Section 301 Plaintiffs Say Loper Bright Crucial for Resolution of Case

Plaintiffs in the massive Section 301 litigation said the U.S. Supreme Court's recent decision in Loper Bright v. Raimondo, which overturned the Chevron principle of deferring to federal agencies' interpretations of ambiguous statutes (see 2406280051), is relevant to the consequential litigation concerning the lists 3 and 4A Section 301 duties (HMTX Industries v. U.S., Fed. Cir. # 23-1891).

In a July 30 notice of supplemental authority, the litigants said the decision is important because the opinion "confirms that 'USTR’s Statutory Constructions Are Not Entitled To Deference.'" In enacting the duties, the Office of the U.S. Trade Representative relied on Section 307 of the Trade Act of 1974, which covers the modification of existing duties. USTR said the statute's language allowed the agency to impose duties in response to retaliatory duties from China (see 2402130051).

The plaintiffs in the case said nothing in the Administrative Procedure Act allows for the "clear misconstruction" standard of review of USTR's statutory interpretation sought by the government. In fact, deferring to USTR's read of Section 307 would "violate the APA by yielding to an agency" the court's "express responsibility" to decide all relevant questions of law, especially those on the scope of the agency's own power, the notice said.

Loper Bright also "confirms that deferring to USTR would also run afoul of the 'major questions' doctrine," the plaintiffs said. This doctrine requires express delegation from Congress to federal agencies on issues affecting major areas of the economy. Without "express" authorization to act in the manner in which it did, the government truly seeks "Chevron-like deference that has no place in the 'major questions' framework," the notice said.

The plaintiffs also said Loper Bright demands reversing the Court of International Trade's interpretation of the governing statute, claiming that if a statutory interpretation isn't the best, it's "not permissible." Because the plaintiffs' "reading is the best, the Court should reverse the CIT’s judgment," the notice said.