Recent Decisions Don’t Bolster Section 301 Plaintiffs’ Claims: DOJ

Contrary to the Jan. 10 notice of supplemental authorities from Section 301 test case lawyers Akin Gump that two recent Court of International Trade decisions bolster their arguments that the Office of the U.S. Trade Representative violated the 1974 Trade Act and 1946 Administrative Procedure Act when it imposed the Lists 3 and 4A tariffs on Chinese imports (see 2201110004), “neither decision is ‘pertinent’ nor ‘significant’ to plaintiffs’ claims,” responded DOJ Thursday in docket 1:21-cv-52. Section 307 of the Trade Act “unambiguously supports that the word ‘modify’ permits an increase in tariffs,” as the government contends in the Section 301 case, said DOJ. “To imply a limitation permitting only a decrease in tariffs would be inconsistent” with Section 307, “and would require adding language that Congress omitted” in the statute, it said. The APA issues discussed in a second decision, Invenergy Renewables v. U.S., in which the court found USTR violated the statute by not addressing “significant comments” raised by the public, “are easily distinguishable from this case,” said DOJ. The significant comments the court determined were unaddressed in Invenergy “concerned the USTR’s authority to withdraw a previously-granted exclusion,” plus “other statutory considerations,” it said. In the Section 301 case, USTR “plainly addressed its statutory authority for issuing List 3 and List 4 and the objective of eliminating China’s unfair trade practices,” it said. Neither decision “constitutes persuasive authority that supports granting judgment for the plaintiffs,” said DOJ. Oral argument is scheduled for Feb. 1.