DOJ Suggests 'Steering Committee' to Manage Thousands of Section 301 Suits
The U.S. Court of International Trade should use a case management approach for the thousands of Section 301 tariff lawsuits (see 2009220027), similar to the approach used in the harbor maintenance tax (HMT) litigation that ended in 1998, said DOJ Wednesday in a motion (in Pacer) for case management procedures. That should include the selection of a "test case" and a stay of all other cases involved, DOJ said. The filing on behalf of all the Trump administration defendants was DOJ's first since HMTX Industries filed suit Sept.10 to force refunds of tariffs paid on Lists 3 and 4A goods from China and get the tariff rulemakings vacated (see 2009110041).
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Plaintiffs HMTX and Jasco Products had until Oct. 14 to respond to DOJ's motion, but waited only a day to reply (in Pacer) that "in the main" they "embrace" DOJ's proposals, with conditions. "It is important to confirm at the outset that the government will stipulate, as it has in other cases, that a refund remedy is available should plaintiffs prevail," they said Thursday. The court should also consider convening a three-judge panel, rather than assigning the case to a single judge, they said: "This action implicates significant issues of congressional and presidential authority, as well as principles of constitutional avoidance. Notably, the principal merits issues in the HMT cases were decided by a three-judge panel."
About 3,400 summonses and complaints were filed through Tuesday, said DOJ. It expects the "volume will continue to increase, as the lists cover a substantial quantity of merchandise imported from China and continue to be in effect," it said. "Given that the cases appear to be identical or substantially similar, the Court could select a test case (or cases if there are variations) for adjudication." All the cases should also be assigned to the same judge, it said. "This procedure was used in the HMT cases and, in our view, would be more efficient in dealing with issues of procedure." The Roll & Harris trade law firm counted 3,429 complaints filed through the close of business Wednesday.
Without a stay for all the related cases, DOJ would need to "file motions for a stay in each case, and the Court will be required to rule on thousands of motions," it said. Having to file "notices of appearances in all cases will impose a significant burden on the Government," said DOJ. Lawyers not part of the test case would be able to file short briefs after the main briefs are submitted by the test case attorneys, it said. The short briefs should focus on arguments not made by the test case briefs, it said.
DOJ also suggested establishing a "steering committee" of plaintiffs' lawyers. That setup was also used in the HMT cases "to enhance coordination and reduce duplication," it said. Without expressly saying who should sit on the committee, DOJ noted "the first three complaints were filed by members of the private bar who are well-experienced and known to the Court." Those three are Matthew Nicely of Akin Gump, Lawrence Friedman of Barnes Richardson and Joseph Spraragen of Grunfeld Desiderio.
DOJ asked the CIT to schedule a conference as soon as possible to discuss procedures. "We recognize that the plaintiffs and the Court, including the Clerk of the Court, likely will wish to raise other case management issues, including interim relief," it said. "By highlighting those that, in our experience, are likely to be most significant, at least at the outset, we are not suggesting that other issues do not warrant attention."
An auto parts company that Commerce Secretary Wilbur Ross founded is among the thousands of importers that filed complaints seeking refunds of the List 3 and 4A tariffs. International Automotive Components Group North America filed its suit (in Pacer) Sept. 18, represented by solo practitioner Kyl Kirby. Ross is no longer directly involved with IAC and isn't named as defendant in the lawsuit, but he has supported the administration's broad use of tariffs. IAC can't "comment on pending legal matters," said a spokesperson. Commerce didn't respond to questions Thursday.