This morning, the Federal Circuit released one precedential opinion, one nonprecedential opinion, and one Rule 36 summary affirmance. The precedential opinion, which attracted one amicus brief, addresses two issues in a case appealed from the Court of International Trade: the President’s authority to modify safeguard measures in a trade-restrictive manner and the appropriate procedures under the Trade Act for doing so. The nonprecedential opinion addresses an appeal from a judgment of the Trademark Trial and Appeal Board affirming an examining attorney’s refusal to register a mark. Here are the introductions to the opinions and a link to the summary affirmance.

Solar Energy Industries Ass’n v. United States (Precedential)

In 2018, the President adopted certain safeguard measures to protect the domestic solar panel industry.  In particular, the President issued Proclamation 9693, which imposed duties on imports of solar panels into the United States.  See Proclamation 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 (Jan. 23, 2018).  The duties of Proclamation 9693 began at 30% and were scheduled to decrease each year to 25%, 20%, and then, in their final, fourth year, 15%.  See id. at 3548.  Importers of a certain type of solar panel – 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 – petitioned the United States Trade Representative (“USTR”) for an exclusion, asking that bifacial solar panels not be subjected to the duties.  The USTR granted the exclusion, but then quickly reversed course, with the consequence that the duties of Proclamation 9693 remained scheduled to be imposed on bifacial panels.  Following litigation in the Court of International Trade (“trade court”), and additional actions by the USTR, bifacial solar panels were again excluded from the duties.

In October 2020, the President issued Proclamation 10101, “modifying” Proclamation 9693 to withdraw the exclusion of bifacial solar panels from the scheduled duties, and also to increase the fourth-year duty rate from 15% to 18%.  See 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. 16, 2020).  In response to Proclamation 10101, importers of bifacial solar panels brought suit against the United States in the trade court on the grounds that the proclamation exceeded the power of the President.  Their principal contention was that the statute authorizing the President to “modify” Proclamation 9693 only allowed him to make previously adopted safeguard measures more trade-liberalizing, but eliminating the exclusion of bifacial panels and raising the fourth-year duty were trade-restrictive.  The suing parties further argued that even if the President had the authority to “modify” safeguards in a trade-restrictive direction, he failed to follow appropriate procedures in doing so.

The trade court agreed with the importers that the statutory authority to “modify” a safeguard is limited to trade-liberalizing changes.  While the trade court rejected the importers’ procedural challenges, it nonetheless set aside Proclamation 10101 for exceeding the President’s authority.  The government now appeals from the trade court’s judgment in favor of the importers.

We conclude that the President’s interpretation of the applicable statute, which allows him to “modify” an existing safeguard, is not a clear misconstruction.  That is, the President’s view that a “modification” may include a change in a trade-restricting direction, and is not limited to trade-liberalizing changes, is not unreasonable.  We further determine that, in adopting Proclamation 10101, the President did not commit any significant procedural violation of the Trade Act.  Accordingly, we reverse the judgment of the trade court.

In re Go & Associates, LLC (Nonprecedential)

GO & Associates, LLC (“GO”) appeals from a decision of the United States Trademark Trial and Appeal Board (“the Board”) affirming the examining attorney’s final refusal to register GO’s applied-for mark: “EVERYBODY VS RACISM.”  In re GO & Assocs., LLC, No. 88944728, 2022 WL 1421542 (T.T.A.B. Apr. 20, 2022) (“Decision”).  Because substantial evidence supports the Board’s conclusion, we affirm.

Rule 36 Judgment