Petition for Writ of Certiorari — PrimeSource Building Products, Inc., Petitioner v. United States, et al.

Supreme Court briefJul 21, 2023

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APPENDIX

TABLE OF CONTENTS

Appendix A, Court of Appeals Decision

(Feb 7, 2023) ......................................................... 1a

Appendix B, Court of International Trade Decision

(April 5, 2021) ..................................................... 19a

Appendix C, Court of International Trade Decision

(January 27, 2021) .............................................. 32a

Appendix D, Order Denying Rehearing En Banc

(June 22, 2023) ................................................. 151a

Appendix E, Statutory Appendix.......................... 154a

APPENDIX A

[PUBLISH]

In the

United States Court of Appeals

for the Federal Circuit

___________________

PRIMESOURCE BUILDING PRODUCTS, INC.,

Plaintiff-Appellee

UNITED STATES, JOSEPH R. BIDEN, JR.,

PRESIDENT OF THE UNITED STATES, UNITED

STATES CUSTOMS AND BORDER PROTECTION,

CHRISTOPHER MAGNUS, COMMISSIONER OF

U.S. CUSTOMS AND BORDER PROTECTION,

DEPARTMENT OF COMMERCE, GINA M.

RAIMONDO, SECRETARY OF COMMERCE,

Defendants-Appellants

___________________

2021-2066

___________________

Appeal from the United States Court of

International Trade in No. 1:20-cv-00032-TCS-JCGMMB, Senior Judge Timothy C. Stanceu, Judge

Jennifer Choe-Groves, Judge M. Miller Baker

------------------------------OMAN FASTENERS, LLC, HUTTIG BUILDING

PRODUCTS, INC., HUTTIG, INC.,

Plaintiffs-Appellees

United States, Joseph R. Biden, Jr., President of

the United States, United States Customs and

Border Protection, Christopher Magnus,

Commissioner of U.S. Customs and Border

Protection, Department of Commerce, Gina M.

Raimondo, Secretary of Commerce,

Defendants-Appellants

___________________

Appeal from the United States Court of International

Trade in Nos 1:20-cv-00037-TCS-JCG-MMB, 1:20-cv00045-TCS-JCG-MMB, Senior Judge Timothy C.

Stanceu, Judge Jennifer Choe-Groves, Judge M.

Miller Baker

___________________

Decided: February 7, 2023

___________________

JEFFREY S. GRIMSON, Mowry & Grimson, PLLC,

Washington, DC, argued for plaintiff-appellee

PrimeSource Building Products, Inc. Also represented

by BRYAN PATRICK CENKO, JILL CRAMER, KRISTIN HEIM

MOWRY, SARAH WYSS.

ANDREW

CARIDAS,

Perkins

Coie,

LLP,

Washington, DC, argued for plaintiffs-appellees Oman

Fasteners, LLC, Huttig Building Products, Inc.,

Huttig, Inc. Also represented by MICHAEL PAUL

HOUSE; KARL J. WORSHAM, Phoenix, AZ.

MEEN GEU OH, Commercial Litigation Branch,

Civil Division, United States Department of Justice,

Washington, DC, argued for defendants-appellants.

Also represented by KYLE SHANE BECKRICH, BRIAN M.

BOYNTON, TARA K. HOGAN, PATRICIA M. MCCARTHY.

ADAM H. GORDON, The Bristol Group PLLC,

Washington, DC, for amicus curiae The American

Steel Nail Coalition. Also represented by LAUREN

FRAID, JENNIFER MICHELE SMITH.

___________________

Before TARANTO, CHEN, and STOLL, Circuit Judges.

TARANTO, Circuit Judge.

In 2018, pursuant to § 232 of the Trade Expansion

Act of 1962, Pub. L. No. 87-794, 76 Stat. 872, 877,

codified as amended at 19 U.S.C. § 1862, the Secretary

of Commerce reported to the President that steel

imports threatened national security by contributing

to unsustainably low levels of use of domestic steelproducing capacity, and the President, agreeing with

the Secretary’s finding, issued Proclamation 9705 to

adopt a plan of action to address that threat, starting

with imposition of higher tariffs on steel imports from

certain countries but providing for monitoring and

future adjustments if needed. In 2020, the President

issued Proclamation 9980, which, based on the

required monitoring, raised tariffs on imports of steel

derivatives such as nails and fasteners.

That

proclamation was challenged in two cases (before us

here) filed in the Court of International Trade (Trade

Court)—one by PrimeSource Building Products, Inc.;

the other by Oman Fasteners, LLC, Huttig Building

Products, Inc., and Huttig, Inc. (collectively, Oman

Fasteners)—against the United States, the President,

and two federal agencies and their heads (collectively,

the government). The Trade Court held Proclamation

9980 to be unauthorized by § 232 because the new

derivatives tariffs were imposed after the passing of

certain deadlines for presidential action set forth in

§ 232. See PrimeSource Building Products, Inc. v.

United States, 497 F. Supp. 3d 1333 (Ct. Int’l Trade

2021); PrimeSource Building Products, Inc. v. United

States, 505 F. Supp. 3d 1352 (Ct. Int’l Trade 2021);

Oman Fasteners, LLC v. United States, 520 F. Supp.

3d 1332 (Ct. Int’l Trade 2021).

The government appeals. After the Trade Court

issued its decisions on the merits, we decided

Transpacific Steel LLC v. United States, 4 F.4th 1306

(Fed. Cir. 2021), cert. denied, 142 S. Ct. 1414 (2022),

which led the Trade Court to issue stays of its

judgments in the two cases. In Transpacific, we

upheld a presidential proclamation that increased

tariffs on steel beyond Proclamation 9705’s rate,

concluding that when the President, within the § 232

time limits at issue, adopts a plan of action that

contemplates

future

contingency-dependent

modifications, those time limits do not preclude the

President from later adding to the initial import

impositions in order to carry out the plan to help

achieve the originally stated national-security

objective where the underlying findings and objective

have not grown stale. We now uphold Proclamation

9980. That proclamation’s new imposition reaches

imports of steel derivatives, which are within § 232’s

authorization of presidential action based on the

Secretary’s finding about imports of steel, and there is

no staleness or other persuasive reason for overriding

the President’s judgment that including derivatives

helps achieve the specific, original national-security

objective. We therefore reverse the judgments of the

Trade Court.

Section 232 “empowers and directs the President

to act to alleviate threats to national security from

imports.” Id. at 1311. For the President to act, the

Secretary of Commerce must, under § 232(b), first

investigate the effects on national security of imports

of an article and submit to the President within 270

days a report detailing the Secretary’s findings about

such effects. 19 U.S.C. § 1862(b)(1)(A)–(3)(A). The

report must contain the Secretary’s recommendations

for action or inaction with respect to imports of that

article. Id. § 1862(b)(3)(A). If the Secretary finds that

imports of the article “threaten to impair the national

security, the Secretary shall so advise the President in

[the] report.” Id. Under § 232(c), within 90 days of

receiving the Secretary’s report, the President must

determine whether to concur in that finding. Id.

§ 1862(c)(1)(A)(i). If the President concurs in that

finding, then within the same 90 days “the President

shall” also “determine the nature and duration of the

action that, in the judgment of the President, must be

taken to adjust the imports of the article and its

derivatives so that such imports will not threaten to

impair the national security.” Id. § 1862(c)(1)(A)

(emphasis added). If the President determines to take

action with respect to the import of the article and its

derivatives, “the President shall implement that

action” within 15 days of the foregoing determinations,

id. § 1862(c)(1)(B), that is, within 105 days of the

Secretary’s report.

In 2017, the Secretary began investigating steel

imports and concluded that they posed a threat to

national security. J.A. 232–35. On January 11, 2018,

the Secretary reported to the President that the

imports were “weakening our internal economy” and

harming “the [domestic] steel industry,” the continued

vitality of which “is essential for national security

applications.” Id. The Secretary recommended that

the President “take immediate action by adjusting the

level of these imports through quotas or tariffs” with

the goal of “reducing import penetration rates to

approximately 21 percent,” so that “U.S. industry

would be able to operate at 80 percent of their capacity

utilization.” J.A. 236, 288. The 80 percent rate, the

Secretary found, was the minimum “necessary to

sustain adequate profitability and continued capital

investment, research and development, and workforce

enhancement in the steel sector” and to thereby

“enable U.S. steel mills to increase operations

significantly in the short-term and improve the

financial viability of the industry over the long-term.”

J.A. 234, 289.

On March 8, 2018, the President announced his

concurrence and remedial plan. Proclamation 9705:

Adjusting Imports of Steel into the United States, 83

Fed. Reg. 11,625 (Mar. 8, 2018). He concurred that

“steel articles are being imported into the United

States in such quantities and under such

circumstances as to threaten to impair the national

security.” Id. ¶ 5, 83 Fed. Reg. at 11,626. He imposed

a 25 percent tariff on imports of various steel articles

(e.g., flat-rolled products, bars and rods, tubes, pipes,

and ingots) from many countries. Id. ¶ 8, clause 2,

Annex, 83 Fed. Reg. at 11,626–29; see PrimeSource,

497 F. Supp. 3d at 1337–38 n.2. The President deemed

this an “important first step in ensuring the economic

viability of our domestic steel industry.” Proclamation

9705 ¶ 11, 83 Fed. Reg. at 11,626; id. clause 2, 83 Fed.

Reg. at 11,627. He retained the option to “remove or

modify” the impositions if the United States and other

countries were to come up with suitable alternatives

for remedying the security threat. Id. ¶ 9, 83 Fed. Reg.

at 11,626. More generally, the President directed the

Secretary to “continue to monitor imports of steel

articles,” “review the status of such imports with

respect to the national security,” and “inform the

President of any circumstances that in the Secretary’s

opinion might indicate the need for further action by

the President under section 232.” Id. clause 5(b), 83

Fed. Reg. at 11,628.

In light of, e.g., negotiations between the United

States government and some foreign governments, the

President issued a variety of follow-up proclamations

to make changes in the impositions of Proclamation

9705, including the August 2018 Proclamation 9772

that was challenged (and upheld by this court) in

Transpacific. 4 F.4th at 1314–16. The Secretary

monitored relevant imports, as required, and in

January 2020, the President issued a new

proclamation—now covering derivatives of the earlier-

covered steel articles—based on information supplied

by the Secretary. Proclamation 9980: Adjusting

Imports of Derivative Aluminum Articles and

Derivative Steel Articles into the United States, 85

Fed. Reg. 5281 (Jan. 24, 2020).1

The President recited that the Secretary had

informed him that “domestic steel producers’ capacity

utilization ha[d] not stabilized for an extended period

of time at or above the 80 percent capacity utilization

level” that was the objective of Proclamation 9705. Id.

¶ 5, 85 Fed. Reg. at 5281. The Secretary stated that

“imports of certain derivatives of steel articles have

significantly increased since the imposition of the

tariffs,” and “[t]he net effect of the increase of imports

of these derivatives has been to erode the customer

base for U.S. producers of . . . steel and undermine the

purpose of the proclamations adjusting imports of . . .

steel articles to remove the threatened impairment of

the national security.” Id. ¶ 5, 85 Fed. Reg. at 5282.

The Secretary characterized this increase in imports

of steel derivatives as “circumvent[ing] the duties

on . . . steel articles imposed in . . . Proclamation 9705”

and “threaten[ing] to undermine the actions taken to

address the risk to the national security of the United

States found in . . . Proclamation 9705.” Id. ¶ 8, 85

Fed. Reg. at 5282. The Secretary “assessed that

reducing imports of the derivative articles” at issue

“would reduce circumvention and facilitate the

adjustment of imports that . . . Proclamation 9705, as

The new proclamation covered derivatives of aluminum as

well as steel articles, but only the steel aspects of the

proclamation are at issue before us.

amended, made to increase domestic capacity

utilization to address the threatened impairment of

the national security of the United States.” Id.

Accepting the foregoing determinations by the

Secretary, the President in Proclamation 9980

extended the 25 percent tariff to certain steel

derivatives, including nails, staples, and tacks. Id.

clause 1, Annex II, 85 Fed. Reg. at 5283, 5290–92; see

PrimeSource, 497 F. Supp. 3d at 1338–39 n.3. He

“concluded that it [was] necessary and appropriate” to

extend the tariffs to the specified steel derivatives “to

address circumvention . . . and to remove the

threatened impairment of the national security.”

Proclamation 9980 ¶ 9, 85 Fed. Reg. at 5283.

PrimeSource and Oman Fasteners, which import

steel nails and fasteners covered by Proclamation

9980, brought suit in the Trade Court to challenge the

proclamation. As relevant now, they contended that

the proclamation’s extension of the increased tariff to

derivatives was contrary to § 232 because it occurred

in January 2020, more than 105 days after the

President received the Secretary’s report. The Trade

Court agreed.

The Trade Court in the PrimeSource case

concluded that the 90-day and 15-day limits found in

§ 232(c) apply to the President’s imposition of

increased burdens on imports under the provision,

including modifications of an earlier plan of action

that had been timely adopted. 497 F. Supp. 3d at

1343–59. The court held that, insofar as the January

2020 Proclamation 9980 relied on the Secretary’s

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January 2018 report on steel articles to satisfy the

§ 232(b) prerequisite to presidential action, it was

untimely under § 232(c). Id. When the government

stipulated that it was relying solely on that report to

satisfy the § 232(b) prerequisite, the Trade Court held

Proclamation 9980 invalid and entered final judgment

against the government. PrimeSource, 505 F. Supp.

3d at 1353–58. The Trade Court reached the same

result in the Oman Fasteners case. 520 F. Supp. 3d at

1335–39.

In both cases, the government timely appealed

and also moved for at least a partial stay of the

judgment pending appeal. The Trade Court granted

stays, reflecting the government’s newly enhanced

chance of success on the merits in light of the

intervening decision of this court in Transpacific. See

PrimeSource Building Products, Inc. v. United States,

535 F. Supp. 3d 1327, 1329–36 (Ct. Int’l Trade 2021);

Oman Fasteners, LLC v. United States, 542 F. Supp.

3d 1399, 1403–09 (Ct. Int’l Trade 2021). The Trade

Court did, however, note two distinctions of these

cases from Transpacific—these cases involve an

extension to derivatives of a tariff initially imposed on

the articles whose importation was found to threaten

national security, not (as in Transpacific) an increase

in rate of the initial tariff on the same articles; and the

time from Secretary report to challenged proclamation

is much larger than in Transpacific (two years versus

seven months). See PrimeSource, 535 F. Supp. 3d at

1332–33; Oman Fasteners, 542 F. Supp. 3d at 1403–

11a

05. We have jurisdiction over the Trade Court’s final

judgments under 28 U.S.C. § 1295(a)(5).2

On appeal, the government maintains that the

Trade Court’s decisions are incorrect in light of

Transpacific. Appellees defend the Trade Court’s

decisions, asserting that factual differences render

Transpacific inapplicable and that the government’s

reading of § 232 would run afoul of the delegation

doctrine.

We review the Trade Court’s interpretation of the

statute de novo. GPX International Tire Corp. v.

United States, 780 F.3d 1136, 1140 (Fed. Cir. 2015).

To the extent relevant here, we may review an

allegation that the President acted in violation of the

Constitution. USP Holdings, 36 F.4th at 1365. For an

asserted statutory violation, review is also available,

but it is limited: “For a court to interpose, there has to

be a clear misconstruction of the governing statute, a

significant procedural violation, or action outside

delegated authority.” Maple Leaf Fish Co. v. United

States, 762 F.2d 86, 89 (Fed. Cir. 1985). This court has

In Transpacific, we flagged the question of whether the

claims against the President, as a defendant, must be dismissed.

4 F.4th at 1318 n.5; accord PrimeSource, 497 F. Supp. 3d at 1361–

62, 1365–70 (Baker, J., concurring in part and dissenting in part).

That question arises here as well. Based on our recent precedent,

we hold that the claims against the President must be dismissed,

but given the presence of the other defendants, we have

jurisdiction to review the Trade Court’s decisions on the merits.

See USP Holdings, Inc. v. United States, 36 F.4th 1359, 1366

(Fed. Cir. 2022).

12a

repeatedly relied on the Maple Leaf formulation to

indicate the “limited” scope of review of nonconstitutional challenges to presidential action. USP

Holdings, 36 F.4th at 1365–66 & n.3 (discussing

“limited” scope, quoting Maple Leaf, and also quoting

formulations approving review of whether “the

President clearly misconstrued his statutory

authority” and “whether the President has violated an

explicit statutory mandate” (cleaned up)); Silfab

Solar, Inc. v. United States, 892 F.3d 1340, 1346 (Fed.

Cir. 2018).

In Transpacific, we addressed whether § 232(c)(1)

“permits the President to announce a continuing

course of action within the statutory time period and

then modify the initial implementing steps in line with

the announced plan of action by adding impositions on

imports to achieve the stated implementation

objective.” 4 F.4th at 1318–19. We concluded that the

President may do so, explaining:

[T]he best reading of the statutory text of

§ 1862, understood in context and in light of

the evident purpose of the statute and the

history of predecessor enactments and their

implementation, is that the authority of the

President includes authority to adopt and

carry out a plan of action that allows

adjustments of specific measures, including

by increasing import restrictions, in carrying

out the plan over time.

Id. at 1319. And we upheld application of that

authority to an increase in impositions that could have

13a

been adopted initially under § 232(c) where the

President had initially announced a plan of action and

later found that an increase would help solve the

specific capacity-utilization problem that was the

basis for the finding that imports threatened national

security. Id. at 1310, 1332–33.

Proclamation

9980

comes

within

the

interpretation of § 232 we adopted in Transpacific.

The initial proclamation (Proclamation 9705) is the

same here as in Transpacific. As described above, that

proclamation rested on the Secretary’s finding that

imports of steel articles were threatening national

security by impairing achievement of an 80 percent

capacity utilization level found important for domestic

steel makers to sustain their operations to meet

national-security needs. J.A. 232–36, 288–89; see

Proclamation 9705 ¶¶ 2, 4–5, 83 Fed. Reg. at 11,625–

26. Proclamation 9705 announced a continuing plan

of action aimed at achieving that goal, with monitoring

and notice of possible changes in the future. Id. ¶¶ 9,

11, clauses 2, 5(b), 83 Fed. Reg. at 11,626–28 (stating

that the President “may remove or modify the

restriction on steel articles imports,” characterizing

“the tariff imposed by this proclamation [a]s an

important first step in ensuring the economic viability

of our domestic steel industry,” and directing the

Secretary to “continue to monitor imports of steel

articles” and to “inform the President of any

circumstances that in the Secretary’s opinion might

indicate the need for further action by the President

under section 232”). Later, the Secretary informed the

President that a significant increase had occurred in

imports of steel derivatives, which in simple economic

14a

terms constituted a circumvention of the protections

initially adopted to enhance and stabilize domestic

steel-making capacity utilization, undermining the

effectiveness of the President’s previous tariffs.

Proclamation 9980 ¶¶ 5, 8, 85 Fed. Reg. at 5281–82.

In response, the President extended Proclamation

9705’s tariffs to various steel derivative products to

address the circumvention threatening the capacityutilization objective. Id. ¶ 9, clause 1, Annex II, 85

Fed. Reg. at 5283, 5290–92.

Thus, the President, having “announce[d] a

continuing course of action within the statutory time

period” (Proclamation 9705), “modif[ied] the initial

implementing steps . . . by adding impositions on

imports” (extending the tariffs to derivatives in

Proclamation 9980) “in line with the announced plan

of action” (Proclamation 9705’s directive to the

Secretary to monitor imports and inform the President

of any relevant changes) “to achieve the stated

implementation objective” (long-term stabilization of

the capacity utilization rate at or above 80 percent).

Transpacific, 4 F.4th at 1318–19. An imposition on

imports of derivatives of the articles that were the

subject of the Secretary’s threat finding is expressly

authorized as an available remedy by § 232(c). In

acting to close a loophole exploited by steel-derivatives

importers, the President was making a “contingencydependent choice[] that [is] a commonplace feature of

plans of action,” id. at 1321, adding use of a tool that

he could have used in the initial set of measures and

later found important to address a specific form of

circumvention Congress recognized when it

authorized coverage of derivatives of the articles

15a

whose imports the Secretary found to threaten

national security. See Oral Arg. at 25:03–26:20

(agreeing that the mechanism linking Proclamation

9980 to Proclamation 9705—foreign steel producers,

facing raised tariffs on direct imports, sold steel to

foreign derivatives makers not (yet) subject to raised

tariffs, impairing market opportunities of domestic

steel makers—”is not complicated”).

The attempts by PrimeSource and Oman

Fasteners to distinguish Transpacific to reach a

different result here are unpersuasive. First, the fact

that the Secretary’s 2018 report and Proclamation

9705 did not address the effect of imports of

derivatives is immaterial. The President may take

action against derivative products regardless of

whether the Secretary has investigated and reported

on such derivatives. See 19 U.S.C. § 1862(b) (stating

that the Secretary’s investigation and report focus on

an “article”); id. § 1862(c)(1)(A)(ii) (empowering the

President to then adjust imports of both “the article

and its derivatives”). There is no textual basis for

reading § 232 as empowering the President to do so

only at the initial plan-adoption stage, not at later,

modification stages. And what we recognized in

Transpacific as serving the “evident purpose” of

§ 232—permitting the President to act under an

announced plan to adjust initial measures over time to

reach the initially adopted objective, 4 F.4th at 1323—

applies not only to an increase in tariff rates on the

same entries but equally to an extension to derivatives

of measures initially imposed only on the underlying

articles.

16a

Second, the greater gap in time between the

Secretary’s finding and the challenged proclamation

(here, nearly two years; in Transpacific, seven

months) does not render Transpacific inapplicable.

There is no textual basis for a specific time limit on

adjustments under a timely adopted plan. Indeed,

impositions under § 232 have on numerous occasions

been modified many years after they were first

adopted. Id. at 1326–29.

As we noted in Transpacific, a different question

might be presented where the underlying finding or

objective has become substantively stale; here, as in

Transpacific, we have no occasion to address that

issue, because “there is no genuine concern about

staleness.” Id. at 1332. Proclamation 9980 was issued

in pursuit of the same goal first articulated in

Proclamation 9705 (extended stabilization at 80

percent of domestic capacity utilization) and in

response to the “current information” provided to the

President by the Secretary under the “requirements

for monitoring the import reductions” that were “put

in place” by Proclamation 9705. Id. at 1332 n.10. And

insofar as appellees fault the President for imposing

tariffs on some derivatives but not others, and the

government for declining to put into the record the

updated data the Secretary conveyed to the President,

see PrimeSource Br. 31–32; Oman Fasteners Br. 38 &

n.15, the criticism is meritless. The information at

issue is not part of a legally required and legally

consequential decision of the Secretary, cf. USP

Holdings, 36 F.4th at 1366–67, and so we may not

second-guess the facts found and measures taken by

the President to support his adjustment, see Florsheim

17a

Shoe Co. v. United States, 744 F.2d 787, 795 (Fed. Cir.

1984) (citing United States v. George S. Bush & Co.,

310 U.S. 371, 379–80, (1940)); Chang v. United States,

859 F.2d 893, 896 n.3 (Fed. Cir. 1988); Oral Arg. at

13:45–16:00 (acknowledging that there is no review of

the President’s pertinent factual and remedialappropriateness determinations).

Reading § 232 to permit the President to modify

an initial plan of action to include derivatives, as he

did here, does not render it an unconstitutional

delegation. The Supreme Court has already rejected

a delegation-doctrine challenge to § 232 (in an earlier

form), holding that the “clear preconditions to

Presidential action” established by § 232, e.g., a

finding by the Secretary regarding the existence of a

national-security threat, and consideration by the

President of “a series of specific factors,” make that

authority “far from unbounded.” Federal Energy

Administration v. Algonquin SNG, Inc., 426 U.S. 548,

558–60, (1976) (citations omitted). The same is true

today, as those “clear preconditions” remain in effect,

id., and the President must still consider the statutory

factors and act only upon receipt of a report from the

Secretary, even if the President possesses the

modification authority at issue here, see 19 U.S.C.

§ 1862(b)–(d). Moreover, if § 232 “easily fulfill[ed]

th[e] [intelligible principle] test” in 1976, Algonquin,

426 U.S. at 559, it also does so now, given that the

1988 amendments, in adding the present deadlines,

further defined the congressional delegation of

authority to the President. We have rejected the

contention that Algonquin does not require rejection of

18a

a delegation-doctrine challenge to § 232 in its current

form. Transpacific, 4 F.4th at 1332–33 (citing

American Institute for International Steel, Inc. v.

United States, 806 F. App’x 982, 983–91 (Fed. Cir.

2020), cert. denied, 141 S. Ct. 133 (2020)); see also USP

Holdings, 36 F.4th at 1365. We see no basis for

concluding otherwise here.

III

In sum, § 232’s deadlines did not prevent the

President from modifying his initial timely adopted

plan of action by issuing Proclamation 9980, and that

conclusion does not render § 232 unconstitutional

under the delegation doctrine. Because there are no

more facts for the Trade Court to find on remand if

Transpacific controls, as appellees agreed, Oral Arg.

at 23:20–25, we reverse the judgments of the Trade

Court and remand the cases for entry of judgment

against PrimeSource and Oman Fasteners, including

dismissal of the claims against the President.

The parties shall bear their own costs.

REVERSED AND REMANDED

19a

APPENDIX B

Slip Op No. 21-36

___________________

In the United States Court of International

Trade

___________________

PRIMESOURCE BUILDING PRODUCTS, INC.,

Plaintiff

UNITED STATES, et. al.,

___________________

Defendants,

Court No. 20-00032

___________________

OPINION

[Granting summary judgment in favor of plaintiff.

Judge Baker dissents.]

Dated: April 5, 2021

Jeffrey S. Grimson, Mowry & Grimson, PLLC, of

Washington, D.C., for plaintiff. With him on the brief

were Kristin H. Mowry, Jill A. Cramer, Sarah M.

Wyss, Bryan P. Cenko, and Wenhui Ji.

Jeanne E. Davidson, Director, Commercial

Litigation Branch, Civil Division, U.S. Department of

Justice, of Washington, D.C., for defendants. With her

20a

on the brief were Tara K. Hogan, Assistant Director,

and Stephen C. Tosini, Senior Trial Counsel.

Stanceu, Chief Judge: Plaintiff PrimeSource

Building Products, Inc. (“PrimeSource”), a U.S.

importer of steel nails, contested a proclamation

issued by the President of the United States

(“Proclamation 9980”) in January 2020. Adjusting

Imports of Derivative Aluminum Articles and

Derivative Steel Articles Into the United States, 85 Fed.

Reg. 5,281 (Exec. Office of the President Jan. 29, 2020)

(“Proclamation 9980”). Before the court is a “Joint

Status Report” the parties submitted in response to

our order in PrimeSource Bldg. Prods., Inc. v. United

States, 45 CIT __, Slip. Op. 21-8 (January 27, 2021)

(“PrimeSource I”). Joint Status Report (Mar. 5, 2021),

ECF No. 108. In response to statements of the parties

in the Joint Status Report, the court enters summary

judgment in favor of plaintiff.1

I. BACKGROUND

The background of this action is set forth in our

prior opinion and summarized briefly herein. See

PrimeSource Bldg. Prods., Inc. v. United States, 45

CIT __, Slip. Op. 21-8 (Jan. 27, 2021) (“PrimeSource

I”).

A. Proclamation 9980

Judge Baker dissents from the entry of summary judgment

in favor of plaintiff for the reasons stated in his dissent from the

court’s prior opinion and order. PrimeSource Bldg. Prods., Inc. v.

United States, 45 CIT __, Slip. Op. 21-8 (Jan. 27, 2021) (Baker, J.,

dissenting)

21a

On January 24, 2020, President Donald Trump

issued Proclamation 9980, which imposed a 25% duty

on certain imported articles made of steel, including

steel nails, and a 10% duty on certain imported

articles made of aluminum. As authority for its

imposition of duties on the articles, identified as

“derivative aluminum articles” and “derivative steel

articles,” Proclamation 9980 cited Section 232 of the

Trade Expansion Act of 1962, 19 U.S.C. § 1862

(“Section 232”).2 Proclamation 9980 also cited previous

Presidential proclamations that invoked Section 232,

including Proclamation 9704, Adjusting Imports of

Aluminum Into the United States, 83 Fed. Reg. 11,619

(Exec. Office of the President Mar. 15, 2018)

(“Proclamation 9704”), and Proclamation 9705,

Adjusting Imports of Steel Into the United States, 83

Fed. Reg. 11,625 (Exec. Office of the President Mar.

15, 2018) (“Proclamation 9705”). Proclamation 9980

¶¶ 9–10, 85 Fed. Reg. at 5,283.

B. Procedural History of this Litigation

On February 4, 2020, PrimeSource commenced

this action, naming the United States, et al., as

defendants and asserting five claims in contesting

Proclamation 9980. Summons, ECF No. 1; Compl.,

ECF Nos. 8 (conf.), 9 (public). Defendants filed a Rule

12(b)(6) motion to dismiss an amended complaint on

March 20, 2020 for failure to state a claim on which

relief can be granted. Defs.’ Mot. to Dismiss for

Failure to State a Claim, ECF No. 60 (“Defs.’ Mot.”).

All citations to the United States Code are to the 2012

edition.

22a

Plaintiffs opposed defendants’ motion to dismiss and

moved for summary judgment on April 14, 2020. Rule

56 Mot. for Summ. J., Pl. PrimeSource Bldg. Prods.

Inc.’s Mem. of Points and Authorities in Supp. of Mot.

for Summ. J. and Resp. to Defs.’ Mot. to Dismiss for

Failure to State a Claim, ECF No. 73-1. Defendants

responded to plaintiff’s summary judgment motion on

May 12, 2020. Defs.’ Reply in Supp. of their Mot. to

Dismiss and Resp. to Pl.’s Mot. for Summ. J., ECF No.

78. On June 9, 2020, plaintiff replied in support of its

summary judgment motion. Pl. PrimeSource Bldg.

Prods. Inc.’s Reply Br. in Supp. of its Mot. for Summ.

J., ECF No. 91.

C. Our Decision in PrimeSource I

In PrimeSource I, we granted defendants’ motion

to dismiss as to all of plaintiff’s claims in the amended

complaint except one, stated as “Count 2,” in which

plaintiff claimed that Proclamation 9980 was issued

beyond the statutory time limits set forth in Section

232. PrimeSource I, 45 CIT at __, Slip Op. at 55. In

Count 2, plaintiff argued that Proclamation 9980 was

issued after the expiration of the 105-day time period

set forth in Section 232(c)(1), which PrimeSource

described as commencing upon the President’s receipt,

on January 11, 2018, of a report the Secretary of

Commerce issued under Section 232(b)(3)(A) on the

effect of certain steel articles on the national security

of the United States (the “2018 Steel Report”). That

report culminated in the President’s issuance of

Proclamation 9705 in March 2018, which imposed 25%

duties on various steel articles, see Proclamation 9705,

¶¶ 1–2, 83 Fed. Reg. at 11,625, but not on the

23a

derivative steel articles affected by Proclamation 9980

in January 2020.

We stated in PrimeSource I that “[d]efendants do

not dispute that the 2018 Steel Report is, for purposes

of Section 232(c), 19 U.S.C. § 1862(c), the report issued

according to Section 232(b)(3)(A), 19 U.S.C.

§ 1862(b)(3)(A), upon which the President based his

adjustment to imports of steel derivatives, including

steel nails.” PrimeSource I, 45 CIT at __, Slip Op. at

20 (citing Defs.’ Mot. 24–29). In denying defendants’

motion to dismiss Count 2, we concluded that

Proclamation 9980 does not comply with the limitation

on the President’s authority imposed by the 105-day

time limitation of Section 232(c)(1) if that time period

is considered to have commenced upon the President’s

receipt of the 2018 Steel Report. Id. at __, Slip Op. at

44–45. We held that in this circumstance Count 2

stated a plausible claim for relief. Id. at __, Slip Op.

at 50.

After denying defendants’ motion to dismiss as to

the claim in Count 2, we denied plaintiff’s motion for

summary judgment on that remaining claim upon

determining that there existed one or more genuine

issues of material fact. Although concluding that

Proclamation 9980 was untimely under Section

232(c)(1) when viewed solely as an action taken in

response to the Steel Report, we also concluded that

there were genuine issues of material fact that bore on

the extent to which the subsequent “assessment” or

“assessments” of the Commerce Secretary, as

identified in Proclamation 9980, validly could be held

to have served a function analogous to that of a Section

232(b)(3)(A) report. Id. at __, Slip Op. at 54. We also

24a

noted that we did not know what form of inquiry or

investigation the Commerce Secretary conducted prior

to his submission of these communications to the

President and whether, or to what extent, that inquiry

or investigation satisfied the essential requirements of

Section 232(b)(2)(A), 19 U.S.C. § 1862(b)(2)(A). Id.

In summary, we concluded in PrimeSource I that

factual information pertaining to the Secretary’s

inquiry on, and his reporting to the President on, the

derivative articles would be required in order for us to

examine whether and to what extent there was

compliance by the President with the procedural

requirements of Section 232 and whether any

noncompliance that occurred was a “significant

procedural violation.” Id. at __, Slip Op. at 54–55

(quoting Maple Leaf Fish Co. v. United States, 762

F.2d 86, 89 (Fed. Cir. 1985) (requiring that a

procedural violation be “significant” in order to serve

as a ground for judicial invalidation of a Presidential

action)). We added that “at this early stage of the

litigation, we lack a basis to presume that these

unresolved factual issues are unrelated to the issue of

whether the President clearly misconstrued the

statute or the issue of whether the President took

action outside of his delegated authority.” Id. at __,

Slip Op. at 55. We noted that the “filing of a complete

administrative record could be a means of resolving, or

helping to resolve, these factual issues” and directed

the parties to consult on this matter and file a

scheduling order to govern the subsequent litigation.

Id.

D. The Joint Status Report

25a

On March 5, 2021, the parties submitted the Joint

Status Report in lieu of a scheduling order. In it,

defendants expressly waived “the opportunity to

provide additional factual information that might

show that the ‘essential requirements of Section

232(b)(2)(A), 19 U.S.C. § 1862(B)(2)(A)’ were met,”

adding that “[d]efendants do not intend to pursue that

argument.”

Joint Status Report 2 (quoting

PrimeSource I, 45 CIT at __, Slip Op. at 54.)

Defendants informed the court that their “position

continues to be that procedural preconditions for the

issuance of Proclamation 9980 were met by the

Secretary’s 2018 Steel Report and the timely issuance

of Proclamation 9705, a position that the majority has

already rejected.” Id. at __, Slip Op. at 2–3. The Joint

Status Report concludes by stating that “the parties

agree and respectfully submit that there is no reason

for this Court to delay entry of final judgment. In so

representing, the parties fully reserve all rights to

appeal any adverse judgment.” Id. at __, Slip Op. at 3.

II. DISCUSSION

A. Sua Sponte Entry of Summary Judgment

according to USCIT Rule 56(f)

Because we denied plaintiffs’ motion for summary

judgment in PrimeSource I, no motion for summary

judgment is now before us. Nevertheless, we may

enter summary judgment for a party sua sponte under

USCIT Rule 56(f), which provides that “[a]fter giving

notice and a reasonable time to respond, the court may

. . . consider summary judgment on its own after

identifying for the parties material facts that may not

be genuinely in dispute.”

26a

The United States Supreme Court in Celotex

Corp. v. Catrett, 477 U.S. 317, 326 (1986) (“Celotex”)

opined that “district courts are widely acknowledged

to possess the power to enter summary judgments sua

sponte.” In interpreting Celotex, the Court of Appeals

for the Federal Circuit instructed that “[t]he Celotex

Court also made clear that all that is required is notice

[to the party with the burden of proof] that she had to

come forward with all of her evidence.” Exigent Tech.,

Inc. v. Atrana Sols., Inc., 442 F.3d 1301, 1308 (Fed.

Cir. 2006) (brackets in original). In determining

whether to enter summary judgment sua sponte, a

court must ensure that prejudice will not accrue to the

would-be losing party stemming from that party’s

inability to present evidence of a genuine dispute of

material fact. See Celotex, 477 U.S. at 326.

B. Defendants’ Waiver of the Opportunity to

Present Evidence and of Any Defense Related

to Procedures Subsequent to the 2018 Steel

Report

In this litigation, the parties, and defendants in

particular, expressly have declined to pursue the

opportunity to present additional evidence to

demonstrate the existence of a genuine dispute of a

material fact. Specifically, defendants waive any

defense they might base on a showing that the

“‘essential requirements of Section 232(b)(2)(A), 19

U.S.C. § 1862(b)(2)(A)’ were met.” Joint Status Report

2 (quoting PrimeSource I, 45 CIT at __, Slip Op. at 54.

Further, we note the significance of defendants’

statement in the Joint Status Report that their

“position continues to be that procedural preconditions

for the issuance of Proclamation 9980 were met by the

27a

Secretary’s 2018 Steel Report and the timely issuance

of Proclamation 9705.” Id. at 2–3. This statement

constitutes a waiver of any defense that the

assessments of the Commerce Secretary, as described

in Proclamation 9980, were the functional equivalent

of a Section 232(b)(3)(A) report.

By joining in the statement that “the parties agree

and respectfully submit that there is no reason for this

Court to delay entry of final judgment,” id. at 3,

defendants have waived any claim of prejudice that

could result from the entry of summary judgment in

favor of plaintiff, subject to their right to appeal. The

parties have been given the full opportunity to “come

forward” with any evidence of a dispute of material

fact. A sua sponte order of summary judgment is,

therefore, appropriate. See Celotex, 477 U.S. at 326.

The court further notes that defendants did not

file an answer to plaintiff’s complaint or amended

complaint. The court’s opinion in PrimeSource I

directed the parties to file a joint scheduling order to

govern the remainder of the litigation, which normally

would have included a date for the government to

answer the complaint with respect to the remaining

claim. Here, defendants having waived any argument

that Proclamation 9980 was issued within the 105-day

time period beginning on the President’s receipt of a

report qualifying under Section 232(b)(3)(A), there are

no contested issues of fact. Therefore, the absence of

an answer to the amended complaint is not a

procedural bar to the entry of summary judgment.

28a

C. In the Absence of a Genuine Dispute as

to any Material Fact, Plaintiff Is Entitled to

Judgment as a Matter of Law

Summary judgment is appropriate when “there is

no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.”

USCIT R. 56(a). As discussed above, there is no longer

a genuine issue of material fact as a result of the

representations of the parties in the Joint Status

Report. In particular, defendants have waived any

defense grounded in a factual circumstance other than

one in which the 2018 Steel Report is the only

submission made by the Commerce Secretary that

could satisfy the requirements of Section 232(b)(3)(A)

and upon which Proclamation 9980 could have been

based.

Plaintiff PrimeSource is now entitled to judgment

as a matter of law. As we concluded in PrimeSource I,

“the action taken by Proclamation 9980 to adjust

imports of derivatives was not implemented during

the 105-day time period set forth in § 1862(c)(1), if that

time period is considered to have commenced upon the

President’s receipt of the Steel Report.” 45 CIT at __,

Slip Op. at 44. Because defendants no longer may

raise as a defense that the procedural requirements of

Section 232 were met based on any procedure other

than one reliant upon the 2018 Steel Report, summary

judgment in favor of plaintiff is warranted on the

ground that Proclamation 9980 was issued after the

President’s delegated authority to impose duties on

derivatives of steel products had expired. As we held

in PrimeSource I, any determination the President

could have made to adjust the duties on imports of

29a

derivatives of the articles named in Proclamation 9705

was required by the statute to have been made during

the 90-day period commencing with the President’s

receipt of a report of the Commerce Secretary

satisfying the requirements of Section 232(b)(3)(A),

and any action to implement that determination was

required to have been taken, if at all, during the 15day period following that determination. See 45 CIT

at __, Slip Op. at 32 (holding that “the 90- and 15-day

time limitations in Section 232(c)(1) expressly confine

the exercise of the President’s discretion regardless of

whether the President determines to adjust imports

only of the ‘article’ named in the Secretary’s report or,

instead, to adjust imports of the ‘article and its

derivatives.’”) (emphasis in original).

To declare Proclamation 9980 invalid, we must

find “a clear misconstruction of the governing statute,

a significant procedural violation, or action outside

delegated authority.” Maple Leaf Fish Co., 762 F.2d at

89. Because the President issued Proclamation 9980

after the congressionally-delegated authority to adjust

imports of the products addressed in that

proclamation had expired, Proclamation 9980 was

action outside of delegated authority. For the reasons

we stated in PrimeSource I, 45 CIT at __, we reject

defendants’ position that Congress intended for the

time limitations in Section 232(c)(1) to be merely

directory, and we find in the untimeliness of

Proclamation 9980 a significant procedural violation.

As a remedy, PrimeSource is entitled to a declaratory

judgment that Proclamation 9980 is invalid as

contrary to law and to certain other relief, as described

below.

30a

III. Conclusion

We award summary judgment to PrimeSource on

the remaining claim in this litigation, which was

stated in Count 2 of the amended complaint. As relief

on this claim, we will declare Proclamation 9980

invalid as contrary to law and, on that basis, direct

that the entries affected by this litigation be liquidated

without the assessment of duties pursuant to

Proclamation 9980, with refund of any deposits for

such duty liability that may have been collected

pursuant to Proclamation 9980. 3 Also, should any

entries of PrimeSource’s merchandise at issue in this

litigation have liquidated with the assessment of 25%

duties pursuant to Proclamation 9980, PrimeSource is

entitled to reliquidation of those entries and a refund

of any duties deposited or paid, with interest as

provided by law.

Judgment will enter accordingly.

/s/ Timothy C. Stanceu

Timothy C. Stanceu, Chief Judge

/s/ Jennifer Choe-Groves

Jennifer Choe-Groves, Judge

Earlier in this litigation, upon the consent of both parties, this

Court entered a preliminary injunction against the collection of

25% cash deposits on PrimeSource’s entries of merchandise

within the scope of Proclamation 9980 and against the liquidation

of the affected entries. Order (Feb. 13, 2020), ECF Nos. 39 (Conf.),

40 (Public). This preliminary injunction will dissolve upon the

entry of judgment. Id. If, despite the preliminary injunction, any

cash deposits were made or collected, PrimeSource is entitled to

a refund of these cash deposits, with interest as provided by law

31a

Dated: April 5, 2021

New York, New York

32a

APPENDIX C

Slip Op. No. 21-8

___________________

In the United States Court of International

Trade

___________________

PRIMESOURCE BUILDING PRODUCTS, INC.,

Plaintiff

UNITED STATES, et. al.,

___________________

Defendants,

Before: Timothy C. Stanceu, Chief Judge

Jennifer Choe-Groves, Judge

M. Miller Baker, Judge

Court No. 20-00032

___________________

OPINION AND ORDER

[Granting defendants’ motion to dismiss plaintiff’s

amended complaint as it pertains to all claims therein

except the claim stated as Count 2; denying the motion

to dismiss as to the claim in Count 2 but also denying

plaintiff’s motion for summary judgment as to that

remaining claim. In a separate opinion, Judge Baker

33a

concurs in the dismissal of Counts 1, 3, 4, and 5 and

dissents from the denial of defendants’ motion to

dismiss Count 2.]

Dated: January 27, 2021

Jeffrey S. Grimson, Mowry & Grimson, PLLC, of

Washington, D.C., for plaintiff. With him on the brief

were Kristin H. Mowry, Jill A. Cramer, Sarah M.

Wyss, Bryan P. Cenko, and Wenhui Ji.

Jeanne E. Davidson, Director, Commercial

Litigation Branch, Civil Division, U.S. Department of

Justice, of Washington, D.C., for defendants. With her

on the brief were Tara K. Hogan, Assistant Director,

and Stephen C. Tosini, Senior Trial Counsel.

Stanceu, Chief Judge: Plaintiff PrimeSource

Building Products, Inc. (“PrimeSource”), a U.S.

importer of steel nails, challenges on various grounds

a proclamation issued by the President of the United

States (“Proclamation 9980”) that imposed 25% tariffs

on, inter alia, various imported products made of steel

(identified in the proclamation as “derivatives” of steel

products), including steel nails.

Arguing that

plaintiff’s complaint does not state a claim on which

relief can be granted, defendants move to dismiss this

action according to USCIT Rule 12(b)(6). Plaintiff

opposes defendants’ motion to dismiss and moves for

summary judgment, urging us to declare Proclamation

9980 invalid and order the refund of any duties that

previously may have been collected on its affected

entries. In moving to dismiss and in their response to

34a

PrimeSource’s summary judgment motion, defendants

argue that the President’s action was within the

authority delegated by Congress and must be upheld.

We grant defendants’ motion to dismiss as to four

of plaintiff’s claims, which are set forth as Counts 1, 3,

4, and 5 of the Amended Complaint, and deny it as to

Count 2, in which plaintiff claims that Proclamation

9980 is invalid because it was issued after the

authority delegated to the President by the governing

statute had expired. Because plaintiff has not shown

“that there is no genuine dispute as to any material

fact,” USCIT R. 56(a), we deny plaintiff’s summary

judgment motion as to the remaining claim.

I. BACKGROUND

A. The Challenged Presidential Proclamation

On January 24, 2020, President Trump issued

Proclamation 9980, Adjusting Imports of Derivative

Aluminum Articles and Derivative Steel Articles Into

the United States, 85 Fed. Reg. 5,281 (Exec. Office of

the President Jan. 29, 2020) (“Proclamation 9980”).

Proclamation 9980 imposed a duty of 25% ad valorem

on various imported products made of aluminum and

of steel, including steel nails and other steel fasteners

as well as “bumper stampings of steel” for motor

vehicles and “body stampings of steel” for agricultural

tractors. Id. at 5,291, 5,293.

The 25% duties imposed by Proclamation 9980

went into effect on February 8, 2020. Id. at 5,290. As

authority for the President’s action, Proclamation

9980 cited Section 232 of the Trade Expansion Act of

35a

1962, 19 U.S.C. § 1862 (“Section 232”), 1 and certain

previous proclamations of the President that also

invoked Section 232, including Proclamations 9704,

Adjusting Imports of Aluminum Into the United

States, 83 Fed. Reg. 11,619 (Exec. Office of the

President Mar. 15, 2018) (“Proclamation 9704”), and

9705, Adjusting Imports of Steel Into the United

States, 83 Fed. Reg. 11,625 (Exec. Office of the

President Mar. 15, 2018) (“Proclamation 9705”).

Proclamation 9980 ¶¶ 9–10, 85 Fed. Reg. at 5,283.

Proclamation 9705 imposed 25% duties on various

steel products in basic and semi-finished form but did

not impose duties on the products that were the

subject of Proclamation 9980, 2 which Proclamation

All citations to the United States Code are to the 2012 edition.

The products affected by Proclamation 9705 are certain iron

and steel products classified within chapters 72 and 73 of the

Harmonized Tariff Schedule of the United States (“HTSUS”), as

follows:

(1) Flat-rolled products provided for in HTSUS headings

7208 (of iron or nonalloy steel, 600 mm or more in width,

hot-rolled, not clad, plated or coated), 7209 (of iron or

nonalloy steel, 600 mm or more in width, cold-rolled, not

clad, plated or coated), 7210 (of iron or nonalloy steel, 600

mm or more in width, clad, plated or coated), 7211 (of iron

or non-alloy steel, less than 600 mm in width, not clad,

plated or coated), 7212 (of iron or non-alloy steel, less

than 600 mm in width, clad, plated or coated), 7225 (of

alloy steel other than stainless, 600 mm or more in width)

or 7226 (of alloy steel other than stainless, less than 600

mm in width);

(2) Bars and rods provided for in HTSUS headings 7213 (hotrolled, in irregularly wound coils, of iron or nonalloy

36a

steel), 7214 (other, of iron or nonalloy steel, not further

worked than forged, hot-rolled, hot-drawn or hotextruded, but including those twisted after rolling), 7215

(other, of iron or nonalloy steel), 7227 (hot-rolled, in

irregularly wound coils, of alloy steel other than

stainless), or 7228 (other bars and rods of alloy steel other

than stainless; angles, shapes and sections, of alloy steel

other than stainless; hollow drill bars and rods, of alloy

or nonalloy steel); angles, shapes and sections of HTSUS

heading 7216 (angles, shapes and sections of iron or

nonalloy steel) except products not further worked than

cold-formed or cold-finished, of subheadings 7216.61.00,

7216.69.00, or 7216.91.00; wire provided for in HTSUS

headings 7217 (wire of iron or nonalloy steel) or 7229

(wire of alloy steel other than stainless); sheet piling

provided for in HTSUS subheading 7301.10.00; rails

provided for in HTSUS subheading 7302.10 (rail and

tramway track construction material of iron or steel:

rails); fish-plates and sole plates provided for in HTSUS

subheading 7302.40.00 (rail and tramway track

construction material of iron or steel: fish plates and sole

plates); and other products of iron or steel provided for in

HTSUS subheading 7302.90.00 (other railway or

tramway track construction material of iron or steel,

other than switch blades, crossing frogs, point rods and

other crossing pieces, fish plates and sole plates);

(3) Tubes, pipes, and hollow profiles provided for in HTSUS

headings 7304 (seamless, of iron (other than cast iron) or

steel), or 7306 (other (for example, open seamed or

welded, riveted or similarly closed), of iron or steel); tubes

and pipes provided for in HTSUS heading 7305 (other

tubes and pipes (for example, welded, riveted or similarly

closed), having circular cross sections, the external

diameter of which exceeds 406.4 mm, of iron or steel);

(4) Ingots, other primary forms and semi-finished products

provided for in HTSUS heading 7206 (iron and nonalloy

37a

9980 described as “Derivatives of Steel Products.”3

steel in ingots or other primary forms (excluding certain

iron in lumps, pellets or similar forms, of heading 7203)),

7207 (semi-finished products of iron or nonalloy steel) or

7224 (alloy steel other than stainless in ingots or other

primary forms; semi-finished products of alloy steel other

than stainless); and

(5) Products of stainless steel provided for in HTSUS heading

7218 (stainless steel in ingots or other primary forms;

semi-finished products of stainless steel), 7219 (flatrolled products of stainless steel, 600 mm or more in

width), 7220 (flat-rolled products of stainless steel, less

than 600 mm in width), 7221 (bars and rods, hot-rolled,

in irregularly wound coils, of stainless steel), 7222 (other

bars and rods of stainless steel; angles, shapes and

sections of stainless steel), or 7223 (wire of stainless

steel).

Proclamation 9705, Adjusting Imports of Steel Into the United

States, Annex (“To Modify Chapter 99 of the Harmonized Tariff

Schedule of the United States”), 83 Fed. Reg. 11,625, 11,629

(Exec. Office of the President Mar. 15, 2018).

Proclamation 9980 imposed 25% tariffs on four categories of

products that it described as “Derivatives of Steel Articles.” The

four categories of products are as follows:

(1) Threaded steel fasteners suitable for use in powderactuated handtools, classified in subheading 7317.00.30,

HTSUS (nails, tacks (other than thumb tacks), drawing

pins, corrugated nails, staples (other than staples in

strips of HTSUS heading 8305) and similar articles, of

iron or steel, whether or not with heads of other material,

but excluding such articles with heads of copper;

(2) Certain other steel fasteners: nails, tacks (other than

thumb tacks), drawing pins, corrugated nails, staples

(other than staples in strips of HTSUS heading 8305) and

similar articles, of iron or steel, of one piece construction,

38a

B. Proceedings Before the Court of

International Trade

Plaintiff commenced this action on February 4,

2020, naming as defendants the United States, the

U.S. Department of Commerce, U.S. Customs and

Border Protection, and various officers of the United

States in their official capacities (the President of the

United States, the Secretary of Commerce, and the

Acting Commissioner of Customs and Border

made of round wire (other than certain collated roofing

nails), classified in HTSUS statistical subheadings

7317.00.5503 (collated, assembled in a wire coil, not

galvanized), -5505 (collated, assembled in a plastic strip,

galvanized), -5507 (collated, assembled in a plastic strip,

not galvanized), -5560 (not collated, coated, plated, or

painted), -5580 (vinyl, resin or cement coated), and other

steel fasteners of one-piece construction (other than

thumb tacks), not made of round wire, and other than cut,

classified in HTSUS statistical subheading 7317.00.6560;

(3) Bumper stampings of steel for motor vehicles (classified in

HTSUS subheading 8708.10.30 (parts and accessories of

the motor vehicles of HTSUS headings 8701 to 8705:

bumpers); and

(4) Body stampings of steel for tractors suitable for

agricultural use, classified in HTSUS subheading

8708.29.21 (parts and accessories of the motor vehicles of

headings 8701 to 8705: other parts and accessories of

bodies (including cabs): other: body stampings: for

tractors suitable for agricultural use).

Proclamation 9980, Adjusting Imports of Derivative Aluminum

Articles and Derivative Steel Articles into the United States,

Annex II (“Derivatives of Steel Articles”), 85 Fed. Reg. 5,281,

5,290 (Exec. Office of the President Jan. 29, 2020)

39a

Protection). Summons, ECF No. 1; Compl., ECF Nos.

8 (conf.), 9 (public).

Plaintiff amended its complaint on February 11,

2020. First Am. Compl., ECF Nos. 21 (conf.), 22

(public) (“Am. Compl.”). Defendants filed their Rule

12(b)(6) motion to dismiss the amended complaint on

March 20, 2020. Defs.’ Mot. to Dismiss for Failure to

State a Claim, ECF No. 60 (“Defs.’ Mot.”). On April

14, 2020, plaintiff opposed defendants’ motion to

dismiss and moved for summary judgment. Rule 56

Mot. for Summ. J., Pl. PrimeSource Bldg. Prods. Inc.’s

Mem. of Points and Authorities in Supp. of Mot. for

Summ. J. and Resp. to Defs.’ Mot. to Dismiss for

Failure to State a Claim, ECF No. 73-1 (“Pl.’s Br.”).

Defendants replied in support of their motion to

dismiss and responded to plaintiff’s summary

judgment motion on May 12, 2020. Defs.’ Reply in

Supp. of their Mot. to Dismiss and Resp. to Pl.’s Mot.

for Summ. J., ECF No. 78 (“Defs.’ Reply”). Plaintiff

replied in support of its summary judgment motion on

June 9, 2020. Pl. PrimeSource Bldg. Prods. Inc.’s Reply

Br. in Supp. of its Mot. for Summ. J., ECF No. 91 (“Pl.’s

Reply”).

II. DISCUSSION

A. Subject Matter Jurisdiction

We exercise subject matter jurisdiction according

to section 201 of the Customs Courts Act of 1980, 28

U.S.C. § 1581(i)(2), (i)(4). Paragraph (i)(2) of § 1581

grants this Court jurisdiction of a civil action “that

arises out of any law of the United States providing for

. . . tariffs, duties, fees, or other taxes on the

importation of merchandise for reasons other than the

40a

raising of revenue.” Id. § 1581(i)(2). Paragraph (i)(4)

grants this Court jurisdiction of a civil action arising

“out of any law of the United States providing for . . .

administration and enforcement with respect to the

matters referred to in paragraphs (1)–(3) of this

subsection.” Id. § 1581(i)(4).

B. Standards of Review

A court reviewing a challenge to Presidential

action taken pursuant to authority delegated by

statute does so according to a standard of review that

is highly deferential to the President. “For a court to

interpose, there has to be a clear misconstruction of

the governing statute, a significant procedural

violation, or action outside delegated authority.”

Maple Leaf Fish Co. v. United States, 762 F.2d 86, 89

(Fed. Cir. 1985).

Review of Proclamation 9980

according to the Administrative Procedure Act, 5

U.S.C. § 706 (“APA”), is not available because the

President is not an agency for purposes of the APA.

Franklin v. Massachusetts, 505 U.S. 788, 800–01

(1992). In an action such as this one, where a statute

commits a determination to the President’s discretion,

a reviewing court lacks authority to review the

President’s factual determinations. United States v.

George S. Bush & Co., 310 U.S. 371, 379–80 (1940);

Silfab Solar, Inc. v. United States, 892 F.3d 1340, 1349

(Fed. Cir. 2018) (“In particular, courts have repeatedly

confirmed that, where the statute authorizes a

Presidential ‘determination,’ the courts have no

authority to look behind that determination to see if it

is supported by the record.” (citing George S. Bush &

Co., 310 U.S. at 379)); Maple Leaf Fish Co., 762 F.2d

at 89 (“The President’s findings of fact and the

41a

motivations for his action are not subject to review.”

(citing Florsheim Shoe Co. v. United States, 744 F.2d

787, 795 (Fed. Cir. 1984))).

To avoid dismissal for failure to state a claim on

which relief can be granted, a complaint must contain

“a short and plain statement of the claim showing that

the pleader is entitled to relief.” USCIT R. 8(a)(2). A

court will grant a motion to dismiss if the complaint

fails to allege “enough facts to state a claim to relief

that is plausible on its face.” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007). “Threadbare

recitals of the elements of a cause of action, supported

by mere conclusory statements, do not suffice.”

Ashcroft v. Iqbal, 556 U.S. 662, 678, (2009).

The court will grant a motion for summary

judgment “if the movant shows that there is no

genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.”

USCIT R. 56(a).

C. Defendants’ Motion to Dismiss

Plaintiff raises five claims in its complaint. Am.

Compl. In its first claim (“Count 1”), id. ¶¶ 62–69,

PrimeSource alleges that the Secretary of Commerce

violated the Commerce Department’s regulations, 15

C.F.R. § 705, and the Administrative Procedure Act in

various ways when providing the “assessments” on

which the President based Proclamation 9980.

PrimeSource alleges, inter alia, that the Secretary

failed to initiate an investigation, failed to notify the

Secretary of Defense of an initiation of an

investigation, failed to publish an Executive Summary

in the Federal Register, and failed to provide for public

42a

hearings, as required by its regulation, id. ¶¶ 66–67,

and violated the APA when he “failed to provide

interested parties with sufficient notice and an

opportunity to comment” on the imposition of the

duties on derivatives, id. ¶ 68, and when he failed to

provide a reasoned explanation for its assessments, id.

¶ 69.

PrimeSource’s second claim (“Count 2”) is that

Proclamation 9980 was issued in violation of the time

limits specified in Section 232.

Id. ¶¶ 70–73.

Specifically, plaintiff alleges: (1) noncompliance with

Section 232(c)(1)(A), 19 U.S.C. § 1862(c)(1)(A), which

directs the President to make a determination on a

report submitted by the Commerce Secretary under 19

U.S.C. § 1862(b)(3)(A) within 90 days of receiving such

report, and (2) noncompliance with 19 U.S.C.

§ 1862(c)(1)(B), which directs the President to

implement any determination the President makes to

adjust tariffs on an article and its derivatives within

15 days after the President makes such a

determination. Id. Maintaining that the relevant

report issued under § 1862(b)(3)(A) was the report the

President received on January 11, 2018, which

resulted in Proclamation 9705, a Presidential action

that imposed 25% duties on steel products other than

the derivatives affected by Proclamation 9980,

PrimeSource alleges that “[i]n issuing Proclamation

9980 a full 653 days since the 90-day window closed

for the President to determine what action must be

taken and 638 days after the 15-day window to

implement such action, the President failed to follow

the mandated procedures set forth in Section 232.” Id.

¶ 73.

43a

In Count 3, id. ¶¶ 74–78, plaintiff asserts that it

has a property interest in its imports of steel

derivative products, id. ¶ 76, and that “[b]y failing to

provide parties with notice and an opportunity to

comment before issuing Proclamation 9980 imposing

Section 232 tariffs on steel and aluminum derivative

products, the President violated PrimeSource’s due

process rights protected under the Fifth Amendment,”

id. ¶ 78.

Count 4, id. ¶¶ 79–80, alleges that “Section 232 is

unconstitutional and not in accordance with the law

because it represents an over-delegation by Congress

to the President of its legislative powers by failing to

set forth an intelligible principle for the President to

follow when implementing Section 232,” id. ¶ 80.

Finally, Count 5, id. ¶¶ 81–82, asserts that “[t]he

Secretary of Commerce violated Section 232 by

making ‘assessments’, ‘determinations’ and providing

other ‘information’ to the President without following

any of the statutory procedures for new action and by

doing so outside the statutory time periods applicable

to the 2017-18 investigation conducted by the

Secretary of Commerce that resulted in Proclamation

9705,” id. ¶ 82.

1. Plaintiff’s First, Third, Fourth, and Fifth

Claims Must Be Dismissed

Plaintiff’s first claim (Count 1), in challenging the

“assessments” of the Secretary of Commerce

addressing steel and aluminum derivatives, alleges

various violations of the Commerce Department’s

regulations, 15 C.F.R. § 705, and the APA. The

assessments by the Commerce Secretary merely

44a

provided facts and recommendations for potential

action by the President rather than impose duties

under the authority of Section 232. These actions had

no direct or independent effect on PrimeSource. They

were, therefore, not final actions PrimeSource could

challenge in a cause of action brought under the APA.

See 5 U.S.C. § 704 (“final agency action for which there

is no other adequate remedy in a court are subject to

judicial review”); Motions Sys. Corp. v. Bush, 437 F.3d

1356, 1362 (Fed. Cir. 2006) (en banc) (citing Franklin,

505 U.S. at 798); DRG Funding Corp. v. Sec’y of HUD,

76 F.3d 1212, 1214 (D.C. Cir. 1996) (citing 5 U.S.C.

§ 704).

PrimeSource argues that the Commerce

Secretary’s actions should be deemed “final,” and

therefore judicially reviewable, because the

Secretary’s actions “represent the consummation of

the Secretary’s decision-making process that have

direct legal consequences on importers of derivative

steel products like PrimeSource, and, therefore, are

reviewable under the APA.” Pl.’s Br. 26 (citing Bennett

v. Spear, 520 U.S. 154 (1997) (agency action held final

where it marks consummation of agency’s decisionmaking process and is one that either determines

rights or obligations or is one from which legal

consequences flow)).

Here, however, the legal

consequence, which is the imposition of tariffs on

imported steel “derivatives,” resulted from an exercise

of the President’s broad discretion, not from the

actions of the Commerce Secretary.

For its “finality” argument, PrimeSource relies,

erroneously, on Corus Group PLC v. U.S. Int’l Trade

Comm’n, 352 F.3d 1351 (Fed. Cir. 2003). Pl.’s Br. 28–

45a

32. Corus Group considered whether a “serious injury”

determination of the U.S. International Trade

Commission (“ITC”) in an “escape clause”

investigation involving the U.S. steel industry under

Section 201 of the Trade Act of 1974 could be

challenged in this Court as a final agency action. 352

F.3d at 1358. Under the statutory scheme, an

affirmative determination of serious injury to a U.S.

domestic industry is a statutory prerequisite to the

exercise of the President’s discretion to impose

temporary tariff protection. Id. at 1359. If the ITC

commissioners were equally divided on the question of

serious injury (as occurred in that case, in which the

vote on injury was a three-to-three tie), the President

could consider the decision agreed upon by either

group of commissioners as the determination of the

ITC. The President considered the decision of the

three commissioners voting affirmatively to be the ITC

determination and, on that basis, imposed safeguard

duties on certain steel imports. In the situation

presented, and under the unique statutory scheme,

the ITC vote, which itself was challenged in the

litigation, had legal consequence and therefore could

be contested in the Court of International Trade. Id.

The Court of Appeals for the Federal Circuit (the

“Court of Appeals”) distinguished Corus Group in

Michael Simon Design, Inc. v. United States, 609 F.3d

1335 (Fed. Cir. 2010), a case more closely analogous to

this case. In Michael Simon, the Court of Appeals held

that ITC recommendations to the President for

modifications to the Harmonized Tariff Schedule of

the United States could not be subjected to judicial

challenge because, lacking any binding legal effect,

46a

they did not constitute “final agency action” within the

meaning of 5 U.S.C. § 704. 609 F.3d at 1339–40.

In further support of the claim in Count 1,

PrimeSource argues that the Commerce Secretary’s

assessments regarding steel and aluminum

derivatives are the product of “rulemaking” that,

under the APA, 5 U.S.C. § 553(b)–(c), required the

Secretary to provide the public notice and an

opportunity for comment. Pl.’s Br. 34–38. This

argument lacks merit. The Secretary’s assessments

did not themselves impose the tariffs on derivatives or

implement any other measure.

They did not

“implement, interpret, or prescribe law or policy”

within the meaning of the APA, 5 U.S.C. § 551(4).

Because the claim stated as Count 1 does not

assert a valid cause of action, it must be dismissed.

Plaintiff’s third claim, alleging a due process

violation stemming from the President’s failure to

provide parties with notice and the opportunity to

comment before issuing Proclamation 9980, also must

be dismissed. The Due Process Clause of the Fifth

Amendment did not require the President, in order to

avoid a deprivation of due process, to provide notice or

the opportunity to comment before imposing duties on

imported merchandise under delegated legislative

authority, and neither Section 232 nor any other

statute required such a procedure.

Moreover,

PrimeSource fails to identify any authority for its

theory that, on the facts it has pled, it had a protected

property interest in maintaining the tariff treatment

applicable to its imported merchandise that existed

prior to Proclamation 9980. Plaintiff relies on NEC

47a

Corp. v. United States, 151 F.3d 1361 (Fed. Cir. 1998)

in support of that theory, Pl.’s Br. 41, but NEC Corp.

is not on point, having arisen from an action brought

(unsuccessfully) to enjoin the conducting of an

antidumping duty investigation based on alleged

“prejudgment” on the part of the Commerce

Department. PrimeSource also relies upon Schaeffler

Grp. USA, Inc. v. United States, 786 F.3d 1354 (Fed.

Cir. 2015), Pl.’s Br. 41, but that case also is inapposite.

Rejecting a claim that the petition support

requirement of the Continued Dumping and Subsidy

Offset Act of 2000 (the “CDSOA”) was impermissibly

retroactive according to the Due Process Clause, the

Court of Appeals “assume[d] without deciding, for

purposes of our analysis, that Schaeffler had a

protected property interest implicating the Due

Process Clause.” 786 F.3d at 1361. The property

interest claimed by plaintiff Schaeffler Group USA,

Inc. was not pre-existing tariff treatment but a

claimed right that arose “because, when it checked the

box to oppose a petition, it believed that it would not

be subjecting itself to competitive harm through the

aggrandizement of its competitors.” Id. Reasoning

that the CDSOA was not impermissibly retroactive,

the appellate court chose not to reach the question of

whether there was a vested property right “because we

find that Congress had a rational basis for the

retroactive effect of the petition support requirement.”

Id.

PrimeSource’s fourth claim, that Section 232 is

impermissible under the U.S. Constitution as an

impermissibly broad delegation of legislative

authority from Congress to the Executive Branch, is

48a

foreclosed by the decision of the U.S. Supreme Court

in Federal Energy Admin. v. Algonquin SNG, Inc., 426

U.S. 548 (1976). Therefore, it too must be dismissed.

The fifth count in PrimeSource’s complaint

contains only one substantive paragraph, as follows:

The Secretary of Commerce violated Section

232

making

“assessments”,

“determinations”

and

providing

other

“information” to the President without

following any of the statutory procedures for

new action and by doing so outside the

statutory time periods applicable to the 201718 investigation conducted by the Secretary of

Commerce that resulted in Proclamation

9705.

Am. Compl. ¶ 82. This claim, which is similar to the

claim in Count 1 but grounded in alleged violations of

Section 232 instead of alleged violations of the

Commerce Department regulations or the APA, also

must be dismissed. Section 232 does not provide for

judicial review of any action taken thereunder.

Accordingly, for PrimeSource’s fifth count to be

cognizable, judicial review must exist under the APA.

But as with Count 1, this claim cannot be brought

under the APA, which “limits nonstatutory judicial

review to ‘final’ agency actions.” DRG Funding Corp.,

76 F.3d at 1214 (citing 5 U.S.C. § 704); see Motion Sys.

Corp., 437 F.3d at 1362.

We address below plaintiff’s remaining claim,

which is set forth as Count 2.

2. Defendants’ Motion to Dismiss the Claim in

Count 2 Must Be Denied

49a

Section 232, 19 U.S.C. § 1862, grants the

President broad authority to “adjust the imports of the

article and its derivatives” that threaten to impair the

national security, id. § 1862(c)(1)(A).

Congress

conditioned the delegation of this authority upon the

President’s receipt of a report by the Secretary of

Commerce on the findings of an investigation “to

determine the effects on the national security of

imports” of an article that is the subject of a request

for such an investigation by “the head of any

department or agency” or that is the subject of an

investigation initiated upon the Commerce Secretary’s

“own motion.” Id. § 1862(b)(1)(A). In conducting the

investigation, the Commerce Secretary must consult

with the Secretary of Defense “regarding the

methodological and policy questions raised” in the

investigation and seek “information and advice from,

and consult with, appropriate officers of the United

States.” Id. § 1862(b)(2)(A)(i), (ii). The statute further

provides that “if it is appropriate and after reasonable

notice,” the Commerce Secretary shall “hold public

hearings or otherwise afford interested parties an

opportunity to present information and advice

relevant to such investigation.” Id. § 1862(b)(2)(A)(iii).

The Secretary of Commerce is directed to submit the

report of the investigation to the President within 270

days after the investigation is initiated.

Id.

§ 1862(b)(3)(A). The statute lists numerous nonexclusive factors the Commerce Secretary and the

President are to consider in making their

determinations. Id. § 1862(d).

Plaintiff’s claim in Count 2 is that Proclamation

9980 is invalid as untimely because the President’s

50a

authority to adjust imports of a new set of products

made of steel (i.e., the “derivatives”) had expired. 4

PrimeSource argues that Section 232 expressly

limited, according to the time periods set forth in 19

U.S.C. § 1862(c)(1), any action the President could

take to adjust imports of such products, including steel

nails. Under PrimeSource’s interpretation of Section

232, the action effected by Proclamation 9980 could

have been valid only had it been implemented within

105 days (i.e., the 90 days allowed by § 1862(c)(1)(A)5

Although plaintiff has named the President (among other

officers of the United States) in his official capacity as a

defendant in this action, we do not construe the claim in Count 2

as a claim against the President. The claim is directed against

Proclamation 9980 itself, not the President, against whom no

remedy is sought

The provision setting forth the 90-day time period reads as

follows:

Within 90 days after receiving a report submitted

under subsection (b)(3)(A) of this section [19 U.S.C.

§ 1862(b)(3)(A)] in which the Secretary [of Commerce]

finds that an article is being imported into the United

States in such quantities or under such circumstances

as to threaten to impair the national security, the

President shall—(i) determine whether the President

concurs with the finding of the Secretary, and (ii) if the

President concurs, determine the nature and duration

of the action that, in the judgment of the President,

must be taken to adjust the imports of the article and

its derivatives so that such imports will not threaten to

impair the national security.

19 U.S.C. § 1862(c)(1)(A)

51a

plus the 15 days allowed by § 1862(c)(1)(B) 6 ) of the

receipt of a report of the Commerce Secretary

submitted under § 1862(b)(3)(A). See Am. Compl. ¶¶

70–73. According to PrimeSource, Proclamation 9980

was issued 638 days after the transmittal of that

report to the President and is, therefore, null and void.

Id. ¶ 73.

Plaintiff’s Count 2 claim rests upon a “plain

meaning” interpretation of Section 232(c)(1), 19 U.S.C.

§ 1862(c)(1). This provision, in subparagraph (A),

requires the President to make certain determinations

within 90 days of receiving the Commerce Secretary’s

report under Section 232(b)(3)(A). In subparagraph

(B), it directs the President, if determining to take

action “to adjust imports of an article and its

derivatives,” to implement that action within 15 days

of making that determination.

The Secretary of Commerce, following an

investigation initiated under Section 232, submitted a

report to the President under 19 U.S.C. § 1862(b)(3)(A)

The provision setting forth the 15-day time period reads as

follows:

If the President determines under subparagraph (A)

[19 U.S.C. § 1862(c)(1)(A)] to take action to adjust

imports of an article and its derivatives, the President

shall implement that action by no later than the date

that is 15 days after the day on which the President

determines to take action under subparagraph (A).

19 U.S.C. § 1862(c)(1)(B)

52a

(the “Steel Report”)7 on January 11, 2018. Defs.’ Mot.

5–6; Pl.’s Br. 3–4; see Proclamation 9980 ¶ 1, 85 Fed.

Reg. at 5,281.

That report was the basis for

Proclamation 9705. Proclamation 9980 states that the

President, based on certain “assessments” of the

Secretary of Commerce, concluded that it was

“necessary and appropriate in light of our national

security interests to adjust the tariffs imposed by

previous proclamations to apply to the derivatives of

aluminum articles and steel articles described in

Annex I and Annex II to this proclamation.”

Proclamation 9980 ¶ 9, 85 Fed. Reg. at 5,283. While

mentioning these “assessments” of the Commerce

Secretary, Proclamation 9980 does not state that the

President was taking action pursuant to any report

the Commerce Secretary issued under Section

232(b)(3)(A), 19 U.S.C. § 1862(b)(3)(A), subsequent to

the January 2018 Steel Report.

Defendants do not dispute that the 2018 Steel

Report is, for purposes of Section 232(c), 19 U.S.C.

§ 1862(c), the report issued according to Section

232(b)(3)(A), 19 U.S.C. § 1862(b)(3)(A), upon which the

President based his adjustment to imports of steel

derivatives, including steel nails. See Defs.’ Mot. 24–

29. Instead, they offer a different interpretation of

Section 232(c)(1) (19 U.S.C. § 1862(c)(1)) than does

The Secretary’s Report was published in the Federal Register

earlier this year. Publication of a Report on the Effect of Imports

of Steel on the National Security: An Investigation Conducted

Under Section 232 of the Trade Expansion Act of 1962, as

Amended, 85 Fed. Reg. 40,202 (Dep’t of Commerce July 6, 2020).

We take judicial notice of this published document.

53a

plaintiff, arguing that in issuing Proclamation 9980,

the President remained free to adjust imports of

articles not addressed in Proclamation 9705 that the

President designates as “derivatives” of those articles,

despite the time limitation of Section 232(c)(1),

including, specifically, the 15-day window of

§ 1862(c)(1)(B). See id.

Defendants advance two arguments in support of

their statutory interpretation. Their first argument

holds that the President complied with the time limits

in Section 232(c)(1) when, in 2018, he issued

Proclamation 9705 within 105 days of the President’s

receipt of the Steel Report. Their theory is that

Proclamation 9980, rather than being an “action,” or

an implementation, separate from Proclamation 9705,

was permissible under Section 232(c)(1) as a

“modification” of that earlier action. Def.’s Mot. 25–

34. Their second argument is in the alternative. The

gist of this second argument is that even if the

issuance of Proclamation 9980 was not in compliance

with the time limitations of Section 232(c)(1), the court

still should sustain Proclamation 9980 because the

time limitations are merely “directory” and therefore

did not preclude the President from adjusting imports

of the products named therein. Id. at 34–36.

Defendants’ first argument is, essentially, that

Proclamation 9980 was timely according to Section

232(c)(1) because Proclamation 9705, of which

Proclamation 9980 was a permissible modification,

was timely. Further to this argument, defendants

maintain that “section 232 delegates broad authority

to the President to make adjustments to actions taken

pursuant to the statute.” Id. at 25. They direct our

54a

attention, specifically, to the words “nature and

duration” in Section 232(c)(1)(A)(ii), 19 U.S.C.

§ 1862(c)(1)(A)(ii), arguing that “[i]f the Secretary’s

report recommends that action be taken to protect the

national security, and if the President concurs, the

President ‘must determine the nature and duration of

the action that, in the judgment of the President, must

be taken to adjust the imports of the article and its

derivatives so that such imports will not threaten to

impair the national security.’” Id. at 25 (quoting 19

U.S.C. § 1862(c)(1)(A)(ii)) (emphasis in original).

Defendants characterize the terms “nature and

duration” as “necessarily flexible and broad.” Id. They

also argue that the word “implement” appearing in

Section 232(c)(1)(B), 19 U.S.C § 1862(c)(1)(B), “should

not be read with the finality that PrimeSource appears

to ascribe to it.” Id. at 26. They urge that we interpret

Section 232(c)(1) to mean that “[t]he statute

contemplates continued monitoring and adjustments

to section 232(c) actions, as circumstances change.”

Id. While acknowledging that amendments made to

Section 232 by the Omnibus Trade and

Competitiveness Act of 1988, Pub. L. No. 100–418,

Title I, 102 Stat. 1107, Title I, §§ 1501(a), (b)(1) (the

“1988 amendments”) imposed the time limits in

current Section 232(c)(1), they argue that the

President’s authority to modify actions previously

taken predated those amendments, which they view as

having preserved, rather than having curtailed, that

modification authority. Id. at 29–32.

Although defendants would define the issue

before us in broad and general terms, we conclude that

the precise question is not whether, or to what extent,

55a

Section 232 provides general authority for “monitoring

and adjustments” of an action previously taken. We

conclude, instead, that the question before us is a

narrower one: whether the President’s having

characterized the articles affected by Proclamation

9980 as “derivatives” of the steel products affected by

Proclamation 9705 is, by itself, sufficient for us to

conclude that Proclamation 9980 was timely according

to Section 232(c)(1).8 In considering this question, we

conclude that Section 232(c)(1) would have empowered

the President, upon a timely issuance of Proclamation

9705 in 2018, to include an adjustment to imports of,

in addition to the specific articles identified by the

Commerce Secretary in the Steel Report, “derivatives”

of those articles. Section 232(c) allows the President

the discretion to do so regardless of whether derivative

products were identified and recommended to him in

a report the Secretary submits under Section

232(b)(3)(A). Further, we presume that had the

President done so, he would have acted within his

discretion in characterizing the products affected by

Proclamation 9980 as derivatives of the articles

affected by Proclamation 9705. We note that Section

232 does not confine the President’s discretion by

defining the term “derivatives,” and, in any event, we

Because Proclamation 9980 imposed tariffs on a new set of

articles (“derivatives” of previously affected articles) rather than

raise the tariff on an article already the subject of a Presidential

action taken under Section 232, this case presents a different

factual circumstance than the one this Court addressed in

Transpacific LLC v. United States, et al., 43 CIT __, 415 F. Supp.

3d 1267 (2019) and Transpacific Steel LLC v. United States, et al.,

44 CIT __, 466 F. Supp. 3d 1246 (2020).

56a

do not construe plaintiff’s claim as contesting this

characterization.

Two provisions in Section 232—the only

provisions in the statute that mention “derivatives”—

bear on the question before us. Section 232(c)(1)(A)

directs the President to make two determinations

“[w]ithin 90 days after receiving a report submitted

under subsection (b)(3)(A) of this section [19 U.S.C.

§ 1862(b)(3)(A)] in which the Secretary [of Commerce]

finds that an article is being imported into the United

States in such quantities or under such circumstances

as to threaten to impair the national security.” 19

U.S.C.

§ 1862(c)(1)(A)

(emphasis

added).

Subparagraph (i) of Section 232(c)(1)(A) provides that

the President must determine whether he concurs

with the affirmative finding of the Commerce

Secretary in the report submitted under Section

232(b)(3)(A). Subparagraph (ii), the first of the two

statutory provisions addressing derivatives, provides

that the President, if concurring, “shall . . . determine

the nature and duration of the action that, in the

judgment of the President, must be taken to adjust the

imports of the article and its derivatives so that such

imports will not threaten to impair the national

security.” Id. § 1862(c)(1)(A)(ii) (emphasis added).

Section 232(c)(1)(B), the second of the two statutory

provisions mentioning derivatives, directs that, if

determining “under subparagraph (A) [19 U.S.C.

§ 1862(c)(1)(A)] to take action to adjust imports of an

article and its derivatives, the President shall

implement that action by no later than the date that

is 15 days after the day on which the President

57a

determines to take action under subparagraph (A).”

Id. § 1862(c)(1)(B) (emphasis added).

A predecessor to the current Section 232, Section

7 of the Trade Agreements Extension Act of 1955,9 did

not contain the current reference to “derivatives.” In

pertinent part, Section 7 provided as follows:

In order to further the policy and purpose of

this section, whenever the Director of the

Office of Defense Mobilization has reason to

believe that any article is being imported into

the United States in such quantities as to

threaten to impair the national security, he

shall so advise the President, and if the

President agrees that there is reason for such

belief, the President shall cause an immediate

investigation to be made to determine the

facts. If, on the basis of such investigation,

and the report to him of the findings and

recommendations made in connection

therewith, the President finds that the article

is being imported into the United States in

such quantities as to threaten to impair the

national security, he shall take such action as

he deems necessary to adjust the imports of

The immediate predecessor of this provision, enacted as

Section 2 of the Trade Agreements Extension Act of 1954,

contained a very brief national security provision: “No action

shall be taken pursuant to such section 350 [negotiating

authority] to decrease the duty on any article if the President

finds that such reduction would threaten domestic production

needed for projected national defense requirements.” Pub. L. No.

83–464, 68 Stat. 360 (1954). This provision remains in current

law as Section 232(a), 19 U.S.C. § 1862(a).

58a

such article to a level that will not threaten to

impair the national security.

Trade Agreements Extension Act of 1955, Pub. L. No.

86–169, § 7, 69 Stat. 162, 166. As defendants point

out, Defs.’ Mot. 27, the conference report on this

legislation stated that “[i]t is the understanding of all

the conferees that the authority granted to the

President under this provision is a continuing

authority.” H.R. Rep. No. 84–745 at 7 (1955).

In renewing trade agreement authority in the

Trade Agreements Extension Act of 1958, Congress

made numerous changes to the national security

provisions. Among the changes was a lengthy new

subsection describing the factors to be considered

when determining the effects of imports on national

security; this provision is continued in current law as

current Section 232(d), 19 U.S.C. § 1862(d). The Trade

Agreements Extension Act of 1958, in § 8(a),

streamlined

the

existing

national

security

investigative

procedure

eliminating

the

requirement that the President initiate an

investigation and placing that responsibility instead

upon the Director of the Office of Defense and Civilian

Mobilization. Most pertinent to this case is that

Congress also granted the President, if advised by the

Director that imports of an “article” threaten to impair

the national security, the authority to adjust the

imports of “such article and its derivatives”:

Upon request of the head of any Department

or Agency, upon application of an interested

party, or upon his own motion, the Director of

the Office of Defense and Civilian

59a

Mobilization (hereinafter in this section

referred to as the “Director”) shall

immediately

make

appropriate

investigation, in the course of which he shall

seek information and advice from other

appropriate Departments and Agencies, to

determine the effects on the national security

of imports of the article which is the subject of

such request, application, or motion. If, as a

result of such investigation, the Director is of

the opinion that the said article is being

imported into the United States in such

quantities or under such circumstances as to

threaten to impair the national security, he

shall promptly so advise the President, and,

unless the President determines that the

article is not being imported into the United

States in such quantities or under such

circumstances as to threaten to impair the

national security as set forth in this section,

he shall take such action, and for such time,

as he deems necessary to adjust the imports

of such article and its derivatives so that such

imports will not so threaten to impair the

national security.

Pub. L. No. 85–686, § 8(a), 72 Stat. 673, 678 (1958)

(emphasis added). This provision authorized the

President, on his own authority, to adjust the imports

of derivatives of the article that was investigated and

reported to him.

The language on derivatives was added to the

legislation (H.R. 12591, the “Trade Agreements

Extension Bill of 1958”) by an amendment

60a

(Amendment No. 20) in the Senate, to which the House

receded. Trade Agreements Extension Bill of 1958,

Conference Report [to accompany H.R. 12591], Rep.

No. 2502, 85th Cong., 2d Sess., at 7 (1958). The debate

in the House on the Conference Report on H.R. 12591

indicates that the purpose of Amendment No. 20 in the

Senate was to ensure that the President could address

the possibility that derivatives of the investigated

article would circumvent the measures taken to adjust

imports of the article itself. 104 Cong. Rec. 16,537,

16,542 (1958). There was a specific concern involving

derivatives of imports of crude oil and other natural

resources, but Amendment 20 effected a change that

was without limitation as to the type of product

involved.10 See id. Significantly, Proclamation 9980

The floor statement of House Ways and Means Chairman

Mills, 104 Cong. Rec. 16,537, 16,542 (1958), included the

following:

The Senate further authorized the President that if he

should take such action as he deems necessary to

adjust the imports of the particular article, he may also

adjust the imports of its derivatives. The effect of the

addition of the language with respect to derivatives in

the statute serves the same purpose as the expression

of intent on the part of the Committee on Ways and

Means which was elaborated in a colloquy between the

gentleman from Texas [Mr. IKARD] and myself on the

floor of the House when the legislation was under

consideration by the House. At that time, in response

to an inquiry from the gentleman from Texas, I

observed that prudent administration of this provision

of the law would require that, if action in the interest

of national security is indicated with respect to the

61a

identified “circumvention” of the tariffs on the steel

products affected by Proclamation 9705 as a

justification

for

the

President’s

decision.

Proclamation 9980, ¶ 8, 85 Fed. Reg. at 5,282.

In enacting Section 232 of the Trade Expansion

Act of 1962, Congress essentially carried over the

language of § 8(a) of the 1958 statute, reassigning the

investigative responsibility from the Director of the

Office of Defense and Civilian Mobilization to the

Director of the Office of Emergency Planning. 11

imports of a particular article, it would follow that

appropriate action with respect to the derivatives of

such article would also be in order if it has been found

that the imports of such derivatives would have the

effect of threatening to impair the national security.

The colloquy to which Chairman Mills referred included the

following:

Mr. IKARD. Is it intended that when the imports of a

natural resource are controlled under the provisions of

the national security section of the committee bill, and

with particular reference to petroleum, that such

control should take into consideration the importation

of products, derivatives, or residues of petroleum so

that these products and derivatives could not be

imported in a way that would circumvent the control of

the imports of the basic natural resource?

Mr. MILLS. Yes. Clearly, when a decision is taken to

restrict imports in the interest of national security, it

is our intention that the decision be effective and not

rendered ineffective by circumvention.

House debate on H.R. 12591, 104 Cong. Rec. 10,672, 10,750

(1958).

The new provision read as follows:

62a

Neither the 1958 version nor the 1962 version of the

statute placed any time limits on the President’s

authority to adjust imports of the investigated article

or derivatives of that article, and in that respect the

authority delegated to the President by the 1962

statute could be described as “continuing.”

Congress again amended Section 232 in 1975.

The investigative responsibility was transferred from

the Director of the Office of Emergency Planning to the

Upon request of the head of any department or agency,

upon application of an interested party, or upon his

own motion, the Director of the Office of Emergency

Planning (hereinafter in this section referred to as the

“Director”) shall immediately make an appropriate

investigation, in the course of which he shall seek

information and advice from other appropriate

departments and agencies, to determine the effects on

the national security of imports of the article which is

the subject of such request, application, or motion. If,

as a result of such investigation, the Director is of the

opinion that the said article is being imported into the

United States in such quantities or under such

circumstances as to threaten to impair the national

security, he shall promptly so advise the President,

and, unless the President determines that the article

is not being imported into the United States in such

quantities or under such circumstances as to threaten

to impair the national security as set forth in this

section, he shall take such action, and for such time, as

he deems necessary to adjust the imports of such

article and its derivatives so that such imports will not

so threaten to impair the national security.

Trade Expansion Act of 1962, Pub. L. No. 87–794, § 232(b), 76

Stat. 872, 877.

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Secretary of the Treasury,12 the current language on

public participation was added, and, for the first time,

Congress placed a time limit on the investigation:

The Secretary [of the Treasury] shall, if it is

appropriate and after reasonable notice, hold

public hearings or otherwise afford interested

parties an opportunity to present information

and advice relevant to such investigation. The

Secretary shall report the findings of his

investigation under this subsection with

respect to the effect of the importation of such

article in such quantities or under such

circumstances upon the national security

and,

based

such

findings,

his

recommendation for action or inaction under

this section to the President within one year

after receiving an application from an

interested party or otherwise beginning an

investigation under this subsection.

Pub. L. No. 93–618, 88 Stat. 1978, 1993–94 (1975).

Congress placed no time limit on the exercise of

discretion by the President.

Congress next made major changes to Section 232

in the 1988 amendments, which resulted in the

Along with certain other responsibilities pertaining to

international trade, this responsibility was transferred to the

Secretary of Commerce by Reorganization Plan No. 3 of 1979,

§ 5(a)(1)(B), eff. Jan. 2, 1980, 44 Fed. Reg. 69,273, 69,274, 93 Stat.

1381, 1383.

64a

current Section 232. 13 Among a number of new

procedural requirements, including requirements for

reporting to the Congress on actions taken or declined

to be taken, the 1988 amendments imposed, for the

first time, time limits on the exercise of discretion by

the President. These were the aforementioned 90-day

time period in which the President is to “determine the

nature and duration of the action that, in the

judgment of the President, must be taken to adjust the

imports of the article and its derivatives . . . ,” 19

U.S.C. § 1862(c)(1)(A)(ii), and the 15-day time period

in which the President, if determining “to take action

to adjust imports of an article and its derivatives,” is

directed to “implement that action,” id. § 1862(c)(1)(B).

Defendants maintain that “[n]othing in the 1988

amendments’ text or legislative history . . . suggests

that Congress intended to alter, let alone withdraw,

its long-standing delegation of authority to take

continuing action” and that “[t]he circumstances

leading to passage of the 1988 amendments make

clear Congress’ desire to prevent inaction, not to

curtail further action.” Defs.’ Mot. 29–30. Turning

first to the text of the 1988 amendments, we are

unconvinced by defendants’ argument that these

amendments

maintained,

unchanged,

the

“continuing” authority of the President.

An intervening amendment in 1980 added current Section

232(f), which provided that Congress could invalidate

Presidential action to adjust imports of petroleum or petroleum

products upon a “disapproval resolution.” Crude Oil Windfall

Profit Tax Act of 1980, Pub. L. No. 96–223, Title IV, § 402, 94

Stat. 229.

65a

As amended, the statute expressly requires the

President, “[w]ithin 90 days after receiving a report

submitted under subsection (b)(3)(A),” (i.e., the report

the Commerce Secretary is to issue within 270 days of

the initiation of an investigation under 19 U.S.C.

§ 1862(b)) to “determine the nature and duration of the

action that, in the judgment of the President, must be

taken to adjust the imports of the article and its

derivatives . . . .” Id. § 1862(c)(1)(A)(ii) (emphasis

added). Section 232(c)(1)(B) provides that “[i]f the

President determines . . . to take action to adjust

imports of an article and its derivatives, the President

shall implement that action by no later than the date

that is 15 days after the day on which the President

determines to take action . . . .” Id. § 1862(c)(1)(B)

(emphasis added). Contrary to defendants’ urging that

we read Section 232(c)(1) broadly and flexibly, we find

no ambiguity in the time limitations it imposes. Nor

do we find the provision ambiguous in its application

of those time limits to an action taken to adjust

imports of “derivatives.” In short, there is no “flexible”

reading of this provision under which the express time

limitations on a Presidential “action,” and

implementation thereof, do not apply. And we find no

indication anywhere in the text of the statute as

amended by the Omnibus Trade and Competitiveness

Act that the President retained authority to adjust

imports of articles identified in the Secretary’s report

and then, after an extended period of time, adjust

imports of derivatives of those articles without

complying with the detailed procedures of Section

232(b) and (c). To the contrary, the 90- and 15-day

time limitations in Section 232(c)(1) expressly confine

66a

the exercise of the President’s discretion regardless of

whether the President determines to adjust imports

only of the “article” named in the Secretary’s report or,

instead, to adjust imports of the “article and its

derivatives.” See 19 U.S.C. § 1862(c)(1). No other

provision in Section 232 provides to the contrary or,

for that matter, addresses in any way the authority to

adjust imports of derivatives. Had Congress intended,

in the 1988 amendments, to preserve Presidential

authority to adjust imports of derivatives after the

close of the 105-day period, presumably it would have

created an exception to the general time limitation it

imposed in Section 232(c)(1). But we see no indication

of such an intent in the plain meaning of the statute

and find indications to the contrary.

Defendants’ “flexible” reading of Section 232(c)(1)

would require us to interpret the “action” taken by

Proclamation 9980 and that taken by Proclamation

9705 as parts of the same “action.” This presents

several interpretive problems. For one, it is contrary

to the plain and ordinary meaning of the words

“action” and “implement” as used in Section 232(c)(1).

There can be no question, as a factual matter, that the

two, separately-published proclamations stemmed

from two separate Presidential determinations and

were directed at two different sets of products. Each

necessarily required its own implementation. See 19

U.S.C. § 1862(c)(1)(B) (“[T]he President shall

implement that action by no later than the date that is

15 days after the day on which the President

determines to take action under subparagraph A”).

The President “implemented” the “action” he

determined to take following his receipt of the Steel

67a

Report when he issued Proclamation 9705 in 2018. In

enacting Section 232(c)(1) as part of the 1988

amendments, Congress placed time limits on the

exercise of the President’s discretion for the first time

in the history of the statute. The straightforward

language by which Congress did so did not leave room

for an interpretation that the President retained,

indefinitely, discretion to adjust imports of derivatives

of an article affected by an earlier action and

implementation. Despite the express time limitation

Congress imposed, defendants insist that the

President may resume his “implementation”

indefinitely—presumably even repeatedly through

subsequent measures, and even many years later—

and thereby sidestep the express time limitations

Congress imposed.

Additionally, defendants’ interpretation of Section

232 would require us to ascribe a different meaning to

the word “action” as used in Section 232(c)(1) than that

indicated by the use of that term in another provision

added to the statute by the 1988 amendments, Section

232(c)(3) (19 U.S.C. § 1862(c)(3)). In Section 232(c)(3),

Congress created an exception to the time limitations

in Section 232(c)(1), and an alternate procedure, to

apply when the “action” the President chooses to take

under Section 232(c)(1) is to pursue a trade agreement

“which limits or restricts the importation into, or the

exportation to, the United States of the article that

threatens to impair national security.” 19 U.S.C.

§ 1862(c)(3)(A)(i). Under this alternate procedure, if,

after 180 days, no agreement is reached or if an

agreement “is ineffective in eliminating the threat to

the national security posed by imports of such article,”

68a

the President may “take such other actions as the

President deems necessary to adjust the imports of

such article so that such imports will not threaten to

impair the national security.” Id. § 1862(c)(3)(A)(ii)

(emphasis added). Section 232(c)(1) uses the singular

term “action”—which Section 232(c)(3) also uses to

refer to the determination taken under Section

232(c)(1)—and then distinguishes that term by using

the term “other actions” (also identified as “additional

actions”), 19 U.S.C. § 1862(c)(3)(B)(ii) (emphasis

added), that the President is authorized to take under

Section 232(c)(3) in the event the Section 232(c)(1)

“action,” i.e., any trade agreement, or attempt to

obtain one, is deemed by the President to be

insufficient to eliminate the threat from imports of the

article. Thus, defendants’ reading of the word “action”

as used in Section 232(c)(1) to encompass, broadly, a

series of continuing measures to adjust imports, as

opposed to a discrete action that may be implemented,

cannot be reconciled with the use of that term in

Section 232(c)(3). We disfavor an interpretation that

ascribes different meanings to the same term as used

in different provisions of the same statute. See Brown

v. Gardner, 513 U.S. 115 (1995) (“[T]here is a

presumption that a given term is used to mean the

same thing throughout a statute.”).

Although placing no express time limits on the

“other actions” in Section 232(c)(3), as it did in Section

232(c)(1), Congress limited these “additional actions”

to those that adjust imports of the article that was, or

would have been, affected by the trade agreement. Id.

§ 1862(c)(3)(A) (confining the additional actions to

actions “to adjust the imports of such article”

69a

(emphasis added)). In substance, Proclamation 9980

concludes that the previously-imposed tariffs on steel

articles were (in the words of 19 U.S.C. § 1862(c)(3))

“ineffective in eliminating the threat to the national

security.” But Proclamation 9980 differs from an

“additional action” taken under Section 232(c)(3) in

two critical respects: it did not follow a determination

to enter into a trade agreement (a determination of

which the President must give timely notification to

Congress under Section 232(c)(2)), and even if it had,

it would not have conformed to the procedure

thereunder because the “additional action” was not

directed to the same article as was the original action.

Where a statute creates an exception to a general

rule (as Section 232(c)(3) does in creating an exception

to the time limitations of Section 232(c)(1)), such

exception is to be read narrowly and not interpreted to

apply where Congress did not expressly provide for it.

Comm’r v. Clark, 489 U.S. 726, 739 (1989) (“In

construing provisions ... in which a general statement

of policy is qualified by an exception, we usually read

the exception narrowly in order to preserve the

primary operation of the provision.”) (citing A.H.

Phillips, Inc. v. Walling, 324 U.S. 490, 493 (1945) (“To

extend an exemption to other than those plainly and

unmistakably within its terms and spirit is to abuse

the interpretative process and to frustrate the

announced will of the people.”)). When we read the

statute as a whole, we see the detailed, specialized

procedure Congress set forth as Section 232(c)(3) as

another indication that Proclamation 9980 must be

viewed as untimely under Section 232(c)(1) if

70a

considered to be an action that was taken based solely

on the Steel Report.

Defendants’ argument referring to the words

“nature and duration” in Section 232(c)(1)(A)(ii) also

fails to convince us that the President retains

authority, indefinitely, to take additional steps to

adjust imports of articles not addressed in his original

action. Because different products were affected, the

“nature” of the action the President took in 2020

differed from the nature of the action he took in 2018.

Defendants argue that specific factors set forth in

Section 232(d), 19 U.S.C. § 1862(d), that the President

is to consider in exercising his authority under Section

232 signify that “[t]he statute contemplates continued

monitoring and adjustments to section 232(c) actions,

as circumstances change.” Defs.’ Mot. 26. According

to defendants, “[m]any of these factors, including the

‘domestic production needed for projected national

defense requirements,’ the ‘capacity of domestic

industries to meet such requirements,’ and ‘the impact

of foreign competition on the economic welfare of

individual domestic industries,’ are dynamic by nature

and invite ongoing evaluation and, as necessary,

course correction.” Id. (quoting 19 U.S.C. § 1862(d)).

This argument, too, is unpersuasive, confusing the

non-exclusive list of factors the President is to consider

in his determination of what action is needed with the

time periods in which he must make and implement

that determination. As we discussed above, the list of

non-exclusive factors set forth in current Section

232(d) were added by Trade Agreements Extension

Act of 1958. We find nothing in the text of Section

232(d) that creates an exception to the time limits

71a

Congress imposed, as Section 232(c)(1), thirty years

later.

In support of their motion to dismiss, defendants

argue, additionally, that “[i]t is no defect that the

Secretary’s investigation covered steel articles and not

derivatives of steel articles, such as nails.” Defs.’ Mot.

37 (citing Compl. ¶¶ 41–42); Defs.’ Reply 2 (arguing

that “Commerce plays no statutory role with respect

to derivative articles.”). According to defendants, “the

President is authorized to adjust imports of

derivatives of articles, even when the Secretary’s

investigation and report addressed only the article

itself.” Defs.’ Mot. 37 (quoting 19 U.S.C.

§ 1862(c)(1)(A)(ii) (“if the President concurs,

determine the nature and duration of the action that,

in the judgment of the President, must be taken to

adjust the imports of the article and its derivatives . . .

.”)).

As we discussed above, the President is

empowered to adjust imports of derivatives of the

investigated article regardless of whether the

investigation, and the Commerce Secretary’s Section

232(b)(3)(A) report, included them.

Defendants’

argument does not confront the question of timeliness:

PrimeSource challenges the timeliness of the

President’s action on the ground that the time

limitations of Section 232(c)(1) apply regardless of

whether or not the President’s action is directed to

derivatives of an article affected by an earlier action.

In support of their argument that nothing in the

legislative history of the 1988 amendments evinces

congressional intent to limit the Presidents’ discretion

as to modifications of earlier actions, defendants cite

congressional testimony showing, they argue, that the

72a

1988 amendments were motivated by frustration on

the part of certain members of Congress with

President Reagan’s delay in taking actions under

Section 232, in particular with respect to machine

tools. Id. at 30–31 (citing Hearings Before the Comm.

on Ways & Means on H.R. 3 Trade and International

Economic Policy Other Proposals Reform Act, 100th

Cong. (1987); Hearings Before the Subcomm. on Trade

of H. Comm. On Ways & Means, 99th Cong., 2d Sess.

1282 (1986)).

A Senate report on the legislation, while noting

that then-current law imposed a one-year requirement

for the investigation (shortened to 270 days by the

1988 amendments), also noted that under current law

“[t]here is no time limit for the President’s decision.”

Report of the Committee on Finance on S. 490, S. Rep.

100-71, at 135 (1987). “The basic need for the

amendment arises from the lengthy period provided

by present law—one year for investigations and no

time limit for decisions by the President—before

actions to remove a threat posed by imports of

particular products to the national security are taken.

For example, in the machine tools case, the President

waited over 2½ years before taking any action to assist

the domestic industry.” Id. “The Committee [on

Finance] believes that if the national security is being

affected or threatened, this should be determined and

acted upon as quickly as possible.” Id.

At least arguably, the legislative history

defendants cite, and the quoted Senate report, are

consistent with a view that Congress could have

intended that the President retain “modification”

authority such as defendants posit, so long as he

73a

imposes an initial measure within the time limits. But

Section 232(c)(1) as effected by the 1988 amendments

unambiguously placed time limits on the President’s

authority to adjust imports of derivatives as well as

the imports of the investigated article. Were there

intent to retain the authority to impose subsequent

measures to adjust imports of derivatives after the

expiration of the 105-day period, we would expect to

see at least some indication of that intent in the

legislative history. However, we find nothing in the

legislative history to indicate that Congress intended

to do so. Such indications as we are able to find are to

the contrary. The conference agreement on the

Omnibus Trade and Competitiveness Act of 1988

summarizes the amendment to Section 232 as follows:

Amends section 232 of the Trade

Expansion Act of 1962 to require the

Secretary of Commerce to report to the

President within 270 days of initiating an

investigation.

Requires the Secretary of Commerce to

consult with the Secretary of Defense

regarding the methodological and policy

questions raised by the investigation;

and requires the Secretary of Defense,

upon request of the Commerce Secretary,

to provide defense requirements with

respect to the article under investigation.

Requires the President to decide, within

90 days of receiving the Commerce

Secretary’s report, on whether to take

74a

action and if so to proclaim such action

within 15 days.

D. Requires the President to report to

Congress within 30 days on the action

taken and reasons for such action.

E. Authorizes the enforcement of the

quantitative restrictions negotiated with

respect to machine tool imports.

Summary of the Conference Agreement on H.R. 3, The

Omnibus Trade and Competitiveness Act of 1988 at

15–16 (Comm. Print 1988). The use of the words

“proclaim such action” in paragraph C, above, casts

further doubt on defendants’ expansive and flexible

interpretation of the word “implement” as used in 19

U.S.C. § 1862(c)(1)(B). “Proclaim” is the verb form of

the noun “proclamation,” and “proclaim such action” is

inconsistent with an interpretation under which

Congress intended the President to have authority to

proclaim additional “actions” indefinitely (through

subsequent proclamations), after the time period had

passed.

In summary, we view defendants’ argument on

legislative history as confusing an apparent

motivation with the specific statutory means Congress

chose to achieve its objective, which is reflected in the

plain meaning of the language of the amendments.

The solution Congress adopted was to require,

generally, that the President implement an import

adjustment (whether on the investigated article or on

that article and its derivatives) within the 105-day

time period following receipt of the report the

Secretary submits under Section 232(b)(3)(A) (with

75a

the limited “trade agreement” exception discussed

previously). The statute did not provide general

authority for the President to take, or implement,

another “action” (or actions) on derivatives after that

time period elapsed.

According to defendants, “[t]hat the statute also

involves foreign affairs and national security cautions

against an inflexible reading” of the provisions

governing the exercise of the President’s Section 232

authority. Defs.’ Mot. 33. In support of this argument,

they cite B-West Imports, Inc. v. United States, 75 F.3d

633, 636 (Fed. Cir. 1996), Florsheim, 744 F.2d at 793,

and American Ass’n of Exporters & Importers-Textile

& Apparel Grp. v. United States, 751 F.2d 1239, 1248

(Fed. Cir. 1985). While the statutory interpretation

principle defendants identify is a valid one, it does not

serve the arguments they make in favor of their

particular interpretation of Section 232. As we have

explained, there is no “flexible” reading of Section

232(c)(1) that suffices to allow the President to adjust,

through new tariffs, imports of derivatives of

previously-affected articles outside of the time limits

Congress imposed, and the appellate decisions on

which defendants rely do not lend support to any such

reading.

In B-West Imports and in Florsheim Shoe Co., the

Court of Appeals addressed interpretations of statutes

conferring Presidential authority in matters involving

import regulation. Each of these cases rejected an

appellant’s statutory interpretation that was plainly

unreasonable. B-West Imports held that a provision in

the Arms Export Control Act, 22 U.S.C. § 2778, which

granted the President authority to “control” arms

76a

imports, encompassed the authority to revoke

previously-issued permits for importations of

munitions from the People’s Republic of China. The

Court of Appeals rejected the interpretation of § 2778

advanced by appellants, who conceded that the term

“‘control’ is broad enough to allow the President to ban

imports by denying licenses or permits for future

imports.” 75 F.3d at 635. The opinion states that “if

the term ‘control’ includes the power to prohibit, as

appellants concede that it does, we are unable to

discern any basis for construing the statute to convey

the power to deny permits and licenses in advance, but

to withhold the power to revoke them once they have

been issued.” Id. at 636. The case did not involve an

attempt to invoke delegated authority to adjust

imports that was claimed to have expired. Florsheim

Shoe Co. rejected an importer’s challenge to an action

by the President that withdrew duty-free treatment

provided under the Generalized System of Preferences

(“GSP”) program for certain leather articles from

India. The Court of Appeals, upon interpreting

statutory language providing that “[t]he President

may withdraw, suspend, or limit the application of the

duty-free treatment accorded under section 2461 of

this title with respect to any article or with respect to

any country . . . ,” 19 U.S.C. § 2464 (1982) (amended to

19 U.S.C. § 2463(c)(1) (1996)), rejected appellant’s

argument that “the President may only limit duty-free

treatment for a particular article from all countries or

for all articles from a particular country” and therefore

lacked authority to withdraw duty-free treatment

from a specific article from a particular beneficiary

country. 744 F.2d at 794. The Court of Appeals

77a

viewed appellant’s argument as based on an “overemphasis on the word ‘or’” in § 2464 that was at odds

with the overall provision. In the instant case,

plaintiff advocates a “plain meaning” construction of

Section 232(c)(1), rather than one such as that

advocated in Florsheim Shoe Co., which was a strained

interpretation of a provision delegating tariff

authority to the President that failed to recognize that

the greater power the provision granted must be read

to include the lesser.

The third decision defendants cite, American

Ass’n of Exporters & Importers-Textile & Apparel Grp.,

adjudicated, and rejected, claims that an

administrative agency, the Committee on the

Implementation of Textile Agreements, “failed to

abide by its statutory authority,” “acted arbitrarily,”

and violated “the statutory and constitutional rights”

of members of plaintiff’s organization “to have notice

of the proposed actions and an opportunity to be

heard.” 751 F.2d at 1246. In disposing of appellant’s

“statutory authority” claim, the Court of Appeals

disagreed with a narrow construction of section 204 of

the Agricultural Act of 1956, under which the

President negotiated agreements on importations of

textiles and textile products. The Court of Appeals

rejected the argument that Congress, in authorizing

the President “to issue regulations governing the entry

or withdrawal from warehouse of any such commodity,

product, textiles, or textile products to carry out such

agreements,” 7 U.S.C. § 1854 (1982), “intended to

incorporate the terms of any agreements concluded

pursuant to section 204 into that statute itself.” 751

F.2d at 1241, 1247 (footnote omitted). The Court

78a

reasoned that the statutory phrase “to carry out” as

used in § 1854 “does not imply that Congress

restricted the President’s discretion in this regard by

requiring him to implement the agreements in the

particular manner seen by appellant” but rather “is a

broad grant of authority to the President in the

international field in which congressional delegations

are normally given a broad construction.” Id. This

case, in contrast, does not involve delegated authority

to promulgate implementing regulations, and there is

no “broad construction” of the express time limitations

in Section 232(c)(1) that plausibly supports

defendants’ argument.

In summary, the action taken by Proclamation

9980 to adjust imports of derivatives was not

implemented during the 105-day time period set forth

in § 1862(c)(1), if that time period is considered to have

commenced upon the President’s receipt of the Steel

Report. The President’s having characterized the

articles affected by Proclamation 9980 as “derivatives”

of the steel products affected by Proclamation 9705 is,

therefore, insufficient by itself to support a conclusion

that Proclamation 9980 was timely according to

Section 232(c)(1).

We turn next to defendants’ second argument,

which is that the statutory deadlines in Section

232(c)(1) are directory, not mandatory, an argument

apparently in the alternative to their argument that

the President complied with all procedural

requirements. Defs.’ Mot. 35. They maintain that

where Congress did not expressly state the

consequences of failures to meet deadlines, the

deadlines ordinarily should not be construed as

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mandatory, and the court should so construe them

here. But as we pointed out above, accepting this logic

would require us to conclude that Congress

established the time limitations, which were central to

the 1988 amendments and related to other procedural

requirements imposed by those amendments, while at

the same time intending that these limitations would

have no binding effect on the exercise of the

President’s discretion. It also would require us to

conclude that the President could take virtually any

action he chose, even one adjusting imports of

products that are not derivatives of those affected by

an earlier action, despite the express time limitations

in Section 232(c)(1).

Such an interpretation

essentially renders Section 232(c)(1), as added by the

1988 amendments, a nullity. As the court has

explained, the plain meaning and structure of Section

232 are to the contrary.

The aforementioned Section 232(c)(3), another

provision added by the 1988 amendments, also is

inconsistent with an interpretation that the Section

232(c)(1) time limitations are merely directory. As the

court has discussed, this alternate procedure applies

when the President determines that the appropriate

“action” is to seek a trade agreement limiting or

restricting the importation into, or exportation to, the

United States of “the article that threatens to impair

national security.” 19 U.S.C. § 1862(c)(3)(A)(i). But it

is axiomatic that when interpreting a statute, a court

is to give effect to every word and every provision. See

Duncan v. Walker, 533 U.S. 167, 174 (2001) (“It is our

duty ‘to give effect, if possible, to every clause and word

of a statute.’”) (citing United States v. Menasche, 348

80a

U.S. 528, 538–39, (1955)); see also Williams v. Taylor,

529 U.S. 362, 404, (2000) (describing the above rule as

the “cardinal principle of statutory construction”). The

procedure Congress spelled out in detail in Section

232(c)(3) would appear to be rendered superfluous if

the time limitations in Section 232(c)(1) were

interpreted to have no binding effect. In summary,

defendants’ conception of a “flexible” statutory scheme

under which the Section 232(c)(1) time limits are

merely directory is inconsistent with the elaborate

procedural mechanisms Congress included to ensure

oversight generally, and to provide, specifically, for the

special situation arising from the President’s

negotiation of a trade agreement.

In support of their argument that the time

limitations in Section 232(c)(1) are merely directory,

defendants cite Barnhart v. Peabody Coal Co., 537

U.S. 149, 159 (2003) (citing United States v. James

Daniel Good Real Property, 510 U.S. 43, 63 (1993)),

Hitachi Home Elecs., Inc. v. United States, 661 F.3d

1343, 1345–46 (Fed. Cir. 2011), Gilda Industries, Inc.

v. United States, 622 F.3d 1358, 1365 (Fed. Cir. 2010),

and Canadian Fur Trappers Corp. v. United States,

884 F.2d 563, 566 (Fed. Cir. 1989). Defs.’ Mot. 35.

These cases are inapposite. They did not involve an

express limitation Congress imposed on the delegation

to the Executive Branch of a legislative power the

Constitution vested in the Congress. See U.S. CONST.

art. I, § 8, cl. 1 (conferring the power to lay and collect

Duties) & cl. 3 (conferring the power to regulate

commerce with foreign nations). In each, the Supreme

Court or the Court of Appeals, using established

methods of statutory interpretation, concluded that

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Congress intended for the time limitation at issue to

be merely directory. We approach the issue in this

case not by applying a blanket presumption as to

whether a deadline is directory or mandatory, as

defendants would have us do, but by examining the

statute as a whole, giving effect to “every clause and

word,” Duncan, 533 U.S. at 174, to discern

congressional intent as to the statutory time limits in

question. Here, the nature of the delegation (a

delegation of a legislative power reserved by the

Constitution to the Congress), the plain meaning of

Section 232(c)(1), and the indicia of congressional

intent appearing elsewhere in Section 232 preclude us

from concluding that the time limits are merely

directory.

Barnhart v. Peabody Coal Co. arose from a

statutory requirement in the Coal Industry Retiree

Health Benefit Act of 1992, 26 U.S.C. § 9706(a) (“Coal

Act”), that the Secretary of Labor assign, before

October 1, 1993, retired coal miners whose former

employers were no longer in business to extant

“signatory operators,” who would assume the annual

premium obligations for those retirees’ benefits. After

the Department of Labor was unable to complete the

lengthy assignment process by the statutory due date,

it proceeded to assign some 10,000 previouslyunassigned beneficiaries to signatory operators. 537

U.S. at 155–56. The issue in the case was whether

those assignments were valid regardless of the

untimeliness of the Department’s actions. From a

comprehensive examination of the Coal Act, including

the legislative purpose of requiring the assignments

and the consequence of holding assignments made

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after the deadline to be invalid, which the Court

considered to be contrary to the overall intent of the

statute, the Court held that the statutory date for the

assignments did not invalidate the subsequent

assignments. Id. at 172 (“The way to reach the

congressional objective, however, is to read the

statutory date as a spur to prompt action, not as a bar

to tardy completion of the business of ensuring that

benefits are funded, as much as possible, by those

identified by Congress as principally responsible.”).

The case at bar does not present an analogous

situation. Rather than spur agency action to complete

a complex administrative task such as that required

by the Coal Act, Congress endeavored in the 1988

amendments to Section 232 to impose new controls,

through time limitations and reporting requirements,

on the exercise of Presidential discretion.

Hitachi Home Elecs., Inc. involved the

requirement in Section 515(a) of the Tariff Act that

Customs and Border Protection act on a protest within

two years. Rejecting the plaintiff’s argument that a

protest not acted upon within the two-year period is

“deemed allowed,” the Court of Appeals noted that a

protestant desiring to obtain expeditious allowance or

denial, or alternatively judicial review, may seek

accelerated disposition under Section 515(b). 661 F.3d

at 1348–49. Nothing in the Tariff Act even suggested

congressional intent that a protest not acted upon

during the two-year period should be deemed to have

been allowed, and the provision for accelerated

disposition is contrary to such an intent.

Gilda Industries, Inc. held that a failure of the

U.S. Trade Representative to make a notification

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required by 19 U.S.C. § 2417(c)(2) to be made to

domestic parties of the impending termination of a

retaliatory trade action occurring by operation of

§ 2417(c)(1) four years after its imposition, in the

absence of a written request from a domestic party for

continuation, did not nullify the statutorily-required

termination. Under the reasoning of the Court of

Appeals, the termination of the retaliatory trade

action on the four-year anniversary date, absent a

continuation request by a party already on notice of

the termination, was unaffected by the absence of the

notification required by § 2417(c)(2). 622 F.3d at 1365.

Canadian Fur Trappers Corp. involved a previous

version of Section 504(d) of the Tariff Act, which

directed the Customs Service to liquidate an entry

within 90 days of removal of a suspension of

liquidation but did not provide a consequence for a

failure by the Customs Service to do so. The Court of

Appeals rejected the importers’ argument that such

failure resulted in a deemed liquidation at the entered

duty rate, a highly consequential result for which the

statute did not then provide. 884 F.2d at 566.

In summary, we are not convinced by either of the

two arguments defendants put forth to support their

motion to dismiss plaintiff’s Count 2 claim. The

President’s characterization of the articles affected by

Proclamation 9980 as derivatives of the articles

affected by Proclamation 9705 is insufficient, by itself,

to support a conclusion that the challenged decision

satisfied the time limitations in Section 232(c)(1), and

Congress did not intend for those time limits to be

merely directory. Count 2 of plaintiff’s complaint

states “a claim to relief that is plausible on its face,”

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Twombly, 550 U.S. at 570, and we decline to dismiss it

at this stage of the proceedings.

D. Plaintiff’s Motion for Summary Judgment

PrimeSource characterizes its motion as a USCIT

Rule 56 motion for summary judgment, Pl.’s Br. 1

(moving pursuant to USCIT Rule 56 “because there is

no genuine dispute as to any material fact and

PrimeSource is entitled to judgment as a matter of

law”). Nevertheless, it appears that plaintiff also is

moving for relief under USCIT Rule 56.1 (“Judgment

on an Agency Record for an Action Other Than That

Described in 28 U.S.C. § 1581(c)(1)”). Plaintiff refers

to its motion as a “Motion for Judgment on the Agency

Record,” Pl.’s Br. 50, and in this way identifies its

motion as one brought under USCIT Rule 56.1. To

date, neither plaintiff nor defendants have raised the

question of whether an administrative agency record

will be relevant to this litigation.

Rule 56.1 applies when “a party believes that the

determination of the court is to be made solely on the

basis of the record made before an agency.” USCIT R.

56.1(a). Certain of the claims we have dismissed in

this litigation were APA claims, which we dismissed

for the reason discussed above, which is that there is

no final agency action that may be contested under the

APA. The remaining claim, that of Count 2, is not an

APA claim as it contests an action of the President, not

an agency action. Therefore, we consider plaintiff’s

motion as a Rule 56 motion for summary judgment,

not a motion under Rule 56.1. But it does not

necessarily follow that an agency record will be

irrelevant to this proceeding or that individualized

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procedures similar to those specified under Rule 56.1

will not be useful as this litigation proceeds.

Under USCIT Rule 56(a), the burden is on the

moving party to show “that there is no genuine dispute

as to any material fact and the movant is entitled to

judgment as a matter of law.” At this pleading stage

of the litigation, we cannot conclude that plaintiff has

met this burden. To declare Proclamation 9980

invalid, and on that basis enter summary judgment in

plaintiff’s favor, we must find “a clear misconstruction

of the governing statute, a significant procedural

violation, or action outside delegated authority.”

Maple Leaf Fish Co., 762 F.2d at 89. As we discussed

previously, defendants conceded that Proclamation

9980 was not based on a report, other than the Steel

Report, that was designated as a report issued

pursuant to Section 232(b)(3)(A). This concession was

relevant to our conclusion that Proclamation 9980 was

not issued within the time period imposed by Section

232(c)(1), if that time period is deemed to have begun

with the President’s receipt of the Steel Report. But

at this stage of the litigation, we cannot conclude that

the time period imposed by Section 232(c)(1)

necessarily began on January 11, 2018, the date the

Steel Report was received by the President. Therefore,

we are not now able to determine whether or not the

claim in Count 2 is validly based on a “significant

procedural violation,” Maple Leaf Fish Co., 762 F.2d at

89.

Although Proclamation 9980 was issued long after

the 105-day period beginning with the receipt of the

Steel Report, it also was issued pursuant to what

Proclamation 9980 describes as an “assessment” (or

86a

“assessments”)

the

Commerce

Secretary.

Proclamation 9980 states that “[i]t is the Secretary’s

assessment that foreign producers of these derivative

articles have increased shipments of such articles to

the United States to circumvent the duties on

aluminum articles and steel articles imposed in

Proclamation 9704 and Proclamation 9705, and that

imports of these derivative articles threaten to

undermine the actions taken to address the risk to the

national security . . . .” Proclamation 9980 ¶ 8, 85 Fed.

Reg. at 5,282 (emphasis added). It further states that

“[t]he Secretary has assessed that reducing imports of

the derivative articles . . . would reduce

circumvention” and identifies the reduction of those

imports as a measure to address the threatened

impairment of the national security. Id. (emphasis

added). The Proclamation states that the adjustment

of the tariffs on the derivative articles is being taken

“[b]ased on the Secretary’s assessments.” Id. ¶ 9, 85

Fed. Reg. at 5,283 (“Based on the Secretary’s

assessments, I have concluded that it is necessary and

appropriate in light of our national security interests

to adjust the tariffs imposed by previous

proclamations to apply to the derivatives of aluminum

articles and steel articles described in Annex I and

Annex II to this proclamation.”) (emphasis added).

The Secretary of Commerce is the official Section

232 identifies as having the responsibility of

conducting a Section 232(b) investigation and

preparing a Section 232(b)(3)(A) report. Proclamation

9980 did not characterize as a “report” submitted

under Section 232(b)(3)(A) the communication or

communications by which the Secretary of Commerce

87a

transmitted his recommendation to the President to

adjust tariffs on the aluminum and steel products

Proclamation 9980 identified. Nevertheless, it is clear

from the text of Proclamation 9980 that the Secretary

of Commerce undertook certain preparations prior to

the President’s action and also that the Secretary

made a recommendation relating to the subject matter

of Section 232(b)(3)(A) (“If the Secretary finds that

such article is being imported into the United States

in such quantities or under such circumstances as to

threaten to impair the national security, the Secretary

shall so advise the President in such report.”).

Even though the Secretary’s communications to

the President on derivative articles were not

designated in Proclamation 9980 as having been made

pursuant to Section 232(b)(3)(A), we are not in a

position to ascertain the extent to which these

communications nevertheless met the fundamental

requirements of Section 232(b)(3)(A), for the

straightforward reason that those communications,

and any related records, are not before us. Although

concluding that Proclamation 9980 was untimely

under Section 232(c)(1) when viewed solely as an

action taken in response to the Steel Report, we also

conclude that there are genuine issues of material fact

that bear on the extent to which the subsequent

“assessment” or “assessments” of the Commerce

Secretary identified in Proclamation 9980 validly

could be held to have served a function analogous to

that of a Section 232(b)(3)(A) report. Nor do we know

what form of inquiry or investigation, if any, the

Commerce Secretary conducted prior to his

submission of these communications to the President

88a

and whether, or to what extent, any such inquiry or

investigation satisfied the essential requirements of

Section 232(b)(2)(A), 19 U.S.C. § 1862(b)(2)(A).

We do not imply that the Secretary’s actions are

judicially reviewable in this case. We conclude instead

that factual information pertaining to the Secretary’s

communicating to the President on the derivative

articles would be required in order for us to examine

whether, and to what extent, there was or was not

compliance by the President with the procedural

requirements of Section 232 and whether any

noncompliance that occurred was a “significant

procedural violation,” Maple Leaf Fish Co., 762 F.2d at

89. Moreover, at this early stage of the litigation, we

lack a basis to presume that these unresolved factual

issues are unrelated to the issue of whether the

President clearly misconstrued the statute or the issue

of whether the President took action outside of his

delegated authority.

In summary, there remain genuine issues of

material fact precluding us from granting plaintiff’s

motion for summary judgment, and as a result

plaintiff has not met the burden required to obtain a

judgment in its favor on its Count 2 claim. It would

appear that the filing of a complete administrative

record could be a means of resolving, or helping to

resolve, these factual issues, but rather than directing

a specific procedure, we believe it advisable that the

parties first consult on these matters and report to the

court on a scheduling order that will govern the

remainder of this litigation.

III. CONCLUSION AND ORDER

89a

We grant the government’s motion to dismiss as

to Counts 1, 3, 4, and 5 of the amended complaint and

deny it as to Count 2. We deny plaintiff’s motion for

summary judgment as to Count 2 because plaintiff has

not met the burden of showing “that there is no

genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.”

USCIT R. 56(a). Therefore, upon consideration of all

papers and proceedings herein, and upon due

deliberation, it is hereby

ORDERED that the claims stated as Counts 1, 3,

4, and 5 of the amended complaint be, and hereby are,

dismissed for failure to state a claim on which relief

can be granted; it is further

ORDERED that plaintiff’s motion for summary

judgment be, and hereby is, denied with respect to the

claim stated in Count 2 of the amended complaint; it

is further

ORDERED that the parties shall consult and

submit to the court, by February 26, 2021, a joint

schedule to govern the remainder of this litigation;

and it is further

ORDERED that if the parties are unable to agree

upon a schedule, each shall submit a proposed

schedule by February 26, 2021 that includes a

justification for its position.

/s/ TIMOTHY C. STANCEU

Timothy C. Stanceu, Chief Judge

/s/ JENNIFER CHOE-GROVES

Jennifer Choe-Groves, Judge

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Dated: January 27, 2021

New York, New York

BAKER, Judge, concurring in part and dissenting

in part:

I respectfully dissent from my colleagues’

parrying the question of whether we have subjectmatter jurisdiction over claims against the President.

In my view, both Federal Circuit precedent and the

separation of powers compel that we sua sponte raise

the question and then dismiss him from the case.

On the merits, I concur in my colleagues’ decision

to grant the government’s motion to dismiss (and deny

PrimeSource’s cross-motion for summary judgment as

to) Counts 1, 3, and 4 of the amended complaint and

therefore join the majority opinion’s discussion of

those claims. I also concur in dismissing (and denying

PrimeSource’s cross-motion as to) Count 5 but write

separately to explain my views on why that claim fails.

Finally, although I concur in my colleagues’ denial

of PrimeSource’s cross-motion for summary judgment

as to Count 2 of the amended complaint, my reasons

differ, and I respectfully dissent from their denial of

the government’s motion to dismiss that claim, which

alleges that the President violated Section 232 by

imposing tariffs on steel derivative products after the

statutory implementation deadline.

In my view, if the President timely implements

Section 232 action to restrict imports—and there is no

dispute that the President did so in the original

Proclamation 9705 restricting steel articles—the

91a

statute also permits him to later modify such

restrictions, and that modification power is

coextensive with the original power to act in the first

instance. Because the President could have also acted

as to steel derivatives when he initially restricted steel

article imports in Proclamation 9705, Section 232

permitted him to later extend those restrictions to

derivatives. I would therefore grant the government’s

motion to dismiss Count 2 for failure to state a claim.

Statutory and Factual Background

A. Section 232

As its title indicates, Section 232 of the Trade

Expansion Act of 1962, as amended, authorizes the

President to impose import restrictions to

“[s]afeguard[ ] national security.” 19 U.S.C. § 1862. In

short, the statute directs that in various

circumstances, the Secretary of Commerce is to

investigate the national security effects of specified

imports. Id. § 1862(b)(1)(A).

Once the Secretary initiates an investigation, the

statute prescribes the following steps:

•

The Secretary is to give the Secretary of

Defense

immediate

notice

the

investigation, id. § 1862(b)(1)(B), and is

then to consult with him about “the

methodological and policy questions raised

in any investigation,” id. § 1862(b)(2)(A)(i).

The Secretary is to “seek information and

advice from, and consult with, appropriate

officers of the United States.” Id.

§ 1862(b)(2)(A)(ii).

92a

•

“[I]f it is appropriate and after reasonable

notice,” the Secretary is to “hold public

hearings or otherwise afford interested

parties an opportunity to present

information and advice relevant to such

investigation.” Id. § 1862(b)(2)(A)(iii). In

other words, hearings or other opportunity

for comment are not mandatory.

The Secretary may also ask the Secretary

of Defense to assess “the defense

requirements of any article that is the

subject of an investigation.”

Id.

§ 1862(b)(2)(B).

Section 232 requires the Secretary to submit a

report to the President by no later than the date that

is 270 days after the date on which the investigation

commenced. Id. § 1862(b)(3)(A).1 The report is *1363

to discuss “the effect of the importation of such article

in such quantities or under such circumstances upon

the national security” and to set forth the Secretary’s

recommendations for action or inaction; in addition, if

the Secretary believes the importation threatens “to

impair the national security,” the report must so state.

Id.

If the Secretary finds a threat to national security,

the President then has 90 days to determine whether

The statute directs that in executing their duties, the

Secretary and the President are to keep in mind, among other

things, various enumerated considerations bearing on national

security. See 19 U.S.C. § 1862(d).

93a

he “concurs” with the Secretary’s finding.

Id.

§ 1862(c)(1)(A)(i). If he so concurs, the President must

determine the nature and duration of the

action that, in the judgment of the President,

must be taken to adjust the imports of the

article and its derivatives so that such

imports will not threaten to impair the

national security.

Id. § 1862(c)(1)(A)(ii).2

The statute further directs that if the President

determines to take action to restrict imports to protect

national security, he must “implement” that action

within 15 days of determining to do so.

Id.

§ 1862(c)(1)(B). Taken together, the two deadlines (to

“determine” and then to “implement”) give the

President 105 days to act after receiving the

Secretary’s report.

If the President’s action is to attempt to negotiate

an agreement restricting the imports in question, the

statute provides that if such an agreement is not

reached within 180 days of his decision, id.

§ 1862(c)(3)(A)(ii)(I), or if such an agreement, having

been reached, is “not being carried out or is

ineffective,” § 1862(c)(3)(A)(ii)(II), the President may

“take such other actions as [he] deems necessary to

The statute also requires the President to submit a written

statement to Congress within 30 days of his determination

explaining his reasons for acting or declining to act on the

Secretary’s report. 19 U.S.C. § 1862(c)(2).

94a

adjust imports of such article so that they do not

threaten national security. Id. § 1862(c)(3)(A)(ii).3

B. Proclamation 9705’s steel tariffs

Following a Section 232 investigation, the

Secretary here issued a report finding that steel

imports threatened national security.4 Based on this

report, in 2018 the President issued Proclamation

9705, which imposed 25 percent duties on imported

raw steel. See Proclamation No. 9705 of March 8,

2018, Adjusting Imports of Steel into the United States,

83 Fed. Reg. 11,625 (Mar. 15, 2018). The proclamation

further directed the Secretary to monitor steel imports

and their effect on national security and, after

appropriate consultations with other Executive

Branch officials, inform the President of “any

circumstances that . . . might indicate” the need for

further Section 232 duties or that “the increase in duty

rate provided for in this proclamation is no longer

necessary.” Id. at 11,628.

The statute further requires that when there has been such a

failure to conclude an agreement restricting imports or that such

an agreement, if reached, was ineffective, the President must

publish in the Federal Register notice of either (1) any such

“additional actions” taken, see 19 U.S.C. § 1862(c)(3)(A)(ii), or (2)

his determination not to take any such additional actions. See id.

§ 1862(c)(3)(A)(B).

See generally U.S. Dep’t of Commerce, Bureau of Industry &

Security, The Effect of Imports of Steel on the National Security

(Jan. 11, 2018),

https://www.bis.doc.gov/index.php/documents/steel/2224-theeffect-of-imports-of-steel-on-the-national-security-withredactions-20180111/file, 85 Fed. Reg. 40,202 (Dep’t Commerce

July 6, 2020).

95a

C. Proclamation 9980’s extension of tariffs

to steel derivative products

On January 24, 2020, the President issued

Proclamation 9980, which stated that the Secretary

had informed him as follows:

[I]mports of certain derivatives of steel

articles have significantly increased since the

imposition of the tariffs and quotas [in

Proclamation 9705]. The net effect of the

increase of imports of these derivatives has

been to erode the customer base for U.S.

producers of . . . steel and undermine the

purpose of the proclamations adjusting

imports of . . . steel articles to remove the

threatened impairment of the national

security.

Proclamation No. 9980 of January 24, 2020, Adjusting

Imports of Derivative Aluminum Articles and

Derivative Steel Articles into the United States, 85 Fed.

Reg. 5281, 5282 (Jan. 29, 2020). The President further

explained that the Secretary had advised him that

foreign producers of steel derivative products had

“increased shipments of such articles to the United

States to circumvent . . . Proclamation 9705.” Id.

Based on that information and recommendation

from the Secretary, the President extended

Proclamation 9705’s 25-percent duties to certain steel

derivative products (e.g., steel nails) not previously

addressed by the Secretary’s report on steel article

96a

imports or by Proclamation 9705. Id. at 5283.5 The

government

implicitly

concedes

that

unlike

Proclamation 9705, Proclamation 9980 was not

preceded by a Section 232 investigation and report by

the Secretary. See ECF 60, at 49 (“The Secretary was

not required to conduct another investigation or to

follow the procedures for an investigation . . . .”); ECF

78, at 37 (referring to PrimeSource’s “incorrect belief

that the President had to request an entirely separate

investigation . . .”).

D. This suit and the pending motions

Plaintiff PrimeSource Building Products, Inc.,

brought this suit challenging Proclamation 9980. ECF

1.6 PrimeSource’s amended complaint alleges that it

is an importer of steel nails injured by duties imposed

by Proclamation 9980. ECF 22, at 7–10.7 An affidavit

of a PrimeSource executive attached to its amended

complaint provides evidentiary substantiation of these

allegations. ECF 22-1, at 16–17.

Proclamation 9980 also extended tariffs to certain aluminum

article derivatives not at issue in this case

Chief Judge Stanceu thereafter assigned this case to this

three-judge panel. See 28 U.S.C. § 255(a) (authorizing the chief

judge to designate a three-judge panel to hear and determine any

civil action which “(1) raises an issue of the constitutionality of .

. . a proclamation of the President . . .; or (2) has broad or

significant implications in the administration or interpretation of

the customs laws.”). Chief Judge Stanceu concurrently assigned

several other related cases challenging Proclamation 9980 to the

same panel

In this opinion, pagination references in citations to the Court

record are to the pagination found in the ECF header at the top

of each page.

97a

PrimeSource’s amended complaint names the

United States, the President, the U.S. Department of

Commerce, the Secretary of Commerce, U.S. Customs

and Border Protection, and the Acting Commissioner

of Customs as defendants. ECF 22, at 7.

PrimeSource asserts the following claims: Count

1—an Administrative Procedure Act claim based on

the Secretary’s alleged violations of Section 232’s

procedural requirements, id. at 19–21; Count 2—a

nonstatutory review claim based on the President’s

alleged violation of Section 232’s procedural

requirements, id. at 22; Count 3—a due process claim

based on the President’s alleged actions, id. at 22–23;

Count 4—a constitutional claim based on Congress’s

alleged overdelegation of authority to the President in

Section 232, id. at 23–24; and Count 5—a

nonstatutory review claim based on the Secretary’s

alleged violations of Section 232’s procedural

requirements, id. at 24.

PrimeSource requests that the Court “[e]njoin

Defendants from implementing or further enforcing

Proclamation 9980,” “declare Proclamation 9980

unlawful,” and order a “[r]efund to PrimeSource [of]

any duties that may be collected on its imported

articles pursuant to Proclamation 9980.” Id. at 25.

The government moves to dismiss for failure to

state a claim, see USCIT R. 12(b)(6). ECF 60.

98a

PrimeSource opposes and cross-moves for summary

judgment, see USCIT 56. ECF 73.8

Analysis

We have no jurisdiction to enter relief

directly against the President and

should dismiss him from the case.

In my view, we should dismiss the President as a

party for two separate and independent reasons. 9

The affidavit attached to the amended complaint establishes

PrimeSource’s constitutional standing for purposes of its crossmotion for summary judgment.

My colleagues avoid the jurisdictional issue, stating “we do

not construe the claim in Count 2 [the lone claim surviving

today’s decision] as a claim against the President. The claim is

directed against Proclamation 9980 itself, not the President,

against whom no remedy is sought.” Ante at 1344 n.4.

Unfortunately, we cannot so easily wish this jurisdictional

problem away. The President, not Proclamation 9980, is a

defendant in this litigation. Count 2, which alleges that

Proclamation 9980 is invalid, is merely a legal claim asserted

against the President and the other defendants. See ECF 22, at

22. As relief for this claim, PrimeSource requests that the Court

issue a declaratory judgment and injunction against all

defendants, including the President. Id. at 25. There is no

plausible basis upon which to state that Count 2 is directed

against every defendant except the President, or that—even if we

withhold injunctive relief against the President—any declaratory

relief that we might ultimately grant would merely apply against

Proclamation 9980, as opposed to the defendants, including the

President. Declaratory relief under 28 U.S.C. § 2201 binds

parties, not things. See Restatement (Second) of Judgments § 33

(1982) (“A valid and final judgment in an action brought to

declare rights or other legal relations of the parties is conclusive

in a subsequent action between them as to the matters declared,

99a

First, the statute giving us jurisdiction to hear this

case does not confer jurisdiction over such claims.

Second, even if our jurisdictional statute permitted us

to award relief against the President, the separation

of powers does not.

Although the government has not questioned our

jurisdiction to enter relief against the President, our

subject-matter jurisdiction, like standing, “is not

dispensed in gross.” Lewis v. Casey, 518 U.S. 343, 358

n.6 (1996). Jurisdiction must exist as to “each claim” a

plaintiff “seeks to press and for each form of relief that

is sought.” Town of Chester, N.Y. v. Laroe Estates, 137

S. Ct. 1645, 1650 (2017) (quoting Davis v. FEC, 554

U.S. 724, 734 (2008)).

Thus, we have an independent obligation to

determine

whether

have

subject-matter

jurisdiction to enter relief directly against the

President, see Arbaugh v. Y&H Corp., 546 U.S. 500,

514 (2006) (federal courts have an independent duty to

examine their jurisdiction), even though the practical

consequences of our decision may be the same because

we can enjoin the President’s subordinates from

executing his unlawful orders in limited situations

through nonstatutory review. 10

Cf. McGirt v.

and, in accordance with the rules of issue preclusion, as to any

issues actually litigated by them and determined in the action.”).

“Nonstatutory review” is “the type of review of

administrative action which is available, not by virtue of those

explicit review provisions contained in most modern statutes

which create administrative agencies, but rather through the use

of traditional common-law remedies—most notably, the writ of

100a

mandamus and the injunction—against the officer who is

allegedly misapplying his statutory authority or exceeding his

constitutional power.” 33 Wright & Miller, Federal Practice and

Procedure § 8304 (2d ed. 2020) (quoting Antonin Scalia, Sovereign

Immunity Nonstatutory Review of Federal Administrative Action:

Some Conclusions from the Public-Lands Cases, 68 Mich. L. Rev.

867, 870 (1969–70)).

Federal courts entertain claims for nonstatutory review

against the President’s subordinates to enjoin them from

enforcing allegedly unlawful Presidential orders. See Franklin v.

Massachusetts, 505 U.S. 788, 828 (1992) (Scalia, J., concurring)

(“Review of the legality of Presidential action can ordinarily be

obtained in a suit seeking to enjoin the officers who attempt to

enforce the President’s directive . . . .”). The Supreme Court has

assumed, but never directly recognized, the availability of such

nonstatutory review for claims against Presidential subordinates

based on the President’s alleged violation of a statutory mandate.

See Dalton v. Specter, 511 U.S. 462, 474 (1994) (“We may assume

for the sake of argument that some claims that the President has

violated a statutory mandate are judicially reviewable outside

the framework of the APA.”).

In the Federal Circuit, nonstatutory review claims against

Presidential subordinates for the President’s alleged violation of

a statute are “only rarely available,” Silfab Solar, Inc. v. United

States, 892 F.3d 1340, 1346 (Fed. Cir. 2018), and are limited to

whether the President has violated “an explicit statutory

mandate.” Id. (quoting Motions Sys. Corp. v. Bush, 437 F.3d

1356, 1361 (Fed. Cir. 2006) (en banc)); see also Maple Leaf Fish

Co. v. United States, 762 F.2d 86, 89 (Fed. Cir. 1985) (federal

court review of Presidential action under a statute is limited to

situations involving “a clear misconstruction of the governing

statute, a significant procedural violation, or action outside

delegated authority”). Thus, dismissal of the President from this

suit would not preclude us from granting declaratory and

injunctive relief against the President’s subordinates based on

his alleged violation of Section 232’s procedural requirements in

issuing Proclamation 9980.

101a

Oklahoma, 140 S. Ct. 2452, 2504 (2020) (Thomas, J.,

dissenting) (“The Court might think that, in the grand

scheme of things, this jurisdictional defect is fairly

insignificant. After all, we were bound to resolve this

. . . question sooner or later. But our desire . . . for . . .

convenience and efficiency must yield to the overriding

and time-honored concern about keeping the

Judiciary’s power within its proper constitutional

sphere.”) (cleaned up).

Our obligation to consider our jurisdiction is even

more pronounced in this case because the

Judiciary has the “responsibility to police the

separation of powers in litigation involving the

executive,” Cheney v. U.S. Dist. Ct. for D.C., 542

U.S. 367, 402 (2004) (Ginsburg, J., dissenting)

(cleaned up), even if, as here, the Executive

Branch declines to defend its own constitutional

prerogatives. The “separation of powers does not

depend on the views of individual Presidents, see

Freytag v. Comm’r of Internal Revenue, 501 U.S.

868, 879–80 (1991), nor on whether ‘the

encroached-upon

branch

approves

the

encroachment.’” Free Enter. Fund v. Pub. Co.

Acct. Oversight Bd., 561 U.S. 477, 497 (2010)

(quoting New York v. United States, 505 U.S. 144,

182 (1992)). The President “cannot . . . choose to

bind his successors by diminishing their powers.”

Id. The government’s failure to seek dismissal of

the President does not relieve us of our obligations

under the separation of powers.

A. Jurisdiction under 28 U.S.C. § 1581(i) does

not encompass claims against the

President.

102a

PrimeSource invokes 28 U.S.C. § 1581(i) as the

jurisdictional basis for this suit. ECF 22, at 4.11 In

2003, the Federal Circuit held that § 1581(i)

jurisdiction does not encompass claims against the

President, noting that while “the President’s actions

are subject to judicial review, it does not necessarily

follow that a claim for relief may be asserted against

the President directly.” Corus Grp. PLC v. ITC, 352

F.3d 1351, 1359 (Fed. Cir. 2003) (emphasis added).

The court recognized the principle that the APA does

not authorize an action directly against the

President12 and then explained as follows:

This reasoning seems equally applicable to

actions under 28 U.S.C. § 1581(i), which

refers only to actions “against the United

States, its agencies, or its officers” and does

not specifically include the President. We

conclude that section 1581(i) does not

authorize proceedings directly against the

President.

Since the complaint in this action relied solely

on section 1581 as the basis of jurisdiction,

The statute provides in relevant part that our Court “shall

have exclusive jurisdiction of any civil action commenced against

the United States, its agencies, or its officers, that arises out of

any law of the United States providing for,” inter alia, “(2) tariffs,

duties, fees, or other taxes on the importation of merchandise for

reasons other than the raising of revenue.” 28 U.S.C. § 1581(i).

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