Rulings, remedies and court proceedings for customs and trade professionals

Quicker CIT Judge Assignments Among Early Changes Made by Chief Judge Mark Barnett

In one of his first actions as a CIT judge, Chief Judge Mark Barnett was handed a case reassigned from one of the court’s senior judges at the time, Judge R. Kenton Musgrave. The case, involving a duty drawback claim from BP Oil Supply Company, was filed in July 2004 and had languished in the court for years. Lengthy briefing schedules and a million motions to extend later, it had been nearly a decade since the initial complaint had been filed.

Proceedings were reassigned to the new judge in October 2013. Barnett held a status conference a few weeks later and ordered a quick rebriefing from the parties. He then conducted a trial for the case, and an opinion was issued a month later. “Judge Barnett got the case, he demanded further briefing from the parties, then he issued his decision a few weeks later,” said David Craven of Craven Trade Law. “He got rid of a piece of litigation that had sat for years.”

Now, eight years later, Barnett is sitting at the head of the court, having been made chief judge on April 6, and is expected to continue this approach. While not making any earth-shattering changes during his first few months in the top job, Barnett has homed in on a few procedural changes the court has undertaken to better guide the litigation process. One of these changes involves more quickly assigning cases to individual judges, he said in a recent interview.

For years, the court has operated under a principle that had the bench wait until a development in a case arose that required judicial intervention. Then, the court would sweep in and assign the matter to a judge. For instance, if a complaint arose that required an answer, the chief judge would not assign the case until after the answer was filed. In case there was no answer and merely a motion to dismiss, the case would not be assigned until after this motion was fully briefed. “I’d rather get those cases into the hands of an assigned judge from day one, and so I’ve already started to assign cases upon the filing of a complaint just to get them in the hands of an assigned judge, so there’s one person who keeps the process moving along on a timely basis,” Barnett said. “In my mind, it makes a difference. We notice the difference in terms of timing, and it’s something that I just have a different philosophy about. The court system’s been around a couple hundred years; you’re not going to make dramatic changes overnight with the small change of title of any one judge.”

A likely effect of this change, Barnett noted, is that a judge will now finally be present to witness cases in which multiple motions to extend have been filed and the case is floating in a purgatory of unresponsiveness. “There have been cases where, oftentimes it might be the government, where they would be the defendant in most of these cases, or actually in [Section] 592 cases frankly, enforcement cases where they’re the plaintiff, where something’s gotta happen,” Barnett said. “You have a number of extensions, and you know, the motion part judge sort of signs off on them, but the problem is each time around it’s a different motion part judge, and each time around, they might not necessarily be all that concerned with, ‘OK, this is the sixth time that the court’s received a motion for extension,’ in part because he or she didn’t have the prior five motions for extension. If you have an assigned judge, they’re going to be paying attention to it.”

Before becoming a judge, Barnett was faced with a decision. He was an undergraduate at Dickinson College with interests in both political science and physics. Barnett saw physics as the safer choice, receiving a higher grade in his freshman physics class than his first year international relations course. But in fact it was the professor in this international studies class that changed his professional trajectory with a simple proposition: to study abroad at the university’s program in Bologna, Italy -- a path that was only feasible for him while pursuing a political science degree.

So Barnett temporarily shelved this interest in physics, flew to Europe and became a political science major. Eventually, he settled on combining these two skill sets, math and political science, and set off on a career in trade. “Where do you combine that facility with numbers, that understanding of accounting, those economic aspects with the international side? And for me, that was international trade.” The next step was law school, at the University of Michigan.

Following graduation, Barnett took a job in the international trade group at Steptoe & Johnson -- a firm he would stay with for seven years. Then it was off to the Commerce Department and his first major foray into a policy-making entity. During an 18-year career at Commerce, Barnett would become the deputy chief counsel from 2005 to 2013. In this time, he also worked at the World Trade Organization, serving as a member of the U.S. negotiating team for the Doha round of negotiations and representing the U.S. in dispute settlement and appellate body cases.

Barnett’s career has been marked by three major shifts, from private practice to a government agency to the bench. “Every time I started to feel like I was plateauing in terms of my interest level and in what I was doing, something new and different popped up that took me out of that plateau and raised the interest level more,” he said. “Whether it was a change in role in terms of the position going from a staff attorney to deputy chief counsel or an involvement in different aspects of the work, whether it’s case work and having a lot of responsibility in terms of working closely with the assistant secretary to negotiating suspension agreements to getting involved in WTO dispute settlement. All these different things were great opportunities and things that were necessary boosts in interests and energy as I continued along in my career there.”

The Commerce role involved some heavy travel demands. "It sounds amazing and sexy, but when you’ve got a couple of young kids at home, and the travel basically requires you, even if you’re going to be there for four days, you essentially burn a weekend at the beginning of it, and you burn a weekend at the end between time differences, travel and recovery from the jet lag," he said. "It gets old after a number of years of doing it.” So when an opportunity opened up on the bench at CIT with a steady schedule and job security that is the envy of all, Barnett said he couldn’t refuse.

After only a few conversations expressing his interest in the CIT judgeship with the White House, Barnett said he found himself filling out U.S. Senate questionnaires, and following a one-day hearing, he was in. While Barnett had to sit out for a year to avoid any conflict of interest with any cases he may have worked on while at Commerce, he filled this time by testing the waters as a judge at the U.S. District Court for the District of Maryland. “I really appreciated that opportunity to get to work with the folks at Maryland,” he said. “They couldn’t have been more helpful to me in terms of my education. That was really a great opportunity for me, because if you think about the work of our court, for example, we can have jury trials, but it’s been almost 20 years since we’ve had one. The last thing you wanna do is pop in, have the first jury trial at CIT in the last 20 years and not have any experience with it. I was able, because I was sitting in district court in Maryland, to have a couple of jury trials there.”

Barnett took over from former chief judge and now Senior Judge Timothy Stanceu, who was a great resource in preparing him for the role, Barnett said. At the start of the year, Barnett began sitting in on case assignment meetings and other proceedings required of the chief judge with Stanceu. In this time, paired with his time simply serving as a judge at the court, Barnett learned of Stanceu’s driving philosophy: “Don’t assign blame, fix the problem.”

“That’s frankly been my approach for a long time,” Barnett said. “I came to the court after 18 years at Commerce and the last seven to eight years, I was the deputy chief counsel. As anyone in a large organization probably realizes, more often than not, it’s the No. 2 person that handles all the little nitty-gritty administrative details while the No. 1 person’s out there as the face of the organization. So I spent a lot of time putting out fires, solving problems, both for the client agency that I worked with and for the lawyers that are within my office, and I’ve always had that kind of attitude. Let’s get the job done; what does it take to get the job done?”

Barnett is also known for holding the government to account to follow the rules (see 2102050008). “He’s not a rubber stamp,” said Craven of Craven Trade Law. “That’s important. Sometimes the judges, the person they see most frequently is the Department of Justice, and there are certain justices that give the Department of Justice a lot more deference.”

When asked about what he would like his legacy with the court to be, Barnett highlighted an increased level of accessibility to the court, as well as a desire to see a greater effort made to ensure a strong future for the next generation of the trade bar. “I want to make sure we have good strong members of the trade bar that are in a position to effectively represent their clients before us, whether it’s the government or the private sector, I think those are important things,” he said. Barnett has encouraged younger associates to brief the court during oral arguments and held larger oral arguments when in D.C., allowing younger practitioners to sit in on proceedings.