The following analysis has been received from NCBFAA Customs Counsel and Legislative Advisor of Sandler, Travis & Rosenberg, P.A.

The Department of Justice (DOJ) had to respond by February 27th to a request in the Court of Appeals for the Federal Circuit (CAFC) to V.O.S.’s request to expedite sending the case back to the Court of International Trade (CIT) to begin proceedings on final resolution that they assert could impact all importers. From the US Government’s response, it is clear that they are going to try to impede or delay any refunds as long as possible.

The US Government said there is no hurry and that, if appropriate, V.O.S will get its refunds plus interest, that V.O.S can’t argue or procure relief for everyone else, and that the CAFC should take 90 days to respond to allow Congress to possibly take action.

Specifically, the US Government argued that expedited remand was not necessary for the following:

1. Because the Plaintiff’s in V.O.S. would be fully compensated through refunds and interest should refunds be appropriate. 
2. Because V.O.S. counsel could not obtain benefits for importers that are not a party to the V.O.S. litigation, demonstrating the US Government’s continued opposition to any universal relief.
3. The CAFC should actually delay remand by an additional 90 days in order to allow the political branches an opportunity to consider options.

Another thing to note is the US Government’s citation to V.O.S. counsel’s statement in oral argument that it was possible that refunds could be prospective only. 

It is unclear how the CAFC will rule on the request to expedite the remand process; however, we do not believe it likely that the CAFC will withhold its mandate for as long as the US Government requests.

Regardless of the outcome of the request to expedite, the US Government’s opposition appears to signal that it is not inclined to make the refunds process universal, quick, or easy. 

We recommend that importers continue to monitor their liquidations and file protests. Further, considering the statements made in the US Government’s opposition, importers may want to consider filing their own court case pursuant to 28 USC 1581(i) as the refund issue may drag out beyond the statutory deadline of two (2) years from the date of the first IEEPA duties paid by an importer to file a court case.

RIM logistics, ltd. will continue to closely monitor this evolving situation and provide updates as necessary. Please reach out to your RIM representative if you have any questions.