Leibowitz on Trade: A Dilemma for the Government on Tariff Refunds Found Unlawful?

Last Tuesday, the Court of International Trade issued a major opinion in the massive litigation over China tariffs. As I’ve written before, the imposition of tariffs on more than $200 billion of imports per year from China has prompted a slew of lawsuits (more than 3,600 so far, including 6,500 separate plaintiffs), which could find that the List Three and List 4A China tariffs are contrary to Section 301 of the Trade Act of 1974. In the lead case on this matter, the government argued that duties later declared unlawful could not be refunded if the Customs entries were closed out administratively (“liquidated”).

The government has, until now, consistently accepted that in cases subject to the CIT’s “residual” jurisdiction, past entries that were “liquidated” by Customs could be reopened and re-liquidation ordered by the Court of International Trade if the tariffs collected were unlawful and were imposed by the action of other agencies (such as the U.S. Trade Representative in 301 cases and the Commerce Department under Section 232 of the Trade Expansion Act of 1962).