This morning the Federal Circuit released a precedential opinion in a trade case appealed from the Court of International Trade. Notably, Judge Chen filed an opinion with additional views expressing concern that the majority decided a prior case and the case at issue incorrectly under Supreme Court precedent. The Federal Circuit also released three nonprecedential opinions in veterans cases appealed from the Court of Appeals for Veterans Claims. Finally, the Federal Circuit released a nonprecedential order, a Rule 36 judgment, and an erratum. Here are the introductions to the opinions, text from the order, and links to the Rule 36 judgment and erratum.

USP Holdings, Inc. v. United States (Precedential)

We have authority to review the determinations by both the President and the Secretary that steel imports threaten national security and the determination by the President to set a steel tariff for an indefinite duration. We find no violations of the statute.

CHEN, Circuit Judge, additional views.

As to the question of whether the Commerce Secretary’s threat determination under 19 U.S.C. § 1862 is a judicially reviewable final agency action, I agree with the panel’s decision because the relevant facts are essentially the same as facts in Corus Group. Corus Grp. PLC v. Int’l Trade Comm’n, 352 F.3d 1351, 1359 (Fed. Cir. 2003). However, I write separately to express concern that Corus Group is inconsistent with Supreme Court precedents on the non-finality of a Secretary’s or Commission’s tentative report and recommendation to the President.

Salas v. McDonough (Nonprecedential)

Michael A. Salas appeals a judgment of the Court of Appeals for Veterans Claims (“Veterans Court”) affirming a decision of the Board of Veterans’ Appeals (“Board”) that denied him an increased rating for his ankle disability. As explained below, Mr. Salas raises no issues within our jurisdiction. We therefore dismiss.

London v. McDonough (Nonprecedential)

Steven L. London appeals a decision of the United States Court of Appeals for Veterans Claims denying his petition for a writ of mandamus. Because Mr. London obtained the relief sought in his mandamus petition, we dismiss.

Simmons v. McDonough (Nonprecedential)

Minnie L. Simmons, the surviving spouse of Army veteran Robert E. Simmons, filed a claim for dependency and indemnity compensation under 38 U.S.C. § 1310, claiming the required service connection on the ground that Mr. Simmons’s death due to myocardial infarction, hypertension, and lung cancer was caused by exposure to the Agent Orange herbicide during his service in 1967 near the Korean demilitarized zone. The Department of Veterans Affairs (VA) regional office denied her claim, and the Board of Veterans’ Appeals affirmed the denial. The Court of Appeals for Veterans Claims (Veterans Court) vacated the Board decision for failing to consider certain evidence. Simmons v. Wilkie, No. 19-2555, 2020 WL 2703094 (Vet. App. May 26, 2020) (CAVC Remand Decision). On remand, the Board again denied the claim, finding that even though Mr. Simmons had served in Korea during a period in which exposure to herbicides could be presumed, the presumption was overcome by the evidence indicating that Mr. Simmons himself was not exposed to Agent Orange. The Veterans Court affirmed. Simmons v. McDonough, No. 20-7716, 2021 WL 4976670 (Vet. App. Oct. 27, 2021) (CAVC Final Decision).

Mrs. Simmons appeals. But her only challenge is to the factual determination that Mr. Simmons was not exposed to Agent Orange. This court lacks jurisdiction to review factual findings where, as here, no constitutional challenge is presented. We therefore dismiss the appeal for lack of jurisdiction.

Adams v. Department of the Navy (Nonprecedential Order)

The petitioner having failed to pay the docketing fee required by Federal Circuit Rule 52(a)(1) and to file the required Statement Concerning Discrimination, it is

ORDERED that the petition for review be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules.

Rule 36 Judgment