Friday, November 07, 2014

Quick Update

Having now read the second opinion in Puerto Rico Towing & Barge, I'll just say that I am not going to do a full recap. This is an effort to have the Court of International Trade change its original judgment in favor of the United States. The company raised a few points about alleged errors in the Court's prior analysis, but the Court did not see anything substantive there. So, the original decision stands.

My second quick update is to Rockwell Automation v. U.S., which is the case about the functioning of the Court of International Trade's Reserve Calendar. For background, read the original post here.

You will recall that an issue in the case is whether several motions for extensions of time to remain on the Reserve Calendar were timely. The relevant rule is Rule 83(d), which says:

(d) Extension of Time. The court may grant an extension of time for the case to remain on the Reserve Calendar for good cause. A motion for an extension of time must be made at least 30 days prior to the expiration of the 18-month period.  

In the last post, I posited that the 30-day prior notice provision might apply only to the first 18-month period in which the case is on the Reserve Calendar. If that is correct, then subsequent motions to extend are timely when made before the end of the Reserve Calendar even if within the 30-day window.

Now, the Court of International Trade has taken up the question. In this effort styled as an "Application for Clarification," counsel for Rockwell asked the Court resolve the matter. The Court noted the sparse history of the language in the rule and that members of the bar have expressed their view that the 30-day notice is limited to the first 18-month period. Consequently, the Court agreed that there is an issue. That issue is now before the Advisory Committee on Rules, "where the matter can be fully aired and any appropriate revisions to the Rules of the Court can be recommended in due course." So, that means wait and see what happens.

As is, the motion to extend was granted anyway, so this is a bit of sound and fury signifying the need for a useful clarification of the rules.

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