CIT Assigns Section 301 China Tariff Cases to 3-Judge Panel

A three-judge Court of International Trade panel will oversee all cases tackling the legality of lists 3 and 4 Section 301 China tariffs, Chief Judge Timothy Stanceu said in an order signed Feb. 5. Judges Mark Barnett, Claire Kelly and Jennifer Choe-Groves -- the three most senior active judges on the court -- were assigned to hear one of the largest mass filings in the court's history.

All three are appointees of President Barack Obama. Barnett and Kelly both assumed office in May 2013, Choe-Groves in June 2016. Lawyers we canvassed said the development was a good one because it means adjudication is really going to start now. The order came more than 18 weeks since Akin Gump's motion for the three-judge panel. Attorneys believe the delay was to give the three judges a chance to study the complaints. “They got a handle on it before they issued the order, rather than issuing this and then trying to get a handle on it,” one attorney said. “Now they're ready to go.”

One should read nothing into the fact that all three judges are Obama appointees, another attorney said. The court's rationale was to pick the judges with the most experience, without choosing any of the more elderly judges because the litigation likely will take years to resolve, he said: “These are not political judges.”

All three judges have no-nonsense reputations, with the ability to take control of unwieldy cases, several of the attorneys we polled said. All praised Barnett, a former Treasury Department attorney, as a straight shooter and a stickler for holding the government to follow the rules. One of the attorneys said: “When the government tries to take shortcuts and stuff, he doesn't like it. That's kind of good in this case for our side.”

Another lawyer said he expects Barnett, who is seen as Stanceu's likely successor when the chief judge retires, will move quickly on next steps. Barnett is known for not tolerating deadline extension requests, except in emergencies. Stanceu, a President George W. Bush appointee in 2003, turns 70 this year. Barnett is 58, Kelly is 56, and Choe-Groves, 52.

The challenge began in September 2020 when HMTX filed a lawsuit over lists 3 and 4A Section 301 tariffs on China (see 2009110005); that suit was then followed by thousands of copycat suits. Jasco Products was later added as party to the HMTX lawsuit. HMTX and Jasco are listed as the representative parties for the whole of the Section 301 litigation and are represented by Akin Gump, which devised the legal theory for the case. “We are pleased to see that our case has been assigned to a three-judge panel, as we requested,” said Matthew Nicely, Akin Gump lead attorney for the HMTX case. “We look forward to working with the court and the other parties to establish a briefing schedule and a mechanism for addressing the large number of related cases that were filed following our HMTX/Jasco complaint.”

The court hasn't said whether it will use the HMTX suit as a test case for the entire litigation. All the various lawsuits argue that the Office of the U.S. Trade Representative overstepped its Section 301 authority by imposing the lists 3 and 4A tariffs as retaliatory duties against the Chinese and violated the Administrative Procedure Act by conducting tariff rulemakings that lacked transparency.