the domestic industry, including efforts to develop
a derivative or more advanced version of the do-
mestic like product, and
(IX) any other demonstrable adverse trends that
indicate the probability that there is likely to be
material injury by reason of imports (or sale for
importation) of the subject merchandise (whether
or not it is actually being imported at the time).
Commissioner Pinkert found that the domestic indus-
try was in a vulnerable condition toward the end of the
period of investigation, as the wind tower imports grew in
volume and market share. He found that the subject
imports were 192.8 percent higher in interim 2012 com-
pared with interim 2011, accompanied by substantial
increase in market share. ITC Views at *23. He deemed
it significant that the price gap between the subject
imports and domestic wind towers diminished substan-
SIEMENS ENERGY, INC. v. US 9
tially over the period of investigation. He found that the
producers in China and Vietnam had increased their
capacity, and that they expected to increase their exports
to the United States. He discussed the foreign producers’
increasing dependence on the United States market, in
the context of only a moderate increase in United States
demand in the near future. He observed that several
domestic producers had ceased production or closed
plants.
Commissioner Pinkert found threat of “significant loss
of revenues” and “declining employment, output, and
productivity” in the imminent future, id. at *25, and
concluded that the intensifying level of competition from
the subject imports would be likely to threaten material
injury to the domestic industry, which was already in a
loss position. Id.
Siemens states that Commissioner Pinkert’s finding
of threat of material injury was weak and poorly support-
ed, and should not receive equal weight with the findings
of no injury. Siemens states that the finding of threat of
injury was based on a perceived downward pricing trend
that did not exist. The government characterizes this
argument as a misstatement, because Commissioner
Pinkert cited the increasing price trend and the shrinking
price gap between the imports and the domestic product,
and recognized that the domestic industry was under
price pressure from the imports and was operating at a
loss that was increasing.
Review of the record and argument shows that there
was substantial evidence in support of Commissioner
Pinkert’s conclusion of threat of material injury. The
Court of International Trade correctly sustained this
finding.
C. Finding of No Material Injury
10 SIEMENS ENERGY, INC. v. US
Commissioners Pearson, Johanson, and Broadbent
found neither material injury nor threat of material
injury. These Commissioners found that the investigation
data did not establish price underselling, price depres-
sion, or price suppression. They recognized the erosion of
domestic producers’ market share and profitability, but
found that it was not shown that this situation would
continue into the future, explaining that the unused
production capacity in China had not yet been qualified to
meet United States standards and is inconveniently
located for shipment to the United States. Siemens
argues that the Commission and the Court of Interna-
tional Trade were incorrect in counting Commissioner
Pinkert’s vote of threatened injury on the side of material
injury. Siemens stresses that four of the six Commission-
ers found no actual material injury, and argues that the
vote was not evenly divided. Siemens also argues that the
three Commissioners who found injury or threat of injury
failed to consider evidence that “fairly detracts from its
weight,” Nippon Steel Corp. v. United States, 458 F.3d
1345, 1351 (Fed. Cir. 2006). However, review of the
Commission determinations does not support this criti-
cism.
The record shows investigation of and inquiry into the
statutory factors, including the competitive characteris-
tics of the imported and domestic wind towers, the nature
of the market, the price characteristics of the industry,
and the impact of the subject imports on the domestic
industry. There was discussion of f.o.b. and delivered
costs, the price patterns, and other issues including the
allegations of domestic operational inefficiencies.
Although individual Commissioners reached diver-
gent conclusions, “[t]he possibility of drawing two incon-
sistent conclusions from the evidence does not prevent an
administrative agency’s finding from being supported by
substantial evidence.” Consolo v. Fed. Mar. Comm’n, 383
SIEMENS ENERGY, INC. v. US 11
U.S. 607, 620 (1966). The Court of International Trade
explained its affirmance of the Commission’s conclusion:
While the court must consider the record as a
whole, when the Commission has based its deter-
mination on substantial evidence and considered
the evidence that fairly detracts from its conclu-
sion, the court may not displace the agency’s
choice.
CIT Op. at 1331. We agree that the evidence was such
that “a reasonable mind might accept as adequate to
support the conclusion.” Universal Camera, 340 U.S. at
477. We conclude that the Court of International Trade
correctly upheld the Commission’s affirmative injury
determination.
II
The Department of Commerce levied countervailing
duties, but limited the duties to imports after the decision
date of February 15, 2013, in accordance with the “Special
Rule” of 19 U.S.C. §§ 1671e(b) and 1673e(b), whereby
determinations based on threat of injury are prospective
only. This aspect was previously sustained by the Court
of International Trade, reported at Wind Tower Trade
Coal. v. United States, 904 F. Supp. 2d 1349 (Ct. Int’l Tr.
2013), and affirmed by the Federal Circuit at Wind Tower
Trade Coal. v. United States, 741 F.3d 89 (Fed. Cir. 2014)
(denying injunction in view of the “fragmented voting
pattern” where four of the six Commissioners did not find
present material injury). Although the Coalition again
questions this result, that ruling is the law of this case.
We discern no basis for reconsideration.
The decision of the Court of International Trade is
AFFIRMED.
United States Court of Appeals
for the Federal Circuit
______________________
SIEMENS ENERGY, INC.,
Plaintiff-Appellant
TITAN WIND ENERGY (SUZHOU) CO., LTD., CS
WIND TECH CO., LTD., CS WIND VIETNAM CO.,
LTD., CHENGXI SHIPYARD CO., LTD.,
Plaintiffs
v.
UNITED STATES, WIND TOWER TRADE
COALITION,
Defendants-Appellees
______________________
2014-1725
______________________
Appeal from the United States Court of International
Trade in Nos. 1:13-cv-00104-MAB, 1:13-cv-00107-MAB,
Judge Mark A. Barnett.
______________________
WALLACH, Circuit Judge, concurring in part.
I concur in the result that the majority reaches, but
write separately to ensure that what we say (or do not
say) today is not misconstrued.
It is important to highlight certain relevant facts. On
January 24, 2012, following petitions filed by the Wind
Tower Trade Coalition (“Coalition”), the United States
Department of Commerce (“Commerce”) initiated the
2 SIEMENS ENERGY, INC. v. UNITED STATES
subject investigations. In February 2012, the United
States International Trade Commission (“ITC” or “Com-
mission”) issued a unanimous affirmative preliminary
injury determination, finding that “there is a reasonable
indication that an industry in the United States is threat-
ened with material injury by reason of” the subject im-
ports. Utility Scale Wind Towers from China and
Vietnam, 77 Fed. Reg. 9700, 9700 (ITC Feb. 17, 2012)
(preliminary determination).
With Commerce having issued a final determination
that the subject merchandise was sold in the United
States at less than fair value and that such merchandise
also benefitted from countervailable subsidies, the ITC
made an affirmative final injury determination. Two
Commissioners found material injury; four did not; one
found threat of material injury; 1 and three found that
there was no threat of such injury.
The majority’s conclusion implicitly rejects, without
discussion, several arguments that Appellant Siemens
Energy, Inc. (“Siemens”) unsuccessfully raised before the
United States Court of International Trade (“CIT”) and
that it again raises on appeal. They are addressed below.
Moreover, the majority concludes its opinion with a brief
discussion of our recent holding in Wind Tower Trade
Coalition v. United States, 741 F.3d 89 (Fed. Cir. 2014). I
decline to join that aspect of the majority decision for the
reasons provided below. I discuss each in turn.
1 “The two Commissioners who made affirmative
determinations on the basis of material injury did not
make a threat of material injury determination.” Siemens
Energy, Inc. v. United States, 992 F. Supp. 2d 1315, 1322
n.6 (Ct. Int’l Trade 2014).
SIEMENS ENERGY, INC. v. UNITED STATES 3
I. The CIT Correctly Applied the Standard of Review
Siemens contests the ITC’s decision to combine the
vote for threat of material injury with the two votes for
material injury to reach a final affirmative injury deter-
mination. I agree with the majority that the unambigu-
ous terms of the statute support the ITC’s interpretation. 2
See 19 U.S.C. § 1677(11) (2012) (explaining that, in the
context of an evenly divided vote, “an affirmative vote on
[material injury, threat of material injury, or material
retardation of the establishment of an injury] shall be
treated as a vote that the determination should be affirm-
ative”).
When an affirmative Commission determination be-
comes subject to judicial review, sections
1516a(a)(2)(A)(i)(II), (a)(2)(B)(i), and (b)(1)(B)(i) of Title 19
of the United States Code state that such determination
is reviewed under the substantial evidence standard.
Siemens argues that “the CIT misapplied the standard of
review, treating affirmative-voting Commissioners in the
minority as majorities.” Appellant’s Br. 42 (capitalization
omitted). According to Siemens, this misapplication
meant that the CIT unreasonably gave “deference to
factual findings rejected by a clear majority of the Com-
2 The two step framework in Chevron, U.S.A., Inc.
v. Natural Resources Defense Council, Inc., 467 U.S. 837
(1984) governs judicial review of the Commission’s inter-
pretation of the trade remedies statutes. Nucor Corp. v.
United States, 414 F.3d 1331, 1336 (Fed. Cir. 2005).
Considering the first step, “‘Congress has directly spoken
to the precise question at issue’” in the present matter.
Heino v. Shinseki, 683 F.3d 1372, 1377 (Fed. Cir. 2012)
(quoting Chevron, 467 U.S. at 842). Thus, we need not
address the second step of the Chevron analysis—whether
the Commission’s “answer is based on a permissible
construction of the statute.” Chevron, 467 U.S. at 843.
4 SIEMENS ENERGY, INC. v. UNITED STATES
mission.” Id. at 47 (capitalization omitted). Siemens cites
Wind Tower Trade Coalition in support of its argument.
Id. at 46.
That record evidence contradicts the ITC’s conclusion
does not mean that it misapplied the standard of review.
Under the substantial evidence standard of review, we
must affirm reasonable determinations “even if it is
possible to draw two inconsistent conclusions from the
evidence.” Fleming v. Escort Inc., 774 F.3d 1371, 1375
(Fed. Cir. 2014) (internal quotation marks and citation
omitted). Siemens states that “[i]t is self-evident from the
nature of the proceedings before the Commission why
judicial deference should be a function of the common
factual views rather than the nature of the Commission-
er’s vote,” Appellant’s Br. 47, but that argument asks us
to do what we cannot—reweigh facts already considered
by the Commission. See Matsushita Elec. Indus. Co. v.
United States, 750 F.2d 927, 936 (Fed. Cir. 1984).
Finally, Siemens misconstrues our holding in Wind
Tower Trade Coalition. In that decision, this court ap-
plied Chevron to defer to Commerce’s permissible inter-
pretation of two ambiguous statutory provisions—neither
of which is at issue in this case—to determine when
antidumping and countervailing duties become effective.
Wind Tower Trade Coal., 741 F.3d at 96–100 (interpreting
19 U.S.C. §§ 1671e(a) and 1673e(a)). We affirmed Com-
merce’s interpretation that, under 19 U.S.C. §§ 1671e(a)
and 1673e(a), it would not make sense in that particular
context to apply § 1677(11) to combine votes of “material
injury,” “threat of material injury,” and “material retarda-
tion.” Id. In that case, we did not address—as in this
case—whether the Commission properly followed the
unambiguous terms of § 1677(11) in issuing an affirma-
tive final injury determination. Id.
SIEMENS ENERGY, INC. v. UNITED STATES 5
II. Substantial Evidence Supports the Material Injury and
Threat of Material Injury Determinations
I agree with the majority that substantial evidence
supports the ITC’s material injury and threat of material
injury findings. With respect to the threat of material
injury determination, Commissioner Pinkert’s “downward
pricing trend” finding was not wholly based on import
price, but also on the falling gap in delivered costs for
projects, suggesting increased competition between sub-
ject imports and the domestic like product and downward
pressure on prices. Utility Scale Wind Towers from China
and Vietnam, Inv. Nos. 701-TA-486 and 731-TA-1195-
1196, USITC Pub. 4372 at 34–35 (Feb. 2013) (Final). He
did not find, as Siemens claims, that subject import prices
were falling. Id.
Siemens also contends that Commissioner Pinkert er-
roneously cited projects that occurred outside the period
of investigation (“POI”) and, thus, that those projects “had
no bearing on the end-of-POI ‘trend’ he postulated.”
Appellant’s Br. 28 (citation omitted). However, a Com-
missioner may infer a trend in the “imminent future” by
“examining the ‘trend’ evidenced by the yearly data.”
Asociacion de Productores de Salmon y Trucha de Chile
AG v. U.S. Int’l Trade Comm’n, 26 Ct. Int’l Trade 29, 38
(2002) (citing Bando Chem. Indus., Ltd. v. United States,
17 Ct. Int’l Trade 798, 807 (1993), aff’d, 26 F.3d 139 (Fed.
Cir. 1994) (unpublished)).
Finally, Siemens argues that higher-priced subject
imports are inconsistent with adverse effects, Appellant’s
Br. 27, but that argument does not consider the conver-
gence of domestic and import prices. It was reasonable
for Commissioner Pinkert to infer from converging prices
that competition was increasing between domestic prod-
ucts and subject imports.
6 SIEMENS ENERGY, INC. v. UNITED STATES
III. Argument Not Raised that the Majority Addresses
At the end of the opinion, the majority discusses our
recent decision in Wind Tower Trade Coalition, which
addressed when antidumping and countervailing duties
become effective under 19 U.S.C. §§ 1671e(a) and
1673e(a). See 741 F.3d at 96–100. I decline to join this
portion of the decision.
The majority suggests that the Coalition contests that
decision in this appeal. However, no portion of the Coali-
tion’s response brief suggests that it does. See generally
Coalition’s Br. Moreover, we could not review such a
claim at this stage absent both (1) a properly filed cross-
appeal of the underlying CIT decision by the Coalition, see
Carnival Cruise Lines, Inc. v. United States, 200 F.3d
1361, 1365 (Fed. Cir. 2000) (“The general rule is that,
without taking a cross-appeal, the prevailing party may
present any argument that supports the judgment in its
favor, except where the result of acceptance of its argu-
ment would be a reversal or modification of the judgment
rather than an affirmance.” (internal quotation marks
and citation omitted)), 3 and (2) a request from the Coali-
tion to reconsider Wind Tower Trade Coalition en banc
due to its precedential status, Deckers Corp. v. United
3 For the Coalition to pursue such a claim, it would
have had to name Commerce as a party to the suit, given
that Commerce—not the ITC—determines when the
duties become effective. Wind Tower Trade Coal., 741
F.3d at 96–100. Commerce is not a party to this appeal,
nor was it a party before the CIT in this action. See
generally Siemens, 992 F. Supp. 2d 1315. In any event,
the opportunity for further review of this issue by the
Coalition expired when it declined to seek en banc review
or file a petition for writ of certiorari, and res judicata
would foreclose any attempt to relitigate the issue in this
action.
SIEMENS ENERGY, INC. v. UNITED STATES 7
States, 752 F.3d 949, 965 (Fed. Cir. 2014) (explaining that
panels do not have the authority to overrule prior prece-
dential panel decisions unless the en banc court or the
Supreme Court overturns the prior decision).
Siemens briefly discusses our duty effective date hold-
ing in Wind Tower Trade Coalition in the background
section of its opening brief. Appellant’s Br. 18–20. Even
assuming that we construed that discussion to be an
argument, our precedent would require us to consider it
waived for at least two reasons. See In re Baxter Int’l,
Inc., 678 F.3d 1357, 1362 (Fed. Cir. 2012) (holding that a
party waives an argument that it raises in the back-
ground section of its brief, but not in the argument sec-
tion); see also SmithKline Beecham Corp. v. Apotex Corp.,
439 F.3d 1312, 1320 (Fed. Cir. 2006) (stating that when “a
party includes no developed argumentation on a
point . . . we treat the argument as waived” (quoting
Anderson v. City of Boston, 375 F.3d 71, 91 (1st Cir.
2004))). In any event, it is highly unlikely that Siemens
would contest our holding in Wind Tower Trade Coalition,
given that it had the effect of limiting Siemens’s anti-
dumping and countervailing duty liability.
For these reasons, I respectfully concur in part.