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The U.S. International Trade Commission (ITC) has screwed up a patent-infringement case between Apple and Qualcomm worth an estimated $7 billion. The problem? The commission arguably doesn’t have jurisdiction to hear the lawsuit.
That’s because commissioners on the ITC failed to constitutionally reappoint the judge who heard the case. The judge retired around the beginning of September — only to “return” from retirement on Sept. 17. He subsequently ruled in Apple’s favor, an outcome that could cost consumers millions of dollars in years ahead.
Record - ITC - Judge - Statute - Constitution
There is no public record to prove the ITC lawfully reappointed the judge, even though it is required by federal statute, the Constitution, the Supreme Court case Lucia v. SEC, and by a presidential executive order.
Lucia v. SEC holds that such administrative law judges (ALJs) are inferior officers of the United States. Consistent with Lucia, ALJs of the ITC must be appointed by — and, if they retire, reappointed by — the commissioners of the ITC. In this case, that doesn’t appear to have happened.
Judge - ITC - Judge - Case - Violation
Instead, the chief judge on the ITC alleged that he reappointed the judge in the case, a flat-out violation of Lucia v. SEC.
After a judge retires, the agency from which he retired may rehire him — but only after the retired judge has satisfied various requirements, including the requirement that his fitness for the position be reevaluated.
Matter - Concern - Public - Judge - Case
The matter should concern the general public, because the judge in this case — who I firmly contend was appointed illegally — ignored 45 years of academic commentary on antitrust law to reach his conclusion in the case. That’s going to...
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