All 3 Judges Assigned to Section 301 Litigation Are Obama Appointees
In the first sign of life in months for importers seeking to undo the Lists 3 and 4A Section 301 tariffs on Chinese goods, the U.S. Court of International Trade assigned the massive litigation to a three-judge panel. Judges Mark Barnett, Claire Kelly and Jennifer Choe-Groves will preside over the cases, said an order (in Pacer) signed Friday by Chief Judge Timothy Stanceu. It took the court 103 pages to list the nearly 3,500 complaints filed since Sept. 10, all seeking to vacate the Lists 3 and 4A tariffs on Chinese imports and get the duties refunded.
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All three are appointees of President Barack Obama. Barnett and Kelly assumed office in May 2013,Choe-Groves in June 2016. Lawyers we canvassed said assigning the three-judge panel was a positive development because it means adjudication is likely to start proceeding more quickly now after several months of inactivity. Barnett, Kelly and Choe-Groves are the court's three most senior active judges in terms of service years.
Stanceu's order took more than 18 weeks to materialize since Akin Gump motioned for the three-judge panel Sept. 30. Attorneys believe the delay was because the judges wanted time to study each one of the individual complaints. "They got a handle on it before they issued the order, rather than issuing this and then trying to get a handle on it," said one. "Now they're ready to go."
One should read nothing into all three judges being Obama appointees, said another lawyer. Stanceu's rationale was to pick the judges with the most experience, without choosing any of the more elderly judges, knowing the litigation will likely take years to resolve, he said: "These are not political judges."
All three judges have no-nonsense reputations, with track records of taking control of unwieldy cases, said several of the attorneys we asked. All especially praised Barnett, a former Treasury Department trade official, as a straight shooter and a stickler for holding the government to the rules. Said one: "When the government tries to take shortcuts and stuff, he doesn't like it. That's kind of good in this case for our side."
Another lawyer said he expects Barnett, who is seen as Stanceu's likely successor when the chief judge retires, will move quickly on next steps. In a signal that the litigation might now begin to proceed more quickly, Barnett is known for not tolerating deadline extension requests, except in emergencies. Stanceu, a President George W. Bush appointee in 2003, turns 70 this year. Barnett is 58, Kelly is 56 and Choe-Groves, 52.
The challenges began Sept. 10 when HMTX Industries and subsidiaries Halstead and Metroflor filed suit against the Office of the U.S. Trade Representative for improper imposition of Section 301 remedies against China. Jasco Products, a CTA member, was later added as a fellow plaintiff.
HMTX and Jasco are listed as the representative parties for the whole of the Section 301 litigation. Akin Gump, their attorneys, devised the legal arguments for the case that became a template for virtually all of the other Section 301 actions. It's still unclear if HMTX/Jasco will be designated a test case for the entire litigation. All the lawsuits argue USTR overstepped its Section 301 authority by imposing the Lists 3 and 4A tariffs as retaliatory duties against the Chinese and violated the Administrative Procedure Act by running tariff rulemakings that lacked transparency. Akin Gump originated those arguments for CTA in a 2018 draft complaint the association shopped around to other trade groups, but never took to court (see 1810290019).
Akin Gump is "pleased to see that our case has been assigned to a three-judge panel, as we requested,” said Matthew Nicely, the firm's lead attorney for the HMTX case. “We look forward to working with the court and the other parties to establish a briefing schedule and a mechanism for addressing the large number of related cases that were filed following our HMTX/Jasco complaint.”
Early on in the litigation, it became clear that an unconventional case management approach would be required because of the massive number of complaints inundating the court. After Akin Gump asked for a three-judge panel, DOJ motioned for a steering committee of plaintiff attorneys to help expedite court proceedings. It's believed the three-judge panel can now designate the steering committee and at least one test case so the litigation can move forward. Additional lawsuits in the meantime have been trickling in at the rate of about one a day.