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`Case 1:20-cv-00687-N/A Document 1-1 Filed 09/18/20 Page 1 of 7Case 1:20-cv-00687-N/A Document 2 Filed 09/21/20 Page 1 of 7
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`UNITED STATES COURT OF INTERNATIONAL TRADE
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`ACME FOOD SALES, INC.,
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`Plaintiff,
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`v.
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`UNITED STATES, OFFICE OF THE
`UNITED STATES TRADE
`REPRESENTATIVE, and ROBERT E.
`LIGHTHIZER, U.S. TRADE
`REPRESENTATIVE,
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`Defendants.
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`Court No. 20-cv-00687
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`COMPLAINT
`Plaintiff, ACME FOOD SALES, INC. (“ACME” or “Plaintiff”), by and through its
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`undersigned counsel, FISHERBROYLES, LLP, brings this action and states and alleges the
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`following:
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`BRIEF DESCRIPTION OF THE ACTION
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`1.
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`ACME brings this action to contest the unlawful imposition of so-called “List 3”
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`and “List 4” tariffs upon goods it imported from the People’s Republic of China (“PRC”)
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`pursuant to Section 301 of the Trade Act of 1974, codified at 19 U.S.C. § 2411. On September
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`21, 2018, the United States Trade Representative announced the imposition of so-called “List 3”
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`tariffs on goods imported from the PRC. Those tariffs and the subsequent “List 4” tariffs were
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`imposed in a manner that was arbitrary, capricious and otherwise not in accordance with Federal
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`law and therefore should be refunded in toto.
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`1
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`Case 1:20-cv-00687-N/A Document 1-1 Filed 09/18/20 Page 2 of 7Case 1:20-cv-00687-N/A Document 2 Filed 09/21/20 Page 2 of 7
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`JURISDICTION
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`2.
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`This action arises under 28 U.S.C. § 1581(i)(1)(B), which confers exclusive
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`jurisdiction in the U.S. Court of International Trade over any civil action commenced against the
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`United States, its agencies, or its officers, that arises out of any law of the United States
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`providing for tariffs, duties, fees or other taxes on the importation of merchandise for reasons
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`other than the raising of revenue.
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`3.
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`Plaintiff’s claims accrued on September 21, 2018, when the USTR announced the
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`imposition of the List 3 tariffs on goods imported from PRC. Notice of Modification of Section
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`301 Action: China’s Acts, Policies and Practices Related to Technology Transfer, Intellectual
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`Property and Innovation, 83 Fed. Reg. 47,974 (Sept. 21, 2018).
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`4.
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`5.
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`This action is filed timely pursuant to 28 U.S.C. § 2636(i).
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`STANDING
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` ACME is the importer of record of the merchandise that is the subject of this
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`action upon which duties were imposed pursuant to List 3 and List 4.
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`PARTIES
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`6.
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`ACME is a U.S. corporation, incorporated in Washington state, with its principal
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`place of business at 5601 6th Avenue South, Suite 180 Seattle, Washington.
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`7.
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`Defendant United States received the disputed duties and is the statutory
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`defendant under 28 U.S.C. § 1581 and 5 U.S.C. § 702.
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`8.
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`Defendant Office of the United States Trade Representative (“USTR”) is an
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`executive agency with responsibility under 19 U.S.C. § 2411 to investigate foreign country’s
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`trade practices and to implement responses to those practices, and is the agency which
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`investigated the trade practices of the PRC and imposed the List 3 and List 4 tariffs.
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`Case 1:20-cv-00687-N/A Document 1-1 Filed 09/18/20 Page 3 of 7Case 1:20-cv-00687-N/A Document 2 Filed 09/21/20 Page 3 of 7
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`9.
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`Defendant Ambassador Robert Lighthizer is the current U.S. Trade
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`Representative who was involved in the decision-making process resulting in the List 3 and List
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`4 tariffs.
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`RELEVANT LAW
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`10.
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`Section 301 of the Trade Act of 1974, codified at 19 U.S.C. § 2411, authorizes the
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`USTR to investigate the trade practices of any foreign nation. 19 U.S.C. § 2411(b). If the results
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`of the investigation reveal that foreign country is engaging in unreasonable or discriminatory
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`practices, USTR is authorized to, inter alia, impose tariffs on imports from the subject foreign
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`country under 19 U.S.C. § 2411(b) and (c).
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`11.
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`Section 304 of the Trade Act of 1974 requires USTR to determine which action to
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`take within one year of the commencement of its investigation. 19 U.S.C. § 2414(a)(1)(B),
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`(2)(B).
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`12.
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`Section 307 of the Trade Act of 1974 authorizes USTR to modify or terminate an
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`action it has taken under Section 301 of that Act, where the burden or restriction imposed on
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`U.S. commerce by the investigated foreign country’s policy practices, etc., has increased or
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`decreased, or if the action taken by USTR is no longer appropriate.
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`FACTS
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`13.
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`On August 18, 2017, USTR commenced an investigation into trade practices
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`relating to “technology transfer, intellectual property and innovation” of the PRC. Initiation of
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`Section 301 Investigation; Hearing; and Request for Public Comments: China’s Acts, Policies
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`and Practices Related to Technology Transfer, Intellectual Property and Innovation, 82 Fed.
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`Reg. 40,123 (Aug. 24, 2017) (“the Investigation”).
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`3
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`14.
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`On September 21, 2018, the USTR announced it was modifying the actions
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`previously announced pursuant to the Investigation to add tariffs on goods valued at over $200
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`billion coming from PRC (“List 3”). Notice of Modification of Section 301 Action: China’s Acts,
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`Policies, and Practices Related to Technology Transfer, Intellectual Property, and Innovation,
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`82 Fed. Reg. 47,974 (Sept. 21, 2018).
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`15.
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`On August 20, 2019, USTR announced another group of products from PRC
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`would be subjected to retaliatory tariffs (“List 4”). Notice of Modification of Section 301 Action:
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`China’s Acts, Policies, and Practices Related to Technology Transfer, Intellectual Property, and
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`Innovation, 84 Fed. Reg. 43,304 (Aug. 20, 2019)
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`16.
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`In announcing the List 3 and the later List 4 tariffs, both in public media and in
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`the Federal Register, USTR made a series of statements, none of which referred to the actions,
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`policies and practices of the PRC that were the subject of the original Investigation.
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`17.
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`USTR’s actions leading up to and imposing the List 3 and List 4 tariffs were
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`arbitrary, capricious, and abuse of discretion and otherwise not in accordance with law. 5 U.S.C.
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`§ 706.
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`18.
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`The Trade Act of 1974 does not authorize the actions taken by the USTR in
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`promulgating and imposing the List 3 and List 4 tariffs.
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`COUNT ONE – DECLARATORY JUDGMENT
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`Paragraphs 1 through 18 are hereby incorporated by reference.
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`Under 28 U.S.C. § 2201(a), this Court is authorized to “declare the rights and
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`19.
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`20.
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`other legal relations of any interested party seeking such declaration, whether or not further relief
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`is or could be sought.”
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`4
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`21.
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`Defendants’ actions under the alleged authority of the Trade Act of 1974 were
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`ultra vires and unauthorized by that Act, because the USTR failed to predicate its action in
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`imposing the List 3 and List 4 tariffs upon any determination related to the Investigation.
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`22.
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`USTR’s actions in imposing the List 3 and List 4 tariffs violates 19 U.S.C.
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`§ 2414(a)(1)(B) and (2)(B), because the actions were taken more than 12 months after USTR
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`initiated the Investigation.
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`23.
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`USTR violated 19 U.S.C. 2417(a)(1)(B) by increasing the tariffs imposed
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`pursuant to the Investigation when it imposed the tariffs in List 3 and List 4, because that law
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`only permits USTR to “modify or terminate” duties imposed pursuant to Section 301 of the
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`Trade Act of 1974, and not to increase such duties.
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`24.
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`Plaintiff is therefore entitled to a declaratory judgment that the USTR’s actions
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`giving rise to List 3 and List 4 are ultra vires and otherwise contrary to all applicable law.
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`COUNT TWO – ADMINISTRATIVE PROCEDURE ACT
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`Paragraphs 1 through 24 are hereby incorporated by reference.
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`In promulgating the tariffs contained in List 3 and List 4, Defendant USTR
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`25.
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`26.
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`unlawfully violated the Administrative Procedure Act, codified at 5 U.S.C. § 511 et seq., which
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`action is reviewable in this Court pursuant to 5 U.S.C. § 702, et seq.
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`27.
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`USTR’s actions in promulgating List 3 and List 4 exceeded its authority under the
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`Trade Act of 1974 for the reasons set forth in Count 1.
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`28.
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`USTR failed to offer any evidence of any alleged increased burden to justify
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`promulgating List 3 and List 4 and imposing those tariffs on merchandise imported from PRC to
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`the U.S.
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`5
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`29.
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`USTR promulgated List 3 and List 4 in an arbitrary and capricious manner
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`because it failed to provide adequate opportunity for notice and comment, failed to meaningfully
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`consider relevant factors in its decision-making, and utterly failed to explain the rationale for List
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`3 and List 4.
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`30.
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`Imposition of the tariffs listed in List 3 and List 4 was therefore in violation of the
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`Administrative Procedure Act and the Trade Act of 1974, and must be struck down by this Court.
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`PRAYER FOR RELIEF
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`WHEREFORE, Plaintiff ACME respectfully requests that this Court render judgment,
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`by:
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`a. declaring that the USTR’s imposition of the tariffs listed in List 3 and List 4
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`are unauthorized by and contrary to law, including the Trade Act of 1974;
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`b. declaring that USTR arbitrarily and unlawfully promulgated List 3 and List 4
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`in violation of the APA;
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`c. vacating the List 3 and List 4 rulemaking;
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`d. ordering Defendants to refund, with all applicable interest, any duties paid by
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`Plaintiff pursuant to and as a result of the promulgation of List 3 and List 4;
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`e. permanently enjoining Defendants from applying List 3 or List 4 against
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`Plaintiff and from collecting any duties pursuant thereto from Plaintiff;
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`f.
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`awarding Plaintiff its reasonable attorneys fees and costs; and,
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`g. awarding such other and further relief which this Court may deem just and
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`appropriate.
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`Dated: September 18, 2020
`New York, New York
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`Case 1:20-cv-00687-N/A Document 1-1 Filed 09/18/20 Page 7 of 7Case 1:20-cv-00687-N/A Document 2 Filed 09/21/20 Page 7 of 7
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`FISHERBROYLES, LLP
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`By: /s/
`Philip Gallas, Esq.
`445 Park Avenue, 9th Floor
`New York, New York 10022
`Telephone 646-233-2533
`Attorneys for Plaintiff ACME FOOD SALES, INC.
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`7
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