Confrontation Looms in Section 301 Cases Over Debated Refund Remedy
The Department of Justice appears to be digging in for a fight over the issue of refund relief against the thousands of Section 301 plaintiffs inundating the Court of International Trade seeking to have it declare the lists 3 and 4A Chinese tariffs unlawful. The government won’t support a stipulation in which the plaintiffs, if successful in the massive litigation, could seek refunds of all tariffs paid, regardless of the imports’ liquidation status, including whether the 12-month window on protesting individual liquidations has expired, a DOJ response filed March 26 said.
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The March 26 deadline otherwise passed quietly for dissident plaintiffs to come forward over Akin Gump’s March 19 “coordinated proposal” designating its first-filed HMTX Industries-Jasco Products as the litigation’s only sample case and seating a 15-member steering committee to help move the trial along (see 2103220040).
Any issues regarding refund relief “have not been properly presented to the Court at this time,” DOJ’s response to Akin Gump said. “Plaintiffs are therefore seeking an advisory opinion from the Court, which is improper.” The court also “may never be required to address this issue because it may only be relevant if the Court ultimately rules against the government on the merits,” DOJ said. “We decline to enter into a stipulation concerning the relevant law that would apply to plaintiffs’ request for a remedy,” it said. “Among other problems with this suggestion, it is for the Court, not the parties, to determine the law that governs requests for relief.”
The availability of refunds regardless of liquidation status “is of critical importance to all plaintiffs,” Akin Gump had argued. “Clarity regarding such relief is vital to ensuring that these cases are handled efficiently, effectively, and with the least judicial and administrative burden possible.” Without a remedy stipulation, plaintiffs would risk “permanent lost refunds” for as long as the litigation goes on, it said. It’s also in DOJ’s interest to stipulate a remedy component, Akin Gump said, or it risks being flooded with thousands of individual injunction motions to stop tariff collections while the litigation proceeds. Akin Gump said it simply wants DOJ to follow the practices of two recent cases when the government stipulated support for a refund remedy. DOJ didn’t respond to questions March 29.
The government by and large agrees with Akin Gump on the proposals to designate HMTX-Jasco as the sample case and selecting the 15 lawyers to sit on the steering committee, its filing said. DOJ agrees that any “non-substantive variations” from the HMTX-Jasco claims that the Office of the U.S. Trade Representative misused its 1974 Trade Act authority or violated the 1946 Administrative Procedure Act are “appropriate matters to be raised” through amicus briefs by plaintiffs not picked as sample cases, it said.
But “to the extent plaintiffs propose that individual plaintiffs may pursue claims as amici curiae that are substantively different” from those in the HMTX-Jasco case, including the allegation that USTR violated constitutional protections against federal revenue collections, “we object to this proposal,” DOJ said. Amicus briefs “are not an appropriate manner for individual plaintiffs to raise substantive claims that are separate from those raised in the first-filed complaint,” it said. “Any such issues should be stayed pending the resolution of the sample case, or handled through some other means.”
The court’s three-judge panel, not Akin Gump, was the first to broach the idea of amicus briefs as an avenue of trial participation for lawyers whose complaints are stayed after being passed over as sample cases. “Amicus briefs must not repeat the arguments made in the moving briefs and will be subject to substantially reduced word limitations,” the panel’s Feb. 16 procedural order said (see 2102160080). It made no distinctions on the proper use of amicus briefs for substantive or nonsubstantive arguments.
DOJ also proposes severing from the trial any cases involving alleged abuses of the tariff exclusion process, it said. DOJ counts among the 3,700 complaints about 60 “that include claims challenging the exclusion process or individual exclusion decisions,” it said. The court can handle those cases individually, “or in groups if they raise generic issues about the exclusion process,” but shouldn’t do so until after the HMTX-Jasco sample case is resolved, it said.
The government is fine with Akin Gump’s proposal to serve as the “point of contact” for the 15-member steering committee, DOJ said. “We understand this proposal to mean that defendants will only need to coordinate with Akin Gump for any issues that require the parties to meet and confer,” and that Akin Gump in turn will coordinate with the steering committee, it said. “With this clarification, we agree to plaintiffs’ proposed steering committee.”
Email ITTNews@warren-news.com for a copy of the filing.