CIT Signals Path Forward for Unassigned Section 301 Cases, Preliminary Injunction

Court of International Trade Chief Judge Mark Barnett suggested during an April 26 status conference that an automatic stay could be in order for all cases challenging Lists 3 and 4A of the Section 301 tariffs that are unassigned to the three-judge panel. The government defense and the 15-member steering committee representing the plaintiffs did not object. Under Barnett's suggested order, all new cases without assignment to the panel would automatically be stayed and would follow comparable procedures to other cases under the HMTX Industries and Jasco Products test case to lift the stay.

The prospect of dealing with the unassigned cases brought Barnett to address another lingering concern over the large litigation: the issue of relief for the importers. Plaintiffs moved April 23 for a “protective preliminary injunction” to suspend liquidation of all unliquidated customs entries imported from China with lists 3 and 4A tariff exposure (see 2104230069). If a preliminary injunction is granted to the over 3,600 plaintiffs, then Barnett would also extend the injunction to the unassigned cases. “If after briefing and full consideration, the 3-judge panel does issue a preliminary injunction in the assigned 301 cases, what I would consider doing then is issuing a follow-on administrative order that would extend a preliminary injunction to those unassigned cases absent an objection from defendants within X number of days,” Barnett said.

While not objecting, HMTX lead attorney Matthew Nicely of Akin Gump, on behalf of the case's steering committee, pointed out the possibility of some plaintiffs opting out of the preliminary injunction. Aside from this hypothetical complication, Nicely, along with Jamie Shookman of the Department of Justice, said they didn't object.

While not getting into merit-related arguments in the status conference, Barnett said a preliminary injunction would need to allow for CBP's administration of the injunction without diminishing its effect. Barnett expressed a desire to be "proactive in exercising case management prerogatives" to address issues of how best to administer the injunction, should it succeed on the merits. No timeline was given for ruling on the plaintiff's motion for preliminary injunction. A government response to the motion is due May 14.