# Opposition — Consumers Union of United States, Inc. v. Committee for Implementation of Textile Agreements > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0140%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition - **Published:** January 1, 1978 - **Citation:** 435 U.S. 933 ## Text ~~ oe *? 7 aad ae a 7s : Supreme v.87 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. - @.8, COvEREMEET PRINTING epried: te79 ee bed th JPA BA Bt. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0140%3A2. Public record. Not legal advice.