This morning the Federal Circuit released four precedential opinions. The first comes in a government contract case appealed from the Civilian Board of Contract Appeals. The other three come in trade cases appealed from the Court of International Trade. The Federal Circuit also released two nonprecedential opinions, one in a trade case and the other in a patent case. Finally, the court released a nonprecedential order, a Rule 36 judgment, and an erratum. Here are the introductions to the opinions and orders.
CSI Aviation, Inc. v. Department of Homeland Security (Precedential)
This is a government contract case in which CSI Aviation, Inc. seeks payment from the Department of Homeland Security for flight cancellation charges, totaling $40,284,548.89, that CSI contends it is owed under the Schedule Contract. CSI appeals the decision of the Civilian Board of Contract Appeals holding that the CSI Terms and Conditions were not incorporated by reference into the Schedule Contract and dismissing six consolidated appeals on that basis. Because we determine that the Schedule Contract expressly incorporates at least one document that unambiguously identifies the CSI Terms and Conditions and that makes clear such terms and conditions apply to all operations, we reverse the Board’s holding to the contrary. Since that holding formed the basis for all six dismissals, we vacate the Board’s summary judgment decision and remand for further proceedings.
Red Sun Farms v. United States (Precedential)
This is one of several appeals argued together to this panel, all arising out of an antidumping duty investigation to determine whether fresh Mexican tomatoes were being imported into the United States and sold at less than fair value. The history of the proceedings is described in our two accompanying precedential opinions in Confederacion de Asociaciones Agricolas del Estado de Sinaloa, A.C. v. United States, No. 2020-2232, and Bioparques de Occidente v. United States, No. 2020-2265. In this case, we reverse and remand.
DYK, Circuit Judge, concurring-in-part and dissenting-in-part.
I join part II.B of the majority opinion, but I respectfully dissent from the majority’s holding that 19 U.S.C. § 1516a(a)(2)(B)(iv) (“B(iv)”) provides a basis for jurisdiction. Subsection B(iv) on its face, in the context of the statute as a whole, and given its history, permits challenges to a final determination resulting from a continued investigation only if the appealing party has previously filed a challenge to the suspension agreement. Both the Trade Court in Usinas Siderúrgicas de Minas Gerais, S/A v. United States, 201 F. Supp. 2d 1304 (Ct. Int’l Trade 2002), which has “expertise in addressing antidumping issues and deals on a daily basis with the practical aspects of trade practice,” Int’l Trading Co. v. United States, 281 F.3d 1268, 1274 (Fed. Cir. 2002), and the government on appeal agree.
Confederacion de Asociaciones v. United States (Precedential)
Confederacion de Asociaciones Agricolas del Estado de Sinaloa, A.C.; Consejo Agricola De Baja California, A.C.; Asociacion Mexicana de Horticultura Protegida, A.C.; Asociacion de Productores de Hortalizas del Yaqui y Mayo; and Sistema Producto Tomate (collectively “CAADES” or “the growers”) appeal a final decision of the Court of International Trade (the “Trade Court”). The Trade Court dismissed CAADES’s claims as either being moot or not ripe, though characterizing the dismissal as being for failure to state a claim.
We hold that we have jurisdiction over CAADES’s challenges to the government’s termination of the parties’ 2013 suspension agreement (“the 2013 agreement”) and the 2019 suspension agreement (“the 2019 agreement”) and that those claims are not moot. However, on the merits we conclude that the 2013 agreement’s termination was not invalid for failing to comply with statutory termination requirements or because of allegedly improper political influence and that the 2019 agreement is not invalid on grounds of duress.
As for CAADES’s claims that the October 2019 final antidumping determination is invalid, we conclude that the challenge is not premature and that the Trade Court has jurisdiction to hear those claims. We remand for further proceedings pursuant to our opinions in Bioparques de Occidente v. United States, No. 2020-2265, and Red Sun Farms v. United States, No. 2020-2230.
Bioparques de Occidente v. United States (Precedential)
The present appeals arise from three complaints filed in the U.S. Court of International Trade (Trade Court or USCIT) challenging Commerce’s termination of the 2013 Agreement, continuation of the investigation, and final determination. Each of the three complaints was filed jointly by the firms we will call “Bioparques” collectively—Bioparques de Occidente, S.A. de C.V. and Agricola La Primavera, S.A. de C.V., which are Mexican exporters of fresh tomatoes and signatories to the 2019 Agreement, and Kaliroy Fresh LLC, which is a U.S. importer of fresh tomatoes from Mexico. Each complaint asserted a different statutory basis of jurisdiction. The Trade Court dismissed all claims under USCIT Rule 12(b)(1) for want of the case or controversy required by Article III of the Constitution. It held that (a) Bioparques’s claims regarding the termination of the 2013 Agreement became moot upon the execution of the 2019 Agreement and (b) Bioparques’s claims regarding the final determination in the continued investigation were not ripe because Bioparques suffered no concrete injury until an antidumping duty order based on that determination issued, which had not occurred and could not occur while the 2019 Agreement was in force. Bioparques de Occidente, S.A. de C.V. v. United States, 470 F. Supp. 3d 1366 (Ct. Int’l Trade 2020). Bioparques appeals.
We hold as follows. As to Bioparques’s challenge to the termination of the 2013 Agreement, we rely on the opinion we issue today in Confederacion de Asociaciones Agricolas del Estado de Sinaloa, A.C. v. United States, No. 2020-2232 to conclude that Bioparques has stated no plausible challenge to that termination, so this challenge must be dismissed under USCIT Rule 12(b)(6). As to Bioparques’s challenges to Commerce’s final determination in the continued investigation (both the results and the process), we draw two conclusions. First, we conclude that this challenge presents a case or controversy that is justiciable under Article III of the U.S. Constitution. Second, we conclude that the Tariff Act of 1930 provides jurisdiction for the Trade Court to review the final determination at issue here even before an antidumping duty order has been published. We remand to the Trade Court to address the merits of Bioparques’s claims regarding the final determination.
Jem D International (Michigan) v. United States (Nonprecedential)
This appeal is one of four consolidated cases arising out of an antidumping duty investigation to determine whether fresh Mexican tomatoes were being imported into the United States and sold at less than fair value. The history of the proceedings is described in our two accompanying precedential opinions in Confederacion de Asociaciónes v. United States, No. 2020-2232, and Bioparques de Occidente v. United States, No. 2020-2265.
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Accordingly, the Trade Court lacked jurisdiction over this claim, and we affirm its dismissal.
Amgen Inc. v. Vidal (Nonprecedential)
Appellants Amgen Inc. and Amgen Manufacturing Ltd. (collectively, Amgen) appeal a Final Written Decision and reconsideration of the same by the Patent Trial and Appeal Board (Board) in an inter partes review proceeding involving U.S. Patent No. 8,952,138 (’138 patent). The Board determined that claims 1–24 of the ’138 patent are unpatentable under 35 U.S.C. § 103(a). Amgen appeals the Board’s construction of the claim term “final thiol-pair ratio” and determination that claims 1–24 are unpatentable. For the following reasons, we reverse.
Cooke v. United States Postal Service (Nonprecedential Order)
The petitioner having failed to file the required Statement Concerning Discrimination and required Entry of Appearance form by an attorney admitted to the bar of this court it is
ORDERED that the petition for review be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules.