DOJ Seeks Automatic Stay in All but the Lead Section 301 Complaint
Chief Judge Timothy Stanceu of the U.S. Court of International Trade should “automatically stay” all but the lead HMTX Industries-Jasco Products complaint in the Section 301 litigation (see 2009110041) and designate HMTX-Jasco as the “test case,” said DOJ’s motion (in Pacer) Monday to adopt case management procedures. All of the nearly 3,600 complaints inundating the CIT seek to vacate the List 3 and 4A tariff rulemakings and get the duties refunded. The roster of complaints (in Pacer) attached to DOJ’s motion takes up 187 pages.
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DOJ’s Sept. 23 motion “requested generally” that the CIT adopt case management procedures (see 2009240040), said the agency. Monday’s motion “provides specific proposals” for the CIT’s consideration, it said. DOJ recommends Stanceu appoint lead counsels Akin Gump, Barnes Richardson and Grunfeld Desiderio to head the plaintiffs’ steering committee, it said. Any plaintiff that wants to be released from the automatic stay “must make a showing of good cause” and consult with the steering committee in advance, proposes DOJ. It wants Stanceu to set a 30-day deadline “for any plaintiffs who believe that their complaints would constitute a better or additional test case to file a request” with the CIT. Plaintiffs not picked as test cases would be able to file “amicus curiae” (friend of the court) briefs in test cases that are selected and would have the opportunity to participate in oral argument, it said.
The government proposes the amicus briefs be filed after the test case plaintiffs file their arguments, it said. “Amicus curiae should not be permitted to repeat arguments raised by the test case plaintiffs.” The department “may then either file a consolidated reply to briefs from the amicus curiae plaintiffs or individual replies,” it said.
DOJ plans to file a motion to dismiss and proposes doing so 60 days after the test cases are picked, it said. The dismissal motion would be argued based on plaintiffs’ “failure to state a claim upon which relief can be granted,” it said. Plaintiffs would have 60 days to respond. If the CIT denies the motion to dismiss, “then briefing would proceed on the merits,” it said. All the complaints argue that the Office of the U.S. Trade Representative overstepped its authority under the 1974 Trade Act when it imposed the List 3 and 4A tariffs and that it violated the Administrative Procedure Act by running allegedly sloppy and nontransparent rulemakings. DOJ hasn’t offered a defense. If the CIT doesn’t act on its recommendations by Nov. 9 -- the date its response to HMTX-Jasco is due -- DOJ wants a deadline extension, it said Monday.
The government doesn’t “object” to Akin Gump’s Sept. 30 motion for a three-judge panel (see 2010010043) and defers to the chief judge to decide whether to appoint one “to resolve the substantive claims and defenses raised in these cases,” said the motion. But case management “would be better handled” by a single judge, DOJ said. It thinks “it would be beneficial if case management issues were resolved” before convening a three-judge panel “so that other plaintiffs can provide input.”
One litigant quickly responded in opposition to DOJ's suggestions. "We take particular exception to the attempt by the government to select the attorneys for plaintiffs who will serve on the Steering Committee," said Sandler Travis lawyer Patrick Gill in a Tuesday filing (in Pacer). "It is for the plaintiffs’ attorneys to decide among themselves whom they believe should be appointed by the Court to serve on the committee." There already have been two conference calls among plaintiff lawyers to discuss recommendations for the steering committee, he said.