Justia Government & Administrative Law Opinion Summaries

Ford imported automotive goods and paid duties. Ford later claimed North American Free Trade Agreement (NAFTA) preference on those imports and sought a refund of duties under 19 U.S.C. 1520(d). The parties relied on a June 1997 entry as a test case. Ford was required to file certificates of origin within one year of importation, but did not file the certificate until November 1998 and was unable to secure a written waiver. Customs denied Ford’s claim, then denied Ford’s protest. The Federal Circuit rejected Ford’s argument that Customs had an affirmative obligation under its regulations to accept Ford’s untimely filing, but remanded for determination of whether traditional refund claims, not processed through the electronic “reconciliation” program, should enjoy the same waiver benefit available through that program. On remand, Customs explained that the reconciliation program (19 U.S.C. 1484(b)) is a procedural means for processing import entries, including an ability to claim the substantive duty refund benefit under section 1520(d), and has statutory safeguards that permit Customs to remedy mistakes and misconduct in awarding NAFTA duty free treatment. Many reconciliation program safeguards are not available in the traditional post-entry duty refund process. The reconciliation program provides added confidence in the legitimacy of the importer’s claims. The Federal Circuit affirmed that Customs’ interpretation of the statutory scheme was reasonable. View "Ford Motor Co. v. United States" on Justia Law

In 2006, the Department of Commerce announced that it was changing a method it used to calculate whether imported goods are being sold in the United States at less than fair value, i.e., being dumped. Previously, Commerce employed “zeroing” in that calculation: for goods sold above fair value, Commerce treated the sale price as being at (rather than above) fair value—it zeroed out margins above fair value and permitted no offset against below-fair-value sales in calculation of the average, resulting in larger average dumping margins than if offsetting had been allowed. The new policy generally made it more difficult to find dumping. Commerce stated that the change would apply “in all current and future antidumping investigations as of the effective date” and that it would apply the final modification to all investigations pending as of the effective date. There were seven such investigations, all initiated by petitions filed after March 6, 2006, when the new no-zeroing policy was proposed. Two companies found to have engaged in dumping argued that their cases were governed by the new policy. The Federal Circuit upheld Commerce’s determination that they were not. Commerce spoke ambiguously on timing in adopting its new policy and reasonably resolved the ambiguity to exclude the cases. View "Diamond Sawblades Mfr. Coal. v. United States" on Justia Law

MCM Portfolio LLC owns U.S. Patent No. 7,162,549 (the ‘549 patent). Hewlett-Packard Co. (HP) filed a petition requesting inter partes review of claims 7, 11, 19, and 21 of the ‘549 patent. The Patent Trial and Appeal Board determined that there was a reasonable likelihood that HP would prevail with respect to at least one of the challenged claims based on obviousness and rejected MCM’s argument that it could not institute inter partes review under 35 U.S.C. 315(b). Thereafter, the Board issued a final decision concluding that the challenged claims would have been obvious. MCM appealed. The Federal Circuit affirmed, holding (1) the Court lacks jurisdiction to review the Board’s decision that the institution of inter partes review was not barred by 35 U.S.C. 315(b); (2) on the merits, inter partes review does not violate Article III or MCM’s right to a trial by jury under the Seventh Amendment; and (3) the Board correctly found that claims 7, 11, 19, and 21 of the ‘549 patent would have been obvious. View "MCM Portfolio LLC v. Hewlett-Packard Co." on Justia Law

The Department of Commerce determined that utility scale wind towers from the People’s Republic of China and utility scale wind towers from the Socialist Republic of Vietnam (together, the subject merchandise) were sold in the United States at less than fair value and that it received countervailable subsidies. The International Trade Commission made a final affirmative determination of material injury to the domestic industry. The determination was by divided vote of the six-member Commission. The Court of International Trade upheld the Commission’s affirmative injury determination. Siemens Energy, Inc., an importer of utility scale wind towers, challenged the determination. The issues on appeal concerned the interpretation and effect of the divided vote. The Federal Circuit affirmed, holding that the Court of International Trade properly upheld the Commission’s affirmative injury determination. View "Simens Energy, Inc. v. United States, Wind Tower Trade Coalition" on Justia Law

Straight Path IP Group owns U.S. Patent No. 6,108,704 (“the ’704 patent”), entitled Point-to-Point Internet Protocol, which describes protocols for establishing communication links through a network. Sipnet EU S.R.O. filed a petition for inter partes review of the ‘704 patent, requesting cancellation of claims 1-7 and 32-42, as anticipated by and obvious over several prior-art references. The Patent Trial and Appeal Board conducted the review and reached a final decision canceling the challenged claims based on determinations of anticipation and obviousness. The Federal Circuit reversed, holding that the Board adopted a claim construction in arriving at its decision that was erroneous, even under the broadest-reasonable-interpretation standard. Remanded for further proceedings under the correct construction. View "Straight Path IP Group, Inc. v. Sipnet EU S.R.O." on Justia Law

Between April 23 and June 1, 2008, there were 57 reported cases of salmonellosis. The FDA, federal and state agencies, and food industry began an investigation to determine the source of contamination. On June 3, 2008, the FDA issued a press release alerting consumers that the salmonella outbreak “appears to be linked” to the consumption of “raw red plum, red Roma, or round red tomatoes” and that “the source of the contaminated tomatoes may be limited to a single grower or packer or tomatoes from a specific geographic area.” Later, a spokesman stated the FDA suspected the contaminated tomatoes had been shipped from Florida or Mexico, and red plum, red Roma, and red round tomatoes were “incriminated with the outbreak.” A third press release announced that “fresh tomatoes now available in the domestic market are not associated with the current outbreak.” Although the link between the salmonella outbreak and the their tomatoes was eventually disproved, tomato producers alleged that all or almost all of the value of the perishable tomatoes was destroyed due to a decrease in market demand. The Federal Circuit affirmed dismissal on grounds that the warning of a possible link between the tomatoes and an outbreak did not effect a regulatory taking. View "DiMare Fresh, Inc. v. United States" on Justia Law

The U.S. Air Force solicited bids from private companies to supply equipment and services to build a new radar system. Raytheon, Northrop Grumman, and Lockheed Martin cleared early hurdles; each received a solicitation for proposals for Engineering and Manufacturing Development. The Air Force subsequently sent Evaluation Notices to Raytheon and Northrop that “contractors would not be permitted to use IR & D costs to reduce their costs of performing . . . if those costs were implicitly or explicitly required for contract performance.” Raytheon objected; Northrop did not.. The Air Force then changed its view and accepted Raytheon’s treatment of certain costs as IR & D costs, but never communicated its new view to Northrop. In final proposals, Raytheon proposed IR & D cost reductions, whereas Northrop did not. The Air Force awarded the contract to Raytheon. Northrop and Lockheed filed protests with the Government Accountability Office (31 U.S.C. 3551). In response, the Air Force “decided to take corrective action” and to reopen discussions. Raytheon filed a protest under 28 U.S.C. 1491(b) to challenge the decision to take corrective action. The Federal Circuit affirmed denial of the protest, concluding that the reopening decision was proper based on the disparate-information violation. View "Raytheon Co. v. United States" on Justia Law