Opposition — Consumers Union of United States, Inc. v. Committee for Implementation of Textile Agreements

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FILED’ |

| FEB 21 1978

MICHAEL RODAK, JR., CLERK

No. 77-785

» Guthe Sugreme Gourt of the United States

Ocroser Term, 1977

Consumzrs Union or Unrrep States, INC., PETITIONER

_ v. | :

CoMMITTEE FOR THE IMPLEMENTATION OF

TEXTILE AGREEMENTS, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO THB UNITED

ater OOURT OF APPEALS FOR THE DISTRICT OF COLUMBIA

* MEMORANDUM FOR THE RESPONDENTS IW OPPOSITION

WADE H. McOREE, J2.,

Sokoitor General,

of Justice,

‘ashington, D.0. 20580. -

Gn the Supreme Court of the Wnited States

OcroBEeR TERM, 1977

No. 77-785

ConsUMERS UNION OF UNITED StatTEs, INC., PETITIONER

v.

COMMITTEE FOR THE IMPLEMENTATION OF

TEXTILE AGREEMENTS, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

pit ot od COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA

IRCUIT

yD

MEMORANDUM FOR THE RESPONDENTS IN OPPOSITION

Petitioner brought this action in the United States

District Court for the District of Columbia, seeking

injunctive and declaratory relief against the adminis-

tration of the program imposing quotas on the impor-

tation of textiles and textile products into the United

States, pursuant to Section 204 of the Agricultural

‘Act of 1956, 70 Stat. 200, as amended, 7 U.S.C. 1854,

Petitioner sought to require the Committee for the Im-

(1)

2

plementation of Textile Agreements (CITA)' to make

reasoned determinations of the need to im

straints ‘on such impdrts and ‘to adopt Sith, pee

dural éonditions for imposing restraints, as Aa.

required by Section 204 of the Agricultural Act and

by Sections 3 and 4 of the Administrative Procedure

Act, as amended, 5 U.S.C. 552-553.

Respondents contended that the district court

lacked jurisdiction of this matter because exclusive

jurisdiction was vested in the customs court, that

petitioner lacked standing, and that the suit presented

a non-justiciable political question.

The district court. granted summary judgment

against petitioner (Pet, App. la-l5a). The court

held that it had jurisdiction to hedr the eave and that

petitioner had standing to sue, but it also held that

CITA’s statutory authority under Section 204 for

imposing quotas on textile imports falls within the

foreign affairs exception to the judicial] review pro-

visions of the Administrative Prsceduss Act, and

that the Exectitive Branch is not required to determine

the need for import restrictions before imposing sch

restrictions.

The court of appeals vacated the judgment o on ju-

tisdictional grounds atid ordered the action dismissed

*CITA jg an jnterdepartmental group of officials within the

Executive Branch, established by Executive Order 11651, 37 Fed.

Reg. 4699, and is responsible for supervising the implemen-

tation of all textile trade agreements between this and other coun-

tries. The Committee consists of representatives of the Depart-

ments of State, Treasury, Commerce, and Labor; the President’s

Special Representative for Trade Negotiations, or his designee, is

a non-voting member,

3

(Pet. App. 16a-2la; 561 K. 2d 872). The eourt held

that the Ao court hag exclusive, jurisdiction to

entertain challenges to, trade agreements, and that,

under. 28 U.S.C. 1340, the district, court, therefore had.

no "jurisdiction. The decision, of, the coprt of appeals

is correct and presents, no. issug. Warranting review

by, this, Court,

Ye,agree, with petitioner that, under 28 U.S.C. 1582,

“Customs Court jurisdiction is inxoked, only when ap

individual, protests a specific. administrative rujing

made. ata United. States port of entry, and, when that

protest has been denied.” Sneaker Circus, Inc. vy. Car-

ter, 5§6.F. 2d 396, 399, (C.A, 2). The keystone of, peti-

tioner’s argument here, is that, ‘‘under the challenged

restraint, programs, merchandise in excess. of the

quotas never comes to the United, States” because.

“that quota is allogated internally and, enforced by the.

exporting country,” (Pet, 18-19). Therefore, petitioner

argues, there can. never be a protest at the port of

entry, the customs court. does not haye jurisdiction,

‘and, hecause the district court must. have jurisdiction

if the customs court does not (see 28 U.S.C. 1340), its

suit,should have, been adjudicated.

Petitioner’s bald assertion that. merchandise “never

comes to, the, Ynited States’’ appears for the first time

in its, petition, for certiorari, It. was not alleged in

petitioner’s cqmplaint, or, at any, other, point before the

district eoyrt, nor, was it raised. in the court. of. ap-

peals,, It, certainly, does, not, fellow, fram. Section. 204.

of the, Agricultuyal Act of, 1996.or from any. program.

established..qr administered by,,CILA, If. petitioner

had properly raised this factual assertion, the United

BEST COPY AVAILABLE

4

States would have denied it and introduced evidence

that, under agreements of this type, goods often are

shipped to the United States in excess of agreed-on

quantities. A customs officer’s decision to exclude

these shipments is subject to protest, allowing ad-

judication in the customs court.

The source of petitioner’s statement is evidently the

decision of the Second Circuit in Sneaker Circus.

That court, citing specific provisions of Korean law,

held that restraints on imports of Korean and Chi-

nese footwear under the Trade Act of 1974 presented

“no occasion for protest under Section 514” because

violations of that program subjected exporters to

“heavy civil and criminal sanctions’”’ in the countries

where the goods would be manufactured, making

excess exports unlikely (566 F. 2d at 399). But that

ease is plainly distinguishable from this. It involved

exports, from two specific countries, of different com-

modities under a different program of restraints au-

thorized by a different Act and administered by a

different agency of the United States. Petitioner’s

substantive complaint is, in its own words, that

“CITA may not impose [the present] restrictions

[on textile imports] unless it first makes determina-

tion of actual or potential domestic market disruption,

in accordance with the implicit standards of Section

204 [of the Agricultural Act of 1956] and the basic

procedural requirements of the Administrative Proe

cedure Act”’ (Pet. 10). Sneaker Circus did not involve

CITA, textiles, the Agricultural Act, ot the Adminis-

trative Procedure Act, and therefore the Second Cir-

cuit’s statement that excessive footwear exports from

China or Korea would never reach this country to

trigger customs court jurisdiction, whether or not cor-

rect, has no application here, Petitioner simply can-

not transplant that statement of facts to this case, and

it certainly cannot do so for the first time at this late

stage of the litigation.

Without this factual shoring, petitioner’s case col-

lapses. Its assertion (Pet. 20) that the customs court

does not have equitable jurisdiction and thus cannot

render petitioner the relief it seeks is a non sequitur.

Although the customs court lacks equity jurisdiction,

it may entertain petitioner’s properly presented chal-

lenge to the validity of CITA’s action’ and, if that

challenge is meritorious, may rule that the agreements

at issue were not lawfully promulgated and deny en-

forcement of them. So long as adequate relief is avail-

able, the fact that it is not the exact form of relief

sought is immaterial. J. C. Penney Co. v. United

States Treasury Department, 439 F. 2d 63, 68 (C.A.

2), certiorari denied, 404 U.S. 869.

Petitioner’s argument that the decision here con-

flicts with Sneaker Circus (Pet. 23-24) thus is in-

correct. Furthermore, the court of appeals here agreed

that, in cases where “[t]here could * * * never have

been a decision by a Customs official upholding the

* That challenge presumably could be presented when petitioner

files suit in the customs court under 28 U.S.C. 1582(a) (if it has

standing to do so) after an “appropriate customs officer” has denied

its protest of an administrative decision excluding from this coun-

try textiles shipped in excess of the quotas embodied in the

agreement.

restraint and opening u the protest procedure which

affords “héééss’ to the stonis’ Court,” jurisdiction

would Tie"in the’ district court (Bet? App: 20a). “See

Conkumérs ‘Union Vv. Kissinger, 506 ‘F. ad 136 (C.A. ,

D. Cy. This case ‘and Sneaker Cireus thus 7 recognize the

sanié gehéral rulé—a rule that, in 01 ér to =aile a

uriifértnity' of devisions' that may be essential to

foreign relations of the United "States the" eustonis }

court ordinarily has exclusive Jurisdiction of chal-

lenges td “international trade agreements. 4 This case

and: Sneaker Ciréus recognize the same exception to

that rule—the district courts have jurisdiction’ when

it is impossible for the customs court to a aequire juris-

diction. “The courts’ simply a oplied that exception

differently’ on different records.’ The difference i in Te-

sul€ does” not réflect’ a ‘difference in legal principle,

and there is no conflict requiring ; resolution. ‘ |

It i is therefore respectfully subtnitted that the peti-

tion for a writ of certiorari should” be ‘denied.

et 1 ‘

WADE ‘i MoCReE, J R,,

" Solicitor Feneral.

Fespruary 1978.

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