Case 1:20-cv-02477-N/A Document 1-2 Filed 09/20/20 Page 1 of 17
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`UNITED STATES COURT OF INTERNATIONAL TRADE
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`Court No. 20-02477
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`CNH INDUSTRIAL AMERICA, LLC, a Delaware limited liability
`company,
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`Plaintiff,
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`v.
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`UNITED STATES OF AMERICA;
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`OFFICE OF THE UNITED STATES TRADE REPRESENTATIVE
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` ROBERT E. LIGHTHIZER, in His Official Capacity as
`United States Trade Representative;
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`U.S. CUSTOMS & BORDER PROTECTION,
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`MARK A. MORGAN, in His Official Capacity as Acting
`Commissioner of U.S. Customs & Border Protection,
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`Defendants
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`COMPLAINT
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`CNH Industrial America, LLC (“CNH” or “Plaintiff”), by and through its attorneys (Foley
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`& Lardner LLP), hereby states and alleges the following:
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`STATEMENT OF THE CASE
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`1.
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`This action challenges the imposition of duties and the use of Section 301 of the Trade Act
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`of 1974, 19 U.S.C. § 2411, as it relates to certain imported goods from China.
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`2.
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`Specifically, Plaintiff alleges that Defendants’ use of Section 301, as it relates to the
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`imposition and collection of duties on Chinese-origin products covered by so-called “List 3”
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`and “List 4,” are not authorized under the Trade Act of 1974 and violate the Administrative
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`Procedure Act (“APA”), 5 U.S.C. §551 et seq., because they: (1) were imposed in an
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`untimely fashion; (2) are inconsistent with the findings of the underlying Section 301
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`Report issued by the Office of the U.S. Trade Representative (the “Report”); (3) exceed the
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`scope of any allowed remedy for the alleged Intellectual Property Practices found in the
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`Report; (4) were imposed for reasons entirely unrelated to the Intellectual Property practices
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`at issue; (5) were issued without any consideration of the thousands of comments submitted
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`during the public comment process; and (6) are otherwise contrary to law.
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`THE PLAINTIFF
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`3.
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`CNH is an importer of products covered by List 3 and List 4, and expects to continue
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`importing products that are covered by these Lists.
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`4.
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`CNH was the Importer of Record of various Chinese-origin goods that are covered by List 3
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`and List 4, and directly paid duties for imports covered by these Lists. Thus, CNH suffered
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`a direct monetary loss due to the imposition of duties under List 3 and List 4 and continues
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`to suffer a direct monetary loss each and every time it imports Chinese-origin goods
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`covered by List 3 or List 4.
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`STANDING AND DEFENDANTS’ STATUS
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`5.
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`As the Importer of Record of Chinese-origin goods covered by List 3 and List 4, Plaintiff
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`has paid tariffs as a result of duties illegally imposed pursuant to List 3 and List 4. Plaintiff
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`has, therefore, been adversely affected or aggrieved by agency actions within the meaning
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`Case 1:20-cv-02477-N/A Document 1-2 Filed 09/20/20 Page 3 of 17
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`of the APA. 5 U.S.C. § 702 and 28 U.S.C. § 2631(i). Plaintiff therefore has standing to
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`bring this claim.
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`6.
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`Defendant United States of America received the disputed tariffs, including tariffs paid by
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`Plaintiff, and thus is the statutory defendant pursuant to 5 U.S.C. § 702 and 28 U.S.C. §
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`1581(i)(1)(B).
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`7.
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`The Office of the United States Trade Representative (“USTR”) is an executive agency of
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`the United States Government charged with investigating a foreign country’s trade practices
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`under Section 301 of the Trade Act. The Office of the USTR is the agency that issued the
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`Report and implemented (or otherwise oversaw the implementation of) Section 301, subject
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`to the direction of the President. The Office of the USTR made numerous decisions
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`regarding both List 3 and List 4 and otherwise caused the List 3 and 4 duties on Chinese-
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`origin products to be imposed.
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`8.
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`Ambassador Robert Lighthizer currently holds the position of USTR and serves as the
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`director of the Office of the U.S. Trade Representative. In these capacities, he made
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`numerous decisions regarding List 3 and List 4.
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`9.
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`Defendant U.S. Customs & Border Protection (“CBP”) is the U.S. Government agency that
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`collects duties on imports. At the direction of the USTR and the President, CBP collected
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`payments List 3 and 4 tariffs, including those payments made by Plaintiff, in accordance
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`with the List 3 and List 4 tariffs imposed by the USTR.
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`10.
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`Defendant Mark A. Morgan is the Acting Commissioner of CBP. In this capacity, he
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`oversees CBP’s collection of duties under List 3 and List 4, including those paid by
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`Plaintiff.
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`JURISDICTION
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`11.
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`This action is commenced against the United States, its agencies, or its officers and arises
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`out of a law providing for tariffs, duties, fees, or other taxes on the importation of
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`merchandise for reasons other than the raising of revenue. As such, the Court of
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`International Trade has exclusive jurisdiction over this action pursuant to 28 U.S.C. §
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`1581(i)(1)(B).
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`12.
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`Plaintiff has standing to sue because it is “adversely affected or aggrieved by agency action
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`within the meaning of” the APA. 5 U.S.C. §702; see 28 U.S.C. §2631(i) (“Any civil action
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`of which the Court of International Trade has jurisdiction ... may be commenced in the court
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`by any person adversely affected or aggrieved by agency action within the meaning of
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`Section 702 of title 5.”). Tariffs imposed by Defendants pursuant to List 3 and List 4
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`adversely affected and aggrieved Plaintiff because Plaintiff was required to pay these
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`unlawful duties.
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`13.
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`Further, there is no other jurisdictional basis directly specified, whether under another sub-
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`section of Section 1581 or otherwise. Because there is no other statutory basis for
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`proceeding in this Court, the invocation of the residual jurisdiction of this Court pursuant to
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`Section 1581(i)(1)(B) is appropriate.
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`TIMELINESS OF ACTION
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`14.
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`Any action brought under 28 U.S.C. § 1581(i)(1)(B) is timely if the Plaintiff commences the
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`action at this Court “within two years after the cause of action first accrues.” 28 U.S.C.
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`§ 2636(i).
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`Case 1:20-cv-02477-N/A Document 1-2 Filed 09/20/20 Page 5 of 17
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`15.
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`List 3 was first published in the Federal Register on September 21, 2018, under the title
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`“Notice of Modification of Section 301 Action: China’s Acts, Policies, and Practices
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`Related to Technology Transfer, Intellectual Property, and Innovation,” 83 Fed. Reg.
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`47,974 (Sept. 21, 2018).
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`16.
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`Pursuant to that Federal Register publication, “[a]dditional duties at a rate of 10 percent ad
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`valorem on the tariff subheadings set out in the Annexes to this notice [became] applicable
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`with respect to products that [were] entered for consumption, or withdrawn from warehouse
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`for consumption, on or after September 24, 2018.” Id.
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`17.
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`Comments regarding the potential imposition of List 4 were first published in the Federal
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`Register on May 17, 2019, under the title “List Request for Comments Concerning
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`Proposed Modification of Action Pursuant to Section 301: China’s Acts, Policies, and
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`Practices Related to Technology Transfer, Intellectual Property, and Innovation. 84 Fed.
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`Reg. 22,564, (May 17, 2019). The USTR subsequently imposed the List 4 duties in a later
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`Federal Register publication titled, “Notice of Modification of Section 301 Action: China’s
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`Acts, Policies, and Practices Related to Technology Transfer, Intellectual Property, and
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`Innovation,” 84 Fed. Reg. 43,304 (Aug. 20, 2019). Pursuant to that Federal Register
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`publication, “[a]dditional duties at a rate of 10 percent ad valorem on the tariff subheadings
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`set out in Annex A to this notice [became] applicable with respect to products that [were]
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`entered for consumption, or withdrawn from warehouse for consumption, on or after
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`September 1, 2019.” Id.
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`18.
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`Thus, the action that is the subject of this Federal Register notice was first implemented on
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`September 24, 2018 (List 3) and September 1, 2019 (List 4), respectively. The earliest date
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`on which Plaintiff could have incurred liability is the date of publication for List 3. The
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`action is, therefore, timely filed, because it is filed “within two years after the cause of
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`action first accrues.” 28 U.S.C. § 2636(i).
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`RELEVANT LAW
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`19.
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`19 U.S.C. § 2411(b), commonly referred to as “Section 301” because of its numbering in
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`the statutory form enacted, as well as 19 U.S.C. § 2412, collectively authorize the USTR to
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`investigate whether a foreign country has engaged in an “unreasonable or discriminatory”
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`practice that burdens or restricts U.S commerce.
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`20.
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`Section 301 grants the USTR authority to investigate any acts, policies, or practices of a
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`foreign country that violate, or are inconsistent with, or deny benefits under any trade
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`agreement or are “unjustifiable and burden[] or restrict[] United States Commerce.” 19
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`U.S.C. § 2411(a)(1)(B). This authority only can be invoked pursuant to the constraints
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`imposed under Section 301, however, including the need for an investigation and report
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`regarding the unfair trade practices at issue and the implementation of a remedy designed to
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`counter the unfair trade practices identified in that investigation and report.
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`21.
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`Pursuant to 19 U.S.C. § 2411(c)(1)(B), the USTR may impose duties on imports from an
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`offending country if the investigation makes an affirmative determination. The imposition
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`of such duties must be “in an amount that is equivalent in value to the burden or restriction
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`being imposed by that country on United States commerce.” 19 U.S.C. § 2411(a)(3).
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`22.
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`Pursuant to 19 U.S.C. § 2414(a)(2)(B), the USTR must determine what, if any, action to
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`take, by a “date that is 12 months after the date on which the investigation is initiated. The
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`statute does not contemplate or otherwise provide for any extension of this deadline.
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`23.
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`On August 18, 2017, the USTR undertook an investigation into China’s alleged unfair
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`Intellectual Property policies and practices pursuant to its Section 301 authorities. Under
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`Section 301, the USTR was required to determine, within 12 months of the initiation of that
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`investigation, what responsive action (if any) it should take. 19 U.S.C. § 2414. Despite that
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`requirement, the USTR did not issue either List 3 or List 4 until well after the expiration of
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`that 12-month period. Although the Trade Act permits the USTR to modify or terminate any
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`action taken with respect to the USTR’s Section 301 findings, any such action must be
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`taken consistent with “the acts, policies, and practices, that are the subject of such action.”
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`19 U.S.C. § 2417(a)(1)(B). Despite that requirement, the issuance and implementation of
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`both List 3 and List 4 reflect actions taken by Defendants that exceed that express authority.
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`24.
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`In addition to acting contrary to the Trade Act, Defendants also violated the APA by not
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`providing interested parties with sufficient opportunity to comment regarding the proposed List
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`3 and List 4 tariffs. See 5 U.S.C. §551 et seq. Further, the USTR asserted that the basis of the
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`imposition of the List 3 and List 4 duties was an alleged “increase” of harmful Chinese
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`Intellectual Property practices, thereby increasing the burden on U.S. commerce, while
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`advancing no factual foundation or other support for that allegation.
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`25.
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`Finally, the USTR did not even attempt to comply with the APA’s notice and comment
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`requirements. Despite receiving more than 6,000 comments regarding the List 3 and 4 tariff
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`lines and associated tariff classifications under consideration for inclusion on List 3, and an
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`additional 3,000 comments regarding tariff lines and associated tariff classifications under
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`consideration for final inclusion in List 4, the USTR never provided any explanation of how it
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`reviewed those comments, evaluated those comments, or factored those comments into its
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`analysis when promulgating the final version of List 3 and List 4. To this day, there is no record
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`concerning how – or even if – the USTR considered or took into account these comments when
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`promulgating its final determination and imposition of the tariffs for these two Lists.
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`RELEVANT FACTS & PROCEDURAL HISTORY
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`26.
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`In August 18, 2017, the USTR initiated its investigation into Chinese technology transfer
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`and intellectual property practices. See U.S. Trade Representative, “Initiation of Section 301
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`Investigation; Hearing; and Request for Public Comments: China’s Acts, Policies, and
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`Practices Related to Technology Transfer, Intellectual Property, and Innovation,” 82 Fed.
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`Reg. 40,213 (Aug. 24, 2017).
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`27.
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`On March 28, 2018, the USTR published its Report announcing the results of its
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`investigation “Findings of the Investigation Into China’s Acts, Policies, and Practices
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`Related to Technology Transfer, Intellectual Property, and Innovation Under Section 301 of
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`The Trade Act of 1974” (Mar. 22, 2018),
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`https://ustr.gov/sites/default/files/Section%20301%20FINAL.PDF. The Report concludes
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`that the investigated Intellectual Property practices of the Chinese government were
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`unreasonable and discriminatory and burden or restrict U.S. commerce. Id. at 47.
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`28.
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`On June 20, 2018, the USTR published a Federal Register titled “Notice of Action and
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`Request for Public Comment Concerning Proposed Determination of Action Pursuant to
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`Section 301: China’s Acts, Policies, and Practices Related to Technology Transfer,
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`Intellectual Property, and Innovation” imposing an additional 25 percent ad valorem duty
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`on selected products of China. 83 Fed. Reg. 28,710 (June 20, 2018). This is the so-called
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`“List 1” and is not alleged to be a violation of Section 301 as part of this Complaint.
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`29.
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`On August 16, 2018, the USTR published the Federal Register “Notice of Action Pursuant
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`to Section 301: China’s Acts, Policies, and Practices Related to Technology Transfer,
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`Intellectual Property, and Innovation,” imposing an additional 25 percent ad valorem duty
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`on selected products of China. 83 Fed. Reg. 40,823, 40,823-24 (Aug. 16, 2018). This is the
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`so-called “List 2” and also is not alleged to be a violation of Section 301 as part of this
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`Complaint.
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`30.
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`List 1 and List 2 collectively imposed duties on an estimated $50 billion of annual imports
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`of Chinese-origin products. At the time, the USTR judged these duties sufficient to offset
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`the alleged Intellectual Property violations found in the Report.
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`31.
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`China subsequently retaliated against the imposition of the List 1 and List 2 duties by
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`imposing its own duties on various U.S.-origin goods.
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`32.
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`In an explicit response to China’s retaliation, and without reference to the Chinese
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`technology transfer, intellectual property, or innovation policies documented in the Report,
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`the USTR subsequently proposed imposing further duties on additional Chinese-origin
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`products. U.S. Trade Representative, “Request for Comments Concerning Proposed
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`Modification of Action Pursuant to Section 301: China’s Acts, Policies, and Practices
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`Related to Technology Transfer, Intellectual Property, and Innovation,” 83 Fed. Reg.
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`33,608, 33,609 (July 17, 2018). A contemporaneous statement by USTR Robert Lighthizer
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`regarding the Section 301 action confirms that the additional tariffs went beyond the initial
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`Intellectual Property issues documented in the Report and were intended to put pressure on
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`China to “open[]its market to U.S. goods and services.” Statement By U.S. Trade
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`Representative Robert Lighthizer on Section 301 Action (July 10, 2018), available at
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`https://ustr.gov/about-us/policy-offices/press-office/press-releases/2018/july/statement-us-
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`trade-representative.
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`33.
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`Related public statements by the President state that the additional duties were tied to the
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`trade imbalance between the United States and China. See, e.g., @realDonaldTrump,
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`TWITTER (July 10, 2018, 9:17 PM EDT),
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`https://twitter.com/realDonaldTrump/status/1005982266496094209; @realDonaldTrump,
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`Twitter (July 25, 2018, 7:01 AM EDT),
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`https://twitter.com/realDonaldTrump/status/1022074252999225344.
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`34.
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`In an August 1, 2018 statement, the USTR cited China’s allegedly illegal retaliation against
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`the United States and announced that it would impose an additional 25 percent ad valorem
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`duty on selected products of China. Office of the United States Trade Representative,
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`“Statement by U.S. Trade Representative Robert Lighthizer on Section 301 Action” (Aug.
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`1, 2018), https://ustr.gov/about-us/policy-offices/press-office/press-
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`releases/2018/august/statement-us-trade-representative.
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`35.
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`On September 17, 2018, President Trump announced that he had directed the USTR to
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`impose 10 percent additional tariffs on $200 billion of imports from China.
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`https://www.whitehouse.gov/briefings-statements/statement-from-the-president-4/. These
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`additional tariffs were explicitly linked to China’s decision to “impose new tariffs in an
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`effort to hurt the United States economy” and explicitly referenced concerns completely
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`unrelated to Intellectual Property concerns, such as protecting the interests of farmers and
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`ranchers. Id.
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`36.
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`On September 21, 2018, the USTR published the final list of affected products subject to the
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`additional List 3 duties. U.S. Trade Representative, “Notice of Modification of Section 301
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`Action: China’s Acts, Policies, and Practices Related to Technology Transfer, Intellectual
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`Property, and Innovation,” 83 Fed, Reg, 47,974 (Sep. 21, 2018). In issuing this notice, the
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`USTR failed to respond to any of the more than 6,000 comments that it received regarding
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`List 3 or any of the testimony provided by roughly 350 witnesses participating in the public
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`comment process. Id. Nor did the USTR provide any indication that it ever considered or even
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`reviewed these comments and the related testimony. Id. Given that the President announced
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`the action would be coming just eleven days after the final comments were submitted, it is
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`highly unlikely that it even was possible for the USTR to review 6,000 comments and 350
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`witness statements, let alone take them into account when making in its final decision to
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`implement List 3. See Statement
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`from
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`the President
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`(Sept. 17, 2018),
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`https://www.whitehouse.gov/briefings-statements/statement-from-the-president-4/.
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`37.
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`The USTR’s publication of List 3 on September 21, 2018 occurred more than 12 months after
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`the initiation of the investigation on August 24, 2017.
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`38.
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`In its September 21, 2018 Federal Register notice, the USTR acknowledged that the action
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`was being taken more than one year after the start of the investigation, but attempted to
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`justify the action as a “modification” of the existing Section 301 action because supposedly
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`the burden or restriction on United States commerce of the acts, policies, and practices that
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`are the subject of the Section 301 action had continued to increase, including following the
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`one-year investigation period. The Federal Register notice also stated that Chinese
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`retaliation made the existing action no longer “appropriate,” citing “Section 307(a)(1)(C),”
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`19 U.S.C. § 2417(a)(1)(C).
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`39.
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`Despite these arguments, the USTR never undertook any study of the alleged “increase” in
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`the burden on U.S. commerce and did not give any further details. Instead, the USTR
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`alleged that there was an “increase” in the burden on U.S. commerce, without any studies,
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`any support, or any factual findings regarding how or why this “increased” burden on U.S.
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`commerce allegedly occurred. To date, the USTR has never released any information
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`documenting this alleged “increase” in the burden on U.S. commerce, other than this one,
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`unsupported statement.
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`40.
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`On May 17, 2019, the USTR announced its intention to proceed with the implementation of
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`additional Section 301 duties on additional products that would eventually become List 4.
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`U.S. Trade Representative, “List Request for Comments Concerning Proposed Modification
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`of Action Pursuant to Section 301: China’s Acts, Policies, and Practices Related to
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`Technology Transfer, Intellectual Property, and Innovation,” 84 Fed. Reg. 22,564, 22,564
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`(May 17, 2019). The rationale for List 4 was not related to China’s policies with respect to
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`technology transfer, intellectual property, or innovation, however. Instead, the stated
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`purpose of List 4 was to punish China for its failure to meet specific commitments made in
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`bilateral trade negotiations with the United States and its alleged “further retaliatory action
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`against U.S. commerce.” Id.
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`41.
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`Participants subsequently submitted nearly 3,000 comments regarding List 4 during the
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`USTR’s public comment process.
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`42.
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`On August 20, 2019, the USTR published a Federal Register notice stating that it would
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`implement these additional tariffs in two phases that would become List 4A and List 4B,
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`respectively. U.S. Trade Representative, “Notice of Modification of Section 301 Action:
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`China’s Acts, Policies, and Practices Related to Technology Transfer, Intellectual Property,
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`and Innovation,” 84 Fed. Reg. 43,304 (Aug. 20, 2019). The USTR again relied on Sections
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`307(a)(1)(B) and (C) for the stated authority to “modify” its prior action. Like the previous
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`Federal Register notice for List 3, however, this Federal Register notice did not identify
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`Chinese Intellectual Property, technology transfer, or innovation practices as the rationale
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`for imposing the List 4 tariffs. Nor did it provide any analysis of the alleged “increase” in
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`the alleged burden on U.S. commerce by the supposed Intellectual Property practices that
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`were identified in the original Report. Rather, the Notice referred to China’s defensive
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`actions including retaliatory tariffs. Id.
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`43.
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`In implementing List 4, the USTR failed to respond to any of the more that 3,000 comments
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`that it received regarding List 4 or any of the testimony provided by roughly 350 witnesses
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`participating in the public comment process. Id. Nor did the USTR provide any indication
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`that it ever considered or even reviewed these comments and the related testimony. Id.
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`44.
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`Like the publication of List 3, the USTR’s publication of List 4 on August 20, 2019
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`occurred more than 12 months after the initiation of the investigation on August 24, 2017.
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`45.
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`All duties on Chinese-origin products imposed under List 3 and List 4 remain in place.
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`Although the proposed duties on products covered by List 4B were suspended, President
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`Trump continues to threaten to impose them based upon China’s actions. See, e.g.,
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`@realDonaldTrump, TWITTER (June 22, 2020, 10:22 PM EDT),
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`https://twitter.com/realDonaldTrump/status/1275252814206447618. These List 4B duties
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`could immediately be applied to imported goods at the President’s direction.
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`STATEMENT OF CLAIMS
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`COUNT 1: DECLARATORY JUDGMENT
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`46.
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`47.
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`Paragraphs 1 through 45 above are reincorporated by reference.
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`The Court may “declare the rights and other legal relations of any interested party seeking
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`such declaration, whether or not further relief is or could be sought.” 28 U.S.C. § 2201(a).
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`48.
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`The USTR engaged in errors of law and misapplied the governing statute in the following
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`ways:
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`a.
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`The USTR failed to take action to impose duties on List 3 and List 4 products from
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`China within the 12-month period required by 19 U.S.C. § 2414(a)(1)(B) and (2)(B).
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`b.
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`The USTR failed to base the imposition of Section 301 duties on Chinese products
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`covered by List 3 and List 4 on the acts or policies found to in its report to “burden
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`or restrict” U.S. commerce, as required by 19 U.S.C. § 2411(b)(1).
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`c.
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`Although the USTR may “modify or terminate” a Section 301 action when the
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`burden on U.S. commerce from the investigated unfair policies or practices
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`investigated increases or decreases, it may not increase the duties assessed in
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`furtherance of Section 301 for reasons other than the acts, policies, or practices that
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`were found to burden U.S. commerce. The USTR acted unlawfully by modifying the
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`action for other reasons, including for the purpose of retaliating against China and
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`compelling China to import more U.S. goods.
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`Case 1:20-cv-02477-N/A Document 1-2 Filed 09/20/20 Page 15 of 17
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`d.
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`The USTR failed to provide any support for the alleged “increase” in the burden on
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`U.S. commerce, thereby depriving its determination of any rational basis or support
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`as required by the statute.
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`49.
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`Section 301 actions may be modified or terminated when no longer appropriate, as specified
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`in 19 U.S.C. § 2417(a)(1)(C). This authorization does not permit the USTR to increase an
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`existing remedy action. Rather, the USTR is only authorized to decrease, remove, or pause
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`the existing action.
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`50.
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`Plaintiff is, therefore, entitled to a declaratory judgment that the duties imposed on products
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`of China covered by List 3 and List 4 are ultra vires, contrary to law, and void ab initio.
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`51.
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`52.
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`COUNT 2: APA VIOLATIONS
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`Paragraphs 1 through 45 above are incorporated by reference.
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`The APA requires that this Court invalidate any final agency action that is “(A) arbitrary,
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`capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to
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`constitutional right, power, privilege, or immunity; (C) in excess of statutory jurisdiction,
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`authority, or limitations, or short of statutory right; (D) without observance of procedure
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`required by law; [or] (E) unsupported by substantial evidence.” 5 U.S.C. § 706(2).
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`53.
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`The USTR’s imposition of List 3 and List 4 duties more than 12 months after the initiation
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`of the investigation is in excess of statutory authority and is without the observance of
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`procedure required by law.
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`54.
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`The USTR’s imposition of List 3 and List 4 duties for reasons other than China’s policies
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`relating to technology transfer, intellectual property, and innovation is in excess of statutory
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`authority and is arbitrary, capricious, and abuse of discretion.
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`Case 1:20-cv-02477-N/A Document 1-2 Filed 09/20/20 Page 16 of 17
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`55.
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`The USTR’s imposition of List 3 and List 4 duties, without any support for its finding that
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`China’s alleged Intellectual Property violations were imposing an “increased” burden on the
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`U.S. economy was merely asserted. The USTR failed to offer any evidence for the alleged
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`“increased burden” from China’s Intellectual Property policies and practices, and
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`accordingly failed to provide a reasoned decision on the record regarding a required element
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`under the statute.
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`56.
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`The USTR’s actions accordingly were promulgated without a reasonable basis and without
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`the required statutory support, making the issuance of List 3 and List 4 to be ultra vires,
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`contrary to law, and void ab initio.
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`57.
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`The USTR also promulgated List 3 and List 4 in an arbitrary and capricious manner because
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`it did not provide a sufficient opportunity for comment, failed to meaningfully consider any
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`submitted comments, failed to explain its consideration of these comments, and failed to
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`adequately explain, on the record, its rationale for List 3 and List 4 in light of these
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`comments.
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`PRAYER FOR RELIEF
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`Wherefore, Plaintiff respectfully requests that this Court:
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`A.
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`Declare the imposition and collection of List 3 duties to be contrary to the law and, therefore,
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`in violation of the Trade Act and the APA;
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`B.
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`Declare the imposition and collection of List 4 duties to be contrary to the law and, therefore,
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`in violation of the Trade Act and the APA;
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`C.
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`Declare that Defendants’ actions resulting in the placement of tariffs, and their collection, on
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`products covered by List 3 and List 4 are unauthorized by, and contrary to, the Trade Act;
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`Case 1:20-cv-02477-N/A Document 1-2 Filed 09/20/20 Page 17 of 17
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`D.
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`E.
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`Vacate the List 3, and List 4 actions and rulemaking;
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`Order Defendants to refund, with interest as provided by law, all duties paid by Plaintiff in
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`accordance with List 3 and List 4;
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`F.
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`Permanently enjoin Defendants from collecting further duties on importations by Plaintiff of
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`merchandise from China that is included in List 3 and List 4;
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`G.
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`Permanently enjoin Defendants from implementing List 4B or collecting any duties under
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`that suspended List;
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`H.
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`I.
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`Order Defendants to pay Plaintiff’s costs and reasonable attorneys’ fees; and
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`Grant such other relief as may be just and proper.
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`Respectfully submitted,
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`/s/ Gregory Husisian
`Gregory Husisian
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`Foley & Lardner LLP
`Suite 600
`3000 K Street NW
`Washington, DC 20007
`202.945.6149
`ghusisian@foley.com
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`Counsel to CNH Industrial America, LLC
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