by Dennis Crouch
In a new decision released April 21, 2025, the Federal Circuit has given us another example of the jurisprudential divide between Judges Hughes and Reyna–something that I’ve followed across numerous opinions. Dongkuk v. US continues this pattern in a case involving antidumping duties on Korean wind towers.
Anti-Dumping Law: Under the Tariff Act of 1930 (19 U.S.C. § 1673 et seq.), the Commerce Department investigates whether foreign manufacturers are selling products in the U.S. at less than fair value (“dumping”). This process begins when a domestic industry files a petition simultaneously with both the Commerce Department and the U.S. International Trade Commission (19 U.S.C. § 1673a(b)). Commerce compares U.S. export prices with either home market prices (19 U.S.C. § 1677b(a)(1)(B)) or a “constructed value” when home market sales are inadequate or below cost (19 U.S.C. § 1677b(e)). The constructed value calculation includes the cost of materials and fabrication, selling expenses, profits, and packaging costs (19 U.S.C § 1677b(e)(1)-(3)). If Commerce determines dumping has occurred, it calculates a “dumping margin” and imposes corresponding antidumping duties (19 U.S.C. § 1673). Commerce’s final determinations are first appealed to the Court of International Trade (CIT) and then to the Federal Circuit, which has exclusive jurisdiction over appeals from the CIT pursuant to 28 U.S.C. § 1295(a)(5).
In Dongkuk, the Wind Tower Trade Coalition filed a petition alleging Korean utility-scale wind towers were being dumped in the U.S. market. Commerce selected Dongkuk S&C (DKSC) as the mandatory respondent and ultimately determined its products were being sold at less than fair value, imposing a 5.41% antidumping duty. The CIT affirmed (after some back-and-forth). On appeal, the Federal Circuit has now also affirmed, with Judge Hughes writing for the majority and Judge Reyna in dissent.
Two key issues on appeal:
- Cost Adjustment: Commerce weight-averaged Dongkuk’s reported steel plate input costs after determining that cost variations were driven by purchase timing rather than physical characteristics. This significantly increased estimated cost and thus the dumping fee assessed to Dongkuk.
- Financial Statement Selection: Commerce used SSHC’s consolidated financial statement (a large Korean holding company) rather than SeAH Steel Corporation’s statement (a more focused steel pipe producer) to calculate constructed value. Again, this outcome increased the antidumping margin.
Writing for the majority, Judge Hughes affirmed Commerce on both issues, while Judge Reyna concurred on the first but dissented on the second. The split between Hughes and Reyna is the main reason why I am writing a post about an anti-dumping case – not my regular fare on Patently-O. In seeing the case, my first instinct was to dig in and see whether this decision followed past history where Hughes and Reyna clash. And, the answer is yes – this decision once again encapsulates the competing judicial philosophies I’ve observed over the years. Judge Hughes consistently takes a formalist approach prioritizing what he sees as clear statutory interpretation and procedural deference, while Reyna employs a more functionalist analysis emphasizing practical outcomes and substantive justice. Hughes also tends to defer to agency determinations — he spent his career defending them prior to becoming a judge; while Reyna spent his time in private practice suing those same agencies.
On the first issue—cost adjustment—both judges agreed Commerce had sufficiently demonstrated that Dongkuk’s reported costs were distorted by timing issues unrelated to physical characteristics. The evidence showed that steel plate purchase prices varied significantly based on when they were bought, not based on the wind tower specifications they were used to create.
The divide emerged on the second issue, where Hughes’ majority opinion framed the choice of financial statements as Commerce reasonably selecting between “two imperfect sources of data” under its established factors. Hughes emphasized Commerce’s explanation that SSHC’s statement was “the only option on the record that includes 12 months of financial data,” accepting this procedural preference without questioning the substantive implications — and giving the agency the benefit of the doubt.
Reyna’s dissent took a different approach, focusing on the substantive merits rather than procedural compliance. He highlighted that 92.68% of SSHC’s sales revenue came from non-Korean, non-steel manufacturing entities, making it a poor proxy for Dongkuk’s steel wind tower operations in Korea. By contrast, SeAH’s statement—while covering only four months—reflected solely relevant Korean steel operations.
In Reyna’s view, the agency clearly selected the wrong financial statement to rely upon, and did so without sufficient explanation. He wrote that “without a rationale from Commerce” it is impossible to judge whether the choice is sufficiently supported by the evidence.
A Familiar Pattern: This case adds to the pattern we’ve seen in cases like Soto v. US, where Hughes’ formalist and agency supporting approach clashed with Reyna’s justice-oriented and government-questioning perspective. In Soto, Hughes required specific statutory language for settlement authority, while Reyna advocated for a functional approach that would benefit disabled veterans. Similarly, in Martin v. United States, 54 F.4th 1325 (Fed. Cir. 2022), Hughes focused on the Anti-Deficiency Act’s explicit prohibition on paying federal workers during funding lapses, while Reyna emphasized the “devastating consequences” on federal employees. See also Wi-Fi One, LLC v. Broadcom Corp., (en banc) 878 F.3d 1364 (Fed. Cir. 2018) (Reyna majority holding time-bar determinations appealable based on strong presumption favoring judicial review; Hughes dissent arguing for broader application of appeal bar based on statutory text); and Arellano v. McDonough, 19 F.4th 1320 (Fed. Cir. 2021) (Hughes majority applying formalist two-part test requiring explicit statutory language to displace general statute of limitations; Reyna dissent advocating functionalist approach based on statute’s comprehensive scheme).
The divide is institutional as well as philosophical. Hughes tends to defer to agency expertise within established frameworks, showing reluctance to second-guess methodological choices. Reyna more actively scrutinizes whether decisions reflect real-world fairness and market conditions, preferring remand for better explanation rather than simple deference.
The Soto case cited has been granted certiorari by the Supreme Court and oral arguments are set for April 28, 2025. The Court will have an opportunity to address this broader divide in approaches to statutory interpretation and administrative review. It remains to be seen which judicial philosophy will resonate with the justices.
What do you think? What judicial philosophy sits best with you at this time in your life?