Solar Energy Industries Association, Nextera Energy, Inc., Invenergy Renewables LLC,… v. United States, United States Customs

United States Court of Appeals
for the Federal Circuit
______________________
SOLAR ENERGY INDUSTRIES ASSOCIATION,
NEXTERA ENERGY, INC., INVENERGY
RENEWABLES LLC, EDF RENEWABLES, INC.,
Plaintiffs-Appellees
v.
UNITED STATES, UNITED STATES CUSTOMS
AND BORDER PROTECTION, TROY MILLER,
ACTING COMMISSIONER FOR U.S. CUSTOMS
AND BORDER PROTECTION,
Defendants-Appellants
______________________
2022-1392
______________________
Appeal from the United States Court of International
Trade in No. 1:20-cv-03941-GSK, Judge Gary S.
Katzmann.
______________________
Decided: August 13, 2024
______________________
SUPPLEMENTAL OPINION ON PETITION FOR
REHEARING
______________________
MATTHEW R. N ICELY , Akin Gump Strauss Hauer &
Feld LLP, Washington, DC, filed a petition for rehearing
en banc and reply for plaintiffs-appellees. Plaintiffs-
Case: 22-1392 Document: 110 Page: 1 Filed: 08/13/2024

-- 1 of 16 --

SOLAR ENERGY INDUSTRIES ASSOCIATION v. US 2
appellees Solar Energy Industries Association, NextEra
Energy, Inc. also represented by J ULIA K. EPPARD, D EVIN S.
SIKES , J AMES E DWARD T YSSE, D ANIEL MARTIN WITKOWSKI.
J OHN B OWERS BREW , Crowell & Moring, LLP, Washing-
ton, DC, for plaintiff-appellee Invenergy Renewables LLC.
Also represented by AMANDA SHAFER BERMAN, L ARRY
EISENSTAT , ROBERT L. L AF RANKIE; F RANCES P IERSON
HADFIELD, New York, NY.
CHRISTINE STREATFEILD, Baker & McKenzie LLP,
Washington, DC, for plaintiff-appellee EDF Renewables,
Inc.
J OSHUA E. K URLAND, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, filed a response for defendants-appellants.
Also represented by BRIAN M. B OYNTON, T ARA K. HOGAN,
P ATRICIA M. MCCARTHY . Defendant-appellant United
States also represented by MICHAEL T HOMAS G AGAIN, Of-
fice of the General Counsel, Office of the United States
Trade Representative, Washington, DC.
ANASTASIA P. BODEN, Cato Institute, Washington, DC,
for amicus curiae Cato Institute. Also represented by
N ATHANIEL ABRAHAM L AWSON.
______________________
Before L OURIE, T ARANTO, and STARK, Circuit Judges.
STARK, Circuit Judge.
Solar Energy Industries Association, Nextera Energy
Inc., Invenergy Renewables LLC, and EDF Renewables,
Inc., Plaintiffs-Appellees (collectively, “Solar”), filed a peti-
tion for rehearing. In the Petition, Solar argues that the
full court should reevaluate and replace its precedential de-
cision in Maple Leaf Fish Co. v. United States, 762 F.2d 86,
89 (Fed. Cir. 1985), in which we explained we would only
Case: 22-1392 Document: 110 Page: 2 Filed: 08/13/2024

-- 2 of 16 --

SOLAR ENERGY INDUSTRIES ASSOCIATION v. US 3
set aside presidential actions taken pursuant to Sections
201-03 of Title II of the Trade Act of 1974, 19 U.S.C.
§§ 2251-53, if the statutory interpretation underlying such
acts constitutes “a clear misconstruction of the governing
statute, a significant procedural violation, or action outside
delegated authority” (emphasis added). The panel previ-
ously issued an opinion reversing the Court of Interna-
tional Trade’s decision to enjoin the president from
enforcing Proclamation 10101, which (among other things)
removed the exclusion of bifacial solar panels from certain
duties that had been imposed a few years earlier.1 See So-
lar Energy Indus. Ass’n v. United States, 86 F.4th 885 (Fed.
Cir. 2023) (“Panel Opinion”). In doing so, the Panel Opin-
ion applied the Maple Leaf standard. See id. at 894-95.
Solar now argues that Maple Leaf conflicts with Su-
preme Court and Federal Circuit precedent. See, e.g., Pet.
at 6-7 (citing Trump v. Hawaii, 585 U.S. 667 (2018) (dis-
cussing presidential interpretation of Immigration and Na-
tionality Act); id. at 8 (citing Transpacific Steel LLC v.
United States, 4 F.4th 1306 (Fed. Cir. 2021) (reviewing
presidential action under Section 232 of Trade Expansion
Act of 1962). In its supplemental notice, Solar adds that
Maple Leaf has now been overruled by the Supreme Court’s
recent decision in Loper Bright Enterprises v. Raimondo,
603 U.S. ___, 144 S. Ct. 2244 (2024). Suppl. Notice (ECF
No. 107) at 2. According to Solar, the panel’s adherence to
the “clear misconstruction” standard of Maple Leaf led the
court to “abdicate[] its constitutional role.” Pet. at 1; see
also id. at 13 (“[T]he decision contravenes the
1 Though Maple Leaf specifically concerned Sections
201 through 203 of the Trade Act of 1974, 19 U.S.C.
§§ 2251-53, the parties appear to agree (and we have never
suggested otherwise) that the same standard of review gov-
erns presidential actions pursuant to Section 204, 19
U.S.C. § 2254.
Case: 22-1392 Document: 110 Page: 3 Filed: 08/13/2024

-- 3 of 16 --

SOLAR ENERGY INDUSTRIES ASSOCIATION v. US 4
constitutional design and binding precedent by giving the
President largely unchecked power to determine the scope
of his own delegated authority.”). In Solar’s view, we must
instead review issues of statutory construction de novo,
even when we are considering presidential interpretation
of a statute governing a field of activity largely committed
to the President’s authority. See Pet. at 9-10, 14; see also
Suppl. Notice at 2 (“[The] panel’s view that it was not called
upon to decide whether the government’s interpretation of
the statute is correct [in trade cases] . . . cannot be recon-
ciled with Loper Bright.”) (internal citation and quotation
marks omitted).
The Petition is granted to the limited extent that the
panel supplements the Original Opinion with the addi-
tional reasoning set out in this Supplemental Opinion.
Specifically, we write to explain that whatever merit there
may be to Solar’s contention that our Maple Leaf standard
would benefit from review in light of recent Supreme Court
jurisprudence, this case does not present an appropriate
vehicle for undertaking such a task. This is because, as we
show below, the same conclusions result from application
of de novo review that the Panel Opinion reached by appli-
cation of Maple Leaf.
I
This appeal involves Proclamation 10101: To Further
Facilitate Positive Adjustment to Competition from Imports
of Certain Crystalline Silicon Photovoltaic Cells (Whether
or Not Partially or Fully Assembled into Other Products),
85 Fed. Reg. 65639 (Oct. 10, 2020), issued by President
Trump. Previously, in January 2018, President Trump had
issued Proclamation 9693, which imposed duties on im-
ports of solar panels into the United States. See Proclama-
tion 9693: To Facilitate Positive Adjustment to Competition
from Imports of Certain Crystalline Silicon Photovoltaic
Cells (Whether or Not Partially or Fully Assembled into
Other Products) and for Other Purposes, 83 Fed. Reg. 3541
Case: 22-1392 Document: 110 Page: 4 Filed: 08/13/2024

-- 4 of 16 --

SOLAR ENERGY INDUSTRIES ASSOCIATION v. US 5
(Jan. 23, 2018). After the issuance of Proclamation 9693,
importers of a certain type of solar panels – called bifacial
solar modules, which “consist of cells that convert sunlight
into electricity on both the front and back of the cells,” J.A.
4, 5 – petitioned the United States Trade Representative
(“USTR”) for an exclusion, asking that bifacial solar panels
not be subjected to the duties. The USTR initially granted
the exclusion, though shortly thereafter it attempted to
withdraw it to again make bifacial solar panels subject to
the duties. In Proclamation 10101, the President removed
the exclusion of bifacial solar panels from the scheduled
duties and increased the fourth-year duty from 15% to 18%.
See 85 Fed. Reg. at 65639-40, Annex. In response to Proc-
lamation 10101, importers of bifacial solar panels, includ-
ing Solar, sued the United States in the Court of
International Trade, contending that Proclamation 10101
exceeded the President’s powers, as his pertinent statutory
authority is purportedly limited to “modifying” Proclama-
tion 9693, while Proclamation 10101 – in Solar’s view – did
something more than merely “modify.” The Court of Inter-
national Trade agreed with Solar, setting aside Proclama-
tion 10101 and enjoining the government from enforcing it.
The government appealed and, in the Panel Opinion, we
reversed.
The Panel Opinion, in reviewing the President’s inter-
pretation of the applicable statutory provisions, explicitly
applied Maple Leaf’s “clear misconstruction” standard. See
Panel Op. at 894. We explained:
It is important to stress at the outset that our re-
view of Proclamation 10101 is limited to whether
the President clearly misconstrued Section
2254(b)(1)(B). . . . We are not called upon to decide
whether the government’s interpretation of the
statute is correct or how we would have construed
the statute as an original matter. Nor do we eval-
uate the relative merits of the parties’ competing
interpretations. Rather, our sole inquiry is
Case: 22-1392 Document: 110 Page: 5 Filed: 08/13/2024

-- 5 of 16 --

SOLAR ENERGY INDUSTRIES ASSOCIATION v. US 6
whether the President’s interpretation, that he is
permitted to make trade-restricting modifications
and not just trade-liberalizing ones, is a clear mis-
construction of the statute.
Panel Op. at 895. Although the Maple Leaf standard does
not require us to review the disputes in this case de novo,
doing so leads us to the same conclusions we reached in the
Panel Opinion, rendering it unnecessary to decide if the
Maple Leaf standard conflicts with other precedents. We
provide the analysis behind these conclusions below.
II
The principal issue raised by the government in this
appeal is whether 19 U.S.C. § 2254(b)(1)(B)’s authorization
that the President may grant a requested “reduction, mod-
ification, or termination” of an existing safeguard includes
authorization to “modify” the safeguard to make it more
trade restrictive (within the constraints of other applicable
statutory provisions). Solar argued that the President’s
authority is limited to trade-liberalizing (or neutral) modi-
fications. The government countered that, instead, the
statute’s structure, legislative history, and purpose all sup-
port the conclusion that the statute also authorizes the
President to make trade-restrictive modifications. The
Panel Opinion sided with the government. See Panel Op.
at 896-98. Although our analysis in the Panel Opinion ex-
pressly applied Maple Leaf’s “clear misconstruction” stand-
ard, we considered the same sources and arguments that
Solar now asserts must be evaluated de novo.
The Panel Opinion began its review with the statutory
text itself, observing that the “statute does not expressly
indicate whether ‘modify’ includes trade-restrictive
changes or is limited to trade-liberalizing alterations.”
Panel Op. at 895. We viewed this “statutory silence as fa-
voring the government’s broader view,” as the statute does
not contain a “narrowing limitation.” Id. We also noted
that, “[o]rdinarily, Congress uses words consistent with
Case: 22-1392 Document: 110 Page: 6 Filed: 08/13/2024

-- 6 of 16 --

SOLAR ENERGY INDUSTRIES ASSOCIATION v. US 7
their well-understood meaning.” Id. In ascertaining the
“well-understood” meaning of “modify,” we cited Supreme
Court precedent in which “modify” was held to include
moderate changes in either direction. Id. at 896 (citing
MCI Telecomm. Corp. v. AT&T Co., 512 U.S. 218, 225
(1994)). We also pointed to dictionary definitions to the
same effect. See id. at 895-96. We additionally observed
that Solar “concede[d] that the government’s definition [of
‘modify’] is a correct one.” Id. at 896.
We also addressed legislative history, particularly an
unenacted version of what became 19 U.S.C.
§ 2254(b)(1)(B), which would have expressly defined “mod-
ify” as not including “increase[s]” in tariffs (i.e., “modify
(but not increase)”). Id. at 895 n.5. That unambiguous pro-
hibition on trade-restrictive modifications was deleted dur-
ing the legislative process, strong evidence that Congress
ultimately chose not to limit the scope of the term “modify”
only to trade-liberalizing changes. See id.
We then evaluated the term “modify” in the context of
the broader structure and purpose of the Trade Act, as So-
lar had asked (and again in its Petition asks) us to do. See
Panel Op. at 896-98; see also Food & Drug Admin. v. Brown
& Williamson Tobacco Corp., 529 U.S. 120, 133 (2000) (“It
is a fundamental canon of statutory construction that the
words of a statute must be read in their context and with a
view to their place in the overall statutory scheme.”) (inter-
nal quotation marks omitted). We began by addressing So-
lar’s contention that Section 2251(a) supported its narrow
interpretation of “modify.” See SEIA Br.2 at 20 (relying on
Section 2251 as purportedly indicative of “Congress’s
2 Appellees SEIA and Nextera Energy, Inc. filed a
joint brief (ECF No. 35) which we refer to as the “SEIA
Brief” or “SEIA Br.” Appellees Invenergy Renewables LLC
and EDF Renewables, Inc. filed a separate brief (ECF No.
34) which we refer to as the “EDF Brief” or “EDF Br.”
Case: 22-1392 Document: 110 Page: 7 Filed: 08/13/2024

-- 7 of 16 --

SOLAR ENERGY INDUSTRIES ASSOCIATION v. US 8
explicit desire to ensure that safeguard measures impose
no undue social or economic costs,” and arguing Congress
“surely did not invite the President in section 204(b)(1)(B)
to further restrict trade after the [domestic] industry suc-
ceeds in positively adjusting”). We rejected this contention,
explaining that instead “Section 2251 provides that the
safeguard statute has a broad remedial purpose.” Panel
Op. at 896. Thus, we concluded that, rather than bolster-
ing Solar’s position, Section 2251 (to the extent it was ap-
plicable to the President’s modification authority, as Solar
advocated)3 actually favored the government’s view that
the President is empowered to make modifications as nec-
essary to provide continued relief to a domestic industry.
See id.
We also looked at the Trade Act’s general definition of
“modification,” noting it is open-ended and does not exclude
anything, including further restrictions. Panel Op. at 896
(discussing Section 2481(6)). Other provisions of the Trade
Act too, we noted, use the term “modify” to include changes
made in a trade-restrictive direction. See id. at 896-97 (dis-
cussing Sections 2252(e)(2)(C), 2253(a)(3)(C), and
2254(b)(3)).
3 Solar faults the Panel Opinion for “uncritically de-
ferring to the President’s internally inconsistent interpre-
tation” of Section 2251, accusing us of concluding that this
section “both does and does not apply to presidential modi-
fication authority simultaneously.” Pet. at 16. This is in-
correct. The Panel Opinion was consistent in its holding
that Section 2251(a) does not operate to restrict the Presi-
dent’s safeguard modification authority, whether by limit-
ing permitted modifications to those that are trade-
liberalizing or by requiring a cost-benefit analysis of a mod-
ification.
Case: 22-1392 Document: 110 Page: 8 Filed: 08/13/2024

-- 8 of 16 --

SOLAR ENERGY INDUSTRIES ASSOCIATION v. US 9
Moreover, we rejected Solar’s policy concern that per-
mitting the President to make trade-restrictive modifica-
tions pursuant to Section 2254(b)(3) creates an
impermissible loophole. We reasoned that Congress has
cabined the President’s modification authority in other sig-
nificant ways (e.g., by imposing a phase-down require-
ment), though we also recognized that Congress is free to
create “loopholes” if it wishes. Panel Op. at 897. Nor did
historical practice help Solar because the record reflected
at least one instance in which a President appears to have
acted pursuant to Section 2254(b)(1) to take trade-restric-
tive action. Panel Op. at 897-98.
Finally, we addressed Solar’s argument that it would
be backwards for Congress to permit the President to “mod-
ify” trade restrictions to become more restrictive where do-
mestic industry has positively adjusted to competition
while depriving the President of such trade-restricting
power where domestic industry has not. See SEIA Br. at
20-21 (noting distinction between subsection (b)(1)(A),
which limits President only to “reduce” or “terminate” safe-
guard when “domestic industry has not made adequate ef-
forts to” adjust to import competition, and subsection
(b)(1)(B), which permits President more broadly to “reduce,
modify, or terminate” safeguard when “domestic industry
has made a positive adjustment to import competition”).
We disagreed with Solar, finding more persuasive the gov-
ernment’s position that the “‘distinction [between subsec-
tions (b)(1)(A) and (b)(1)(B)] logically suggests that
Congress intended to give the President greater flexibility
to take action when progress is being made, to protect and
ensure the continuation of that progress.’” Panel Op. at
898 (quoting Opening Br. at 34).
All of the foregoing statements from the Panel Opinion
are equally correct in the context of de novo review. Our
review of the plain text of Section 2254(b)(1)(B), other pro-
visions and the overall structure of the Trade Act, and leg-
islative history leads us to agree with the government that
Case: 22-1392 Document: 110 Page: 9 Filed: 08/13/2024

-- 9 of 16 --

SOLAR ENERGY INDUSTRIES ASSOCIATION v. US 10
“modify” here includes trade-restrictive changes. We reach
this determination without according any deference to the
President’s interpretation. Our conclusion in the Panel
Opinion based on the “clear misconstruction” standard of
Maple Leaf remains unchanged under de novo review.
III
In addition to the proper construction of “modify,” the
Panel Opinion considered Solar’s contention that the Pres-
ident committed procedural errors in connection with issu-
ing Proclamation 10101. While the Panel Opinion applied
the “clear misconstruction” standard of Maple Leaf to these
issues as well, we again reach the same conclusions apply-
ing de novo review.
A
Section 2254(b)(1)(B) provides:
(1) Action taken under section 2253 [i.e., a safe-
guard] . . . may be reduced, modified, or terminated
by the President (but not before the President re-
ceives the [Commission’s] report . . . ) if the Presi-
dent . . . (B) determines, after a majority of the
representatives of the domestic industry submits to
the President a petition requesting such reduction,
modification, or termination on such basis, that the
domestic industry has made a positive adjustment
to import competition.
19 U.S.C. § 2254(b)(1) (emphasis added). In the Panel
Opinion, we endorsed the government’s interpretation of
this provision, such that a presidential reduction, modifi-
cation, or termination of a safeguard must be made based
on a report from the International Trade Commission.
Panel Op. at 899. In other words, “on such basis” in Section
2254(b) refers to a Commission report. See Reply Br. at 29.
Solar had argued, and reiterates in its Petition, that “on
such basis” refers instead to a domestic industry request
for a change, which must itself be based on the domestic
Case: 22-1392 Document: 110 Page: 10 Filed: 08/13/2024

-- 10 of 16 --

SOLAR ENERGY INDUSTRIES ASSOCIATION v. US 11
industry’s positive adjustment to import competition. See
SEIA Br. at 53; Pet. at 15.
While both readings of the statute are broadly reason-
able, we are persuaded that the government’s position is
more reasonable. Because “such” as used in text like this
typically refers to something that has already appeared
earlier in a sentence or paragraph, see, e.g., Such, Black’s
Law Dictionary (11th ed. 2019) (definition including “[t]hat
or those; having just been mentioned”), and the provision
here refers to the domestic industry’s positive adjustment
to import competition only after “on such basis,” the plain
language of the statute is more supportive of the govern-
ment’s position. That is, because the plain meaning of
“such” is to refer backward to something previously men-
tioned – and the provision mentions the Commission report
before “such” – rather than referring forward to something
not yet mentioned – and the provision does not mention the
requirement of domestic industry positive adjustment until
after “such” – the text provides a strong indication that “on
such basis” is referring to the Commission report and not
to the domestic industry’s positive adjustment. That com-
mas subdivide the provision into several clauses does not
alter our conclusions. See U.S. Nat’l Bank of Or. v. Indep.
Ins. Agents of Am., Inc., 508 U.S. 439, 455 (1993) (“No more
than isolated words or sentences is punctuation alone a re-
liable guide for discovery of a statute’s meaning.”).
The overall structure of the Trade Act provides further
support for the government’s view, as its reading of the
statute promotes the Trade Act’s goals by predicating the
President’s authority to act on his own Commission’s re-
port – an independent, expert analysis – rather than leav-
ing his authority entirely dependent on whether the
domestic industry submits a petition expressly making the
supposedly necessary representation. It would be an unu-
sual choice for Congress to mandate that the President
base his fact-finding on assertions by industry participants
when, in the very same statutory provision, Congress
Case: 22-1392 Document: 110 Page: 11 Filed: 08/13/2024

-- 11 of 16 --

SOLAR ENERGY INDUSTRIES ASSOCIATION v. US 12
requires that the President wait to act until after he re-
ceives a report from his own expert agency. We see nothing
in the statute, including its text and structure, commend-
ing to us this improbable reading.
The government’s position is further favored by the in-
quiry into “context” that is essential to determining the
best reading of statutory language. See Loper Bright,
603 U.S. at ___, 144 S. Ct. at 2261 n.4 (“[S]tatutes can be
sensibly understood only by reviewing text in context.”) (in-
ternal quotation marks omitted). As we explained above,
see supra Part II, the President only has power to modify a
safeguard when domestic industry has made a positive ad-
justment to import competition. The President lacks au-
thority to make a modification, and may only reduce or
terminate a safeguard, when domestic industry has not
made a positive adjustment, i.e., the situation governed by
Section 2254(b)(1)(A). It follows that any industry petition
seeking a modification under Section 2254(b)(1)(B) neces-
sarily and inherently must be urging the President that
there has been a positive adjustment, rendering it redun-
dant for Congress to write into the text a requirement that
the petition expressly recite that assertion. There is no
such redundancy under the government’s reading.
The legislative history does not undermine our conclu-
sion. A conference report Solar contends “unequivocally
links the phrase ‘on such basis’ to the domestic industry’s
petition, without referencing the ITC’s report or any presi-
dential finding,” Pet. at 15 (citing 1988 U.S.C.C.A.N. 1547,
1721), does not overcome the plain meaning of “such.” See
generally Glaxo Operations UK Ltd. v. Quigg, 894 F.2d 392,
400 (Fed. Cir. 1990) (“[A]bsent a clearly expressed legisla-
tive intention to the contrary, a statute’s plain meaning
must ordinarily be regarded as conclusive.”) (internal cita-
tion and quotation marks omitted). Furthermore, the con-
ference report’s description of the statutory language does
not match the enacted language in important respects, in-
cluding in the specific standards of subsection (b)(1)(B).
Case: 22-1392 Document: 110 Page: 12 Filed: 08/13/2024

-- 12 of 16 --

SOLAR ENERGY INDUSTRIES ASSOCIATION v. US 13
Compare 19 U.S.C. § 2254(b)(1)(B) (modification author-
ized if “the President . . . determines, after a majority of the
representatives of the domestic industry submits to the
President a petition requesting such reduction, modifica-
tion, or termination on such basis, that the domestic indus-
try has made a positive adjustment to import competition”)
(emphasis added), with 1988 U.S.C.C.A.N. at 1721 (modifi-
cation authorized if “a majority of representatives of the do-
mestic industry request such reduction, modification or
termination on the basis that the domestic industry has
made a positive adjustment to import competition”) (em-
phasis added); compare also 19 U.S.C. § 2254(b)(1)(A) (lim-
iting relief under (A) to “reduction” or “termination”), with
1988 U.S.C.C.A.N. at 1721 (describing (A) as including
“modification”). Additionally, the relied-on language of the
conference report does not by its terms require what Solar
urges – an express recitation in the petition of positive ad-
justment even when the request for modification neces-
sarily, inherently asserts such a positive adjustment.
Thus, the conference report is simply not a reliable basis
for adopting Solar’s position on the meaning of the words
of the actual legislation that became law.
In sum, we conclude that the best reading of Section
2254(b)(1)(B) is that the President’s modification power re-
quires (i) a Commission report, (ii) a request from a major-
ity of representatives of the domestic industry, and (iii) a
Presidential determination that the domestic industry has
made a positive adjustment to import competition. The
Presidential determination must be based at least on the
Commission report and may also (but need not) be based
on the industry petition. Accordingly, our resolution of the
parties’ dispute as to the meaning of “on such basis” is the
same under de novo review as it is under Maple Leaf’s
“clear misconstruction” standard of review.
Case: 22-1392 Document: 110 Page: 13 Filed: 08/13/2024

-- 13 of 16 --

SOLAR ENERGY INDUSTRIES ASSOCIATION v. US 14
B
Section 2254(b)(1)(B) further requires that the Presi-
dent determine “that the domestic industry has made a
positive adjustment to import competition,” before ordering
a reduction, modification, or termination of a safeguard
(emphasis added). On de novo review, we continue to read
this provision as sufficiently broad to be satisfied by the
President’s determination in connection with Proclamation
10101 that the applicable domestic industry “has begun to
make” the required positive adjustment.
As we noted in the Panel Opinion, Section
2254(b)(1)(B) is written in the present perfect tense, which
can be used to refer to an action that was completed en-
tirely in the past as well as an action still in progress.
Panel Op. at 901. This plain-meaning understanding of
“has made” is supported by other parts of the Trade Act,
see, e.g., 19 U.S.C. § 2254(c)(1), (d)(1), which recognize that
“positive adjustment” to import competition can be a pro-
cess that takes some time. In addition, two of the condi-
tions that the statutory scheme expressly identifies as
constituting components of “a positive adjustment” – when
“the domestic industry experiences an orderly transfer of
resources” and “workers in the industry experience an or-
derly transition,” id. § 2251 (emphasis added) – use the
present tense, contributing to the understanding that a
positive adjustment by domestic industry is not just an end
goal but may also describe a domestic industry that is in
the process of an orderly transfer and transition.
Accordingly, our resolution of the parties’ dispute as to
the meaning of “has made a positive adjustment” is the
same under de novo review as it is under Maple Leaf’s
“clear misconstruction” standard of review.
C
On de novo review, we also adhere to the Panel Opin-
ion’s conclusion that the President is not required to re-
Case: 22-1392 Document: 110 Page: 14 Filed: 08/13/2024

-- 14 of 16 --

SOLAR ENERGY INDUSTRIES ASSOCIATION v. US 15
weigh costs and benefits when modifying a safeguard pur-
suant to Section 2254(b)(1). As we explained in the Panel
Opinion, Section 2254(b)(1) makes no mention whatsoever
of cost-benefit determinations. See Panel Op. at 901.
While Sections 2251(a) and 2253(a)(1)(A) set out presiden-
tial obligations to weigh costs and benefits, nothing in the
Section 2254 safeguard statute ties these cost-benefit anal-
ysis requirements to the President’s power to reduce, mod-
ify, or terminate a safeguard. In addition to the fact that
the plain language of the statutory provisions does not re-
quire a cost-benefit analysis at the reduction, modification,
or termination stage, we also explained in the Panel Opin-
ion that the overall structure of the Trade Act supports our
conclusion because only relatively small changes are per-
mitted as “modifications” to safeguards and the overall
phase-down requirement, see 19 U.S.C. § 2253(e)(5), al-
ready provides sufficient checks against the “absurd re-
sults” feared by the Court of International Trade. Panel
Op. at 901-02.
Accordingly, our resolution of the parties’ dispute over
the need for a renewed cost-benefit analysis at the modifi-
cation stage is the same under de novo review as it is under
Maple Leaf’s “clear misconstruction” standard of review.
IV
Solar denigrates the Maple Leaf standard as “breath-
takingly deferential” and as springing from “an exagger-
ated misreading” of our earlier precedent. Pet. at 1, 9
(citing Florsheim Shoe Co. v. United States, 744 F.2d 787
(Fed. Cir. 1984)). It emphasizes that Maple Leaf is even
more deferential than the now-discarded standard of Chev-
ron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.,
467 U.S. 837 (1984), which was overruled in Loper Bright.
See Pet. at 12 (“Even then, the Supreme Court has made
clear that ‘[t]he judiciary is the final authority on issues of
statutory construction and must reject administrative con-
structions which are contrary to clear congressional
Case: 22-1392 Document: 110 Page: 15 Filed: 08/13/2024

-- 15 of 16 --

SOLAR ENERGY INDUSTRIES ASSOCIATION v. US 16
intent.’”) (quoting Chevron, 467 U.S. at 843 n.9); see also
generally Gilda Indus., Inc. v. United States, 622 F.3d
1358, 1363-67 (Fed. Cir. 2010) (suggesting link between
Maple Leaf formulation and Chevron). As we have demon-
strated, the outcome in this case is unaffected by whether
or not we apply Maple Leaf’s “clear misconstruction” stand-
ard. Thus, we do not believe this case presents an appro-
priate vehicle for deciding whether the Maple Leaf
standard should be retained.
Case: 22-1392 Document: 110 Page: 16 Filed: 08/13/2024

-- 16 of 16 --