Ask an Attorney - Challenging The So-Called "List 3 and List 4A Duties
Ask an Attorney– Broker Compliance CornerBy Meeks, Sheppard, Leo & Pillsburyhttps://www.mscustoms.com/
Question: Last fall, over 3,700 importers filed cases at the Court of International Trade (CIT) challenging the so-called “List 3 and List 4A” Section 301 duties assessed on certain Chinese-origin imports. As an importer of Chinese-origin goods covered by Lists 3 and/or 4A who did not file a court case, is it too late for us to file one now?
Answer: The very first lawsuit HMTX Industries LLC et al. v. United States (Court No. 20-00177) was filed at the CIT on September 10,2020. After that, thousands of importers have filed lawsuits on the same or similar grounds as HMTX, hoping to benefit if the HMTX case is successful. The plaintiff/importer in the HMTX case asserted jurisdiction under 28 USC 1581(i)(B), the court’s residual jurisdiction provision. Pursuant to the rules of the CIT, such an action must be brought within two years after the cause of action first accrues. See 28 U.S. Code § 2636(i). While the initial cases were filed within two years from the date of publication of List 3 in the Federal Register, we believe that compelling arguments can be made that the “cause of action” accrued on the date of each entry upon which the duties were collected.
For example, if an entry was filed and duties were deposited on July 4, 2019, the deadline to file a case to recover a refund for this specific entry is two years from July 4,2019, or July 4, 2021. Considering that the expense of joining the HMTX litigation is relatively low, importers should consider filing a case top reserve their rights related to potential List 3 refunds if they haven’t already. New cases challenging goods covered by List 4A should be filed on or before August 20, 2021, the most conservative deadline under the CIT rules.
Taylor Pillsbury, Esq.
Meeks, Sheppard, Leo &Pillsbury