Government Announces Plans to Appeal Tariff Refund Order
Government Announces Plans to Appeal Tariff Refund Order
By John H. Kester
In a Motion filed in V.O.S. Selections in the Court of International Trade (“CIT”) on Friday, May 29th, the government announced its intent to appeal the Court’s prior injunction requiring that Customs and Border Protection (“CBP”) reliquidate finally liquidated entries removing tariffs unlawfully imposed under the International Emergency Economic Powers Act (“IEEPA”). The government stated that, rather than universally applying to the many thousands of IEEPA-impacted importers, the Court’s order only should apply to the named plaintiffs in cases in which the Court entered the injunction.
“[T]he universal injunction exceeds the Court’s jurisdiction and equitable authority,” the government argued, stating further, “the defendants’ intend to appeal the Court’s universal injunction and to seek a stay of the injunction except as to the particular importer plaintiffs in each case in which the Court has entered the injunction.”
If the government plans to make that appeal in the lead tariff refund case, Euro-Notions Florida, it will have to do so by that case’s June 6th appeal deadline.
Were the government successful on its appeal dismantling the Senior Judge’s universal order, it would require individual importers to sue in the Court of International Trade for reliquidation of their finally liquidated entries in order to obtain refund of IEEPA duties. Under that approach, however, it does not appear that the government would oppose refunding those specific plaintiffs’ IEEPA tariff payments on finally liquidated entries once ordered reliquidated by the CIT.
The government foreshadowed its intent to appeal in a Motion seeking to have the Court amend an Order issued May 27th, which required CBP Commissioner Rodney S. Scott to give live testimony on June 9th and “answer the court’s questions as to the anticipated timing of Customs’ compliance with the court’s order.” The government argued in its May 29th Motion, which was denied by the Court on the same day, that the Commissioner cannot be required to testify absent extraordinary circumstances, “because Commissioner Scott is a high-ranking Government official.” It requested that either Susan Thomas, CBP’s Executive Assistant Commissioner for Trade, or Brandon Lord, its Executive Director, Trade Programs Directorate, Office of Trade, testify instead. The government said it would seek a mandate from the Court of Appeals for the Federal Circuit if the CIT refused to amend the order requiring the Commissioner to testify.
In its Order denying the Motion, CIT Senior Judge Eaton, who has appeared in recent days to be increasingly dissatisfied with the speed and/or clarity of the refund process, stated:
To date, Customs has not proposed a method for complying with the court’s order to refund all of the unlawfully collected duties, including those owing to small importers….
Commissioner Scott’s testimony is necessary to ascertain if it is the Government’s policy to return all of the unlawfully collected duties either by complying with the court’s order, or by some other means—that is, if it is the Government’s policy to refund the duties to importers both large and small.
The Judge further noted, “There is $166 billion involved.”
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John H. Kester is a Customs attorney with GKG Law. He additionally passed Customs and Border Protection’s rigorous Customs Broker License Exam and his application for a Customs Broker License is pending. He is reachable at jkester@gkglaw.com.
Brendan Collins and Oliver M. Krischik, Principals with GKG Law, additionally participated in the firm’s numerous filings in opposition to the Section 301 tariffs implemented by President Trump’s first administration. They are reachable at bcollins@gkglaw.com and okrischik@gkglaw.com respectively.
