The three-judge panel in the Section 301 litigation at the U.S. Court of International Trade peppered a government lawyer with tough questions Thursday when the judges asked DOJ to explain how its opposition to a court-ordered reliquidation or money judgment if the plaintiffs win the case doesn’t support a finding of irreparable harm for the importers. Oral argument lasting nearly 80 minutes was held on the preliminary injunction (PI) motion Akin Gump filed April 23 for sample-case plaintiffs HMTX Industries and Jasco Products to freeze liquidation of unliquidated customs entries from China with Lists 3 and 4A tariff exposure.
The three-judge panel in the Section 301 litigation at the Court of International Trade peppered a government lawyer with tough questions June 17 when the judges asked the Department of Justice to explain how its opposition to a court-ordered reliquidation, or money judgment, if the plaintiffs win the case, doesn’t support a finding of irreparable harm for the importers. Oral argument lasting nearly 80 minutes was held on the preliminary injunction (PI) motion Akin Gump filed April 23 for sample-case plaintiffs HMTX Industries and Jasco Products to freeze liquidation of unliquidated customs entries from China with lists 3 and 4A tariff exposure.
The following lawsuits were recently filed at the Court of International Trade:
There’s statutory authority in 28 USC 1254, cited in recent case law, for the losing side in the Section 301 litigation to appeal the decision of the three-judge panel at the U.S. Court of International Trade directly to the Supreme Court without stopping first at the Court of Appeals for the Federal Circuit, several trade lawyers told us. “Technically, an appeal in the Federal Circuit needs to be filed, but before the Federal Circuit hears or even takes up the case, 28 USC 1254 allows the appellant to file a petition for certiorari to the Supreme Court,” said one attorney, typifying others. “The practical effect is that at the appellants’ option they can petition for certiorari at the Supreme Court before the Federal Circuit takes the case.” The plaintiffs’ steering committee in the Section 301 litigation ultimately “will decide on strategy regarding an appeal of any adverse decision from the CIT,” emailed Sandler Travis trade expert David Cohen Wednesday. “Way too early to make that call, but I also note the Sup Ct. only hears an extremely low percentage of cases it is requested to take on.” Cohen told a Sandler Travis webinar Tuesday his firm thinks it’s “highly likely” the losing side in the Section 301 litigation will appeal (see 2106150080).
There’s statutory authority in 28 USC 1254, cited in recent case law, for the losing side in the Section 301 litigation to appeal the decision of the three-judge panel at the U.S. Court of International Trade directly to the Supreme Court without stopping first at the Court of Appeals for the Federal Circuit, several trade lawyers told us. “Technically, an appeal in the Federal Circuit needs to be filed, but before the Federal Circuit hears or even takes up the case, 28 USC 1254 allows the appellant to file a petition for certiorari to the Supreme Court,” said one attorney, typifying others. “The practical effect is that at the appellants’ option they can petition for certiorari at the Supreme Court before the Federal Circuit takes the case.” The plaintiffs’ steering committee in the Section 301 litigation ultimately “will decide on strategy regarding an appeal of any adverse decision from the CIT,” emailed Sandler Travis trade expert David Cohen Wednesday. “Way too early to make that call, but I also note the Sup Ct. only hears an extremely low percentage of cases it is requested to take on.” Cohen told a Sandler Travis webinar Tuesday his firm thinks it’s “highly likely” the losing side in the Section 301 litigation will appeal (see 2106150080).
Dominican aluminum extrusion manufacturer Kingtom Aluminio SRL should not be allowed to intervene in a Court of International Trade case in which it is alleged to be involved in a transshipment scheme to avoid antidumping duties, the Enforce and Protect Act case alleger Ta Chen International said in a June 16 brief. Although it made the covered merchandise, Kingtom did not import it through evasion, Ta Chen said.
The Commerce Department will move the date of imposition of antidumping and countervailing duties on a subset of steel trailer wheels from China to the date of publication of the final determination in the investigation, rather than the date of the preliminary determination, it said a pair of remand results filed June 14. The Court of International Trade told Commerce May 18 to make the switch, finding that the agency did not provide proper notice of a scope change during the proceeding (see 2105180062). In two filings, one for the antidumping case and one for the countervailing duty case, Commerce said that it intends to issue instructions to CBP to exclude plaintiffs Trans Texas Tire and Zhejiang Jingu Co.'s entries of physical vapor deposition (PVD) chrome wheels entered between Feb. 25, 2019, and June 24, 2019, from the scope of the investigation (Trans Texas Tire, LLC v. United States, CIT #19-00188-00189).
It could take two to three years to resolve the massive Section 301 litigation now before the Court of International Trade, especially since it’s “highly likely” the case will be appealed by whichever side loses, David Cohen, a trade expert with Sandler Travis, said on his law firm's webinar June 15. Roughly 3,800 importers are suing the government to declare the lists 3 and 4A tariffs on Chinese goods unlawful and get the money refunded.
A recent U.S. Court of Appeals for the Federal Circuit decision finding that antidumping duty countrywide rates in non-market economies can still be based on adverse facts available even if no respondents were uncooperative in an administrative review (see 2106100044) will be considered in a Court of International Trade case on the Commerce Department's AFA policy, according to a June 14 notice of supplemental authority from the Department of Justice. The Federal Circuit decision in China Manufacturers Alliance, LLC v. United States "substantially overlaps" with a CIT case over Commerce's NME policy brought by Jilin Forest Industry Jinqiao Flooring Group Co., DOJ said (Jilin Forest Industry Jinqiao Flooring Group Co., Ltd., v. United States, CIT #18-00191).
President Donald Trump properly eliminated a tariff exemption for bifacial solar panels since a majority of the representatives of the domestic industry, by volume, filed a petition to remove the exemption, the Department of Justice said in a June 11 brief in the Court of International Trade. Responding to arguments from the Solar Energy Industries Association, the Justice Department contested the trade group's assertion that the withdrawal of the exemption was merely based on a "head count" (Solar Energy Industries Association et al. v. United States, CIT #20-03941).