Which Section 301 Actions Can Be Best Test Cases Isn't Known, Says Lawyer

DOJ’s motion for case management procedures to navigate the thousands of Section 301 tariff complaints before the U.S. Court of International Trade (see 2009240040) was “procedurally defective” because it wasn’t served on any other plaintiffs who filed cases involving the original HMTX Industries lawsuit (see 2009110041), said an opposition (in Pacer) Monday from Paulsen Vandevert, lawyer for importers GHSP and Brose North America. The more than 3,400 complaints seek to have the Lists 3 and 4A tariff rulemakings vacated and the paid duties refunded. GHSP, a supplier of electromechanical systems to the automotive industry, and Brose, a distributor of mechatronic parts for motorized car seats, are in “full agreement” with DOJ that the many complaints will require case management procedures, said Vandevert. But his clients “strongly object” to designating the three “first-filed” complaints as test cases, he said. The first three complaints were filed Sept. 10 and Sept.16. Vandevert filed for GHSP (in Pacer) Sept. 18 and for Brose (in Pacer) Sept. 22. “To determine which case or cases should be designated as the lead or test cases, the Court and all counsel involved must identify the cases that best represent all of the issues raised by all plaintiffs that would support invalidating the List 3 and 4A duties and justify their refund,” said Vandevert. “At this time it cannot be known with any certainty which cases, if any, do that.” DOJ didn't respond to questions Tuesday. Virtually all the suits we examined allege the Office of the U.S. Trade Representative overstepped its authority under the 1974 Trade Act when it imposed Lists 3 and 4A as retaliatory strikes against China. They also allege USTR violated the Administrative Procedure Act by running rulemakings that were sloppy and lacked transparency. Vandevert's complaints on behalf of GHSP and Brose were among the few to layer on the additional argument that Lists 3 and 4A were unlawful and unconstitutional forms of federal “revenue collection,” well beyond the "scope of actions USTR was authorized to take" under the Trade Act (see 2009230023). Only Congress has the “constitutional power” to impose taxes, said both complaints.