Court Poses Tough Questions for Section 301 Oral Argument
Chief Judge Mark Barnett of the U.S. Court of International Trade gave both sides in the Section 301 litigation less than 72 hours to ponder tough questions he and others on the three-judge panel want answered during oral argument Thursday…
Sign up for a free preview to unlock the rest of this article
Export Compliance Daily combines U.S. export control news, foreign border import regulation and policy developments into a single daily information service that reliably informs its trade professional readers about important current issues affecting their operations.
on the plaintiffs’ motion for a preliminary injunction to freeze liquidation of unliquidated customs entries from China with Lists 3 or 4A tariff exposure (see 2106100001). Barnett asked (in Pacer) Akin Gump lawyers for sample-case plaintiffs HMTX Industries and Jasco Products to square their argument that the court has the authority to order remedies through reliquidation or money judgment with their obligation to show they likely would suffer irreparable harm without an injunction, “as articulated” in the Supreme Court’s 2008 Winter v. Natural Resources Defense Council opinion. The court in that case vacated a lower court’s injunction barring the Navy from using sonar in training exercises off the coast of Southern California due to the possibility it could harm marine mammals. “Issuing a preliminary injunction based only on a possibility of irreparable harm is inconsistent with our characterization of injunctive relief as an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief,” wrote the court. If the purpose of preliminary injunctive relief is “to prevent the loss of something which cannot be remedied by a money judgment,” Barnett asked the government, doesn't DOJ’s argument that the court can’t order reliquidation or a money judgment “strongly support a finding of irreparable harm” for the plaintiffs seeking the injunction? Oral argument is scheduled for 10 a.m. Thursday. The public can listen through a dial-in audio feed.