DOJ Asks to File 2 Documents Missing From Section 301 Administrative Record

DOJ wants the U.S. Court of International Trade to include two documents that the Office of the U.S. Trade Representative “realized” were missing from the administrative record filed April 30 by the government in the Section 301 litigation, it said in a Tuesday motion to correct the record. USTR Assistant General Counsel Megan Grimball said in a declaration the documents were “inadvertently omitted.” DOJ said USTR discovered the omissions in the two weeks since oral argument Feb. 1.

One of the excluded documents is a transcript of then-President Donald Trump’s remarks from June 2018 authorizing USTR to identify $200 billion worth of Chinese goods for additional tariffs that eventually became List 3. The other is USTR’s November 2018 investigative report “update” attesting that several rounds of tariffs had failed to curb China’s allegedly unfair trade practices.

DOJ seeks no “additional briefing" on the two documents but wants them included so the court “will have a complete record,” said the motion. Akin Gump lawyers for sample-case plaintiffs HMTX Industries and Jasco Products were notified of the omissions last Friday and, according to DOJ, take no position on including the Trump transcript.

But plaintiffs oppose including the update report because it “post-dates” the September 2018 final Federal Register notice imposing List 3 and goes unmentioned in the final August 2019 FR notice imposing List 4A, said DOJ. Plaintiffs plan to file a response to the motion by the end of this week, it said. Though access to Trump’s statements at whitehouse.gov is no longer active, the update report remains available for public download at USTR’s website. HMTX and Jasco, amid thousands of other plaintiffs, are seeking to vacate the Lists 3 and 4A tariffs for violations of the 1974 Trade Act and 1946 Administrative Procedure Act.

Discussion of the administrative record sparked debate between the sides during oral argument when DOJ lawyer Jamie Shookman quoted from a December 2018 internal USTR "decision memo," included in the record, purporting to show the agency was responsive to public comments opposing the tariffs, thereby satisfying its APA obligations. Akin Gump lawyer Pratik Shah responded that the decision memo was kept from the public, never having been published in the FR. "Those are internal secret memos until you sue," he said under questioning from Judge Claire Kelly. USTR was virtually silent throughout the Lists 3 and 4A rulemakings on the reasoned decision-making it used to impose the tariffs, in obvious breach of the APA, he said.

The government’s disclosure nearly 10 months after the fact that two documents were missing from the administrative record -- and Akin Gump’s intention to respond to the motion -- came in a case that had gone quiet in the weeks after oral argument, as both sides now await the three-judge panel’s decision on the merits. Chief Judge Mark Barnett adjourned the three-hour oral argument, saying the panel would “take the case under submission.”