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Introduction

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The National Courts section is one of five sections of the Civil Division’s Commercial Litigation Branch.[1] This section is named National Courts because it handles matters in three federal courts of nation-wide jurisdiction: the United States Court of Appeals for the Federal Circuit, the United States Court of Federal Claims, and the United States Court of International Trade.[2] The National Courts Section also handles occasional matters in federal district and other circuit courts, as well as in administrative tribunals, such as agency board of contract appeals.[2] When National Courts appellate cases lead to further proceedings in the United States Supreme Court, the Federal Government is represented by the Office of the Solicitor General with input and assistance by the National Courts Section, as appropriate.[2] [2]

The primary mission of the National Courts Section is to protect taxpayer dollars in lawsuits brought against the U.S. Government.[3] To that end, the section is responsible for complex trial and appellate litigation involving practice areas that include government contracts, constitutional claims, government pay and personnel suits, veterans' and other benefits appeals, and international trade and tariff matters.[4] The National Courts Section is among the Department of Justice's most active litigating components, conducting dozens of trials and more than 100 appellate arguments each year.[5]

The National Courts Section currently employs more than 110 attorneys engaged in trial and appellate litigation on behalf of the United States.[6]  Robert E. Kirschman, Jr. currently serves as the director of the section.[6] Most attorneys enter the section between the GS-13 and GS-15 levels based on years of experience.[7] Whether they are handling trial cases and appeals individually, as counsel of record, or as part of a larger National Courts Section trial team, all National Courts Section attorneys work closely with counsel from Federal client agencies.[8]

Courts

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Court of Federal Claims

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Main Article: United States Court of Federal Claims

The United States Court of Federal Claims (in case citations, Fed. Cl.) is a United States federal court that hears monetary claims against the U.S. government. It is a direct successor to the United States Court of Claims, which was founded in 1855, and is therefore a revised version of one of the oldest federal courts in the country. The courthouse of the Court of Federal Claims is situated in the Howard T. Markey National Courts Building in Washington, D.C.

The majority of National Courts Section cases in the USCFC involve disputes regarding Federal Government contracts.[9] These disputes arise from and implicate a wide variety of factual and legal scenarios. Though they frequently stem from the Federal Government’s purchases of goods and services, these cases may also concern more unusual circumstances.[9] National Courts has litigated contract cases concerning law enforcement informants, water rights, insurance and grant programs, the sale or disposition of federal property, and many other circumstances, in addition to procurement matters.[9]

From 2012 to 2019, in cases in front of the court, plaintiffs claimed an annual average of $182B in claims ranging from $5.5B (2014) to $999B (2016).[10] Annual total judgments for plaintiffs averaged $807M, ranging from $257M (2018) to $1.3B (2017).[10] Judgment’s on the government’s counterclaims averaged $66M ranging from $3.6M (2013) to $313M (2017). Excluding vaccine compensation cases, there was an annual average of 711 cases filed with the court. At the end of 2019, there were 1,464 such cases pending. Based on the court’s classification of the nature of each suit, 74% of the 736 cases filed in 2019 were amongst the three categories of pre-award or post-award bid protest injunction cases (146 cases), regulatory takings cases under the Fifth Amendment of the Constitution (130), and contract disputes (123).[10]

Court of International Trade

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Main Article: United States Court of International Trade


The United States Court of International Trade (in case citations, Int'l Trade or Intl. Trade), formerly the United States Customs Court, and before that the Board of General Appraisers, is an Article III court, with full powers in law and equity. The Customs Court Act of 1980 replaced the old United States Customs Court with the United States Court of International Trade. The court has nine sitting judges, as well as senior judges. The court sits in New York City, although it is authorized to sit elsewhere, including in foreign nations.

National Courts Section attorneys handle a variety of trade matters before the United States Court of International Trade.[9] It prosecutes civil actions to recover various penalties or customs duties arising out of negligent or fraudulent import transactions.[9] Attorneys in the international trade practice defend special duties imposed on dumped or subsidized imports, prosecute customs fraud, and enforce other international trade laws at both the trial and appellate stages.[4]

The National Courts Section has the International Trade Field Office located in New York City to handle cases before the Court.[11] Matters within the field office area of responsibility include, among others: importer challenges to U.S. Customs and Border Protection decisions concerning the classification and valuation of imported merchandise, and other questions arising under the tariff laws; lawsuits relating to the interpretation and application of trade-related presidential proclamations, executive orders, international treaties and free trade agreements; disputes over the government's refusal to grant or the revocation of various licenses under the customs laws; and actions for the collection of duties and penalties under the customs laws.[11] The majority of these cases are reviewed de novo, although some may be reviewed on an administrative record.[11]

The principal statutory provisions pertaining to the United States Court of International Trade are contained in the following sections of Title 28 of the United States Code: Organization, sections 251 to 258; Jurisdiction, sections 1581 to 1585; and Procedures, sections 2631 to 2647.[12] The subject matter jurisdiction of the court was greatly expanded by the Customs Courts Act of 1980. Under this law, in addition to certain specified types of subject matter jurisdiction, the court has a residual grant of exclusive jurisdictional authority to decide any civil action against the United States, its officers, or its agencies arising out of any law pertaining to international trade.[12]

From 2009 to 2019, there have been an average of 365 cases filed with the court.[13] 50% of the cases were filed under the courts 1581(a) jurisdiction, although that percentage decreased in recent years, averaging 31% from 2017 to 2019. Cases under 28 U.S.C. 1581(a) are often referred to as “classification cases” and gives the Court of International Trade exclusive jurisdiction to hear disputes over how a product should be classified under the tariff schedule.

Court of Appeals for Federal Circuit

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Main Article: United States Court of Appeals for the Federal Circuit

The United States Court of Appeals for the Federal Circuit (Federal Circuit; in case citations, Fed. Cir.) is a United States court of appeals headquartered in Washington, D.C. The court was created by Congress with passage of the Federal Courts Improvement Act of 1982, which merged the United States Court of Customs and Patent Appeals and the appellate division of the United States Court of Claims, making the judges of the former courts into circuit judges.

While a portion of the Circuit’s docket concerns patent disputes between private parties, the majority of its appeals arise from tribunals that decide matters related to litigation with the Federal Government. National Courts attorneys handle most of these cases, arguing numerous cases each month before the Circuit.[2] The Section has primary responsibility for appeals from the Court of Federal Claims, the Court of International Trade, the boards of contract appeals, the United States Court of Appeals for Veterans Claims, and the Merit Systems Protection Board.[4] Excluding patent disputes, there were 852 cases docketed with the court in fiscal year 2019, and 733 pending at the end of the fiscal year.[14] 170 of the cases docketed in 2019 originated in the Court of Federal Claims, 134 originated with the Merit Systems Protection Board, and 41 originated with the Court of International Trade.[14]

Notable Cases

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Amazon Web Services Inc. v. U.S. (Fed. Cl. 2019) and Oracle America Inc. v. U.S. et al. (Fed. Cir. 2019). These are two cases involving bid protests over the awarding of the Department of Defense's $10 billion Joint Enterprise Defense Infrastructure (JEDI) cloud procurement.[15] Amazon protested the government's award of the contract to Microsoft, claiming the Department of Defense was acting under the influence of President Donald Trump.[15] In February 2020, a Court of Federal Claims judge issued a preliminary injunction and ordered Microsoft to stop all work on the project, and the DOD agreed to take action to amend the contract with a target deadline of August 2020.[16] In Oracle, the Court of Federal Claims held that Oracle could not show it was actually hurt by deficiencies in the government's procurement process.[17] Oracle appealed the ruling to the Federal Circuit, which heard arguments in June 2020.[18]

Starr Int’l Co., et al. v. United States (Fed. Cir. 2017). This was a putative shareholder class action and derivative suit brought by an American Internal Group (AIG) shareholder owned by AIG’s former CEO, Hank Greenberg, and represented by David Boies.[19] Plaintiffs alleged that the government was liable for $39.6 billion for violating the Fifth Amendment by illegally exacting or taking property without just compensation when it acquired a majority of AIG’s equity and voting rights in exchange for an $85 billion loan that rescued AIG during the 2008 financial crisis.[19] After a two-month trial, the court held that the government lacked authority to obtain AIG’s equity, but found zero damage because the value of AIG’s equity would have been wiped out without the government’s rescue financing.[20] On appeal to the Court of Appeals for the Federal Circuit, the court overturned the Court of Federal Claim's ruling, holding that the shareholders lack standing to bring the claims.[21] In 2018, the Supreme Court refuse to hear the appeal, leaving the decision by the Federal Circuit in place.[22]

Other Tribunals

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National Courts section attorney’s occasionally handle matters in other tribunals.[2]

External Links

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  1. ^ "Trial Attorney - National Courts". www.justice.gov. 2016-04-22. Retrieved 2020-07-08.
  2. ^ a b c d e f "National Courts Section". www.justice.gov. 2014-10-20. Retrieved 2020-07-08.
  3. ^ "Trial Attorney - National Courts". www.justice.gov. 2016-04-22. Retrieved 2020-07-08.
  4. ^ a b c "Trial Attorney - National Courts". www.justice.gov. 2016-04-22. Retrieved 2020-07-08.
  5. ^ "Trial Attorney - National Courts". www.justice.gov. 2016-04-22. Retrieved 2020-07-08.
  6. ^ a b "Robert E. Kirschman, Jr. | US Court of Federal Claims". www.uscfc.uscourts.gov. Retrieved 2020-07-08.
  7. ^ "Trial Attorney-Commercial Litigation Branch-National Courts". www.justice.gov. 2019-06-11. Retrieved 2020-07-08.
  8. ^ "Trial Attorney - National Courts". www.justice.gov. 2016-04-22. Retrieved 2020-07-08.
  9. ^ a b c d e "Links". www.justice.gov. 2014-10-20. Retrieved 2020-07-08.
  10. ^ a b c "Court of Federal Claims Statistical Report for FY2019" (PDF).{{cite web}}: CS1 maint: url-status (link)
  11. ^ a b c "Trial Attorney - International Trade Field Office/NY". www.justice.gov. 2016-04-20. Retrieved 2020-07-08.
  12. ^ a b "About the Court | Court of International Trade | United States". www.cit.uscourts.gov. Retrieved 2020-07-08.
  13. ^ "Caseload Statistics Data Tables". United States Courts. Retrieved 2020-07-08.
  14. ^ a b "United States Court of Appeals for the Federal Circuit YTD Activity as of September 30, 2019" (PDF).{{cite web}}: CS1 maint: url-status (link)
  15. ^ a b "Gov't Contracts Cases To Watch In 2020: Midyear Report - Law360". www.law360.com. Retrieved 2020-07-15.
  16. ^ Conger, Kate (2020-02-13). "Judge Halts Work on Microsoft's JEDI Contract, a Victory for Amazon". The New York Times. ISSN 0362-4331. Retrieved 2020-07-15.
  17. ^ "Oracle's JEDI Bid Not Tainted By DOD Mistakes, Judge Says - Law360". www.law360.com. Retrieved 2020-07-15.
  18. ^ "Feds Grilled Over JEDI Conflict Of Interest In Oracle Appeal - Law360". www.law360.com. Retrieved 2020-07-15.
  19. ^ a b Scism, Leslie (2014-09-28). "Hank Greenberg Challenges AIG Bailout". Wall Street Journal. ISSN 0099-9660. Retrieved 2020-07-08.
  20. ^ Kessler, Aaron M. (2015-06-15). "Ex-A.I.G. Chief Wins Bailout Suit, but Gets No Damages". The New York Times. ISSN 0362-4331. Retrieved 2020-07-08.
  21. ^ Scism, Leslie (2017-05-09). "Appeals Court Vacates Ruling That Declared AIG Bailout Unlawful". Wall Street Journal. ISSN 0099-9660. Retrieved 2020-07-08.
  22. ^ "Supreme Court rejects AIG ex-CEO Greenberg's bailout challenge". Reuters. 2018-03-26. Retrieved 2020-07-08.
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