Resolving Deadline Issue in Section 301 Litigation Could Stem Flood of Protests, Lawyer Says

CBP has been swamped with hundreds of thousands of protests related to Section 301 litigation on lists 3 and 4A China tariffs, as importers seek to preserve their rights to refunds if the lawsuits are successful, Robert Silverman of Grunfeld Desiderio said Nov. 9. Negotiations are ongoing with the Department of Justice to untether claims from liquidation dates, which would free importers from potentially having to file the protests to protect their rights, Silverman said, speaking at the Coalition of New England Companies for Trade’s virtual Northeast Cargo Symposium. “We’re trying to get DOJ to agree that liquidation is irrelevant. If they do, then we can stop filing these silly protests,” he said.

Whether importers should file protests depends on their interpretation of the deadline for filing claims. Some say the deadline runs two years from the date the tariffs took effect in 2018, others say it runs from the date of payment, and still others, the date that the entry was liquidated (see 2010200004). “Why liquidation is important is beyond me,” Silverman said. “If the court has jurisdiction, it shouldn’t matter if the entries have liquidated or not. The court has jurisdiction once it has it.”

The liquidation issue is one of several to be decided in the case's early stages. Another hotly contested item is how the court will deal with the nearly 4,000 similar but separate cases filed so far. DOJ has suggested a steering committee of prominent lawyers and firms (see 2010200020). “All the lawyers want to be on it,” Silverman said, to show they earned their fee. Silverman said he thinks 12-15 law firms will end up on the committee. His firm was one of three nominated by DOJ.

Overall, the case will likely take a couple of years, considering the time required for the Court of International Trade to issue its ruling in the lawsuit that is designated the test case, followed by appeals to the U.S. Court of Appeals for the Federal Circuit and potentially even to the Supreme Court, Silverman said. The chances of success are “not great,” he said, putting the odds at “significantly less than 50 percent.” Courts don’t like to slap down the administration on technical grounds, he said: Usually it takes something that was obviously illegal.