Paul Gluckman

The Supreme Court of the United States on May 1 granted the petition of a group of vessel challenging the authority of the National Marine Fisheries Service under the Magnuson-Stevens Act to require them to pay the salaries of the federal observers they must carry on board to enforce the agency’s regulations. It's a case that could have broad implications for the deference afforded agencies to properly interpret and enforce the federal statutes they have authority over (Loper Bright Enterprises v. Gina Raimondo, U.S. Sup. Ct. # 22-451).

Plans to update the federal court system's Public Access to Court Electronic Records (Pacer) service include enhanced search functionality such as unified search capability and search technology that's cloud-based and "both intuitive and user-friendly," Rosslynn Mauskopf, U.S. Courts Administrative Office director, wrote lawmakers on Oct. 19. The new search capabilities will allow record searches from a central repository crossing court boundaries, eliminating the need to search for records at each individual federal court, Mauskopf said. The unified search capability also will enable full text searches and searches by judges’ names. "The new search technology will be both easy to use and free for non-commercial users," she said. However, the Open Courts Act "may unduly constrain the effort we have underway," Mauskopf said, noting Congressional Budget Office opinions that eliminating Pacer fees will cost the Judiciary $1 billion over a 10-year period.

A text-only order Sept. 15 of the three-judge panel at the Court of International Trade granted the motion for leave filed by three importers to enter into the record of the Section 301 litigation their previously unexpected amicus brief in the Section 301 litigation (see 2209140054). Verifone, Drone Nerds and Specialized Bicycle Components argued in the brief for the lists 3 and 4A tariffs to be vacated for Administrative Procedure Act violations at the Office of the U.S. Trade Representative that remain uncured after the agency filed its Aug. 1 remand determination. The three importers are “interested parties” to the litigation, as they are “individual claimants” among the thousands of Section 301 lawsuits filed, and because they “do business in and with China,” their motion said (In Re Section 301 Cases, CIT #21-00052).

The Court of International Trade in its April 1 remand order gave the Office of the U.S. Trade Representative “one final opportunity” to cure its Administrative Procedure Act violations and "flesh out" the reasons why it rejected the 9,000+ comments it received in the lists 3 and 4A Section 301 tariff rulemakings, without devising “new rationales for dismissing them,” Akin Gump lawyers for lead Section 301 plaintiffs HMTX Industries and Jasco Products said in comments on USTR’s Aug. 1 remand determination. “USTR’s response to that directive flunks the Court’s test,” they said (In Re Section 301 Cases, CIT #21-00052).

The Court of International Trade “bent over backwards” to allow the Office of the U.S. Trade Representative to comply with its Administrative Procedure Act obligations in its imposition of the lists 3 and 4A Section 301 tariffs on Chinese goods when it remanded the duties to the agency for further explanation on the rationale for the actions it took in the context of the comments it received, said an amicus brief filed Sept. 14 in the massive Section 301 litigation from the Retail Litigation Center, CTA, the National Retail Federation and four other trade associations. With USTR’s “non-responsive” answer to the remand order, the time has come for the court “to impose the normal remedy for unlawful agency action” and to vacate the lists 3 and 4A tariffs, it said (In Re Section 301 Cases, CIT #21-00052).

Lawyers for the Section 301 test-case plaintiffs HMTX Industries and Jasco Products have until Sept. 14 to file their response to the Aug. 1 remand results on the lists 3 and 4A tariffs from the Office of the U.S. Trade Representative, said an Aug. 15 scheduling order from the three-judge panel at the Court of International Trade. DOJ’s reply is due 44 days later, by Oct. 28, the order said. The two sides, in a joint status report, had agreed on the Sept. 14 date for the plaintiffs to respond to USTR’s remand results, but the government asked for 60 days to Nov. 14 to file its reply, while the plaintiffs asked for the government's reply within 30 days, by Oct. 14.

The Office of the U.S. Trade Representative often found itself weighing the possible harm to U.S. consumers from the lists 3 and 4A Section 301 tariffs against the need to give the duties enough teeth to curb China’s allegedly unfair trade practices, the agency said in its 90-page “remand determination,” filed Aug. 1 at the Court of International Trade (In Re Section 301 Cases, CIT #21-00052). Submitting its bid to ease the court's concerns over modifications made to the third and fourth tariff waves, USTR provided its justifications for removing various goods from the tariff lists ranging from critical minerals to seafood products.

A CBP ruling that some Google device imports continue to infringe Sonos multiroom audio patents in violation of the International Trade Commission’s Jan. 6 limited exclusion order (see 2206290009) “temporarily impacts a small number of Pixel users who set up a speaker or display for the first time with the Device Utility App,” a Google spokesperson emailed. “We will work with them to minimize disruption" as Google complies with CBP's orders to disable the app, he said. "Our support teams are on hand to fix any issues they have and if needed, we will send replacement devices or offer a Google store credit." Google has worked hard over the years to be sure that the customers it shares with Sonos "would have a positive experience," the spokesperson said. Google is "disappointed that Sonos continues to use the legal system in a way that deliberately creates issues for these users,” he said. Sonos publicists emailed journalists with links to the CBP ruling, which was dated June 3 and released publicly June 28, along with a statement from Sonos Chief Legal Officer Eddie Lazarus accusing Google of “flouting” the ITC’s import ban. “This finding marks yet another example of Google continuing to misuse our intellectual property and acting in wholesale disregard of the law,” Lazarus said.

The Office of the U.S. Trade Representative has 32 extra days, until Aug. 1, to file its lists 3 and 4A tariff remand results in the Section 301 litigation, a three-judge panel at the Court of International Trade said in a June 22 order. DOJ, on USTR’s behalf, asked for a 60-day extension to Aug. 30 to fix its Administrative Procedure Act violations, citing the volume of work required to meet the remand order, plus the agency’s limited staff resources and the additional projects compounding its workload (see 2206210042).

The Office of the U.S. Trade Representative can’t demonstrate good cause for a Section 301 remand deadline extension “that would leave uncured its established legal violation for another two months to the continuing detriment of American businesses and consumers,” Akin Gump lawyers for Section 301 litigation test plaintiffs HMTX Industries and Jasco Products said in an opposition brief June 21 at the Court of International Trade in docket 1:21-cv-00052.