In Re: Section 301 Cases
21-81
by: Barnett, Kelly, Choe-Groves

Section: Federal Circuit and CIT Case Summaries




In a split opinion, the CIT granted Plaintiffs’ motions for leave to file a reply and for a preliminary injunction. In evaluating the preliminary injunction factors, the Court focused on the risk of irreparable harm, concluding that the liquidation of Plaintiffs’ entries would constitute irreparable harm because it may foreclose Plaintiffs’ ability to challenge the Government’s imposition of duties paid or have those duties returned. Although persuaded that “the CIT is granted broad statutory authority to order appropriate relief” under 28 USC § 2643, including “the explicit power to order reliquidation and refunds where the government has unlawfully exacted duties,” Judges Kelly and Choe-Groves found that the Federal Circuit “has explicitly and implicitly called the breadth of the CIT’s statutory authority into question.” Discussing Shinyei, Ugine, American Signature, and Sumecht, Judges Kelly and Choe-Groves held that “the Court of Appeals has consistently refrained from relying on [the broad statutory language granting the Court authority to order whatever relief is appropriate] in finding the CIT has authority to order reliquidation or refunds in 1581(i) cases and has raised doubts about the CIT’s authority to do so.” The Court therefore found a potential for refunds to be unavailable on liquidated entries should Plaintiffs prevail – and that if refunds on liquidated entries are unavailable, liquidation would constitute irreparable harm because “it cuts off judicial review and eliminates any chance of recovery of unlawful extractions.”
 
Judges Kelly and Choe-Groves further found that “Plaintiffs raise sufficiently serious and substantial questions as to the proper interpretation of Section 307 of the Trade Act” to demonstrate a fair chance of success on the merits, that the balance of equities tips in Plaintiffs’ favor because of the narrowness of the relief sought (suspension of liquidation), and that the injunction would be in the public interest.
 
Chief Judge Barnett dissented. Although he “agree[d] with much of [the majority’s] analysis,” Chief Judge Barnett concluded that the Federal Circuit’s “binding precedent suggests no more than a remote chance that the appellate court would find that this court is not empowered to provide relief with respect to any liquidated entries,” and therefore concluded that Plaintiffs had failed to establish a likelihood of irreparable harm.