Role of Section 301 Steering Committee in Compiling Data Debated in Oral Argument

Opposing sides in the Section 301 litigation sparred heatedly in the closing minutes of oral argument June 17 (see 2106170061) about the role the plaintiffs’ steering committee should play should the Court of International Trade grant the motion of sample-case plaintiffs HMTX and Jasco for a preliminary injunction to freeze the liquidations of unliquidated customs entries from China with lists 3 and 4A tariff exposure.

The Department of Justice’s May 14 “alternative proposed order” would require the steering committee to furnish the government a spreadsheet with the import data CBP would need to suspend liquidations, and to update it every 30 days. “The government proposes having the steering committee play a role that it never volunteered to take on,” said Matthew Nicely, Akin Gump’s lead HMTX-Jasco lawyer. “It was never this court’s intention to have the steering committee do the government’s job, which is exactly what the government proposes.” DOJ’s proposal “is simply untenable,” he said.

The government tried to “think of any possible way to make this process easier,” responded DOJ trial attorney Jamie Shookman about the rationale for the proposed steering committee role. “One that seemed sort of easy to take on and manageable by plaintiffs was this first step of compiling the importers and the information CBP would need to suspend their entries.” CBP is staring at the possibility of processing “thousands” of suspension requests, much of that by hand, if the court grants the injunction, she said. Nicely replied that “the amount of work here” is of DOJ’s “own making” for refusing to support a refund stipulation if plaintiffs win the litigation, as DOJ has done in previous cases. The government “undertook an unlawful imposition of Section 301 duties on a massive amount of trade,” he said. “That was not the plaintiffs who did that. That was the government who did that, so now they’re in a position of having to defend it.”