CIT Chief Judge Orders Stay of New Section 301 Cases

Chief Judge Mark Barnett of the Court of International Trade signed an administrative order April 28 that will automatically stay any new complaints filed in the massive Section 301 litigation before they are assigned to the three-judge panel he shares with Judges Claire Kelly and Jennifer Choe-Groves. Any lawyer seeking to lift the stay of a new Section 301 case must first consult with the plaintiffs' steering committee at least three days before filing a motion and must show “good cause” for the exemption, the order said.

The court expects “to determine the appropriate next steps” for dealing with the new cases after the first-filed HMTX-Jasco sample case is resolved, it said. Barnett told an April 26 status conference (see 2104280035) he has been "monitoring the ongoing trickle of additional 301 cases.” Though the court has continued assigning the new cases to the three-judge panel, and all the cases have been stayed until HMTX-Jasco is resolved, “I do worry about the possibility, at least, of some future case creating a conflict that could require one or more of us to have to recuse,” he said of himself and fellow panel members.

New Section 301 complaints continue coming in at the rate of about one a day. All the roughly 3,700 cases allege the lists 3 and 4A tariffs on Chinese goods are unlawful and should be refunded. The 34-minute status conference was largely procedural and dispatched with a number of what Barnett called “housekeeping items.” It was convened amid the Department of Justice’s opposition to the refund relief importers seek, if they prevail in the litigation, on liquidated customs entries from China with lists 3 and 4A tariff exposure (see 2104260010). HMTX-Jasco attorneys from Akin Gump are seeking a “protective” injunction to freeze unliquidated imports from being liquidated. DOJ’s response to the injunction motion is due May 14.