2nd Law Firm Raises Constitutional Claim in Section 301 Litigation

Importers GHSP and Brose North America have “no doubt” that the first-filed HMTX Industries-Jasco Products complaint should be one of the designated test cases in the massive Section 301 litigation, argued lawyer Paul Vandevert Friday in a response (in Pacer) to DOJ’s Oct. 19 motion for case management procedures (see 2010200020). All the roughly 3,600 complaints seek to vacate the Lists 3 and 4A tariff rulemakings and get the tariffs refunded, alleging the Office of the U.S. Trade Representative overstepped its 1974 Trade Act authority and violated the Administrative Procedure Act. Vandevert is among the few to additionally charge USTR with breaching constitutional protections against federal revenue-raising (see 2010040001). “A number of other cases filed,” including from the GHSP and Brose plaintiffs he represents, “have raised claims that are substantively distinct and discrete” from HMTX-Jasco and should also be weighed as possible test cases, he said. Akin Gump's Sept. 30 motion for a three-judge panel made clear HMTX-Jasco was making no constitutional claim (see 2010010043). Vandevert thinks GHSP and Brose were the first to raise the revenue-raising claim and so should also be considered as first-filed test cases, he said. “It is also our understanding that several other plaintiffs in this Section 301 litigation have amended their complaints to adopt and incorporate the revenue raising claims made by GHSP and Brose,” he said. Vandevert emailed us a list Sunday of 22 complaints that Hogan Lovells filed on behalf of various importers. We reviewed them and found that all but one were filed in September and amended Oct. 9 to add the constitutional claim. The 22nd action (in Pacer), filed Oct. 21 on behalf of spices supplier McCormick, raised the argument as an original claim. The Hogan Lovells complaints also add allegations that USTR violated importers' Fifth Amendment due process rights, a claim that Vandevert didn't argue on behalf of GHSP and Brose. USTR deprived importers of due process on Lists 3 and 4A when it failed to "provide a sufficient opportunity for comment" and didn't "adequately explain" its rationale, said all the various Hogan Lovells complaints. USTR's "predetermined decision-making resulted in the unlawful imposition of tariffs on imports covered by Lists 3 and 4A whose value equals $500 billion," they said. USTR didn't respond to questions Monday. Hogan Lovells declined comment.