Oman Fasteners, LLC v. United States

Slip Op. No. 21-72
UNITED STATES COURT OF INTERNATIONAL TRADE
OMAN FASTENERS, LLC, et al.,
Plaintiffs,
v.
UNITED STATES, et al.,
Defendants.
Before: Jennifer Choe-Groves, Judge
M. Miller Baker, Judge
Timothy C. Stanceu, Judge
Consolidated Court No. 20-00037
OPINION
[Denying defendants’ motion to dismiss, awarding summary judgment to
plaintiffs on Count I of their respective complaints, and dismissing the remaining
counts of each of plaintiffs’ complaints. Judge Baker files a separate opinion concurring
in part and dissenting in part.]
Dated: June 10, 2021
Michael P. House, Perkins Coie, LLP, of Washington, D.C., for plaintiffs Oman
Fasteners LLC and Huttig, Inc., and Huttig Building Products, Inc. With him on the
submissions were Andrew Caridas and Shuaiqi Yuan.
Tara K. Hogan, Assistant Director, Commercial Litigation Branch, Civil Division,
U.S. Department of Justice, of Washington, D.C., for defendants. With her on the
submissions were Brian M. Boynton, Acting Assistant Attorney General, Jeanne E.
Davidson, Director, Aimee Lee, Assistant Director, and Meen Geu Oh, Senior Trial
Counsel, Commercial Litigation Branch, Civil Division, U.S. Department of Justice,
Washington, D.C.
Stanceu, Judge: Plaintiffs Oman Fasteners LLC (“Oman”), Huttig Building
Products, Inc., and Huttig Inc. (collectively, “Huttig”), U.S. importers of steel fasteners,
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brought actions, now consolidated, to contest a proclamation issued by the President of
the United States (“Proclamation 9980”) in January 2020. Adjusting Imports of Derivative
Aluminum Articles and Derivative Steel Articles Into the United States, 85 Fed. Reg. 5,281
(Exec. Office of the President Jan. 29, 2020).
Before the court is a Joint Status Report, submitted by all parties, responding to a
request by the court. Also before the court is a motion by plaintiffs for entry of final
judgment, which defendants do not oppose, subject to their right to appeal. In response
to statements of the parties in the Joint Status Report and the unopposed motion, and
for the reasons discussed herein, the court denies a motion by defendants to dismiss
Count I of each plaintiff’s complaint, enters summary judgment in favor of each
plaintiff on their respective Count I claims, and dismisses the remaining counts in each
plaintiff’s complaint without prejudice.
I. BACKGROUND
A. Proclamation 9980
On January 24, 2020, President Donald Trump issued Proclamation 9980, which
imposed a 25% duty on certain imported articles made of steel, including nails and
other fasteners, and a 10% duty on certain imported articles made of aluminum. As
authority for its imposition of duties on the articles, identified as “derivative aluminum
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articles” and “derivative steel articles,” Proclamation 9980 cited Section 232 of the Trade
Expansion Act of 1962, 19 U.S.C. § 1862 (“Section 232”).1
B. Procedural History of this Consolidated Action
On February 7, 2020, Oman commenced an action to contest Proclamation 9980,
naming the United States, et al., as defendants and asserting claims in three counts.
Summons, ECF No. 1; Compl., ECF No. 2. Huttig commenced its action on February 18,
2020, on a complaint consisting of the same three counts. Summons, ECF No. 1 (Ct. No.
20-00045); Compl., ECF No. 5 (Ct. No. 20-00045).
On joint motions, the court consolidated the two actions, with Court Number
20-00037 serving as the lead case. Order (Mar. 16, 2020), ECF No. 54. In the same order,
the court, again with the consent of the parties, stayed Counts II and III of each of the
two complaints pending the court’s decision on Count I of those complaints. Id. Stated
in brief summary, Count I of each complaint claimed that Proclamation 9980 was
invalid because it was not based on a determination the President made within the
90-day period provided in Section 232(c)(1)(A) and was not implemented within the
15-day period set forth in Section 232(c)(1)(B). Compl. ¶¶ 86–106. 2
1 All citations to the United States Code are to the 2012 edition.
2 For convenience of reference, citations are made to the complaint in Court
No. 20-00037. The complaint in Court No. 20-00045 contains the same claims in the
corresponding paragraphs.
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Defendants moved under USCIT Rule 12(b)(6) to dismiss Count I of each of the
plaintiffs’ complaints on March 20, 2020, for failure to state a claim on which relief can
be granted. Mot. to Dismiss Count I for Failure to State a Claim, ECF No. 57. On
April 14, 2020, plaintiffs opposed the motion to dismiss and moved for summary
judgment on Count I of each complaint. Mot. for Summ. J. with Respect to Count I of
Pls.’ Compl., ECF No. 65. Defendants opposed plaintiffs’ motion for summary
judgment and replied in support of their motion to dismiss Count I on May 15, 2020.
Defs.’ Reply in Supp. of Mot. to Dismiss and Resp. to Pls.’ Mot. for Summ. J., ECF
No. 78. Plaintiffs replied in support of their summary judgment motion on June 1, 2020.
Reply Mem. in Supp. of Pls.’ Mot. for Summ. J., ECF No. 79.
Defendants’ motion to dismiss Count I of each of the two complaints and
plaintiffs’ motion for summary judgment are pending before the court, as is the Joint
Status Report and plaintiffs’ motion for entry of final judgment.
II. DISCUSSION
A. Jurisdiction and Standards of Review
The court exercises subject matter jurisdiction according to section 201 of the
Customs Courts Act of 1980, 28 U.S.C. § 1581(i)(1)(B), which grants this Court exclusive
jurisdiction of a civil action commenced against the United States “that arises out of any
law of the United States providing for . . . tariffs, duties, fees, or other taxes on the
importation of merchandise for reasons other than the raising of revenue.”
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In deciding a motion to dismiss for failure to state a claim upon which relief can
be granted, the court assumes all factual allegations in the complaint to be true (even if
doubtful in fact) and draws all reasonable inferences in a plaintiff’s favor. Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007). A complaint does not need to contain detailed
factual allegations, but it must state enough facts “to raise a right to relief above the
speculative level.” Id. Rule 8(a)(2) of this Court requires a complaint to contain “a short
and plain statement of the claim showing that the pleader is entitled to relief.”
“The court shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” USCIT R. 56(a).
B. Plaintiffs’ Challenges to Proclamation 9980
In Count I of each of their respective complaints, plaintiffs claim that
Proclamation 9980 was untimely issued because: (1) it was not issued within 90 days of
the date the President received a report from the Secretary of Commerce meeting the
requirements of Section 232(b)(3)(A), as required by Section 232(c)(1)(A), Compl. ¶ 103;
and (2) it was not implemented within 15 days of a timely decision by the President
under Section 232(c)(1)(A), as required by Section 232(c)(1)(B), Compl. ¶ 105.
In Count II, plaintiffs assert that Proclamation 9980 also is invalid because
Section 232 is an unconstitutional delegation of power from the Congress to the
President that is “devoid of an intelligible principle.” Compl. ¶¶ 120, 121. In Count III,
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plaintiffs argue that Proclamation 9980 violates the constitutional guarantee of equal
protection by imposing additional tariffs on some derivative articles of steel and not
others, and by excluding from those tariffs identical derivative articles manufactured in
some foreign countries but not others, without a legitimate government purpose for the
disparate treatment. Compl. ¶¶ 127–131.
C. Our Decision in PrimeSource I
In PrimeSource Bldg. Prods., Inc. v. United States, 45 CIT __, 497 F. Supp. 3d 1333
(2021) (“PrimeSource I”), we dismissed under USCIT Rule 12(b)(6) all claims of plaintiff
PrimeSource Building Products, Inc. (“PrimeSource”) except the claim that
Proclamation 9980 was untimely because it was issued beyond the 90-day and 15-day
time limitations set forth in Section 232(c)(1)(A) and (B), respectively. PrimeSource I,
45 CIT at __, 497 F. Supp. 3d at 1361. As do the plaintiffs in this consolidated case, the
plaintiff in PrimeSource argued that Proclamation 9980 was issued after the expiration of
the combined 105-day time period of Section 232(c)(1). See id. at __, 497 F. Supp. 3d at
1344; Compl. ¶ 105. PrimeSource argued that the only report that could have qualified
as a predicate for Proclamation 9980, and issued under Section 232(b)(3)(A), was one the
Secretary of Commerce issued in January 2018 on the effect of certain steel articles on
the national security of the United States (the “2018 Steel Report”). PrimeSource I, 45
CIT at __, 497 F. Supp. 3d at 1341. That report culminated in the President’s issuance of
Proclamation 9705 in March 2018, which imposed 25% duties on various steel articles,
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see Adjusting Imports of Steel Into the United States ¶¶ 1–2, 83 Fed. Reg. 11,625 (Exec.
Office of the President Mar. 15, 2018), but not on the “derivative” articles of steel
affected by Proclamation 9980 in January 2020.
We stated in PrimeSource I that “[d]efendants do not dispute that the 2018 Steel
Report is, for purposes of Section 232(c), 19 U.S.C. § 1862(c), the report issued according
to Section 232(b)(3)(A), 19 U.S.C. § 1862(b)(3)(A), upon which the President based his
adjustment to imports of steel derivatives, including steel nails.” PrimeSource I, 45 CIT
at __, 497 F. Supp. 3d at 1345 (citing Defs.’ Mot. 24–29). In denying defendants’ motion
to dismiss PrimeSource’s “untimeliness” claim, we concluded that Proclamation 9980
does not comply with the limitations on the President’s authority imposed by the
90- and 15-day time limitations of Section 232(c)(1) if the combined 105-day time period
is considered to have commenced upon the President’s receipt of the 2018 Steel Report.
Id. at __, 497 F. Supp. 3d at 1356. We held that in this circumstance PrimeSource had
stated a plausible claim for relief, and therefore we declined to dismiss it. Id. at __, 497
F. Supp. 3d at 1359.
After denying defendants’ motion to dismiss as to PrimeSource’s timeliness
claim, we denied the motion of plaintiff PrimeSource for summary judgment on that
claim, determining that there existed one or more genuine issues of material fact. Id. at
__, 497 F. Supp. 3d at 1361. Although concluding that Proclamation 9980 was untimely
under Section 232(c)(1) when viewed solely as an action taken in response to the 2018
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Steel Report, we also concluded that there were genuine issues of material fact that bore
on the extent to which the subsequent “assessment” or “assessments” of the Commerce
Secretary, as identified in Proclamation 9980, validly could be held to have served a
function analogous to that of a Section 232(b)(3)(A) report. Id. at __, 497 F. Supp. 3d at
1360–61. We also noted that we did not know what form of inquiry or investigation the
Commerce Secretary conducted prior to his submission of these communications to the
President and whether, or to what extent, that inquiry or investigation satisfied the
essential requirements of Section 232(b)(2)(A), 19 U.S.C. § 1862(b)(2)(A). Id. at __, 497 F.
Supp. 3d at 1360–61.
In summary, we concluded in PrimeSource I that factual information pertaining to
the Secretary’s inquiry on, and his reporting to the President on, the derivative articles
would be required in order for us to examine whether and to what extent there was
compliance by the President with the procedural requirements of Section 232 and
whether any noncompliance that occurred was a “significant procedural violation.” Id.
at __, 497 F. Supp. 3d at 1361 (quoting Maple Leaf Fish Co. v. United States, 762 F.2d 86, 89
(Fed. Cir. 1985) (requiring that a procedural violation be “significant” in order to serve
as a ground for judicial invalidation of a Presidential action)). We added that “at this
early stage of the litigation, we lack a basis to presume that these unresolved factual
issues are unrelated to the issue of whether the President clearly misconstrued the
statute or the issue of whether the President took action outside of his delegated
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authority.” Id. at __, 497 F. Supp. 3d at 1361. We noted that the “filing of a complete
administrative record could be a means of resolving, or helping to resolve, these factual
issues” and directed the parties to consult on this matter and file a scheduling order to
govern the subsequent litigation. Id. at __, 497 F. Supp. 3d at 1361.
D. Our Decision in PrimeSource II
On March 5, 2021, the parties in the PrimeSource litigation submitted a joint status
report in lieu of a scheduling order. In it, defendants expressly waived “the
opportunity to provide additional factual information that might show that the
‘essential requirements of Section 232(b)(2)(A), 19 U.S.C. § 1862(b)(2)(A)’ were met,”
adding that “[d]efendants do not intend to pursue that argument.” Joint Status Rep. 2,
ECF No. 108 (Ct. No. 20-00032) (quoting PrimeSource I, 45 CIT at __, 497 F. Supp. 3d at
1361). Defendants informed the court that their “position continues to be that
procedural preconditions for the issuance of Proclamation 9980 were met by the
Secretary’s 2018 Steel Report and the timely issuance of Proclamation 9705, a position
that the majority has already rejected.” Id. at 2–3. The PrimeSource joint status report
concluded by stating that “the parties agree and respectfully submit that there is no
reason for this Court to delay entry of final judgment. In so representing, the parties
fully reserve all rights to appeal any adverse judgment.” Id. at 3.
In PrimeSource Bldg. Prods., Inc. v. United States, 45 CIT __, Slip Op. 21-36 (Apr. 5,
2021) (“PrimeSource II”), we concluded that defendants, through their statements in the
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parties’ joint status report, had waived “any defense that the assessments of the
Commerce Secretary, as described in Proclamation 9980, were the functional equivalent
of a Section 232(b)(3)(A) report.” 45 CIT __, Slip Op. 21-36 at 8. “In particular,
defendants have waived any defense grounded in a factual circumstance other than one
in which the 2018 Steel Report is the only submission made by the Commerce Secretary
that could satisfy the requirements of Section 232(b)(3)(A) and upon which
Proclamation 9980 could have been based.” Id. at __, Slip Op. 21-36 at 9–10. We
concluded that “PrimeSource is now entitled to judgment as a matter of law,” id. at __,
Slip Op. 21-36 at 10, and we entered summary judgment in favor of plaintiff
PrimeSource on its remaining claim.
E. The Joint Status Report and Unopposed Motion for Entry of Judgment
The Joint Status Report (Apr. 30, 2021), ECF No. 105 (“Joint Status Report”),
submitted by counsel for all parties in this case, states, inter alia, that “the parties agree
that, in light of PrimeSource I and II, there is no reason for this Court not to grant
Plaintiffs’ Motion for Summary Judgment on Count I of the Complaints, ECF No. 65,
and deny Defendant’s Motion to Dismiss Count I of Plaintiffs’ Complaints.” Joint
Status Report 1–2. The Joint Status Report states further:
As was true in the PrimeSource litigation prior to the Court’s entry of
judgment, Defendants in this case do not intend to introduce any
additional evidence related to potential factual disputes or additional
factual information showing that Proclamation 9980 satisfied the
requirements of 19 U.S.C. § 1862(b)(2)(A). Defendants’ position remains
that the procedural preconditions for the issuance of Proclamation 9980
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were met by the Secretary’s 2018 Steel Report and the timely issuance of
Proclamation 9705, but this Court has already rejected that position. . . .
Defendants fully reserve all rights to appeal any adverse judgment.
Id. at 2.
In an unopposed motion for entry of final judgment, “[p]laintiffs respectfully
move the Court for entry of an order fully adjudicating the claims alleged in Count I of
Plaintiffs’ Complaints” and “move the Court to dismiss Counts II and III of Plaintiffs’
Complaints, without prejudice, resulting in a complete and final adjudication of this
action.” Unopposed Mot. for Entry of Final J. and Disposition of this Action 1 (Apr. 30,
2021), ECF No. 106. The motion states that counsel for plaintiffs consulted with counsel
for defendants, who indicated that defendants do not oppose this motion. Plaintiffs
accompany their unopposed motion with a draft order that, inter alia, denies
defendants’ motion to dismiss Count I of plaintiffs’ complaints and awards summary
judgment to plaintiffs on their Count I claims. See [Proposed] Order (Apr. 30, 2021),
ECF No. 106-1.
F. Award of Summary Judgment in Favor of Plaintiffs on Count I
As discussed above, each plaintiff’s Count I claim is that Proclamation 9980 is
invalid as untimely because it neither was issued within the 90-day time period allowed
by Section 232(c)(1)(A) nor implemented within the 15-day time period allowed by
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Section 232(c)(1)(B).3 Compl. ¶¶ 102–106. This claim is indistinguishable from the claim
upon which this Court granted summary judgment in favor of the plaintiff in
PrimeSource II, as the parties to this case acknowledge. Joint Status Report 1 (“The
parties have conferred and now agree that the Court’s decisions in Primesource I and
Primesource II are decisive as to Count I of Plaintiffs’ Complaints.”).
We conclude that, as to Count I of plaintiffs’ complaints, there is no longer a
genuine issue of material fact as a result of the representations the parties have made in
the Joint Status Report and in plaintiffs’ unopposed motion for entry of judgment. In
particular, defendants have waived any defense grounded in a factual circumstance
other than one in which the 2018 Steel Report is the only submission made by the
Commerce Secretary that could satisfy the requirements of Section 232(b)(3)(A) and
upon which Proclamation 9980 could have been based.
As we concluded in PrimeSource I, “the action taken by Proclamation 9980 to
adjust imports of derivatives was not implemented during the 105-day time period set
forth in § 1862(c)(1), if that time period is considered to have commenced upon the
President’s receipt of the Steel Report.” 45 CIT at __, 497 F. Supp. 3d at 1356. Due to the
parties’ joint and unopposed representations, there is no genuine issue of material fact
3 Although both complaints, in their Count I titles, refer to “ultra vires” acts of the
Secretary of Commerce, Compl. 23 (Feb. 7, 2020), ECF No. 2, no claim against a decision
of the Commerce Department actually is stated, and therefore we interpret each
plaintiff’s Count I claim as a challenge to Proclamation 9980 and not as a challenge to an
agency action.
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as to when that time period began, and defendants have waived any defense based on a
contention that the time period began on any date other than the President’s receipt of
the 2018 Steel Report.
To declare Proclamation 9980 invalid, we must find “a clear misconstruction of
the governing statute, a significant procedural violation, or action outside delegated
authority.” Maple Leaf Fish Co., 762 F.2d at 89. Because the President issued
Proclamation 9980 after the congressionally-delegated authority to adjust imports of the
products addressed in that proclamation had expired, Proclamation 9980 was action
outside of delegated authority. For the reasons we stated in PrimeSource I, 45 CIT at __,
497 F. Supp. 3d at 1356–58, we find in the untimeliness of Proclamation 9980 a
significant procedural violation. Plaintiffs, therefore, are now entitled to judgment as a
matter of law on their motions for summary judgment on the claims stated in Count I of
their respective complaints.
III. CONCLUSION
In summary, defendants have waived any defense that the procedural
requirements of Section 232 were met based on a procedure other than one reliant upon
the 2018 Steel Report. Summary judgment in favor of plaintiffs on Count I of their
respective complaints therefore is warranted, Proclamation 9980 having been issued
after the President’s delegated authority to impose duties on derivatives of steel
products had expired.
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Further to the parties’ Joint Status Report and plaintiffs’ unopposed motion for
entry of judgment, we deny defendants’ motion to dismiss the claims stated in Count I
of plaintiffs’ respective complaints, grant plaintiffs’ motions for summary judgment on
the claims stated in Count I of their complaints, dismiss without prejudice Counts II
and III of their complaints, and order certain other relief as requested in the unopposed
draft order accompanying plaintiffs’ motion for entry of final judgment. We will enter
judgment in substantially the form as set forth in plaintiffs’ unopposed draft order. 4
/s/ Jennifer Choe-Groves
/s/ Timothy C. Stanceu _____
Jennifer Choe-Groves, Judge
Timothy C. Stanceu, Judge
Dated: June 10, 2021
New York, New York
4 Further to the agreement of all parties, we are dismissing Counts II and III of
plaintiffs’ respective complaints “without prejudice.” Even had the parties not
requested dismissal, we would not have reached the issues raised in these two counts.
Reaching those issues would not have been necessary because of our entry of summary
judgment on Count I of the complaints (which also would have lifted the stay of
Counts II and III). In acceding to the request of the parties that we dismiss Counts II
and III without prejudice, we do not opine on the question of whether or not either
plaintiff would be in a position to bring a future action that could reach the merits of
any argument against Proclamation 9980 that is made in Count II or Count III of
plaintiffs’ complaints.
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Baker, J., concurring in part and dissenting in part
Baker, Judge, concurring in part and dissenting in part:
For the reasons explained in PrimeSource Building Products, Inc. v.
United States, 497 F. Supp. 3d 1333, 1361 (CIT 2021) (Baker, J., dissenting), I
respectfully dissent from our exercise of subject-matter jurisdiction as to Plain-
tiffs’ claims against the President, the entry of summary judgment in favor of
Plaintiffs as to Count I of their respective complaints, and the denial of the
government’s motion to dismiss Count I of those complaints.
I concur in our dismissal of Counts II and III without prejudice as re-
quested by the parties, but I write separately to explain that in so doing we are
not impermissibly “manufacturing” finality for the purpose of securing—if not
manipulating—appellate jurisdiction, a controversial practice that is the sub-
ject of a long-festering circuit split. See generally Mayer Brown LLP, Federal
Appellate Practice § 2.2(b)(1) (3d ed. 2018); see also Doe v. United States, 513
F.3d 1348, 1352–55 (Fed. Cir. 2008). 1
1 Because the majority grants equitable relief in its entry of judgment accompanying
today’s decision, the existence of finality here for purposes of 28 U.S.C. § 1295(a)(5)
(conferring appellate jurisdiction in the Federal Circuit over “final decision[s]” of the
CIT) may be academic. The equitable relief granted by the majority today—ordering
the refund of duties previously paid—arguably constitutes an injunction for purposes
of 28 U.S.C. § 1292(c)(1) & (a)(1), which together confer appellate jurisdiction in the
Federal Circuit over interlocutory orders of the CIT granting injunctions (whether
preliminary or, as here, permanent).
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Baker, J., concurring in part and dissenting in part
Although Plaintiffs’ materially identical complaints nominally allege
three separate counts, for purposes of Federal Rule of Civil Procedure 54(b)—
and by extension our own Rule 54(b), see USCIT R. 54(b)—all three counts are,
in substance, simply alternative legal theories asserted to support “one claim
for relief.” USCIT R. 54(b) (emphasis added). Count I alleges that the President
violated Section 232’s procedural requirements in issuing Proclamation 9980,
see Case 20-37, ECF 2, ¶¶ 95–106, and Case 20-45, ECF 5, ¶¶ 95–106; Count
II alleges that Proclamation 9980 was unlawful because Section 232 represents
an unconstitutional delegation of power by Congress to the Executive, see Case
20-37, ECF 2, ¶¶ 117–121, and Case 20-45, ECF 5, ¶¶ 177–121; and Count III
alleges that Proclamation 9980 violated the equal protection component of the
Due Process Clause of the Constitution’s Fifth Amendment by imposing tariffs
on steel derivative imports from some countries but not others, see Case 20-37,
ECF 2, ¶¶ 128–131, and Case 20-45, ECF 5, ¶¶ 126–129.
For all three counts, Plaintiffs seek the same relief: a judgment declaring
Proclamation 9980 void and an injunction restraining its enforcement and
compelling refunds of Section 232 duties previously collected. See Case 20-37,
ECF 2, at 31; Case 20-45, ECF 5, at 30. Because Plaintiffs could—and with the
majority’s decision today, do—obtain only one recovery, their separate counts
are but variations on legal theories supporting one claim. See Local P-171,
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Baker, J., concurring in part and dissenting in part
Amalgamated Meat Cutters & Butcher Workmen of N. Am. v. Thompson Farms
Co., 642 F.2d 1065, 1070–71 (7th Cir. 1981) (Wisdom, J.) (“At a minimum,
claims cannot be separate unless separate recovery is possible on each. Hence,
mere variations of legal theory do not constitute separate claims.”) (cleaned
up). Therefore, in dismissing Counts II and III without prejudice, we do not
improperly manufacture finality by dismissing nonfinal separate claims.
Nevertheless, even where, as here, a plaintiff only asserts one claim for
Rule 54(b) purposes, a district court or the CIT impermissibly “homebrews”
appellate jurisdiction when it rejects one legal theory in support of that claim
and thereafter dismisses the plaintiff’s remaining theories without prejudice
to facilitate an immediate appeal of what the parties agree is the most im-
portant theory. See, e.g., First Health Grp. Corp. v. BCE Emergis Corp., 269
F.3d 800, 801 (7th Cir. 2001) (Easterbrook, J.). In such a situation, the case is
nonfinal because the trial court has not finally adjudicated the plaintiff’s claim
for relief.
But where, as here, a plaintiff asserts multiple theories in support of only
a single claim for relief and the district court or the CIT grants all the re-
quested relief based on only one of the plaintiff’s asserted theories, attaining
finality does not require the court to also adjudicate the plaintiff’s alternative
theories for recovery on the same claim. By granting the plaintiff all the relief
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Baker, J., concurring in part and dissenting in part
that it could possibly obtain in this action, the majority “ends the litigation on
the merits and leaves nothing for the court to do but execute the judgment.”
Weed v. Soc. Sec. Admin., 571 F.3d 1359, 1361 (Fed. Cir. 2009) (cleaned up and
quoting Cabot Corp. v. United States, 788 F.2d 1539, 1542 (Fed. Cir. 1986)); see
also Electro-Methods, Inc. v. United States, 728 F.2d 1471, 1474 (Fed. Cir.
1984) (decision granting “the most important relief [plaintiff] sought” and “ad-
dress[ing] (by denying) the other relief [plaintiff] sought” was a “final decision
. . . for all practical purposes”); cf. Ind. Harbor Belt R.R. Co. v. Am. Cyanamid
Co., 860 F.2d 1441, 1446 (7th Cir. 1988) (Cudahy, J., dissenting) (in a case with
only a single claim for purposes of Rule 54(b), “to ‘win’ a plaintiff need prevail
on only one theory, while to ‘win’ a defendant must prevail on all the theories
proposed by the plaintiff”). 2
For 	purposes 	of 	28 	U.S.C 	§ 	1291—and 	by 	extension 	28 	U.S.C.
§ 1295(a)(5)—“[f]inality is to be given a practical rather than a technical
2 I note that the majority’s decision granting Plaintiffs’ motion for summary judgment
as to Count I does not moot Counts II and III. This is because “cases rather than
reasons . . . become moot.” Air Line Pilots Ass’n, Int’l v. UAL Corp., 897 F.2d 1394,
1397 (7th Cir. 1990) (Posner, J.). And of course, if a case consists of multiple claims
for Rule 54(b) purposes, one or more of such claims might become moot, even if other
claims in the case do not. But this case consists of only one claim—Plaintiffs’ chal-
lenge to Proclamation 9980 based on three alternative legal theories—and the major-
ity’s decision in favor of Plaintiffs as to one of their theories (Count I) does not render
the other two theories (Counts II and III) moot, but rather simply unnecessary to
decide as a matter of judicial discretion. If Counts II and III were moot, we would not
have Article III jurisdiction to decide them.
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Consol. Ct. No. 20-00037 	Page 19
Baker, J., concurring in part and dissenting in part
construction.” Keith Mfg. Co. v. Butterfield, 955 F.3d 936, 939 (Fed. Cir. 2020)
(quoting Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 171 (1974)). There is no
practical reason to “impose totally redundant and indefensible burdens on . . .
trial courts” by requiring them to adjudicate “multiple theories . . . where one
would suffice.” Am. Cyanamid, 860 F.2d at 1448 (Cudahy, J., dissenting). Like
Judge Cudahy, I see no practical purpose in construing the finality require-
ment to require “the plaintiff to fire additional bullets into the corpse of a de-
fendant he has already killed.” Id.
/s/ M. Miller Baker
M. Miller Baker, Judge
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