A Washington importer is challenging the constitutionality of the Enforce and Protect Act's determination process in the Court of International Trade. Leco Supply, having found itself on the wrong side of an EAPA final administrative determination into wire hangers imported from Laos, said in a March 25 complaint that CBP's process in deciding EAPA claims denied it the opportunity to view the confidential documents that CBP relied on to make its determination, depriving the importer of its constitutional due process rights.

The following lawsuits were filed at the Court of International Trade during the week of March 15-21:

U.S. Court of Appeals for the Federal Circuit Judge Jimmie Reyna asked probing questions on the ability of the president to implement or alter Section 232 national security tariffs with few impediments, during oral argument on March 18. The judge questioned Department of Justice counsel Tara Hogan about the government's defense of tariff alterations President Donald Trump made in 2018 and said that the way the government interpreted the law on tariff modifications would not be applicable in his line of business.

Malaysian palm oil exporter Sime Darby Plantation Berhad moved to dismiss a lawsuit against Duncan Jepson, managing director of the nongovernmental organization Liberty Shared, because the underlying investigation by the Securities Commission of Malaysia was dropped, in a March 16 filing with the U.S. District Court for the Eastern District of Virginia. Sime Darby had sought to force Jepson to disclose information relevant to forced labor allegations Jepson filed with the Securities Commission in connection with the investigation (see 2103120040). The U.S. still has a withhold release order in place on the company's palm oil.

Court of International Trade Chief Judge Timothy Stanceu will assume senior status at the court April 5, according to the U.S. Courts website. A 2003 President George W. Bush appointee, Stanceu has held numerous government positions, including as deputy director of the Treasury Department's Office of Trade and Tariff Affairs. Judge Mark Barnett, the longest-serving active judge on the court, is expected by some to take over as chief judge (see 2102050008).

The following lawsuits were filed at the Court of International Trade during the week of March 8-14:

The U.S. Court of Appeals for the Federal Circuit will have its first vacancy to fill in six years when Judge Evan Wallach assumes senior status May 31, according to the U.S. Courts website. Wallach was appointed to the court by President Barack Obama in 2011 after serving for 16 years at the Court of International Trade.

Malaysian palm oil importer Sime Darby Plantation Berhad filed a lawsuit against Duncan Jepson, the managing director of non-governmental organization Liberty Shared, attempting to force the turnover of information relevant to an investigation into forced labor allegations filed by Jepson with the Securities Commission of Malaysia, the company detailed in a news release. The case was brought before the U.S. District Court for the Eastern District of Virginia on March 9 to get Jepson to provide information to help Sime Darby comply with the foreign proceeding in which Jepson alleged wrongful disclosures in the Malaysian company's 2019 Sustainability Report that resulted in the company reporting false or misleading statements about its use of forced labor. The Securities Commission investigation marks the second major governmental inquiry into allegations of forced labor in Sime Darby plantations, with CBP issuing a withhold release order on the importer's products in December.

Litigants challenging lists 3 and 4A Section 301 tariffs have a “difficult hill to climb” in making a compelling case for why the tariffs should be lifted, a lawyer said. Speaking March 11 on a panel at Georgetown Law's 2021 International Trade Update on the courts' role in tariffs, Bradford Ward of King & Spalding called out the central claim used by one of the litigants: that the law does not permit the Office of the U.S. Trade Representative to increase tariffs, only to “delay, taper or terminate such actions.” In the same provision of that law, modification of tariffs is authorized when the burden on U.S. commerce has increased or decreased, meaning the agency can increase or decrease tariffs, said Ward, who used to work at USTR and now represents domestic industry. “It would be illogical, from my perspective, for the statute to prohibit an increase in tariffs while recognizing the ability of USTR to modify via an increase in the burden. It doesn't seem coherent,” Ward said.

The Department of Justice declined to submit additional arguments in defense of President Donald Trump's decision to expand Section 232 steel and aluminum tariffs to steel derivatives beyond its original argument in front of the Court of International Trade, guaranteeing that the court will overturn the steel derivatives tariffs but allowing for an appeal.