This morning the Federal Circuit released two precedential opinions in trade and government contracts cases along with three nonprecedential opinions in patent and trade cases. The court also released a nonprecedential opinion transferring an appeal to the Second Circuit along with a dismissal. Here are the introductions to the opinions and order and a link to the dismissal.

Committee Overseeing Action for Lumber International Trade Investigations or Negotiations v. United States (Precedential)

The United States Department of Commerce initiated a countervailing duty investigation concerning imports of certain softwood lumber products from Canada. Certain Softwood Lumber Products from Canada: Initiation of Countervailing Duty Investigation, 81 Fed. Reg. 93,897 (Dec. 22, 2016). Commerce individually investigated five groups of companies (each group consisting of affiliated companies) that were producers and/or exporters of the covered products, and it ultimately issued a final determination to impose countervailing duties on the products of those companies at company-specific rates ranging from 3.34% to 18.19%. Certain Softwood Lumber Products from Canada: Final Affirmative Countervailing Duty Determination, and Final Negative Determination of Critical Circumstances, 82 Fed. Reg. 51,814, 51,815–16 (Nov. 8, 2017). Commerce also determined to impose countervailing duties on products of all other producers and exporters of the products at an “all-others” rate that initially was 14.25%, id. at 51,816, and then was modified to be 14.19%, Certain Softwood Lumber Products from Canada: Amended Final Affirmative Countervailing Duty Determination and Countervailing Duty Order, 83 Fed. Reg. 347, 349 (Jan. 3, 2018).

Starting within a few days of publication of the countervailing duty (CVD) order on January 3, 2018, and continuing until February 5, 2018, almost three dozen Canadian companies that alleged they were subject to the all-others rate asked Commerce to initiate an “expedited review” under 19 C.F.R. § 351.214(k) (now § 351.214(l)) to give them individually determined rates, and Commerce initiated that review. Certain Softwood Lumber Products from Canada: Initiation of Expedited Review of the Countervailing Duty Order, 83 Fed. Reg. 9,833 (Mar. 8, 2018). Most of the requesters dropped out of the proceeding before Commerce ruled. Ultimately, as relevant here, Commerce awarded the individual requesters now before us (exporters of the covered products) reduced or de minimis CVD rates. Certain Softwood Lumber Products from Canada: Final Results of Countervailing Duty Expedited Review, 84 Fed. Reg. 32,121 (July 5, 2019).

A domestic trade group—the Committee Overseeing Action for Lumber International Trade Investigations or Negotiations (COALITION)—challenged the final results of the expedited review in the Court of International Trade (Trade Court). In particular, COALITION asked the Trade Court to set aside the results on the ground that Commerce lacked statutory authority to create the expedited-review process. The Canadian exporters now before us and the governments of Canada, Québec, and New Brunswick—collectively, the Canadian parties—intervened in COALITION’s action, and some of those parties also filed their own actions in the Trade Court, raising some issues not relevant to this appeal. The Trade Court consolidated the cases, with the (first-filed) COALITION action as the lead case.

The Canadian parties and the United States argued that Commerce had authority to adopt the expedited-review procedures of 19 C.F.R. § 351.214(k) to give exporters a chance to secure individual rates shortly after publication of a CVD order, arguing for the existence of such authority chiefly in various provisions of the Uruguay Round Agreements Act (URAA), Pub. L. No. 103-465, 108 Stat. 4809 (1994). The Trade Court rejected those contentions and held that the Secretary of Commerce lacked statutory authority to adopt the procedures. We hold otherwise, concluding that the Secretary had statutory authority to adopt the expedited-review process as procedures for implementing statutory provisions that authorize individualized determinations in CVD proceedings. See 19 U.S.C. §§ 1667f1(e), 1677m, 3513(a)(2). We therefore reverse the judgment of the Trade Court and remand for any proceedings necessitated by our holding that statutory authorization exists.

Lockheed Martin Aeronautics Co. v. Secretary of the Air Force (Precedential)

To expedite work on pressing government projects, the government can issue what are called “letter contracts” or “Undefinitized Contract Actions” (“UCAs”). UCAs allow contractors to begin work before the parties have reached a final agreement on contract terms, like price. The price is expected to be converted into a firm price—or “definitized”—in a timely manner.

This appeal involves two UCAs that the Air Force entered into with Lockheed Martin for upgrades to F-16 aircraft. Both UCAs include “definitization” clauses that provide that if the parties are unable to reach agreement on price by a certain time, the Contracting Officer or “CO”—the government’s agent who can negotiate, execute, modify, or terminate a contract on behalf of the government—may determine a reasonable price. After several years of negotiations, the Air Force and Lockheed Martin were unable to agree on the price terms for the UCAs. The CO assigned to each UCA unilaterally definitized their respective UCA at a price of about $1 billion.

Lockheed Martin appealed directly to the Armed Services Board of Contract Appeals (“ASBCA”) under the Contract Disputes Act (“CDA”), asserting that the COs failed to definitize at a reasonable price as required under the UCAs. The government moved to dismiss, arguing that the ASBCA lacked jurisdiction over the appeals because Lockheed Martin failed to submit a certified contractor claim to the COs requesting a final decision on its claims as required under the CDA. Lockheed Martin asserted that the COs’ unilateral definitizations qualified as government claims under the CDA, which a contractor can directly appeal to the ASBCA without having to submit its own claim to the COs. The ASBCA disagreed with Lockheed Martin and dismissed the appeals for lack of jurisdiction.

Lockheed Martin appeals to this court, pressing the same “government claim” argument here. For the reasons below, we affirm the ASBCA’s dismissal.

Apple Inc. v. UUSI, LLC (Nonprecedential)

Apple Inc. (“Apple”) filed two petitions for inter partes review of various claims of U.S. Patent No. 5,796,183 (“the ’183 patent”), which UUSI, LLC, d/b/a Nartron (“Nartron”) owns. The Patent Trial and Appeal Board (“Board”) determined that some claims were shown to be unpatentable while others weren’t. Apple, Inc. v. UUSI, LLC, IPR2019- 00358, Paper 26, 2020 WL 4546916, at *44 (P.T.A.B. Aug. 4, 2020) (“Final Written Decision”); Apple, Inc. v. UUSI, LLC, IPR2019-00359, Paper 27, 2020 WL 4542561, at *37 (P.T.A.B. Aug. 4, 2020). Apple appeals, and Nartron cross-appeals. We affirm as to both the appeal and cross-appeal.

In re Nicira (Nonprecedential)

Nicira, Inc. appeals from the final decision of the Patent Trial and Appeal Board (“Board”), affirming the Examiner’s rejection of claims 1-20 of Nicira’s U.S. Patent Application No. 2015/0381362 (“Application”). Nicira argues that the Board’s obviousness rejection of representative claim 1 based on Allen in view of Lin and Harjula is not supported by substantial evidence under a proper construction of claim 1. For the reasons that follow, we affirm.

Chae v. Yellen (Nonprecedential)

Appellant Byungmin Chae appeals the decision of the United States Court of International Trade (“CIT”), which sustained the denial of Mr. Chae’s application for a customs broker license. The CIT affirmed the ruling of United States Customs and Border Protection (“Customs” or “CBP”) that Mr. Chae did not achieve the required passing grade of at least 75 percent on the Customs Broker License Examination (“CBLE”), which Mr. Chae sat for in April 2018. See 19 U.S.C. § 1641(b)(2) (stating that the Secretary of the Treasury “may conduct an examination to determine the applicant’s knowledge of customs and related laws, regulations and procedures, bookkeeping, accounting, and all other appropriate matters”); 19 C.F.R. § 111.11(a)(4) (establishing “75 percent or higher” as the passing grade on the CBLE). On appellate review, we affirm the decision of the CIT denying Mr. Chae’s customs broker license application.

Bacilima v. Garland (Nonprecedential Order)

Luis Angel Narvaez Bacilima petitioned this court to review an order of the Board of Immigration Appeals. In response to the court’s February 23, 2023, order to show cause, the Attorney General moves to transfer this petition to the United States Court of Appeals for the Second Circuit. Mr. Narvaez Bacilima has not responded.

This court’s jurisdiction is limited and does not include immigration appeals. Cf. 28 U.S.C. § 1295; see Herrera-Alcala v. Garland, 39 F.4th 233, 241 n.2 (4th Cir. 2022) (noting same). Rather, petitions for review of orders of the Board “shall be filed with the court of appeals for the judicial circuit in which the immigration judge completed the proceedings.” 8 U.S.C. § 1252(b)(2). Because Mr. Narvaez Bacilima’s removal proceedings occurred in New York, we agree with the Attorney General and transfer this petition to the United States Court of Appeals for the Second Circuit pursuant to 28 U.S.C. § 1631.



The motion is granted. The appeal and all its filings are transferred to the United States Court of Appeals for the Second Circuit pursuant to 28 U.S.C. § 1631.