United States Court of International Trade

Slip Op. 20-67

Before the Court in Nat’l Ass’n of Mfrs., et. al. v. U.S. Dept of Treasury, et. al., Court No. 19-00053, Slip Op. 19-67 (May 15, 2020) was the government’s motion to stay the Court’s previous judgment in the case, pending appeal at the Court of Appeals for the Federal Circuit (“CAFC”). The Court had previously “held that certain regulations affecting duty drawback were inconsistent with the animating statute [,]” requiring that certain drawback payments would need to be processed and paid by the Government. Id. at 1. The Government filed this motion to stay such payments until after the appeal to the CAFC. For the following reasons the government’s motion was denied.

“The Court considers four factors in determining whether a stay is warranted: (1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” Id. at 3. The Court said the government was unlikely to succeed on the merits at the CAFC because “the government’s arguments … are largely the same ones this court considered and rejected.” Id. at 3. The Court noted, in regards to the irreparable harm factor, that “harm to the government is avoided by a much narrower form of relief—suspension of liquidation. Id. at 5. Turning to the injury to other parties factor, the Court said “to require the prevailing parties to … wait the time it takes to complete this appeal will cause them to lose the time value of money should they prevail, as drawback payments due not account for interest.” Id. at 5. In regards to the final factor, the public interest, the Court said “the public interest is best served by allowing drawback claimants the benefit of the judgment.” Id. at 8. As such the Court denied the government’s motion and ordered a suspension of liquidation of the drawbacks pending the submission of papers by plaintiffs. Neville Peterson LLP represented Amicus Curiae Customs Advisory Services, Inc. in opposing the Government’s Motion for Stay.