A new challenge has been filed in the US Court of International Trade (CIT) contesting the assessment of the List 3 and List 4 tariffs that have been imposed on goods from China under Section 301 of the Trade Act of 1974.  The lawsuit alleges that the tariffs were imposed in an untimely manner and to retaliate against Chinese tariff measures. The lawsuit alleges they were not to remedy China’s unfair trade practices, and therefore were not authorized under the Trade Act.  The suit further alleges the USTR failed to comply with the Administrative Procedures Act when imposing the tariffs.

If successful, these cases could result in the refund to the plaintiffs of all tariffs they paid on the List 3 and 4 goods over the past two years, and up until the case is resolved.  It is probable that only importers that file their own lawsuits will be able to recover refunds, at least with respect to entries that have been liquidated by CBP.  While importers can file protests on liquidated entries, there is no certainty that CBP would be authorized to issue refunds to importers without a case filed in court.

The lawsuit is based upon the court’s residual jurisdiction, 28 USC 1581(i). The deadline to file in court is two (2) years after the cause of action accrues.  The USTR published notice imposing the List 3 duties on September 21, 2018, and the duties took effect on all entries for consumption on or after September 24, 2018.  The safest course of action to ensure meeting the two-year deadline with respect to List 3 tariffs would be to file a court claim on or before September 20, 2020.  Importers not meeting that deadline may still be able to assert that the two-year deadline runs from the date the tariffs were paid, and thus a later filed lawsuit would be timely with respect to any tariffs paid during the previous two years.  We caution that, based upon prior court precedent, there is uncertainty as to whether the two-year filing deadline runs from date of the USTR decision or date of payment of the tariffs.

What importers should know:

The situation remains very fluid. We are advising clients to do the following:

• Know whether your imports are affected and decide what you’re going to do about it.
• If you have a question about whether your products are affected by these or other tariffs, we may be able to help. We can tell you what impact the tariffs had on your shipments, and suggest a law firm handling these lawsuits.
• You can do nothing. Everything is still very fluid and there is a chance that the legal challenge will result a credit for everyone.
• We urge individual importers, associations and others seeking to participate in the lawsuit to Contact Us ASAP.