Court Sets March 19 Deadline for Input on Picking Section 301 Test Cases

The U.S. Court of International Trade plans to “proceed first” on choosing a “representative sample” of test cases to manage the roughly 3,500 Section 301 complaints inundating the court, said an order (in Pacer) signed Tuesday by the three-judge panel of Mark Barnett, Claire Kelly and Jennifer Choe-Groves. All the suits seek to get the Lists 3 and 4A Chinese tariffs vacated and the duties refunded with interest. “The court expects that the number of sample cases identified will be small enough to permit the efficient disposition of this litigation while allowing the court to consider all claims raised by the various Plaintiffs,” said the order. “The court anticipates issuing a stay of all Section 301 cases assigned to the panel that are not selected to proceed as sample cases.” It set a March 19 deadline for plaintiff attorneys to submit a “coordinated proposal” on the test cases and to suggest lawyers to sit on a steering committee. Lawyers who think their complaint “would not be represented by a sample case proposal” or feel they belong on the steering committee have until March 26 to appeal, it said. Most court observers think the first-filed HMTX Industries/Jasco Products litigation is a shoo-in for one of the test cases. Virtually all the complaints argue the Office of the U.S. Trade Representative overstepped its Section 301 authority under the 1974 Trade Act by imposing retaliatory tariffs against the Chinese and that it violated the Administrative Procedure Act by running tariff rulemakings that lacked transparency. A few complaints make the additional argument that USTR acted unconstitutionally by taxing importers.