Petition for Writ of Certiorari — Motion Motion Systems Systems Corp. v. Bush (No. 05-1443)
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Supe Cau, US.
Q Eres
No.0s- 05144 3MAY 10 209
iad OFFICE OF THE CLERK
Supreme Court of the United States
MOTION SYSTEMS CORPORATION,
Petitioner,
v.
GEORGE W. BUSH, President of the United States,
ROBERT B. ZOELLICK, United States Trade Representative,
and CCL INDUSTRIAL MOTOR, LTD.,
Respondents.
On PETITION FOR A WRIT OF CERTIORARI TO THE
Unirep STATES CourRT OF APPEALS
FOR THE FEDERAL CIRCUIT
————— me ee
oe a
PETITION FOR A WRIT OF CERTIORARI
enn
aa eee
JOHN J. WITMEYER III
Counsel of Record
MICHAEL E. Sims
FoRD MARRIN Esposito
WITMEYER & GLESER, L.L.P.
Wall Street Plaza
New York, New York 10005
(212) 269-4900
Attorneys for Petitioner
201048 ce
COUNSEL PRESS
(800) 274-3321 + (800) 359-6859
i
- QUESTIONS PRESENTED
Judicial review of executive decision-making, to assure
that it conforms to the standards imposed by Congressional
grants of the authority to act, comprises a fundamental tenet
of American law. Every decision of the Federal Government
— including executive decisions — must be authorized either
by a statute enacted pursuant to the Constitution or by the
Constitution itself and must be executed in conformity
therewith. The Federal judiciary has the responsibility to
determine whether executive decisions comport with the
authorizing statute.
Recent events have witnessed a growing number of
occasions in which the executive branch asserts that it
possesses sole and unreviewable discretion to act or not act.
This case concerns whether an executive decision, taken
pursuant to a statutory delegation of authority made by a
statute that sets standards by which the Executive must abide,
becomes unreviewable because the executive decision is
made by the President instead of a subordinate agent.
This issue arises in the context of federal trade
legislation, a subject area reviewable only through appeal to
the Court of Appeals for the Federal Circuit. Traditionally,
courts hold executive decisions, including those on trade
matters, to be subject to judicial review so as to determine
whether the decision comports with the standards that
Congress specified in the trade legislation. Here, the President
rejected the determination of the United States International
Trade Commission (“ITC”) made in favor of petitioner.
Because the President is not an “agency” within the meaning
of the Administrative Procedure Act, review of Presidential
compliance with statutory standards that govern delegated
— ————— —— ed — —- — _ ~~ + eee en
li
authority takes place through nonstatutory judicial review.
Breaking with its own precedent and comparable decisions
of other Courts of Appeal, the Court of Appeals for the
Federal Circuit, in a rare en banc decision, held sua sponte
that the judiciary lacks power to review whether or not the
executive branch made its decision within statutory standards
when exercising authority granted to the President under
section 421 of the Trade Act of 1974 (“section 421”), codified
at 19 U.S.C. § 2451, when the President rejected the ITC’s
recommendation.
The questions presented for review are:
Whether the provision to the President of limited
discretionary authority, as part of a statutory delegation of
power, forecloses all judicial review of the President’s actions
even though such review would have existed had the action
been delegated by Congress to an agency under the same
statutory standards?
Does Dalton v. Specter, 511 U.S. 462 (1994), preclude
judicial review of Executive decision-making even though
the authorizing statute establishes standards that govern the
making of the decision sought to be reviewed?
iii
CORPORATE DISCLOSURE STATEMENT
Petitioner Motion Systems Corporation certifies that
petitioner has no parent corporation and that no publicly held
corporation owns 10% or more of the stock of it.
iv
TABLE OF CONTENTS
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Reasons for Granting the Petition ..............
I.
Certiorari Should Be Granted To Resolve
Conflicting Interpretations of Dalton v.
Specter Regarding the Availability of
Nonstatutory Judicial Review of Executive
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The Federal Circuit’s Decision Raises the
Important Question of Whether Dalton
Repudiated All Judicial Review of Allegedly
Ultra Vires Presidential Action ...........
Contents
Page
A. The Federal Circuit’s Interpretation of
Dalton Eviscerates the Right to Bring a
Statutory Claim Challenging Ultra Vires
EMOCUIVE: AICIOR 6c cc seek ee be ine 10
B. The Federal Circuit’s Refusal to Review
Petitioner’s Claims Against the President
Warrants Amplification of the Distinction,
Relied Upon Here by the Federal Circuit,
Between Ultra Vires and Unconstitutional
Ota FIO Sk Sok os Seas 13
RN a oe ae ie cube a a iy bia es RE 17
vi
TABLE OF CITED AUTHORITIES
Page
Cases:
Abbott Laboratories v. Gardner,
SE Me A CT is EA he a ew ee 12
American School of Magnetic Healing v. McAnnulty,
BGs 15.58 Cad fakes oa hes Oe cies 11
Bowen v. Michigan Academy of Family Sciences,
FG Le LES oie es bo Sowa hase owen 12
Chamber of Commerce v. Reich,
Pe Poe tee COE, Gah FO sk ERS 8,9
Dakota Central Telephone Co.
v. State of South Dakota,
Bt he RE OENE ck rica oat eh ie eecieanee 7
Dalton v. Specter,
ie Bie | RED oo Sod hws ee eta Cees passim
Dames & Moore v. Regan,
oS Ake OED ace eo sb a eke eRe OS 9
Franklin v. Massachusetts,
Woo US. Tee IIe in tbe aisice 13
Gutierrez de Martinez v. Lamagno,
PES Ua GFE ceed Soe eR CRRA SE OSE ARS 12
Vil
Cited Authorities
Page
Harmon v. Brucker,
Soe at A bk ba hes (aee aeons 11
INS v. Chadha,
GUS Sis PIP ADOSER 86 6c eae Renee pee 11
Larson v. Domestic & Foreign Commerce Corp.,
Soe A CEN 6.v 5c eecsnoa eka cones 14
Maple Leaf Fish Co. v. United States,
FOS B26 BO eG Gar, 1996S) sss oii ee 5
Marbury v. Madison,
Esc See COO) A 5 can Caw bees 6 ewes 10
Motion Systems Corp. v. Bush,
437 30 1356 (Ped, Cir: 2006) 0 ee ee 7,14
Mountain States Legal Found. v. Bush,
306 F.3d 1132 (DK. Cir, 2002) eicciccenias is 8
National Treasury Employees Union v. Nixon,
492 F.2d 387 (0.0. Cir. 1976) oi ie a 8
Stark v. Wickard,
TEA Ns SO LAOS) oe kos ae eee 12
United States v. Bush,
SIOUD.. 37 (TUS) i a's nce che tine bauee es 7,8
Vili
Cited Authorities
Page
United States v. Nourse,
ii hay gcb's 4.0 84k 4 oe een as 10
Youngstown Sheet & Tube Co. v. Sawyer,
yy ik ws Vs 6s Awe ea ak S410
Statutes:
Se Se a pk VRS Gah dee eee kt baca's l
2 Eo Si Sere Sie Ve a eee s ii, 1
ix
TABLE OF APPENDICES
Page
Appendix A — Decision Of The United States Court
Of Appeals For The Federal Circuit, Dated
POUR TE re ek a is PE he Sh ee ens la
Appendix B — Opinion Of The United States Court
Of International Trade, Dated June 3, 2004 ..... 45a
|
OPINIONS BELOW
The case arises through a ruling on a motion for summary
judgment. The opinion of the Court of International Trade
(per Stanceu, J.) reviewing respondents’ action and finding
that it met the statutory requirements (Appendix B) is
reported at 342 F. Supp. 2d 1247 (Ct. Int’l] Trade 2004).
The Federal Circuit’s opinion (en banc) affirming the
judgment on other grounds, those being that the decision of
the President is unreviewable, (Appendix A) is reported at
437 F.3d 1356 (Fed. Cir. 2006).
STATEMENT OF JURISDICTION
The United States Court of Appeals for the Federal
Circuit entered its judgment on February 10, 2006. This
petition is filed within ninety days of that date. No rehearing
was requested. The petitioner invokes this Court’s
jurisdiction under 28 U.S.C. § 1254.
STATUTE INVOLVED
The pertinent section of the Trade Act of 1974, as
amended, 19 U.S.C. § 2451, states as follows:
(a) Presidential action. If a product of the People’s
Republic of China is being imported into the
United States in such increased quantities or under
such conditions as to cause or threatei to cause
market disruption to the domestic producers of a
like or directly competitive product, the President
shall, in accordance with the provisions of this
section, proclaim increased duties or other import
restrictions with respect to such product, to the
2
extent and for such period as the President
considers necessary to prevent or remedy the
Take Vsraperon.
(k) Standard for presidential action.
(1) Within 15 days after receipt of a
recommendation from the Trade
Representative under subsection (h) on
the appropriate action, if any, to take to
prevent or remedy the market
disruption, the President shall provide
import relief for such industry pursuant
to subsection (a), unless the President
determines that provision of such relief
is not in the national economic interest
of the United States or, in extraordinary
cases, that the taking of action pursuant
to subsection (a) would cause serious
harm to the national security of the
United States.
(2) The President may determine under
paragraph (1) that providing import
relief is not in the national economic
interest of the United States only if the
President finds that the taking of such
action would have an adverse impact on
the United States economy clearly
greater than the benefits of such action.
19 U.S.C. §§ 245 1(a) & (k).
3
STATEMENT OF THE CASE
Section 421 mandates that the President provide import
relief in the form of “increased duties or other import
restrictions” for domestic industries threatened by “market
disruption” caused by increased importation of products from
China. Import relief may only be denied when the President
appropriately finds that such action would have an adverse
impact on the United States economy clearly greater than
the benefits of such action or, in extraordinary cases, that
the taking of such action would cause serious harm to the
national security of the United States. 19 U.S.C. §§ 2451(a)
& (k).
Section 421(k)(2) carefully limits the President’s
authority to that of a fact finder of economic facts, requires
that he make certain findings of fact and affords him no
discretion in this regard or to make a decision on any other
grounds. The limited authority allowed to the President, who
may only act as a fact finder who culls the relevant economic
facts necessary to make a lawful determination, is not a grant
of unfettered discretion.
Petitioner Motion Systems Corporation (“Motion
Systems”) is a U.S. producer of pedestal actuators,
electromechanical devices that adjust the seat heights of
mobility scooters and motorized wheelchairs. In 2002,
Motion Systems filed a petition with the ITC seeking relief
from the increased imports of pedestal actuators from China.
The ITC conducted an investigation and determined that
Chinese pedestal actuators were being imported into the
United States in such increased quantities or under such
conditions as to cause or threaten to cause market disruption
to American producers of pedestal actuators. So as to remedy
4
actual or potential market disruption, the ITC recommended
that the President impose a quantitative restriction on imports
of pedestal actuators from China for a three year period, and
suggested a specific quota for each of the three years.
\\ The United States Trade Representative (“Trade
Representative”) solicited written comments and conducted
a public hearing on the matter, and then submitted to the
President its recommendation regarding the ITC’s
determination. On January 17, 2003, the President denied
the import relief recommended by the ITC and sought by the
petitioner. The Pre-ident’s decision recited in conclusory
fashion the presence of the only circumstance in which
section 421(k)(2) allowed him not to act — i.e., that
“providing the requested import relief for the U.S. pedestal
actuator industry is not in the national economic interest of
the United States” because “the import relief would have an
adverse impact on the United States economy clearly greater
than the benefits of such action,” but the conclusion was not
supported by the necessary factual findings.
On April 9, 2003, petitioner filed suit against the
President and the Trade Representative in the Court of
International Trade. Petitioner challenged the President’s
denial of import relief because section 421(k)(2) explicitly
forbade the President to act so as to deny relief as
recommended by the ITC unless he made economic findings
of fact that found that the taking of such action would have
an adverse impact on the United States economy clearly
greater than the benefits of such action. The record provided
no economic basis for the finding of an adverse impact on
the United States economy clearly greater than the benefits
of such action, the President’s decision was merely
conclusory and neither court below examined the record to
determine whether it supported the President’s decision.
5
In the Court of International Trade, all three respondents,
the President, the Trade Representative and CCL Industrial
Motor Ltd., acknowledged that the President’s determination
was subject io judicial review and invoked the standard
articulated by the Federal Circuit in Maple Leaf Fish Co. v.
United States,' even though the authorizing statute allows
for limited discretion in decision-making. Petitioner proposed
that, although the President’s decision should not withstand
Maple Leaf review, section 421 entailed an even stricter
standard of review because section 421 granted him far less
discretion than is provided by the statute ai issue in Maple
Leaf. The Court of International Trade decided to examine
the President’s actions under the Maple Leaf standard of
review, which called for the court to determine whether the
President had (i) misconstrued section 421, (ii) exceeded his
statutory authority thereunder or (iii) violated the statute’s
procedural requirements. The trial court decided not to review
whether the record supported the decision to deny the relief
recommended by the ITC and ruled that the President’s action
met the requirements of Maple Leaf.
On appeal, the Court of Appeals for the Federal Circuit
declined to review the case. It held instead, sua sponte, that
judicial review could not be had of Presidential action under
section 421, based upon Dalton v. Specter, 511 U.S. 462
(1994), even though none of the respondents had argued that
Dalton rendered the President’s determination immune from
review.
1. 762 F.2d 86, 89 (Fed. Cir. 1985) (holding that “[fJor a court
to interpose, there has to be a clear misconstruction of the governing
Statute, a significant procedural violation, or action outside delegated
authority.)
6
REASONS FOR GRANTING THE PETITION
1.
CERTIORARI SHOULD BE GRANTED TO RESOLVE
CONFLICTING INTERPRETATIONS OF DALTON v.
SPECTER REGARDING THE AVAILABILITY OF
NONSTATUTORY JUDICIAL REVIEW OF
EXECUTIVE ACTION
The Federal Circuit’s decision conflicts with multiple
decisions of the Court of Appeals for the District of Columbia
Circuit regarding the reviewability of Presidential action
where, as here, the delegating statute sets standards limiting
the discretionary authority of the President. In Dalton, this
Court held that Presidential actions pursuant to a legislative
grant of authority are not subject to judicial review where
the authorizing statute “does not at all limit the President’s
discretion. ...” 511 U.S. at 476. In foreclosing judicial
review, the Court noted that nothing in the statute in question,
the Defense Base Closure and Realignment Act of 1990 (the
“1990 Act”), “prevents the President from approving or
disapproving the [base closure] recommendations for
whatever reason he sees fit.” Id. (emphasis added).
Significantly, Dalton did not decide the broader question
of whether nonstatutory judicial review exists of Presidential
decision-making made under authority delegated by statute
irrespective of the degree of discretion afforded the President.
The Court assumed “for the sake of argument” that such
review was available but would nonetheless be precluded
because the President had unfettered discretion under the
1990 Act. Id. at 474 (1994). Thus the narrow holding of
Dalton is that judicial review relief is withheld “where
7
Congress has permissibly foreclosed it... .” Id. at 477.
Justice Blackmun’s concurring opinion underscored the
“limited reach” of this Court’s holding in Dalton. See id.
His opinion stated that “neither a challenge to ultra vires
exercise of the President’s statutory authority nor a timely
procedural challenge is precluded . . .” from judicial review.
Id. at 478 (Blackmun, J., concurring in part and concurring
in the judgment). The Dalton decision clearly did not address
the availability or degree of judicial review where an
authorizing statute, such as section 421, greatly constrains
the President’s discretionary authority.
The Federal Circuit’s opinion construed Dalton
expansively, not narrowly. Section 421, unlike the 1990 Act,
imposes substantial restrictions on the President’s discretion,
yet the Federal Circuit nonetheless held that the President’s
determination was “sufficiently discretionary to preclude
judicial review.” Motion Systems Corp. v. Bush, 437 F.3d
1356, 1362 (Fed. Cir. 2006). In so doing, the Federal Circuit
erroneously found that section 421 “accords the President
the same discretion found to remove Presidential action from
judicial review in other Supreme Court cases.” /d. at 1360.
The Federal Circuit cited United States v. Bush, 310 U.S.
371 (1940), and Dakota Central Telephone Co. v. State of
South Dakota, 250 U.S. 163 (1919), for the proposition that
the President acts in his unreviewable discretion, even where
such discretion is limited by statute. Jd. at 1360-61.
In sharp contrast to the Federal Circuit’s expansive
interpretation of Dalton, the D.C. Circuit has recognized that
“Dalton’s holding merely stands for the proposition that when
a Statute entrusts a discrete specific decision to the President
and contains no limitations on the President’s exercise of
that authority, judicial review of an abuse of discretion claim
8
is not available.” Chamber of Commerce v. Reich, 74 F.3d
1322, 1331 (D.C. Cir. 1996) (emphasis added). Unlike the
Federal Circuit, the D.C. Circuit found that Dalton’s citations
to United States v. Bush and Dakota Central actually
demonstrated the limited holding of Dalton, as in both of
those cases “special reasons existed for concluding that
judicial review was precluded.” /d. at 1332 n.5. The D.C.
Circuit noted, in particular, that the Presidential order in
Dakota Central involved considerations of national security
outside the province of the judiciary, and that the basis for
the President’s determination in Bush was unreviewable
because the President adhered to the procedures prescribed
by Congress. /d.
The D.C. Circuit reiterated, in Mountain States Legal
Found. v. Bush, that Dalton is inapposite “where the
authorizing statute ... places discernible limits on the
President’s discretion.” 306 F.3d 1132, 1136 (D.C. Cir. 2002).
In such cases, judicial review does not implicate the same
separation of powers concerns and “[c]ourts remain obligated
to determine whether statutory restrictions have been
violated.” Jd. Accordingly, judicial review is available to
ensure that Presidential actions “are consistent with
constitutional principles and that the President has not
exceeded his statutory authority.” Jd. See also National
Treasury Employees Union v. Nixon, 492 F.2d 587, 604 (D.C.
Cir. 1974) (holding that “the judicial branch of the Federal
Government has the constitutional duty of requiring the
executive branch to remain within the limits stated by the
legislative branch.”)
Because Presidential decisions on trade-related matters
can be judicially reviewed only under the aegis of the Federal
Circuit, if the issue is not reviewed now, it will become
9
unreviewable in future customs and trade cases. This petition
for certiorari should be granted in order to resolve the foregoing
split between the D.C. Circuit and the Federal Circuit and to
answer the fundamental question of whether executive decision-
making ceases to be reviewable when it includes an element of
discretion to be exercised by the President.
Il.
THE FEDERAL CIRCUIT’S DECISION RAISES
THE IMPORTANT QUESTION OF WHETHER
DALTON REPUDIATED ALL JUDICIAL REVIEW OF
ALLEGEDLY ULTRA VIRES PRESIDENTIAL ACTION
As noted above, Dalton declined to decide whether judicial
review of allegedly ultra vires Presidential action exists when
the statute in question does not provide for such review. The
Court in Dalton stated only that “[w]e 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.” 511 U.S. at 474. At least one Court of
Appeals has interpreted this statement as casting doubt on the
availability of nonstatutory review of Presidential action. See
Reich, 74 F.3d at 1331 n.4. Dalton cast further doubt on the
possibility of judicial review by also holding that ultra vires
Presidential actions may not be challenged on constitutional
grounds. The Federal Circuit’s recent expansion of Dalton, a
product of the uncertain implications of that decision, has the
troubling effect of eliminating judicial review of executive action
pursuant to statutes.
2. See Dames & Moore v. Regan, 453 U.S. 654, 667 (1981)
(reviewing whether executive orders issued by President were authorized
by grant of authority under the Trading with the Enemy Act.)
10
A. The Federal Circuit’s Interpretation of Dalton
Eviscerates the Right to Bring a Statutory Claim
Challenging Ultra Vires Executive Action
When the law gives the President unfettered discretion to
act or not on a political basis, his decisions become
unreviewable, but it has always been the law that “where a
specific duty is assigned by law, and individual rights depend
upon the performance of that duty, it seems equally clear that
the individual who considers himself injured, has a right to resort
to the laws of his country for a remedy.” Marbury v. Madison, 5
U.S. 137, 166 (1803) (emphasis added). The proposition that
executive action will be judicially reviewed except where the
decision has been relegated to the purely political realm thus
dates to the infancy of American jurisprudence.
The presumption in favor of judicial review of executive
action grew stronger with Justice Marshall’s opinion in United
States v. Nourse:
It would excite some surprise if, in a government of
laws and of principle, furnished with a department
whose appropriate duty it is to decide questions of
right, not only between individuals, but between the
government and individuals; a ministerial officer
might, at his discretion, issue this powerful process,
and levy on the person, lands, and chattels of the
debtor, any sum he might believe to be due, leaving
to that debtor no remedy, no appeal to the laws of
his country, if he should believe the claim to be
unjust. But this anomaly does not exist; this
imputation cannot be cast on the legislature of the
United States.
34 U.S. 8, 28-29 (1835).
1]
The principle of nonstatutory judicial review of executive
action emerged more fully over time. For example, in
American School of Magnetic Healing v. McAnnulty, 187 U.S.
95 (1902), the plaintiff sought an injunction preventing a
Post Office official from executing a certain order of the
Postmaster General. The Court granted plaintiff injunctive
relief and explained that:
{t]he acts of all [a department’s] officers must be
justified by some law, and in case an Official
violates the law to the injury of an individual the
courts generally have jurisdiction to grant relief
... Otherwise the individual is left to the
absolutely uncontrolled and arbitrary action of a
public and administrative officer, whose action is
unauthorized by any law, and is in violation of
the rights of the individual.
Id. at 108, 110.
In Harmon v. Brucker, this Court, relying on McAnnulty,
held that acts in excess of express or implied statutory powers
are not discretionary, and therefore are not shielded from
judicial scrutiny. 355 U.S. 579, 581-82 (1958). The Court
stated that “[g]enerally, judicial relief is available to one who
has been injured by an act of a government official which is
in excess of his express or implied powers.” Jd. More recently,
this Court affirmed that executive action under legislatively
delegated authority “is always subject to check by the terms
of the legislation that authorized it; and if that authority is
exceeded it is open to judicial review. . . .” INS v. Chadha,
462 U.S. 919, 954 n.16 (1983).
12
As stated by the Court in Bowen v. Michigan Academy
of Family Sciences: “We ordinarily presume that Congress
intends the executive to obey its statutory commands and,
accordingly, that it expects the courts to grant relief when an
executive agency violates such a command.” 476 U.S. 667,
681 (1986). Furthermore, this Court has “stated time and
time again that judicial review of executive action ‘will not
be cut off unless there is persuasive reason to believe that
such was the purpose of Congress.’” Gutierrez de Martinez
v. Lamagno, 515 U.S. 417, 424 (1995) quoting Abbott
Laboratories v. Gardner, 387 U.S. 136, 140 (1967). Thus,
“the silence of Congress as to judicial review is. . . not to be
construed as a denial of authority to the aggrieved person to
seek appropriate relief in the federal courts in the exercise
of their general jurisdiction.” Stark v. Wickard, 321 U.S. 288,
309 (1944).
The plaintiffs in Stark sought injunctive relief against
the Secretary of Agriculture for allegedly exceeding his
statutory authority. Jd. at 289. Although the statute in question
did not provide for judicial review, the Court held that the
“responsibility of determining the limits of statutory grants
of authority . . . is a judicial function entrusted to the courts
by Congress by the statutes establishing courts and marking
their jurisdiction.” /d. at 310. The Court reversed the
dismissal of the petitioners’ action, finding that they were
entitled to judicial examination of their claims that certain
provisions of the Secretary’s order exceeded his statutory
powers. Id. at 311.
The Federal Circuit ignored the historical availability of
nonstatutory review of executive action when it refused to
review the petitioner’s claims against the President. The
Federal Circuit’s decision also constitutes an unwarranted
13
expansion of Dalton, such that judicial review is precluded
despite the existence of a clear legal standard (the explicit
limits on Presidential discretion in section 421) by which
the court could review the President’s exercise of discretion.
Unlike the 1990 Act at issue in Dalton, section 421 is not an
instance “where Congress has permissibly foreclosed”
judicial review by affording unlimited discretion to the
executive. Dalton, 511 U.S. at 477. The Federal Circuit’s
unrestrained interpretation of Dalton has produced a circuit
split and, unfortunately, heightened the uncertainty first raised
by Dalton regarding judicial limits on executive action.
The petitioner therefore asks that the Court clarify the
availability of nonstatutory review of Presidential action, in
the wake of Dalton, so that the effect of that decision, keenly
felt by the petitioner, is not to remove all executive action
from judicial review.
B. The Federal Circuit’s Refusal to Review Petitioner’s
Claims Against the President Warrants Amplification
of the Distinction, Relied Upon Here by the Federal
Circuit, Between Ultra Vires and Unconstitutional
Executive Action
Presidential power must stem either from authority
delegated to him by Congress or from the Constitution itself.
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579
(1952). Therefore, the judiciary must review the actions of
the President to ensure that he does not act beyond his
constitutional authority. See id. Further, in Franklin v.
Massachusetts, this Court, citing Youngstown, reaffirmed that
the President’s actions may always be reviewed for
constitutionality. 505 U.S. 788, 801 (1992) (finding that
although they are not subject to review under the
14
Administrative Procedure Act, “the President’s actions may
still be reviewed for constitutionality.”’)
Dalton, however, created uncertainty because it
suggested that a difference may exist between ultra vires and
constitutional review. Citing Dalton, the Federal Circuit here
rejected the notion that the petitioner could review the
President’s decision under section 421 as ultra vires. Motion
Systems, 457 F.3d at 1359-60. The Dalton Court concluded
that claims that an official exceeded his statutory authority
are statutory in nature, and thus the “exception identified in
Franklin for review of constitutional claims ...” did not
apply. Dalton, 511 U.S. at 474. In so holding, the Court noted
that it has often “distinguished between claims of
constitutional violations and claims that an official has acted
in excess of his statutory authority.” Jd. at 472.
Dalton seemed to distinguish actions in excess of
Statutory authority from unconstitutional actions on the
ground that its precedents made such a distinction. /d.
Specifically, the Court pointed to Larson v. Domestic &
Foreign Commerce Corp., aS an instance in which it had
distinguished between ultra vires and unconstitutional acts.
Id.* The Dalton Court reasoned that “[i]f all executive
actions in excess of statutory authority were ipso facto
unconstitutional, . . . there would be little need in Larson for
our specifying unconstitutional and ultra vires conduct as
separate categories.” /d.
3. In Larson, the Court found that “a suit may fail, as one against
the sovereign, even if it claimed that the officer being sued has acted
unconstitutionally or beyond his statutory powers. . . .” 337 U.S. 682,
691 n.11 (1949).
15
By drawing a distinction between ultra vires and
unconstitutional acts, the Court in Dalton was compelled to
distinguish Youngstown.* In contrast to the claim raised in
Dalton, the Court found that Youngstown “involved the
conceded absence of any statutory authority, not a claim that
the President acted in excess of such authority.” /d. at 473.
The Court thus concluded that Youngstown “cannot be read
for the proposition that an action taken by the President in
excess of his statutory authority necessarily violates the
Constitution.” Jd.
This, however, is merely a formalistic distinction, and
Dalton did not explicate the reasoning underlying its
distinction between acts in excess of statutory authority
and those performed in the absence of such authority.
The confusion that resulted from the Dalton Court’s reliance
on Larson and the manner in which it distinguished
Youngstown is that Dalton neither explains the constitutional
predicate for making such a distinction nor addresses the
implications of doing so. As a result, this dichotomy between
ultra vires action (i.e., action not consonant with the
authorizing statute) and unconstitutional action provides
insufficient guidance to establish whether and under what
circumstances nonstatutory review exists of executive
decisions challenged as contrary to a statutory limitation on
authority.
Upon closer examination, the Constitution’s explicit
limitations on federal power? and the principle of separation
4. Petitioner submits that the Court felt it necessary to
distinguish Youngstown because thai decision militates in favor of
the reviewability of the plaintiffs’ claims in Dalton.
5. For example, U.S. Const., amend. X.
16
of powers render incorrect the notion that Presidential action
outside the parameters set by statute cannot be reviewed
unless it is also unconstitutional. When the President does
not act within the parameters set by the authorizing statute,
he acts unconstitutionally because he has no authority under
the Constitution to act except to the limited extent as the
statute authorizes him to act. Whether classified as ultra vires
or as unconstitutional because the decision being reviewed
failed to comport with the authorizing statute, a decision by
the President acting pursuant to statutorily delegated authority
by a statute containing standards should perforce be subject
to judicial review.
In sum, the unclear distinction made between executive
action that does not conform to statutory authority and
unconstitutional action threatens the ability of the judiciary
to assert any meaningful check on executive action pursuant
to statutory authority. The Federal Circuit, however, invoked
this distinction to reject the petitioner’s constitutional claims.
Accordingly, there is a significant constitutional aspect to
the Federal Circuit’s denial of judicial review here and
certiorari should be granted so that the Court may address it.
In particular, certiorari should be granted so that the Court
may articulate the distinction, if any, between nonstatutory
review of unconstitutional and ultra vires executive action.
17
CONCLUSION
For the foregoing reasons, a writ of certiorari should issue
to review the judgment of the United States Court of Appeals
for the Federal Circuit.
Respectfully submitted,
JouHN J. WitMEYER III
Counsel of Record
MICHAEL E. Sims
ForD Marrin Esposito
WITMEYER & GLESER, L.L.P.
Wall Street Plaza
New York, New York 10005
(212) 269-4900
Attorneys for Petitioner
APPENDIX
la
APPENDIX A — DECISION OF THE UNITED STATES
COURT OF APPEALS FOR THE FEDERAL CIRCUIT,
DATED FEBRUARY 10, 2006
UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT
04-1428
MOTIONS SYSTEMS CORPORATION,
Plaintiff-Appellant,
V.
GEORGE W. BUSH, President of the United States, and
ROBERT B. ZOELLICK, United States
Trade Representative,
Defendants-Appellees,
and
CCL INDUSTRIAL MOTOR LTD.,
Defendant-Appellee.
Decided: February 10, 2006
Before MICHEL, Chief Judge, NEWMAN, MAYER,
LOURIE, Circuit Judges, CLEVENGER, Senior Circuit
Judge, RADER, SCHALL, BRYSON, GAJARSA, LINN,
DYK, and PROST, Circuit Judges.
Opinion for the court filed PER CURIAM. Opinion
concurring in part and concurring in the judgment filed by
Circuit Judge GAJARSA, in which Circuit Judge NEWMAN
joins.
PER CURIAM.
2a
Appendix A
Motion Systems Corp. (“Motion Systems”) brought suit
against George W. Bush, President of the United States, and
Robert B. Zoellick, United States Trade Representative
(“Trade Representative”), in the United States Court of
International Trade, challenging the President’s determination
not to grant import relief to the domestic pedestal actuator
industry under section 421 of the U.S.-China Relations Act
of 2000, Pub.L. No. 106-286, 114 Stat. 880 (codified at 19
U.S.C. § 2451) (“section 421”). The Court of International
Trade granted judgment in favor of the defendants. Motion
Systems Corp. v. Bush, 342 FSupp.2d 1247 (Ct. Int’] Trade
2004). Motion Systems appealed and for the reasons set forth
below, we affirm.
I
Section 421, added to the Trade Act of 1974 by the U.S.-
China Relations Act of 2000, establishes procedures under
which the President may provide import relief in the form of
“increased duties or other such import restrictions” for
domestic industries threatened by “market disruption” caused
by increased importation of products from China 19 U.S.C.
§ 2451(a) (2000).
In accordance with section 421(b)(1), Motion Systems
filed a petition with the United States International Trade
Commission (“ITC”), alleging that importation of Chinese
pedestal actuators had increased rapidly from 2000-2002,
resulting in market disruption within the meaning of section
42’. At the time, Motions Systems was one of three domestic
producers of pedestal actuators, electromechanical devices
used principally to raise and lower the seats of mobility
3a
Appendix A
scooters and motorized wheelchairs. See Pedestal Actuators
from China: Investigation No. TA-421-1, Pub. 3557 (U.S.
Int’] Trade Comm’n, Nov. 2002), at 3, 11-16.
Upon receipt of the petition, the ITC promptly
investigated “whether products of the People’s Republic of
China are being imported into the United States in such
increased quantities or under such conditions as to cause or
threaten to cause market disruption to the domestic producers
of like or directly competitive products.” 19 U.S.C. §
2451(b)(1). On October 18, 2002, the ITC issued an
affirmative finding of market disruption and transmitted its
report and remedial recommendations to the President and
the Trade Representative. See 19 U.S.C. § 2451(f)-(g). The
ITC recommended that “the President impose a quantitative
restriction for a three-year period on imports of the subject
pedestal actuators from China,” and suggested specific
amounts for each year. In accordance with section 421(h)(1),
a summary of the ITC’s determination and an invitation for
public comment was published in the Federal Register. See
Notice of Proposed Measure and Opportunity for Public
Comment Pursuant to Section 421 of the Trade Act of 1974:
Pedestal Actuators from the People’s Republic of China, 67
Fed.Reg. 71007-03 (Nov. 27, 2002).
On January 2, 2003, after attempts to negotiate a remedial
agreement with China proved unsuccessful, the Trade
Representative submitted to the President his
recommendations regarding the ITC’s determination.
However, the President did not provide the requested import
relief. Rather, the President concluded that “providing import
relief for the U.S. pedestal actuator industry is not in the
4a
Appendix A
national economic interest of the United States” because “the
import relief would have an adverse impact on the United
States economy clearly greater than the benefits of such
action.” Presidential Determination on Pedestal Actuator
Imports from the People’s Republic of China, 68 Fed.Reg.
3157 (Jan. 17, 2003). The President found that the ITC’s
recommended import quota would not likely benefit the
domestic pedestal actuator industry, but instead would cause
imports to shift to other offshore sources. Moreover, the
President found that even if the import quota would provide
some benefit to domestic producers of pedestal actuators,
this benefit would be substantially outweighed by the
increased cost to the downstream purchasers and the ultimate
consumers of pedestal actuators. Motion Systems requested
reconsideration of the President’s determination, which the
President denied.
On April 9, 2003, Motion Systems filed suit against the
President and the Trade Representative in the Court of
International Trade, challenging the President’s denial of
import relief and seeking declaratory and injunctive relief.
The complaint alleged that the President’s denial of relief
was beyond his statutory authority under section 421, arguing
that the President misconstrued the provisions of section 421
specifying the circumstances in which he may deny import
relief and that the relevant facts did not support the
conclusion that the import relief would have an adverse
impact clearly greater than its benefits. The complaint also
alleged that the Trade Representative’s actions were in error,
arguing that he too misconstrued section 421 and that he did
not follow proper procedures in conducting the public hearing
on the ITC’s findings.
5a
Appendix A
The Court of International Trade granted judgment in
favor of the defendants, concluding that the President did
not exceed his statutory authority and that the President’s
action was not invalid because of any defect in the procedures
followed by the Trade Representative. Motion Systems, 342
F.Supp.2d at 1262, 1265.
Il
Section 421 defines the role of the President and the
Trade Representative in determining whether to provide
import relief for market disruption due to importation of
products from China. An ITC investigation into market
disruption may be initiated upon the request of the President
or the Trade Representative, upon resolution of the House
Committee on Ways and Means or the Senate Finance
Committee, upon petition by a private entity “which is
representative of an industry” in accordance with 19 U.S.C.
§ 2252(a), or by the ITC’s own motion. 19 U.S.C. §
2451(b)(1). If, after an investigation, the ITC makes an
affirmative determination of market disruption, it must
propose import relief in the form of an “increase in, or
imposition of, any duty or other import restrictions necessary
to prevent or remedy the market disruption.” 19 U.S.C. §
2451(f). The ITC must submit to the President and the Trade
Representative a report containing its determination and
recommendations, along with an explanation thereof, and
must make that report available to the public. 19 U.S.C. §
245 1(g).
6a
Appendix A
After receiving this report, and following a period of
public notice and comment, the Trade Representative must
make a recommendation to the President concerning what
action, if any, to take. 19 U.S.C. § 2451(h). However, the
President has discretion to determine whether import relief
should be awarded. Under section 421(k)(1), the President
must, within fifteen days of receiving the Trade
Representative’s final recommendation, “provide import
relief . . . unless the President determines that provision of
such relief is not in the national economic interest of the
United States... .” 19 U.S.C. § 2451(k)(1). Further, the
statute provides that “[t]he President may Cetermine . . . that
providing import relief is not in the national economic interest
of the United States only if the President finds that the taking
of such action would have an adverse impact on the United
States economy clearly greater than the benefits of such
action.” 19 U.S.C. § 2451(k)(2).
iil
No right of judicial review exists to challenge the acts
of either the President or the Trade Representative in this
case. There is no explicit statutory cause of action granting a
petitioner who is denied import relief under section 421 the
right to sue the President and the Trade Representative in
the Court of International Trade. Thus, Motion Systems has
only two potential sources for relief: (1) the Administrative
Procedure Act (“APA”), 5 U.S.C. § 701; or (2) some form of
nonstatutory review. Motion Systems acknowledges that it
cannot challenge the President’s actions under the APA
because the President is not an “agency.” See Franklin v.
Massachusetts, 505 U.S. 788, 800-01, 112 S.Ct. 2767, 120
<z
Ta
Appendix A
L.Ed.2d 636 (1992). Thus, Motion Systems must resort to
some form of nonstatutory review as its only potential source
for relief.
As regards Motion Systems’ challenge to the President’s
actions, this case reduces down to a rather simple issue: Can
Motion Systems challenge the President’s discretionary
actions under 19 U.S.C. § 2451 as outside the scope of
authority delegated to him by Congress? Dalton v. Specter,
511 U.S. 462, 114 S.Ct. 1719, 128 L.Ed.2d 497 (1994),
rejected this alternative and thus leaves Motion Systems with
no right to judicial review here. Hence, under Dalton, no
complaint can lie against the President on the facts of this
case.
In Dalton, the plaintiffs challenged the President’s
decision to close the Philadelphia Naval Shipyard as a
violation of the Defense Base Closure and Realignment Act
of 1990. 511 U.S. at 464, 114S.Ct. 1719. In Part I, the Court
held that a straightforward application of Franklin removes
the APA as a statutory alternative for standing because the
President is not an “agency.” /d. at 468-70, 114 S.Ct. 1719.
In Part II, the Court took up the alternative ground relied on
by the United States Court of Appeals for the Third Circuit:
“[T]hat whenever the President acts in excess of his statutory
authority, he also violates the constitutional separation-of-
powers doctrine.” Jd. at 471, 114 S.Ct. 1719. In other words,
the Third Circuit had held that if the President’s actions are
outside the scope of authority delegated to him by the 1990
Act, they can be challenged under a nonstatutory
“constitutional” cause of action analogous to Motion
Systems’ claim in the present case. In Dalton, however, the
Court rejected this theory as inconsistent with its precedents.
8a
Appendix A
The Court commented that its precedents “distinguished
between claims of constitutional violations and claims that
an Official has acted in excess of his statutory authority.” /d.
at 472, 114 S.Ct. 1719. The Court pointed to Youngstown
Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 72 S.Ct. 863, 96
L.Ed. 1153 (1952), as an example of a case properly
characterized as involving a “constitutional” challenge. /d.
at 473, 114 S.Ct. 1719. In that case, the Government
disclaimed any statutory authority for the President’s seizure
of steel mills and invoked the Constitution itself as authority
for the Presidential action. Jd. (“Because no statutory
authority was claimed, the case necessarily turned on whether
the Constitution authorized the President’s actions.”). The
Court then explained that, in contrast to Youngstown, Dalton
involved a statutory claim: “The President is said to have
violated the terms of the 1990 Act by accepting procedurally
flawed recommendations.” /d. at 474, 114 S.Ct. 1719. In other
words, the President purportedly acted outside the scope of
authority delegated to him by the 1990 Act. The Court did
not address the extent-of-available review of Presidential
action for violation of a “statutory mandate,” assuming that
some such review was available. Jd. However, because the
Court concluded that the challenged Presidential action was
discretionary under the 1990 Act, see id. at 476, 114 S.Ct.
1719, the Court held that review was in any event precluded
by the longstanding rule that: “[Judicial] review [of
Presidential action] is not available when the statute in
question commits the decision to the discretion of ine
President.” /d. at 474, 114 S.Ct. 1719.
9a
Appendix A
Here, there is no colorable claim that the President
exceeded his statutory authority. Instead, this case presents
nearly the same situation as in Dalton: Motion Systems
alleges the President violated the terms of section 421 by
opting to protect national interests over domestic industry
without evidentiary support. Motion Systems thus accuses
the President of acting beyond the scope of authority
delegated to him under the statute. Motion Systems attempts
to distinguish Dalton because, in its view, section 421 gives
the President only purely ministerial duties. See Mississippi
v. Johnson, 4 Wall. 475, 71 U.S. 475, 498, 18 L.Ed. 437
(1866) (leaving open the question of whether the President
can be sued to perform a purely ministerial act under a
positive law). To the contrary, section 421 unquestionably
grants the President broad discretion to determine “that
provision of [import] relief is not in the national economic
interest of the United States or . . . that the taking of action .
. . would cause serious harm to the national security of the
United States.” 19 U.S.C. § 2451(k)(1) (2004).
Section 421 thus accords the President the same
discretion found to remove Presidential action from judicial
review in other Supreme Court cases. In United States v.
George S. Bush & Co., Inc., 310 U.S. 371, 60 S.Ct. 944, 84
L.Ed. 1259 (1940), upon which Dalton expressly relies, 511
U.S. at 476, 114 S.Ct. 1719, the Court dealt with subject
matter quite similar to that of this case. The statute at stake
in Bush gave the President discretion to increase tariffs, and
he had done so. An importer challenged the President’s
action. This court’s predecessor, the Court of Customs and
Patent Appeals, invalidated the increased tariff. Notably, the
relevant statute in Bush
10a
Appendix A
provided ... that the President “shall by
proclamation approve the rates of duty and
changes in classification and in basis of value
specified in any report of the commission under
this section, if in his judgment such rates of duty
and changes are shown by such investigation of
the commission to be necessary to equalize such
differences in costs of production.”
Bush, 310 U.S. at 376-77, 60 S.Ct. 944 (emphasis added).
Like section 421, the statute in Bush limited to some degree
the President’s discretion. Specifically, the statute in Bush
required the President to find that the rates of duty and
changes are “necessary to equalize such differences in costs
of production” before taking action. Despite this limit on
the President’s discretion, the Court held that the Presidential
decision was not subject to judicial review:
The President’s method of solving the problem
was open to scrutiny neither by the Court of
Customs and Patent Appeals nor by us. Whatever
may be the scope of appellate jurisdiction
conferred by § 501 of the Tariff Act of 1930, it
certainly does not permit judicial examination of
the judgment of the President that the rates of duty
recommended by the Commission are necessary
to equalize the differences in the domestic and
foreign costs of production.
Id. at 379, 60 S.Ct. 944 (emphasis added).
lla
Appendix A 7
In Dakota Central Telephone Co. v. State of South
Dakota, 250 U.S. 163, 181, 39 S.Ct. 507, 63 L.Ed. 910
(1919), another case upon which Dalton expressly relies, 511
U.S. at 476, 114 S.Ct. 1719, the Court dealt with the
President’s ability to seize control of various communication
systems for national security or defense reasons. Notably,
the relevant statute in Dakota provided:
That the President during the continuance of the
present war is authorized and empowered,
whenever he shall deem it necessary for the
national security or defense, to supervise or to
take possession and assume control of any
telegraph, telephone, marine cable, or radio
system or systems, or any part thereof, and to
operate the same in such manner as may be needful
Gi... desirable for the duration of the war....
Dakota, 250 U.S. at 181, 39 S.Ct. 507 (quoting 40 Stat.
904 (1918)) (emphasis added). As in Bush, the statute in
Dakota also limited to some degree the President’s discretion.
Specifically, the statute required the President to determine
that seizure was “necessary for the national security or
defense.” Despite this restriction, the Court again concluded
the Presidential action at issue was “beyond the reach of
judicial power.” Id. at 184, 39 S.Ct. 507. The Court made
this determination despite a challenge to the President’s
action as being unjustifiable at the time the power was
exercised. /d. (commenting that the plaintiffs alleged that
“there was nothing in the conditions at the time the power
was exercised which justified the calling into play of the
authority; indeed, the contention goes further and assails the
12a
Appendix A
motives which it is asserted induced the exercise of the
power’). Thus both Dakota and Bush involved situations
where the Court insulated Presidential action from judicial
review for abuse of discretion despite the presence of some
statutory restrictions on the President’s discretion. Similarly,
section 421 places some restriction on the President’s
discretion to grant or deny import relief. But here, there is
no colorable claim that the President has violated an explicit
statutory mandate. Rather, the issue is whether the President
abused his discretion under section 421(k). The President
must determine “that provision of [import] relief is not in
the national economic interest of the United States or...
that the taking of action . .. would cause serious harm to the
national security of the United States.” 19 U.S.C. §
2451(k)(1). However, under Dalton, Bush, and Dakota, the
President’s actions under section 421 are still sufficiently
discretionary to preclude judicial review. ;
Finally, because the acts of the Trade Representative were
not final actions, the Court of International Trade also lacked
jurisdiction to review those acts. Instead, the Trade
Representative’s actions were analogous to those of the
Secretary in Franklin, a case in which the Secretary’s report
was “like a tentative recommendation” or “the ruling of a
subordinate official” because it was the President who carried
the responsibility of transmitting the final report to Congress.
Franklin, 505 U.S. at 798, 112 S.Ct. 2767 (internal quotation
omitted). A subordinate officer’s actions become reviewable
as final only when they carry a direct and immediate
consequence. See Japan Whaling Ass'n v. Am. Cetacean Soc.,
478 U.S. 221, 106 S.Ct. 2860, 92 L.Ed.2d 166 (1986)
(concluding that the Secretary’s certification to the President
13a
Appendix A
automatically triggered sanctions and thus was a final action).
In this case, the Trade Representative’s actions were not final,
but only recommendations for Presidential action, and are
thus not reviewable.
IV
On the facts of this case, no complaint can lie against
either the President or the Trade Representative. The
President’s actions cannot be challenged because judicial
review is unavailable when a statute allegedly violated itself
commits a decision to the discretion of the President. The
Trade Representative’s actions cannot be challenged because
they were not final. We therefore affirm the judgment of the
Court of International Trade in favor of both defendants.
AFFIRMED
l4a
Appendix A
GAJARSA, Circuit Judge, with whom Circuit Judge
PAULINE NEWMAN joins, concurring in part and
concurring in the judgment.
The court concludes that the decision not to assess
antidumping duties against CCL Industrial Motor Ltd. will
stand. I too would sustain that conclusion, but on its merits,
not by default. On its merits, this action by the President is
within the statutory authority and discretion that Congress
assigned to the President; I conclude, therefore, that the action
of the President is in accordance with law.
I write separately to express the view that the court is
not barred from review of the range of statutory discretion
assigned to the President by Congress. On conducting such
review, as fully briefed and argued on this appeal, I conclude
that the President’s decision is within the parameters of the
Act of Congress that assigned to the President the
responsibility for the balancing of the economic impact of
each instance of dumping.’ It is not the judiciary’s role to
grade how the President conducts such an economic study,
for the statute established only the broad parameter that the
President must balance the economic effect on the aggrieved
domestic industry against the economic benefit of the cheaper
foreign import. However, it is the judiciary’s role, and its
1. In accordance with 19 U.S.C. § 2451(k)(1), the President is
charged to “provide import relief for such industry pursuant to
subsection (a) of this section, unless the President determines that
provision of such relief is not in the national economic interest of
the United States or, in extraordinary cases, that the taking of action
pursuant to subsection (a) of this section would cause scrious harm
to the national security of the United States.”
15a
Appendix A
duty, to. review whether the President acted within the
statutory parameters. The court’s holding that the President’s
actions cannot be reviewed on any basis is contrary to the
statutory assignment and contrary to the structure of our
government.
I.
The majority correctly notes that because no right of
judicial review is available under the APA, “Motion Systems
must resort to some form of nonstatutory review as its only
potential source of relief.” It then interprets the Supreme
Court’s decision in Dalton v. Specter to have “rejected” the
notion that a litigant could “challenge the President’s actions
. . . aS Outside the scope of authority delegated to him by
Congress.” But Dalton says no such thing, and the majority’s
interpretation of it represents an unwarranted expansion of
the narrow holding of that case.
The general principle underlying the Supreme Court’s
opinion in Dalton-that discretionary Presidential actions
without constitutional implications are not subject to judicial
review is unexceptionable. No one has argued that the
President’s discretionary actions under § 2451 raise
constitutional questions. The question dividing us is, rather,
whether a statute delegating to the President qualified
discretion is sufficient to render unreviewable whether the
Presidential action is pursuant to the statute, and is within
the assigned discretionary authority, such that the President
must be dismissed as a defendant without further inquiry.
Dalton does not mandate that result.
l6a
Appendix A
I note, first, that the majority opinion in Dalton expressly
declined to rule on the very proposition for which the majority
relies on it: whether nonstatutory review of allegedly ultra
vires Presidential action is ever available. The opinion
assumed that “some claims that the President has violated a
statutory mandate are judicially reviewable outside the
framework of the APA.” Dalton, 511 U.S. at 474, 114 S.Ct.
1719. Justice Blackmun’s concurring opinion states strongly,
without contravention, that, under the Court’s holding,
“neither a challenge to ultra vires exercise of the President’s
statutory authority nor a timely procedural challenge is
precluded” from judicial review. Jd. at 478, 114 S.Ct. 1719
(Blackmun, J., concurring in part and concurring in the
judgment).
Second, both the majority and concurring opinions in
Dalton rely heavily upon features peculiar to the statute there
at issue-notably, the unfettered discreticn granted to the
President by the statute, which “[did] not at all limit the
President’s discretion in approving or disapproving the
Commission’s recommendations.” /d. at 476, 114 S.Ct. 1719.
Section 2451, by contrast, does not grant the President
“unqualified” discretion. As the majority concedes, the
limitations on the President’s discretion in § 2451 make this
case less like Dalton and more like United States v. George
S. Bush & Co., in which the Supreme Court stated that the
President’s actions were subject to review for “conformity
with the statute.” George S. Bush & Co., 310 U.S. at 380, 60
S.Ct. 944. It is significant that two of the cases on which
Dalton relies most heavily—George S. Bush & Co. and
Chicago & Southern Air Lines v. Waterman §.S. Corp.—both
contemplate the availability of judicial review of Presidential
17a
Appendix A
actions for “conformity with the statute” or “regularity.” /d. ;
see also Chicago & Southern Air Lines v. Waterman S.S.
Corp., 333 U.S. 103, 105, 68 S.Ct. 431, 92 L.Ed. 568 (1948).
The D.C. Circuit has repeatedly confirmed the
availability of such review. In Chamber of Commerce v.
Reich, 74 F.3d 1322, 1331 (D.C.Cir.1996), it explained that
“Dalton’s holding merely stands for the proposition that when
a Statute entrusts a discrete specific decision to the President
and contains no limitations on the President’s exercise of
that authority, judicial review of an abuse of discretion claim
is not available.” It has since reiterated that principle on
several occasions in cases involving suits directly against
the President acting in his official capacity under a statute
granting him discretion. See, e.g., Mountain States Legal
Found. v. Bush, 306 F.3d 1132, 1136 (D.C.Cir.2002) (stating
that “Courts remain obligated to determine whether statutory
restrictions have been violated. In reviewing challenges under
the Antiquities Act, the Supreme Court has indicated
generally that review is available to ensure that [the
President’s actions] are consistent with constitutional
principles and that the President has not exceeded his
statutory authority.”); Tulare County v. Bush, 306 F.3d 1138,
1141 (D.C.Cir.2002) (reviewing whether Presidential
proclamation made pursuant to his discretion under the
Antiquities Act was within the “statutory standard”).
In addition, this court’s own precedent offers ample
authority for the proposition that trade-related actions of the
President taken pursuant to authority delegated by Congress
are subject to review to determine whether that action “falls
within his delegated authority, whether the statutory language
18a
Appendix A
has been properly construed, and whether the President’s
action conforms with the relevant procedural requirements.”
Florsheim Shoe Co. v. United States, 744 F.2d 787, 795
(Fed.Cir.1984); see also Maple Leaf Fish Co. v. United States,
762 F.2d 86, 89 (Fed.Cir. 1985) (concluding that “[flor a court
to interpose” in Presidential decisionmaking, “there has to
be a clear misconstruction of the governing statute, a
significant procedural violation, or action outside delegated
authority”); Humane Soc’y v. Clinton, 236 F.3d 1320, 1330
(Fed.Cir.2001) (concluding that judicial review of
discretionary Presidential decision under 16 U.S.C. §
1826a(b)(3)(A) was not available, but considering whether
the President “acted in other than good faith” or “otherwise
was in violation of his duties” under the statute). See also
Sneaker Circus, Inc. v. Carter, 566 F.2d 396, 402 (2d
Cir.1977) (concluding that although judicial review of
Presidential trade negotiations was unavailable, the courts
had authority to review “the procedures employed by the
Executive in concluding these [trade] agreements, procedures
which are mandated by statute”); No Oilport! v. Carter, 520
F.Supp. 334, 347 (W.D.Wash.1981) (stating that “[i]t is clear
that this court may review . . . the President’s actions to
determine whether they complied with the procedural
requirements imposed by” the Public Utilities Regulatory Act
of 1978).
The majority’s assertion that Motion Systems fails to
state a colorable claim of ultra vires action is dubious. A
“colorable claim” is merely one which is not “frivolous.”
See, e.g., S. Illinois Carpenters Welfare Fund v. Carpenters,
326 F.3d 919, 923 (7th Cir.2003) (holding that “a colorable
claim is merely one that is not frivolous”); Davis v.
19a
Appendix A
Featherstone, 97 F.3d 734, 737-38 (4th Cir.1996) (holding
that “A claim is colorable if it is arguable and nonfrivolous,
whether or not it would succeed on the merits.”); Harline v.
Drug Enforcement Agency, 148 F.3d 1199, 1203 (10th
Cir.1998) (holding that a federal claim is not colorable only
“if it is immaterial, and made solely for the purpose of
establishing [federal] jurisdiction or .. . is wholly
insubstantial or frivolous”); Boettcher v. Sec’y of Health &
Human Servs., 759 F.2d 719, 722 (9th Cir.1985) (holding _
that a federal claim is non-colorable only if it is “wholly
insubstantial, immaterial, or frivolous”). Here, Motion
Systems’ complaint was brought against Presidential action
taken pursuant to a statute that dictates the scope of the
President’s authority and the manner of its exercise. The
complaint repeatedly describes the Presi. ent’s actions as
“ultra vires.” It identifies portions of the statute that Motion
Systems believes have been violated. To conclude that
Motion Systems’ claim is non-colorable simply re-defines
the notion of colorability to be synonymous with
“meritorious.” I disagree with the majority’s attempt to
dispose of the merits without addressing the more difficult -
jurisdictional question that is necessarily a predicate to such
a disposition.
Where, as here, the plaintiff has alleged that the
President’s actions are “ultra vires,” in the sense that the
standards for action “imposed by Congress [have] not been
met,” I read the applicable authorities to permit and indeed
to require judicial review of whether or not he acted within
the discretionary range of the statutory mandate. I believe
Motion Systems has standing to challenge the President’s
actions for this purpose.
20a
Appendix A
Il.
Having determined that standing exists, it is necessary
to assess jurisdiction under § 1581(i), which provides that
the Court of International Trade shall have exclusive
jurisdiction over “any civil action commenced against the
United States, its agencies, or its officers” arising out of
certain trade and tariff laws. The question is whether the
category of “officer” identified in the statute includes the
President, for if it does, review authority is assigned by
statute, and is not subject to repulse by the court to which it
is assigned.
The phrase “the United States . . . or its officers” naturally
calls to mind the constitutional class of “officers of the
United States,” as that term is used in the Appointments
Clause, U.S. Const. art. II, § 2, cl. 2, and the Commission
Clause, art. IT, $ 3. Indeed, in cases involving the applicability
of statutory references to “officers” of the United States, the
courts have generally held that such references are limited
to officials who are subject to the provisions of the
Appointments Clause. See, e.g., Steele v. United States, 267
U.S. 505, 507, 45 S.Ct. 417, 69 L.Ed. 761 (1925) (stating
that “the words ‘officer of the United States,’ when employed
in the statutes of the United States, [are] to be taken usually
to have the limited constitutional meaning’ of a person
appointed under Appointments-clause procedures.”); United
States v. Mouat, 124 U.S. 303, 23 Ct,Cl. 490, 8 S.Ct. 505, 31
L.Ed. 463 (1888).
2la
Appendix A
The question before us here, however, is very different.
This case deals not with a Bureau of Prisons doctor (United
States v. Germaine, 99 U.S. 508, 25 L.Ed. 482 (1878)), a
navy paymaster clerk (Mowat ), a customs clerk (United States
v. Smith, 124 U.S. 525, 8 S.Ct. 595, 31 L.Ed. 534 (1888)), or
a Naval Academy cadet (United States v. Perkins, 116 U.S.
483, 21 Ct.Cl. 499, 6 S.Ct. 449, 29 L.Ed. 700 (1886)), but
with the President of the United States-a constitutional
official who is plainly not an “officer of the United States”
for Appointments Clause purposes but whose office is created
by the Constitution itself. The question before us is whether
a person holding a constitutionally recognized position, such
as the President or a member of Congress, which is not by
its terms subject to the provisions of the Appointments
Clause, is nevertheless an officer of the United States for
Statutory purposes.
The Supreme Court has addressed this question directly,
and answered it “yes.” In Lamar v. United States, 241 U.S.
103, 36 S.Ct. 535, 60 L.Ed. 912 (1916), the Court considered
whether a man impersonating a member of Congress could
be charged under a statute making it a crime to “ ‘falsely
assume or pretend to be an officer or employee acting under
the authority of the United States, or any Department, or any
officer of the government thereof.’” Lamar v. United States,
241 U.S. at 111, 36 S.Ct. 535 (quoting statute). The defendant
argued that the indictment stated no offense against him,
“because a member of the House of Representatives . . . is
not an officer acting under authority of the United States”
within the meaning of the statute and unspecified “provisions
of the Constitution.” /d. at 112, 36 S.Ct. 535.
22a
Appendix A
The Supreme Court disagreed, concluding that “the issue
here is not a constitutional one, but who is an officer acting
under the authority of the United States within the provisions”
of the statute at issue. Jd. That question, the Court ruled,
“must be solved by the text of the provision, not shutting
out as an instrument of interpretation proper light which may
be afforded by the Constitution.” /d.
Lamar stands for the proposition that where the alleged
officer is a constitutionally recognized person, rather than
merely a minor government official, the simple presumption
of Germaine and its progeny—that statutory references to
“officers of the United States” include only such officials as
fall within the terms of the Appointments Clause—does not
apply. The President, as holder of the constitutional office
of the Presidency,’ is more closely analogous to a member
of Congress than to a minor functionary like the prison doctor
in Germaine. The analysis used by the Supreme Court in
Lamar is, therefore, the applicable analysis here. That
analysis requires simple statutory construction undertaken
in light of possible constitutional questions.
The first question before the Court, then, is whether
Congress, in enacting 28 U.S.C. § 1581(1), intended the words
“the United States ... or its officers” to include the President.
In considering that question the court should consider the
issues addressed by the Supreme Court in Lamar: the
ordinary meaning of the word “officer”; the existence of other
2. See, e.g., U.S. Const. art. Il, § 1, cl.1 (vesting the executive
power in the President, who “shall hold his Office during the Term
of four Years”); art. II, § 1, cl.5 (referring to the “Office of
President”).
23a
Appendix A
Statutory provisions that consider the President to be an
officer; and the consistency of such officer status with
Supreme Court and other analogous precedent. See Lamar,
241 U.S. at 113, 36 S.Ct. 535. See also Operation Rescue
Nat’l v. United States, 975 F.Supp. 92, 103-04
(D.Mass.1997), aff’d, 147 F.3d 68 (1st Cir.1998) (applying
Lamar analysis to determine whether members of Congress
are “employees” of the government for purposes of the
immunity provisions of the Federal Tort Claims Act and
concluding that they are both “employees” and “officers’”).
Second, the court must consider whether the inclusion of
the President within the class of officers in § 1581(i) runs
afoul of constitutional principles.
A. Statutory Construction
In interpreting a statute, “our inquiry begins with the
statutory text, and ends there as well if the text is
unambiguous.” BedRoc Ltd. v. United States, 541 U.S. 176,
183, 124 S.Ct. 1587, 158 L.Ed.2d 338 (2004) (Rehnquist,
C.J., plurality opinion). In construing statutory language, we
begin with the “assumption that the ordinary meaning of
[Congress’] language accurately expresses the legislative
purpose.” Engine Mfrs. Ass’n v. S. Coast Air Quality Mgmt.
Dist., 541 U.S. 246, 252, 124 S.Ct. 1756, 158 L.Ed.2d 529
(2004). The Supreme Court frequently repairs to dictionary
definitions to ascertain the “ordinary meaning” of statutory
text that does not arise in a technical context. See id. at 252-
53, 124 S.Ct. 1756 (using dictionary definition to construe
Congress’ intent in using the word “standard”); see also
Lamar, 241 U.S. at 113, 36 S.Ct. 535 (using dictionary
definitions to construe Congress’ intent in using the word
24a
Appendix A
“officer” and concluding that “officer” included members of
Congress). Here, the statute applies to “the United States
... Or its officers.” 28 U.S.C. § 1581 (i).
With regard to the “common understanding” of the word
“officer,” as “expressed in the ordinary, as well as legal,
dictionaries,” Lamar, 241 U.S. at 113, 36 S.Ct. 535, one finds
that, “in public affairs,” the term “officer” refers to a person
“holding office of trust, command, or authority in
corporation, government . . . or other institution.” Black’s
Law Dictionary 977 (Sth ed.1979).° The magisterial Oxford
English Dictionary defines “officer” as, among other things,
“a person authoritatively appointed or elected to exercise
some function pertaining to public life, or to take part in...
the management or direction of a public corporation,
institution, etc.” and “[a] person holding office and taking
part in the management or direction of a society or institution,
esp. one holding the office of president, treasurer, or
secretary; an office-bearer.”* 10 Oxford English Dictionary
732 (2d. ed. 1989), Ordinary usage confirms these definitions:
the officers of a corporation, for example, typically include
its president.
3. The same dictionary’s definitions of “United States officer”
and “officer of the United States,” are unhelpful here: they apply to
situations as in Germaine, Mouat, and Steele, which, as discussed,
are irrelevant to the ques.ion of whether a constitutional officer (as
opposed to a minor executive branch official) is an “officer of the
United States.”
4. See also Webster's New International Dictionary 1567 (1961)
( “One who holds an office: one who is appointed or elected to serve
in a position of trust, authority, or command esp. as specif. provided
(Cont'd)
25a
Appendix A
The second factor considered by the Supreme Court in
Lamar was the existence of other statutes in which the term
“officer” was found to include members of Congress. See
Lamar, 241 U.S. at 113, 36 S.Ct. 535. The President of the
United States may be an “officer” for some statutory
purposes, but not for others. Some statutes by their terms
include the President in the class of statutory officers. In the
Impoundment Control Act, for example, § 686(a) refers to
“the President, the Director of the Office of Management
and Budget, the head of any department or agency of the
United States, or any other officer or employee of the United
States.” 2 U.S.C. § 686(a) (emphasis added). The succeeding
section empowers the Comptroller General to bring a civil
action in district court to force the government to make
available necessary budget authority and empowers the
district courts to enter an order against “any department,
agency, officer or employee of the United States”—
a grouping which, read in conjunction with the “or other
officer” language of § 686(a), clearly includes the President.
See 2 U.S.C. § 687; see also 3 U.S.C. § 303 (defining
“function” to include “any duty, power, responsibility,
authority, or discretion vested in the President or other officer
concerned”) (emphasis added).
(Cont'd)
by law”); American Heritage Dictionary 1220 (2000) (“One who
holds an office of authority or trust in an organization, such as a
corporation or government”); The New Oxford American Dictionary
1188 (2001) (“a holder of a public, civil, or ecclesiastical office”;
“a holder of a post in a society, company, or other organization, esp.
one who is involved at a senior level of its management”).
26a
Appendix A
Other statutes appear to recognize that the President is
included in the class of officers by negative implication: the
federal law proscribing bribery, for example, applies to
persons who are “officer[s] or employee[s] . . . of the United
States,” but expressly carves out the President from that
classification, suggesting that in the absence of the exception
the class would include the President. See 18 U.S.C.
§ 203(a)(1)(B), § 202(c).
In addition, the courts have ruled on several occasions
that the federal mandamus law, which by its terms applies to
“officer({s] and employee[s} of the United States,” applies to
the President. See, e.g., Nat’l Treasury Employees Union v.
Nixon, 492 F.2d 587, 602, 616 (D.C.Cir.1974) (concluding
that the President is subject to mandamus proceedings under
28 U.S.C. § 1361 but refraining from issuing the writ); Nat’!
Wildlife Fed. v. United States, 626 F.2d 917, 923
(D.C.Cir. 1980) (holding that “[m]andamus is not precluded
because the federal official at issue is the President of the
United States”); Swan v. Clinton, 100 F.3d 973, 976 n. 1
(D.C.Cir.1996) (finding that the “prerequisites for stating a
cause of action under the mandamus statute are met” in an
action against President Clinton).
The executive branch’s own lawyers have concluded on
many occasions that the President is a statutory officer of
the United States. In fact, they have done so in this case:
government counsel, in the first oral argument conducted in
this matter, stated that “the President is an officer of the
United States.” Executive branch counsel have also
concluded, in a reasoned opinion, that a general statutory
reference to “officers” included the President. Section 603
27a
Appendix A
of Title 18 of the United States Code prohibits any “officer
or employee of the United States” from making certain
political contributions. The Office of Legal Counsel, relying
in part on legislative history,° concluded in a published
opinion that “the better view, in our judgment, is that the
President does, indeed, fall within the terms of” the statute’s
class of “officers.” See 3 U.S. Op. Off. Legal Counsel 31, 39
(1979). The Office of Legal Counsel and other executive
branch lawyers have considered the President to be an officer
for a variety of statutory and other purposes. See 38 U.S.
Op. Atty. Gen. 445 (April 9, 1936) (construing statute
applying to “the Secretary of the Treasury or any other officer
of the Government” to include the President as such an
officer); 20 U.S. Op. Off. Legal Counsel No. 124 (May 7,
1976) (referring to “an officer who is subject to control and
removal by an officer other than the President”); 19 U.S.
Op. Off. Legal Counsel 93 (June 3, 1986) (referring to
“executive officers other than the President”); 6 U.S. Op.
Off. Legal Counsel 751 (December 14, 1982) (referring to
“Executive officers other than the President”); 21 U.S. Op.
Atty. Gen. 494 (February 11, 1897) (referring to the Secretary
of the Treasury ox “any other officers save the President”);
13 U.S. Op. Atty. Gen. 479 (referring to the inability of “any
officer but the President” to remit a criminal sentence); |
U.S. Op. Atty. Gen. 566 (September 27, 1822) (referring to
the President as “the executive officer of the laws of the
country”).
5. The legislative history of § 1581(i) is silent on the question
of who constitutes an “officer” for statutory purposes.
28a
Appendix A
Similarly, the President has, on many occasions, referred
to himself as an officer. See, e.g., Executive Order No. 11827
(Jan. 4, 1975) (referring to advisory committees “created by
the President or any other officer of the Executive Branch”
under the Federal Advisory Commission Act); Executive
Order No. 11609 (July 26, 1976) (“Delegating Certain
Functions Vested in the President to Other Officers of the
Government”); Executive Order No. 11480 (September 9,
1969) (referring to actions taken “by the President or by any
other officer of the Executive Branch”); Executive Order No.
11435 (January 21, 1968) (referring to actions “of the
President or of any other officer of the United States”);
Executive Order No. 10994 (February 14, 1962) (referring
to prior orders of “the President or . . . any other officer of
the Executive Branch”); Executive Order No. 10640 (October
10, 1955) (same); Executive Order No. 10167 (October 11,
1950) (referring to “the President or such other officer as he
may designate”).
In addition, the Supreme Court has frequently identified
the President as an officer, and specifically as “the chief
constitutional officer of the United States.” Nixon v.
Fitzgerald, 457 U.S. 731, 750, 102 S.Ct. 2690, 73 L.Ed.2d
349 (1982); see also Clinton v. Jones, 520 U.S. 681, 699 n.
29, 117 S.Ct. 1636, 137 L.Ed.2d 945 (1997) (quoting
Fitzgerald ); Franklin v. Massachusetts, 505 U.S. 788, 799,
112 S.Ct. 2767, 120 L.Ed.2d 636 (1992) (referring to the
President as a “constitutional officer”); Cheney v. U.S.
District Court for the District of Columbia, 541 U.S. 913,
916, 124 S.Ct. 1391, 158 L.Ed.2d 225 (2004) (Justice Scalia,
writing as a single justice, referring to “the President and
other officers of the Executive”); Menard’s Heirs v. Massey,
29a
Appendix A
49 U.S. 293, 309, 8 How. 293, 12 L.Ed. 1085 (1850)
(referring to “the President or some other officer”); U.S. Ex.
Rel. Goodrich v. Guthrie, 58 U.S. 284, 310, 17 How. 284, 15
L.Ed. 102 (1854) (McLean, J., dissenting) (stating that “the
President, like all the other officers of the government, is
subject to the law”); Embry v. United States, 100 U.S. 680,
685, 25 L.Ed. 772 (1879) (referring to “[n]o officer except
the President”); United States vy. McDonald, 128 U.S. 471,
473, 24 Ct.Cl. 524, 9 S.Ct. 117, 32 L.Ed. 506 (1888) (quoting
Embry ); United States vy. Am. Bell Tel., 128 U.S. 315, 363, 9
S.Ct. 90, 32 L.Ed. 450 (1888) (referring to “the president
... or any other officer of the government”); In Re Sealed
Case, 121 F.3d 729, 748 (D.C.Cir.1997) (the President is
“the chief constitutional officer” of the United States).
Congress has spoken of the President as an “officer” in
other contexts: the Senate report addressing the amendment
of the apportionment statute at issue in Franklin v.
Massachusetts stated explicitly that the amended statute
required participation by the President, rather than by the
Secretary of Commerce, “so that this function may be served
by a constitutional officer.” S.Rep. No. 2, 71st Cong., Ist
Sess., at 5 (1929) (quoted in Franklin v. Massachusetts, 505
U.S. at 800, 112 S.Ct. 2767).
Considered together with the Constitution’s express
identification of the Presidency as an “office”; the consistency
of Supreme Court identification of the President as an officer
of the United States; and the plain and commonplace
understanding of the term “officer” to include public officials
like the President, these examples leave no doubt that the
President is an officer of the United States. The next question
30a
Anpendix A
is whether Congress included the President in the class of
“officers” defined by 28 U.S.C. § 1581(i). I conclude that it
did.
Section 1581(i) creates jurisdiction over civil actions
against “the United States, its agencies, or its officers,”
arising out of any law of the United States providing for—
(1) revenue from imports or tonnage;
(2) tariffs, duties, fees, or other taxes on the
importation of merchandise for reasons other
than the raising of revenue;
(3) embargoes or other quantitative restrictions
on the importation of merchandise for
reasons other than the protection of the public
health or safety; or
(4) administration and enforcement with respect
to the matters referred to in paragraphs (1)-
(3) of this subsection and subsections (a)-(h)
of this section.
28 U.S.C. § 1581(i). Section 1581(1) is a “broad jurisdictional
grant,” enacted by Congress as a “residual” source of
jurisdiction to supplement the more specific provisions of
§ 1581(a)-(h) and “eliminate the confusion which currently
exists between the jurisdiction of the district courts and the
Court of International Trade,” and clarify that “all of the suits
of the type specified [in § 1581(i) ] are properly commenced
only in the Court of International Trade.” H.R.Rep. No. 1235,
96th Cong., 2d. Sess. 47 (1980). The “type specified” in
§ 1581(i) is lawsuits arising out of a broad array of trade
laws in which the President, acting on authority delegated
by Congress, plays an unusually significant role.
3la
Appendix A
Section 1581(i)(3), for example, applies to actions arising
out of “embargoes or other quantitative restrictions on the
importation of merchandise for reasons other than the
protection of the public health or safety.” 28 U.S.C.
§ 1581(i)(3). Embargoes ar> an element of international
affairs in which the President plays a signature, and even
dominant, role. See, e.g., 22 U.S.C. § 6032(c) (ordering the
President to “instruct the Secretary of the Treasury and the
Attorney General to enforce fully the Cuban Assets Control
Regulations”); 50 U.S.C. § 1707(b) (requiring the President,
within 20 days after the start of hostilities with a foreign
nation, to “submit to Congress a report setting forth. . . the
specific steps the United States has taken. . . to establish a
multinational economic embargo”); 22 U.S.C. § 408
(authorizing the President to “employ such part of the land
or naval forces of the United States as he may deem necessary
to carry out the purposes of” provisions regulating trade with
hostile nations); 22 U.S.C. § 2370 (authorizing the President
to “establish and maintain a total embargo upon all trade
between the United States and Cuba”). More important,
perhaps, is the statute’s exclusion from its jurisdictional grant
of precisely the kinds of embargoes in which the President
plays no role. By excluding from jurisdiction suits arising
out of embargoes imposed “for the protection of the public
health and safety,” the statute excludes most existing
embargoes, including, for example, those relating to
adulterated foods and unapproved drugs (see 21 U.S.C.
§ 381), nonconforming products (see 15 U.S.C. § 1192), and
toxic substances (see 15 U.S.C. § 2612). The provisions of
§ 1581(1)(3), in short, are heavily focused on precisely those
areas of trade law in which the President is assigned a role.
The same is true for § 1581(i)(2), which applies to actions
32a
Appendix A
arising out of “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)(2). The President plays
little, if any, role in the revenue-raising portions of the tariff
laws, but is assigned a substantial role in the use of tariffs
for other purposes. See, e.g., 19 U.S.C. § 2461 (authorizing
the President to provide duty-free treatment from certain
developing countries, taking “due regard for” considerations
such as “the effect such action will have on furthering the
economic development of developing countries”).
The legislative history of § 1581(i), although not
dispositive of this issue, suggests that Congress did not
exclude this aspect of the trade laws from the general compass
of the Court of International Trade. In the Senate hearings
regarding S. 2857-a predecessor to the bill that became the
Customs Courts Act of 1980-Assistant Attorney General
Babcock, discussing the jurisdictional confusion that S. 2857,
and later § 1581, were designed to remedy, cited Sneaker
Circus, Inc. v. Carter, 566 F.2d 396 (2d Cir.1977) as an
example of the kind of case that should be heard by the then-
named Customs Court. Asked whether the proposed
legislation would grant the Customs Court jurisdiction to
hear Sneaker Circus’ suit against the President, Babcock
replied that “that is the object, the real object of the bill. The
real object is that that case would very clearly be headed for
the Customs Court.” Senate Hearings on S. 2857, June 23
and 27, 1978, 95th Cong., 2d. Sess., at 65-66. The House
Report on the Customs Courts Act also referred specifically
to Sneaker Circus-which was heard by the Second Circuit—
as an example of the jurisdictional “confusion” that § 1581(i)
was intended to remedy. The legislative history suggests that
33a
Appendix A
Congress was aware of, and approved of, the possibility that
what is now the Court of International Trade could exercise
jurisdiction over suits under the trade laws, not excluding
those actions performed by the President and other officers
of the United States.
I conclude, therefore, that Congress intended § 1581(i)’s
reference to “officers” to include the President of the United
States, subject to constitutional implications, to which I now
turn. See Lamar, 241 US. at 112, 36 S.Ct. 535 (concluding
that although “the issue here is not a constitutional one,” it
must be considered in the “proper light . . . afforded by the
Constitution”).
B. Constitutional Considerations
To address the issues presented by this appeal, the court
need not reach the overall implications of whether the
President is or is not an “officer of the United States” for
constitutional purposes.° It need only consider whether the
designation of the President of the United States as an officer
of the United States in administration of the trade statute
raises intractable constitutional difficulties. I conclude that
it does not.
6. There has been lively academic debate on that issue, mostly
as an offshoot of discussions of legislative succession. Akhil Amar
and Vikram Amar conclude that the President is an “Officer of the
United States” for constitutional purposes. See Akhil Reed Amar
and Vikram David Amar, /s the Presidential Succession Law
Constitutional ?, 48 Stan. L.Rev. 113, 136 n. 143 (1995) (“If an acting
President, wielding the full and awesome executive power of the
United States, is not an ‘Officer of the United States,’ what is he?’’)
(Cont'd)
34a
Appendix A
The Constituttion repeatedly designates the Presidency
as an “Office,” which surely suggests that its occupant is, by
definition, an “officer.” See, e.g., U.S. Const. art. I, § 3, cl.
5; art. I, $1, cl. 1; art. I], § 1, cl. 5; art. II, § 1, cl. 6; art. II,
§ 1, cl. 8; amend. XXII, § 1; amend. XXV, § § 1, 3, 4. An
interpretation of the Constitution in which the holder of an
“office” is not an “officer” seems, at best, strained. It is true,
however, that our understanding of the category of “officers
of the United States” comes primarily from the Appointments
Clause and the jurisprudence associated with it.’ The
Appointments Clause and the Commissions Clause, by their
(Cont’d)
Steven Calabresi agrees. See Steven G. Calabresi, The Political
Question of Presidential Succession, 48 Stan. L.Rev. 155, 158 n. 24
(1995) (“The best reading . . . is that the President and the Vice
President are the “O'fficers of the United States’ contemplated by the
language in the Appointments Clause referring to ‘all other Officers
of the United States, whose Appointments are not herein otherwise
provided for.’ ”) John Manning disagrees. See John F. Manning, Not
Proved: Some Lingering Questions About Legislative Succession to
the Presidency, 48 Stan. L.Rev. 141, 146 (1995) (questioning whether
one who “holds” the office of the Presidency is therefore an “officer
of the United States.”).
7. If this is not sufficiently obvious on its face, see, e.g., 10
Oxford English Dictionary 732 (2d. ed.1989), defining “officer” as
“one who holds an office.”
8. The full text of the Appointments Clause reads:
[The President] shall nominate, and by and with the
Advice and Consent of the Senate, shall appoint
Ambassadors, other public Ministers and Consuls,
(Cont'd)
35a
Appendix A
terms, apply to all “officers of the United States” and all
“civil officers of the United States,” respectively. See id. at
art. II, § 2, cl. 2; art. II, § 3; art. II, § 4. Those clauses, and
other constitutional provisions,’ contemplate a class of
“officers” inferior in status to the President, who nominates
and commissions them. The key features of that class are
nomination by the President, appointment with the advice
and consent of the Senate, commission by the President, and
removal by impeachment. It is plain that the President is not
an “officer of the United States” for Appointments Clause,
Commission Clause, or Oath of Office Clause purposes."°
(Cont'd)
Judges of the supreme Court, and all other Officers of
the United States, whose Appointments are not herein
otherwise provided for, and which shall be established
by Law: but the Congress may by Law vest the
Appointment of such inferior Officers, as they think
proper, in the President alone, in the Courts of Law, or
in the Heads of Departments.
Art. II, § 2, cl.2.
9. See, e.g., the Oath of Office Clause, art. VI, cl.3 (requiring
an oath of office for, inter alia, “all executive and judicial officers’).
The President’s oath of office is separately required by Article II,
Section 2, clause 8, suggesting that he is not among the “executive
officers” governed by Article VI, clause 3.
10. The Impeachment Clause presents a slightly different case.
That clause provides for impeachment of “The President, Vice-
President and all civil officers of the United States.” U.S. Const. art.
ll, § 4. This is ambiguous on its face: depending on which canon of
construction one prefers, it might mean that impeachment applies to
all civil officers of the United States and also to the President and
(Cont’d)
36a
Appendix A
The question then remains whether the inapplicability
of those clauses to the President creates a constitutional
barrier to his inclusion as an “officer” for purposes of §
1581(i). I conclude that it does not, for two reasons. First,
although the Appointments Clause and its relations do
contemplate a class of “Officers of the United States” that is
inferior to and does not include the President, there is reason
to believe that the inferior class of appointed officials
denominated as “Officers of the United States” is
nonexclusive. That is, the Constitution suggests that high
elected officials-including the President and members of
Congress-are officers for constitutional or statutory purposes
despite their separate status from persons governed by the
Appointments Clause. Second, the constitutional principles
(Cont’d)
Vice-President, who are not such officers; or it might mean that that
the President and Vice-President are examples of the category of
civil officers of the United States. It could be read, in other words,
to support two contradictory interpretations of the President’s status
as officer. No less a constitutional authority than Justice Story appears
to have held contradictory views about whether .«e President and
Vice-President are “civil officers”. In one passage of his
Commentaries, for example, he argued that the Impeachment Clause
“does not even consider [the President and Vice President] officers
of the United States,” because “[i]t says, ‘the president, vice-
president, and all civil officers (not all other civil officers) shall be
removed .... The language of the clause, therefore, would rather lead
to the conclusion that they were enumerated as contradistinguished from,
rather than as included in, the description of civil officers of the United
States.’ ” Joseph Story, Commentaries on the Constitution of the United
States 2, § 791 (1833). Only a few pages before, however, Story
described the remedy of impeachment as being “strictly confined to
civil officers of the United States, including the President and Vice-
President.” Id. at § 787 (emphasis added).
37a
Appendix A
and values that underlie the Appointments Clause and the
limitations it places upon the officials to whom it applies
are not threatened by the identification of the President as
an “officer” for purposes of section 1581(i).
The Incompatibility Clause, Art. I, § 6, cl. 2, for example,
makes clear that members of Congress cannot hold appointed
office under the United States, but the courts have
consistently concluded that members of Congress are
“officers of the United States” for purposes of various federal
Statutes. See, e.g., Lamar, 241 U.S. 103, 36 S.Ct. 535, 60
L.Ed. 912; Operation Rescue Nat’l v. United States, 975
F.Supp. at 103-04 (holding that a member of Congress is an
officer of the United States for purposes of 28 U.S.C. § 2671);
Maddox v. Williams, 855 F.Supp. 406 (D.D.C.1994), aff’d,
62 F.3d 408 (D.C.Cir.1995) (holding that a member of
Congress is an officer of the United States for purposes of
28 U.S.C. § 1442(a)); Williams v. Brooks, 945 F.2d 1322,
1324 n. 2 (Sth Cir.1991) (same); Richards v. Harper, 864
F.2d 85, 86 (9th Cir.1988) (same); Hill Parents Ass’n v.
Giaimo, 287 F.Supp. 98, 99 (D.Conn.1968) (same); Preston
v. Edmondson, 263 F.Supp. 370, 372 (N.D.Okla.1967)
(same).
38a
Appendix A
The Senate itself has concluded that Senators are not
“officers of the United States”'' for purposes of the
Impeachment Clause,'? but do hold a “civil office” in the
government of the United States for purposes of an oath-of-
office statute."
11. Note also that the statute at issue in the oath-of-office debate
applied to persons holding “offices” under the United States
government, but specifically excepted the President of the United
States-suggesting the understanding that without such an exception
the President would have been subject to the statute.
12. This principle has been accepted since 1799, when the
Senate, presented with articles of impeachment against Senator
William Blount, concluded after four days of debate that a Senator
was not a “civil officer of the United States” for purposes of the
Impeachment Clause. See Senate J., 5th Cong., 3d Sess., 17
December 1798-10 January 1799.
13. See Cong. Globe, 28th Cong., Ist Sess., 26 January 1864
(floor debate regarding whether legislation requiring an oath of office
for “every person elected or appointed to any office of honor or
profit under the Government of the United States, either in the civil,
military, or naval departments of the public service” applied to
Senators). Despite bitter opposition, proponents of the view that a
Senate seat is a civil office of the United States prevailed by a vote
of 28-11. The arguments made by the prevailing Senators anticipated,
with remarkable precision, the Supreme Court’s analysis in Lamar
fifty years later: Senator Sumner of Massachusetts, for example,
arguing successfully for the position that Senators did hold “offices”
for purposes of the statute, noted that the constitutional definition
of “officers of the United States” was not controlling, and pointed
to the common understanding of the word “officer,” dictionary
definitions of same, and other constitutions and statutes that assumed
the officer status of legislators. Cf. Lamar, 241 U.S. at 112-13, 36
S.Ct. 535.
39a
Appendix A
In addition, consideration of the constitutional principles
embodied in the Appointments Clause and the limitations it
places on “Officers of the United States” leads us to conclude
that those principles are unthreatened by the identification
of the President as an officer for statutory purposes. The
constitutional clauses governing “officers” serve to ensure
that the responsible agents of government are subject to
defined constitutional controls-primarily nomination,
appointment, consent, and impeachment. These requirements
exist to effect two core constitutional principles: political
accountability and separation of powers. See, e.g., Edmond
v. United States, 520 U.S. 651, 660, 117 S.Ct. 1573, 137
L.Ed.2d 917 (1997) (stating that “the Appointments Clause
was designed to ensure public accountability”); see also Weiss
v. United States, 510 U.S. 163, 186, 114 S.Ct. 752, 127
L.Ed.2d 1 (1994) (Souter, J., concurring in the judgment)
(stating that “the Appointments Clause separates the
Government’s power but also provides for a degree of
intermingling, all to ensure accountability”); Freytag v.
Comm’r, 501 U.S. 868, 878-80, 111 S.Ct. 2631, 115 L.Ed.2d
764 (1991) (emphasizing the separation-of-powers principles
“embedded in the Appointments Clause,” which are
“structural and political” and articulate “a limiting principle”
for both the executive and Congress).
To the extent that the qualifications demanded of
“Officers of the United States” are rooted in the need to
provide political accountability to officials exercising
significant government authority, there is clearly no harm in
identifying the President-the most politically accountable of
all national figures-as such an officer. To the extent that those
qualifications are based upon separation of powers principles,
40a
Appendix A
those considerations arise not in the identification of the
President as an officer of the United States, but in the
substance of what Congress is attempting to achieve by that
identification. It is difficult to understand, in the context of
section 1581, how the mere exercise of jurisdiction over the
President threatens the separation of powers. In this regard
it is sufficient to note that the President’s duties under the
Trade Act were delegated by Congress. There is no doubt
that, to the extent Congress chose to grant the President
discretion in exercising those duties, the exercise of his
discretion within the statutory assignment is not subject to
judicial review. Whether the courts may exercise jurisdiction
over the President—in order, for example, to review whether
the President acted “in full conformity with the statute,” as
permitted in the trade context by the Supreme Court’s
decision in George S. Bush & Co.—is a wholly different
question, and one that does not significantly implicate the
separation of powers.
There remains one issue that merits discussion. The
Supreme Court, in Franklin v. Massachusetts, has held that
the President is not an “agency” subject to suit under the
Administrative Procedure Act. In Franklin, the Court
declared, “[oJut of respect for the separation of powers and
the unique constitutional status of the President,” that it
would not subject the President to a statutory provision
without an “express statement by Congress” that the
provision was meant to include the President. Franklin v.
Massachusetts, 505 U.S. at 800-01, 112 S.Ct. 2767.
4la
Appendix A
Franklin is readily distinguishable from the present case.
First, as a matter of plain meaning, the President is an unlikely
candidate for “agency” status. The common-sense answer to
the question, “Is the President an ‘agency’?” seems to be
“clearly not.” The common-sense answer to the question, “Is
the President an ‘officer of the United States’ ”? is clearly
“yes.” Indeed, the government’s own counsel, at oral
argument, answered that question affirmatively. Second, by
its own terms, Franklin applies only to a statutory provision
that would make the President’s “performance of his statutory
duties” reviewable for “abuse of discretion.” Jd. at 801, 112
S.Ct. 2767. It says nothing about the less troubling
circumstance in which the President’s actions are reviewed
only for conformity with the statutory grant.
In addition, there is no suggestion in Franklin that there
is any significant historical support for the notion that the
term “agency” includes the President. There is, however,
massive historical support-in the Constitution itself, in two
centuries of Supreme Court jurisprudence, in significant
opinions of the lower courts, in federal statutes, and in myriad
other sources-for the proposition that the President is an
“officer” of his country. The use of the word “officer” in §
1581(i)—a statute that creates jurisdiction over matters of
international trade in which the President exercises
Significant delegated authority—is an “express statement”
that the President is subject to jurisdiction under that statute.
In this connection, I note that Franklin itself expressly refers
to the President as a “constitutional officer.” Jd. at 799, 112
S.Ct. 2767.
42a
Appendix A
Finally, I note that whereas the identification of the
President as an “agency” for APA purposes would potentially
expose the President to litigation on innumerable causes of
action, the identification of the President as an officer for
purposes of § 1581(i) would subject him to jurisdiction only
in the limited context of actions arising out of specified areas
of trade law-an area in which the President has traditionally
been subject to jurisdiction. See, e.g., George S. Bush & Co.;
Florsheim Shoe Co. v. United States, 744 F.2d at 795; Maple
Leaf Fish Co., 762 F.2d at 89. In short, the case at bar presents
very different issues than those faced by the Supreme Court
in Franklin.
I conclude, therefore, that the phrase “the United States
... or its officers” in the statute encompasses the President
of the United States. Motion Systems therefore has a right to
judicial review of the President’s actions, and the Court of
International Trade properly exercised jurisdiction over that
action.
Il.
Having concluded that this action was properly before
the Court of International Trade, it is necessary to consider
the merits of that court’s decision. The President is charged
by statute to balance the economic impact on the American
manufacturer who ts injured by competition with “dumped”
foreign goods, against the benefit to the importer and
potentially to the consumer of lower foreign prices. Such an
economic analysis involves the responsibilities and interests
of government, industry, labor, and the consumer, and the
balancing thereof was quite reasonably assigned by Congress
43a
Appendix A
to the topmost official of the executive branch. However,
this assignment did not remove trade law from its
constitutional design: the assignment was made by the
legislative arm, which is responsible for trade and customs
law; it is administered by the executive arm, as for most laws;
and challenge to the law or its administration, when raised
by “case or controversy,” is the responsibility and authority
of the judicial arm. I agree with the conclusion of the Court
of International Trade that there is “no basis to conclude that
the President’s decision is based on a ‘clear misunderstanding
of the governing statute’ or that it constituted ‘action outside
his delegated authority.’ ” I would affirm its decision on the
merits.
CONCLUSION
We granted this rehearing en banc to consider several
significant questions of law. The majority has avoided most
of these issues in favor of the dubious proposition, never
advanced by any party to this action, that Motion Systems
has no right to any judicial review of Presidential action taken
pursuant to the statute. In order to avoid the very issues we
took this case en banc to resolve, the majority misreads and
misapplies applicable Supreme Court authority and, in so
doing, adopts an indefensibly cramped view of the judiciary’s
constitutional role as a check and balance to its coordinate
and co-equal branches of government.
When Congress has delegated its constitutional authority
to the President, and the statute contemplates presidential
action within statutory parameters, the courts must determine
whether these parameters were respected. The judicial role
44a
Appendix A
is to review whether the presidential action is in performance
of the statutory assignment, and the extent of executive
discretion in that performance. No court, until today, has held
that all inquiry is foreclosed as to whether the action
complained of is within the statutory assignment and the
discretionary authority assigned by Congress. I respectfully
object to the majority’s unwarranted disruption of the
constitutional balance under which we all serve.
45a
APPENDIX B — OPINION OF THE UNITED STATES
COURT OF INTERNATIONAL TRADE,
DATED JUNE 3, 2004
UNITED STATES COURT OF
INTERNATIONAL TRADE
Slip Op. 04-58
Court No. 03-00146
MOTION SYSTEMS CORPORATION,
Plaintiff,
V.
GEORGE W. BUSH, President of the United States, and
ROBERT B. ZOELLICK, United States
Trade Representative,
Defendants,
and
CCL INDUSTRIAL MOTOR LTD.,
Defendant-Intervenor.
Decided: June 3, 2004
Before Timothy C. Stanceu
[Summary judgment granted for defendants]
46a
Appendix B
OPINION
STANCEU, Judge.
Plaintiff Motion Systems Corporation challenges a
decision by the President of the United States to deny import
relief to the U.S. industry manufacturing “pedestal actuators,”
which are components of electrically-powered vehicles used
by persons whose mobility is impaired. Plaintiff's principal
argument is that the President exceeded his statutory authority
in declining to impose import quotas on pedestal actuators
from the People’s Republic of China (“China”) following a
recommendation by the United States International Trade
Commission that import quotas are needed to remedy “market
disruption” adversely affecting the U.S. pedestal actuator
industry. Plaintiff contends in particular that the President
acted contrary to the relevant statute in denying relief without
quantifying the adverse impact of providing relief and
demonstrating that this adverse impact was “clearly greater”
than the benefits that such relief would provide to the
domestic industry.
Motion Systems has named as defendants the President
and the United States Trade Representative, who issued a
recommendation to the President addressing the issue of
import relief after publishing a notice soliciting comment
and conducting a public hearing. In addition to its primary
argument, plaintiff raises objections to the U.S. Trade
Representative’s conduct of the public hearing, to the
President’s considering certain political factors that Motion
Systems considers improper, and to the apparent denial of
Motion Systems’ request to the U.S. Trade Representative
that the President reconsider the final decision.
EN Ee EE ENTE CEES
47a
Appendix B
This matter is before the court on two motions by
defendants. Defendants moved to dismiss for lack of subject
matter jurisdiction pursuant to USCIT Rule 12(b)(1) and,
previous to that motion, sought dismissal of this action
through judgment upon an agency record pursuant to USCIT
Rule 56.1.
This court concludes that it has subject matter
jurisdiction of this case under 28 U.S.C. § 1581(i). This court
further concludes that the President’s decision declining to
impose restraints on imports of pedestal actuators must be
upheld because it is within the authority delegated to the
President by the relevant statute. The court finds no basis to
conclude that the presidential decision misconstrued statutory
provisions or must be overturned for noncompliance with
procedural requirements. Additionally, the court finds no
basis to order a reopening of proceedings for reconsideration
of the final presidential decision. Accordingly, for the reasons
discussed below, defendants are entitled to judgment as a
matter of law.
I. BACKGROUND
The pedestal actuators imported from China, and the
pedestal actuators manufactured in the United States by
Motion Systems Corporation, are motor-driven mechanical
devices chiefly used as components in mobility scooters and
electric wheelchairs. As typically installed in a mobility
scooter or electric wheelchair, a pedestal actuator converts
rotary motion, created by the electric motor, to the linear
motion required to raise and lower the seat.
48a
Appendix B
Motion Systems Corporation sought import relief
through the administrative proceedings summarized below.
Electric Mobility Corporation, a manufacturer of mobility
scooters and purchaser of Chinese-origin pedestal actuators,
opposed the imposition of import relief in those
administrative proceedings, as did defendant-intervenor CCL
Industrial Motor Ltd., a Chinese manufacturer of pedestal
actuators.
A. Procedures Leading to the President’s Decision
to Deny Relief
Motion Systems, on August 19, 2002, petitioned the U.S.
International Trade Commission (the “USITC’”) for relief
from imports of pedestal actuators from China, under
procedures established by section 421 of the Trade Act of
1974, as amended (19 U.S.C. § 2451) (“Section 421”).
Section 421, added to the Trade Act of 1974 by the U:S.-
China Relations Act of 2000, establishes procedures under
which the President, following an affirmative “market
disruption” determination by the USITC, is empowered to
proclaim “increased duties or other import restrictions” on a
product of China that “is being imported into the United
States in such increased quantities or under such conditions
as to cause or threaten to cause market disruption to the
domestic producers of a like or directly competitive product.”
19 U.S.C. § 2451(a). “Market disruption” is found to exist
“whenever imports of an article like or directly competitive
with an article produced by a domestic industry are increasing
rapidly, either absolutely or relatively, so as to be a significant
cause of material injury, or threat of material injury, to the
domestic industry.” 19 U.S.C. § 2451(c).
49a
Appendix B
The Section 421 procedures involve separate
determinations by the USITC and potentially by the President,
who is to make the actual decision whether or not to grant
import relief after receiving a recommendation of the U.S.
Trade Representative. To initiate the process, a domestic
producer may petition the USITC to investigate whether a
product of China is being imported into the United States in
such increased quantities or under such conditions as to cause
or threaten to cause market disruption to domestic producers
of like or directly competitive products. 19 U.S.C. § 2451(b).
The statute directs the USITC, upon making an
affirmative determination of market disruption, to propose
actions in the form of increased duties or other import
restrictions necessary to prevent or remedy the market
disruption. 19 U.S.C. § 2451(f). The statute further directs
the U.S. Trade Representative, after receiving the report of
the USITC, to publish in the Federal Register notice of any
import relief measure the U.S. Trade Representative proposes
to be taken and to invite public comment, with the
opportunity to request a public hearing on the appropriateness
of the proposed measure. 19 U.S.C. § 2451(h)(1). Further,
the statute authorizes the U.S. Trade Representative to enter
into agreements with the People’s Republic of China under
which China would take action to prevent or remedy market
disruption and provides that the Trade Representative “should
seek to conclude such agreements” within a 60-day period
commencing five days after receiving an affirmative
determination of the USITC. 19 U.S.C. § 2451(j)(1).
50a
Appendix B
Section 421 vests in the President the discretion whether
to provide import relief. Within 15 days of receiving the Trade
Representative’s final recommendation, the President is
directed to provide import relief for the domestic industry
“unless the President determines that provision of such relief
is not in the national economic interest of the United States”
or, in extraordinary cases, that it would cause serious harm
to the national security. 19 U.S.C. § 2451(k)(1). The import
relief may take the form of increased duties or other import
restrictions and is to remain in effect “for such period as the
President considers necessary to prevent or remedy the
market disruption.” 19 U.S.C. § 2451(a).
The President’s discretion to deny import relief following
an affirmative USITC finding of market disruption is subject
to specific limitations. The statute provides that “[t]he
President may determine . . . that providing import relief is
not in the national economic interest of the United States
only if the President finds that the taking of such action would
have an adverse impact on the United States economy clearly
greater than the benefits of such action.” 19 U.S.C.
§ 2451(k)(2).-
In the proceedings leading up to this litigation, the
USITC issued its report on the petition of Motion Systems
on November 7, 2002, following the submission of briefs
and a public hearing. See Pedestal Actuators from China:
Investigation No. TA-421-1, USITC Pub. 3557. The USITC
concluded in its report that pedestal actuators from China
are being imported in such increased quantities or under such
conditions as to cause market disruption to the domestic
producers of like or directly competitive products. The
Sla
Appendix B
USITC proposed, as a remedy to the market disruption it
had found to exist, a three-year period of quantitative
restrictions on Chinese pedestal actuator imports, to consist
of 5,626 units in the first year, 6,470 units in the second
year, and 7,440 units in the third year.' See International
Trade Commission: Pedestal Actuators, 67 Fed. Reg. 69,557,
69,558 (Nov. 18, 2002).
After sceking, unsuccessfully, an agreement with the
People’s Republic of China to prevent or remedy market
disruption from pedestal actuator imports, and after inviting
written comments? and conducting a public hearing, the U.S.
Trade Representative submitted its recommendation to the
President on January 2, 2003. On January 17, 2003, the
President issued a determination not to impose restrictive
measures on imports of pedestal actuators from China.
1. These quantitative limits were proposed by Vice Chairman
Hillman and Commissioner Miller. As authorized by 19 U.S.C.
§ 2451(g)(2)(C), Commissioner Koplan separately proposed a three-
year period of quantitative restrictions consisting of 4,425, 4,514,
and 4,604 units per year, respectively. Chairman Okun and
Commissioner Bragg made negative determinations concerning
market disruption.
2. Office of the U.S. Trade Representative, Notice of Proposed
Measure and Opportunity for Public Comment Pursuant to Section
421 of the Trade Act of 1974: Pedestal Actuators from the People’s
Republic of China, 67 Fed. Reg. 71,007 (Nov. 27, 2002) (“USTR
Notice”).
3. The U.S. Trade Representative did not make public, and was
not required by Section 421 to make public, its recommendation to
the President.
52a
Appendix B
B. The President’s Decision to Deny Relief to the
Domestic Pedestal Actuator Industry
The President’s decision was released in the form of a
Federal Register notice setting forth a memorandum to the
U.S. Trade Representative (“USTR” or “Trade
Representative”).* The decision included the following
findings: (1) providing import relief for the U.S. pedestal
actuator industry is not in the national economic interest;
and (2) import relief would have an adverse impact on the
United States economy clearly greater than the benefits of
such action.
The presidential decision went on to state four reasons
for the decision, as follows: (1) the facts indicate that the
USITC’s recommended quota would not likely benefit the
domestic industry and instead would cause imports to shift
to other offshore sources; (2) even if the quota were to benefit
the primary domestic producer (i.e., Motion Systems), the
cost of the quota to consumers, downstream purchasers of
pedestal actuators, and users of the downstream products
would substantially outweigh any benefit to producers’
income; (3) the cost of the quota would increase pressure on
domestic producers of the downstream products (i.e.,
mobility scooters and electric wheelchairs) to move offshore,
causing more economic harm than good due to the larger
number of workers in the downstream industry; and (4) the
quota would negatively affect the many elderly and disabled
4. The President, Presidential Determination on Pedestal
Actuator Imports from the People’s Republic of China, 68 Fed. Reg.
3,157 (Jan. 22, 2003).
53a
Appendix B
purchasers of the downstream products. The portion of the
presidential decision setting forth the two findings and the
four aforementioned reasons reads as follows.
After considering all relevant aspects of the
investigation, I have determined that providing
import relief for the U.S. pedestal actuator
industry is not in the national economic interest
of the United States. In particular, I find that the
import relief would have an adverse impact on
the United States economy clearly greater than the
benefits of such action.
In determining not to provide import relief, I
considered its overall costs to the U.S. economy.
The facts of this case indicate that imposing the
USITC’s recommended quota would not likely
benefit the domestic producing industry and
instead would cause imports to shift from China
to other offshore sources.
Even if the quota were to benefit the primary
domestic producer, the cost of the quota to
consumers, both the downstream purchasing
industry and users of the downstream products,
would substantially outweigh any benefit to
producers’ income. The USITC’s analysis
confirms this conclusion.
54a
Appendix B
In addition, downstream industries are already
under pressure to migrate production offshore to
compete with lower-cost imports of finished
products. Higher component costs resulting from
import relief would add to this pressure. Given
the significantly larger number of workers in the
downstream purchasing industry when compared
with the domestic pedestal actuator industry, I find
that imposing import restrictions would do more
economic harm than good.
Finally, a quota would negatively affect the many
disabled and elderly purchasers of mobility
scooters and electric wheelchairs, the primary
ultimate consumers of pedestal actuators.
C. Motion Systems’ Request for Reconsideration of
the President’s Decision
Following issuance of the President’s decision to deny
import relief on Chinese-origin pedestal actuators, Motion
Systems filed with the U.S. Trade Representative a
submission, dated February 12, 2003, requesting
“reconsideration” of that decision and citing “new evidence
which has come to light since January 17, the date of the
President’s determination.” The “new evidence” consisted
of documents that Motion Systems presented in support of
claims that Electric Mobility did not reduce the prices of
mobility scooters it sold to the Department of Veterans Affairs
and did not make an elecirically-powered seat lift (which
incorporates a pedestal actuator) standard equipment on 70
percent of its models. Motion Systems contended that this
55a
Appendix B
president of Electric Mobility Crrporation (“EMC”), Michael
Flowers, before the USTR hearing and raised credibility
concerns. The post-decision submission stated as follows:
If EMC did not, in fact, include the seat lift as
standard equipment on 70 percent of its scooters,
then that calls into serious question Mr. Flowers’
claim that EMC reduced the prices for those
scooters as a result of switching to the lower-
priced Chinese unit, particularly since Mr. Flowers
acknowledged that EMC did not reduce the price
of the seat lift as an option. And if it is the case
that EMC did not, in fact, reduce the prices when
it switched to the Chinese unit, then it calls into
question the credibility of Mr. Flowers’ claim that
EMC would be forced to increase its prices $200
if relief were granted. Once Mr. Flowers’
testimony is put aside, there is no evidence to
indicate the extent to which the costs of relief
would outweigh the benefits.
“new evidence” contradicted statements made by the
Stewart and Stewart letter to USTR, February i2, 2003 at
16-17, in Pl.’s Ex. 2.
In a letter to counsel for plaintiff dated March 7, 2003,
the Assistant U.S. Trade Representative for North Asian
Affairs, in an apparent reference to the February 12, 2003
submission, acknowledged with appreciation the
“supplemental information you have provided” but did not
indicate that the President would reconsider the decision to
deny import relief. The March 7, 2003 letter stated, inter
56a
Appendix B
alia, that “[y]our letter points to evidence that, in your view,
shows the sole U.S. purchaser of Chinese pedestal actuators,
Electric Mobility, did not reduce prices for its mobility
scooters and electric wheelchairs after it began sourcing
pedestal actuators from China and thus did not pass along to
consumers any cost savings.” That letter went on to state
that the issue whether Electric Mobility reduced its prices
after purchasing Chinese pedestal actuators was clearly
reflected “as disputed between the parties” in the materials
before the President at the time of the President’s decision,
adding that “this issue relates only indirectly to the
considerations identified by the President as dispositive in
his decision.” This action followed.
Iii. DISCUSSION
A. Subject Matter Jurisdiction
The court concludes that it is granted jurisdiction over
the instant action by 28 U.S.C. § 1581(4). Under paragraphs
(2)-(4) of subsection (i) of § 1581, this Court has exclusive
jurisdiction of civil actions commenced against the United
States, its agencies, or its officers that arise 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 raising of revenue” [paragraph (2) J, “embargoes or
other quantitative restrictions on the importation of
merchandise for reasons other than the protection of the
public health or safety” [paragraph (3) ], or “administration
and enforcement with respect to the matters referred to in
paragraphs (1)-(3) of this subsection....” [Paragraph (4) ].
57a
Appendix B
Section 421 provides for increased tariffs for reasons
other than raising revenue, specifically, for preventing or
remedying market disruption adversely affecting a domestic
industry. It also authorizes quantitative import restrictions
to serve these same purposes, which are reasons “other than
the protection of the public health or safety.” Plaintiff has
commenced an action against the President of the United
States and the U.S. Trade Representative, both of whom are
officers of the United States. With respect to the President,
status as an officer of the United States stems from the
Constitution itself, for the President is the essential
constitutional officer under Article II of the Constitution.
“The executive Power shall be vested in a President of the
United States of America. He shall hold his Office during
the Term of four Years. . . .” U.S. CONST., Art. I, § 1. “This
grant of authority establishes the President as the chief
constitutional officer of the Executive Branch, entrusted with
supervisory and policy responsibilities of utmost discretion
and sensitivity.” Nixon v. Fitzgerald, 457 U.S. 731, 750, 102
S.Ct. 2690, 73 L.Ed.2d 349 (1982). The court concludes,
therefore, that this action falls squarely within the express
terms of the jurisdictional provisions in § 1581(i)(2) and
(i)(3).
Defendants move to dismiss this action for lack of subject
matter jurisdiction, advancing an argument based on two
contentions. Defendants contend, first, that the President
must be dismissed from this action, relying on the recent
decision of the United States Court of Appeals for the Federal
Circuit in Corus Group PLC v. Int’l Trade Comm’n. 352 F.3d
1351 (Fed.Cir.2003). Specifically, defendants interpret Corus
Group to require that a challenge such as this to a presidential
58a
Appendix B
decision be dismissed for lack of subject matter jurisdiction
because of the Federal Circuit’s statement in Corus Group
that “section 1581(i) does not authorize proceedings directly
against the President.” Jd., 352 F.3d at 1359. The second
contention by defendants is that this case may not proceed
as a challenge to an action of the U.S. Trade Representative,
who in the statutory Section 421 procedure performs the role
of advising the President regarding import relief. Defendants
argue that this Court, lacking “jurisdiction to entertain
plaintiff’s claims against the President, likewise lacks
jurisdiction to entertain challenges to the President’s
advisors.” Defs.’ Mot. to Dismiss at 3. According to their
argument, the U.S. Trade Representative’s recommendation
to the President addressing the issue of import relief is purely
advisory, rather than determinative of legal rights, and hence
it is unreviewable under principles announced by the
Supreme Court in Bennett v. Spear, 520 U.S. 154, 177-78,
117 S.Ct. 1154, 137 L.Ed.2d 281 (1997), and cited by the
Federal Circuit in Corus Group. Having contended that this
action may be brought neither against the President nor
against the U.S. Trade Representative, defendants conclude
that this court must dismiss this case for lack of subject matter
jurisdiction.
The court disagrees with defendants’ jurisdictional
analysis for two reasons. First, if this court were to construe
the Federal Circuit’s decision in Corus Group to require
dismissal of this action, it would be acting contrary to the
jurisdictional principles applied by the Federal Circuit in a
line of cases in which presidential action was challenged
directly, including Humane Society of the United States v.
Clinton, 236 F.3d 1320 (Fed.Cir.2001), a decision not
59a
Appendix B
overturned by Corus Group. See Corus Group, 352 F.3d at
1359-1360. Second, were the court to accept defendants’
reasoning, it would be holding, in the particular posture of
this case, that decisions by the President to deny import relief
pursuant to authority delegated by Congress in Section 421
are entirely outside the scope of judicial review under 28
U.S.C § 1581(i). Such a holding, which would go beyond
the holding in Corus Group, cannot be reconciled with the
express language of § 1581(i). These two points are discussed
below.
In Corus Group, the Court of Appeals for the Federal
Circuit concluded that the Court of International Trade should
have dismissed the President from an action brought under
28 U.S.C. § 1581(i4) challenging certain decisions made
during an “escape clause” proceeding affecting steel imports
that was conducted under section 201 of the Trade Act of
1974. The Court of Appeals reasoned that § 1581(i) does not
authorize proceedings directly against the President,
observing that it “refers only to actions ‘against the United
States, its agencies, or its cfficers’ and does not specifically
include the President.” 352 F.3d at 1359. The Court of
Appeals in Corus Group held that the Court of International
Trade nevertheless had jurisdiction over the subject matter
of the dispute under 28 U.S.C. § 1581(i) and concluded that
relief still could have been sought against the Commissioner
of Customs, who along with the President and the U.S.
International Trade Commission was named as a defendant.
The Court of Appeals observed that had plaintiffs prevailed,
the Customs Commissioner could have been enjoined from
collecting duties, as proclaimed by the President under the
escape clause, on the imported tin mill steel products that
were at issue in the case. Id.
60a
Appendix B
In Humane Society of the United States v. Clinton, as in
Corus Group, plaintiffs sought relief against, and named as
defendants, the President of the United States and other
government officials (in that case, the Secretaries of State
and Commerce). The plaintiffs in Humane Society sued the
government officials for their alleged failure to comply with
the Driftnet Fishing Act, 16 U.S.C. § § 1826-1826g. See
Humane Society, 236 F.3d at 1323. Specifically, plaintiffs
appealed from a decision of this Court refusing to issue a
writ of mandamus ordering the President to impose sanctions
on Italy for large-scale driftnet fishing and refusing to find
arbitrary and capricious a certification by the Secretary of
Commerce that large-scale driftnet fishing during a specified
time period had been terminated by Italy. See id. Plaintiffs
had brought their case in this Court under 28 U.S.C. § 1581(i).
The defendants in Humane Society sought dismissal on
the ground that “there has been no waiver of sovereign
immunity by the United States.” 236 F.3d at 1325. The Court
of Appeals for the Federal Circuit, observing that
“[{s]overeign immunity and subject matter jurisdiction are
related but different juridical concepts,” id. at 1326, further
observed that “[u]nless the grant of jurisdiction carries with
it a coextensive waiver of sovereign immunity, the
Congressional grant would be a hollow act, with no
significant consequences to the sovereign, and no significant
benefits to the sovereign’s subjects.” /d. at 1328. Analogizing
to the Supreme Court’s analysis of jurisdiction and waiver
of sovereign immunity under the Tucker Act in United States
v. Mitchell, 463 U.S. 206, 103 S.Ct. 2961, 77 1..Ed.2d 580
(1983), the Federal Circuit concluded in Humane Society that
28 U.S.C. § 1581 “not only states the jurisdictional grant to
6la
Appendix B
the Court of International Trade, but also provides a waiver
of sovereign immunity over the specified class of cases.”
236 F.3d at 1328. The Court of Appeals further concluded in
Humane Society that “[t]he Court of International Trade
properly exercised jurisdiction over this case.” Id.
With respect to the scope of the jurisdictional grant in
28 U.S.C. § 1581(i), the decision of the Court of Appeals in
Humane Society was consistent with a line of previous
decisions in which challenges to presidential action pursuant
to tariff statutes were brought thereunder. In its opinion in
Humane Society, the Court of Appeals noted with approval
the plaintiffs’ citation of “numerous cases in which the Court
of International Trade has since considered challenges to the
actions of the President pursuant to the grant of jurisdiction
in § 1581(i). See, e.g., Florsheim Shoe Co. v. United States,
744 F.2d 787 (Fed.Cir.1984); United States Cane Sugar
Refiners’ Ass'n v. Block, 69 C.C.P.A. 172, 683 F.2d 399
(1982); Kemet Electronics Corp. v. Barshefsky, 976 F.Supp.
1012 (CIT 1997); Luggage & Leather Goods Mfrs. of
America, Inc. v. United States, 588 F.Supp. 1413 (CIT 1984).”
236 F.3d at 1327. This court cannot adopt the interpretation
of Corus Group advanced by defendants and, at the same
time, adhere to the jurisdictional principles set forth in
Humane Society and the predecessor cases in which
presidential actions were challenged pursuant to 28 U.S.C.
§ 1581(1). Nor is this court able to reconcile the construction
of § 1581(i) advanced by defendants with the plain meaning
of that statutory provision.
62a
Appendix B
As noted above, Corus Group did not overturn Humane
Society. See Corus Group, 352 F.3d at 1359-1360.
Furthermore, it did not overturn the previous cases identified
in Humane Society as “numerous cases in which the Court
of International Trade has since considered challenges to the
actions of the President pursuant to the grant of jurisdiction
in § 1581(i).” Humane Society, 236 F.3d at 1327. Moreover,
under precedent of the Court of Appeals for the Federal
Circuit, these earlier decisions may be overturned only en
banc. See Sacco v. Dep’t of Justice, 317 F.3d 1384, 1386
(Fed.Cir.2003) (citing Newell Companies, Inc. v. Kenney Mfg.
Co., 864 F.2d 757, 765 (Fed.Cir.1988) (“A panel of this court
is bound by prior precedential decisions unless and until
overturned en banc.”)). To the extent of any conflict between
the decision in Corus Group and the decision in Humane
Society, this court concludes that it should follow the earlier
decision, because a decision of one panel of the Court of
Appeals for the Federal Circuit should not be read to overturn
the decision of a previous panel. “Where there is a direct
conflict, the precedential decision is the first.” Newell
Companies, Inc., 864 F.2d at 765 (Fed.Cir.1988).
The second part of defendants’ argument on jurisdiction
is that the recommendation of the U.S. Trade Representative
in the administrative proceeding was purely advisory, rather
than determinative of legal rights, and hence is unreviewable
under principles announced by the Supreme Court in Benneit
v. Spear, 520 U.S. at 177-78, 117 S.Ct. 1154, and cited by
the Federal Circuit in Corus Group. Having contended that
this court lacks subject matter jurisdiction over an action
brought directly against the President and that the Trade
Representative’s action cannot be challenged, defendants
63a
Appendix B
present what is in effect an argument that this Court lacks
subject matter jurisdiction because there is no officer of the
United States against whom relief may be sought. The court
finds this argument unpersuasive.
As confirmed by the jurisdictional analyses in Humane
Society and in prior decisions involving challenges to
presidential action under trade statutes, 28 U.S.C. § 1581(i)
provides subject matter jurisdiction in this Court over a
challenge such as this to final presidential action taken under
Section 421. Accordingly, the court need not reach the issue
whether the Trade Representative’s recommendation to the
President, standing by itself, would have been appealable in
this forum as a final decision, or, alternatively, “purely
advisory” under principles advanced in Bennett v. Spear. See
Bennett v. Spear, 520 U.S. at 178, 117 S.Ct. 1154. The
procedural actions taken by the Office of the U.S. Trade
Representative are challenged in this proceeding. They are
reviewable pursuant to the subject matter jurisdiction of this
Court as procedural predicates to the final presidential action.
See Dalton v. Specter, 511 U.S. 462, 478, 114 S.Ct. 1719,
128 L.Ed.2d 497 (1994) (Blackmun, J., concurring in part
and concurring in the judgment); see also Fed. Trade Comm’n
v. Standard Oil of Calif., 449 U.S. 232, 244-245, 101 S.Ct.
488, 66 L.Ed.2d 416 (1980) (Preliminary decision to issue
complaint by Federal Trade Commission is not insulated by
finality requirement, and “a court of appeals reviewing a
[final] cease-and-desist order has the power to review alleged
unlawfulness in the [preliminary] issuance of the
complaint.”).
64a
Appendix B
Furthermore, were this court to accept the two premises
of defendants’ jurisdictional argument, subject matter
jurisdiction would be found to exist in this Court where a
challenge is brought to a presidential decision granting import
relief under Section 421 but not where the challenge is
brought against a presidential decision denying such relief.
Where the action challenged is one in which the President
granted import relief, the Commissioner of Customs could
be enjoined from collecting duties or from excluding
merchandise from entry. Where, as here, the President denied
such relief, defendants’ construction of § 1581(i) would leave
no officer of the United States who could be sued. Support
for such an anomalous distinction can be found neither in
the language of 28 U.S.C. § 1581(;) nor in the congressional
purpose underlying this jurisdictional provision. The
jurisdictional bifurcation that would be created by defendants’
interpretation of § 1581(i1) would appear to blur the
distinctions between subject matter jurisdiction and personal
jurisdiction. It also would lead to confusion of the type
Congress intended to prevent when it included 28 U.S.C.
8 1581(i) as part of the Customs Courts Act of 1980, Pub. L.
96-417. As the Court of Appeals for the Federal Circuit
observed in American Association of Exporters and
Importers-Textile and Apparel Group v. United States, 751
F.2d 1239, 1245-46 (Fed.Cir.1985), that intent was “to
establish clear rules and to center international trade litigation
in the CIT.”
For the foregoing reasons, this court rejects the
interpretations of § 1581(i) and of Corus Group that are
advanced by defendants. Defendants’ motion to dismiss for
lack of subject matter jurisdiction is denied.
65a
Appendix B
B. Summary Judgment and Judgment on an Agency
Record
In seeking dismissal of this action, defendants have
moved for judgment on an agency record pursuant to USCIT
Rule 56.1, “Judgment Upon an Agency Record for an Action
Other Than That Described in 28 U.S.C. § 1581(c).”
Subsection (a) of that Rule provides, in pertinent part, that
“where a party believes that the determination of the court is
to be made solely upon the basis of the record made before
an agency, that party may move for judgment in its favor
upon all or any part of the agency determination.” In this
action, however, the determination of the court cannct be
made solely on the basis of the record made before an agency,
because the decision under review is that of the President,
not that of an administrative agency. For the same reason,
this case cannot be decided on the basis of judgment “upon
all or any part of the agency determination.” Therefore, the
subject matter of Rule 56.1 does not precisely describe the
issue pending before the court.
This case presents no genuine issue as to any material
fact. Both plaintiff and defendants are seeking judgment as
a matter of law. Specifically, plaintiff Motion Systems seeks
an order granting it judgment on the record setting aside the
President’s determination not to grant relief from imports.
Defendants and defendant-intervenor CCL Industrial Motor
Ltd. seek judgment as a matter of law dismissing this action.
These circumstances are within the ambit of Rule 56,
Summary Judgment.’ Accordingly, the court will consider
defendants’ motion as a motion for summary judgment under
5. USCIT R. 56(c) states, in the relevant part:
(Cont’d)
66a
Appendix B
USCIT Rule 56 and, similarly, treat the submission of
plaintiff opposing defendants’ motion as a cross motion for
summary judgment.®
C. Standard of Review for Presidential Actions
under Trade Statutes
In reviewing final actions of the President, courts have
applied a standard of review considerably narrower and more
deferential than the standards most often accorded to final
actions by administrative agencies, which Congress has
(Cont'd)
The judgment sought shall be rendered forthwith if the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material
fact and that the moving party is entitled to a judgment
as a matter of law.
6. At oral argument held October 22, 2003, the parties indicated
that they do not oppose the court’s consideration of the relief sought
by defendants and plaintiff as a motion and cross motion,
respectively, for summary judgment under Rule 56. Oral Arg. Tr. at
64—66. Subsequent to oral argument, plaintiff filed with the court a
letter, dated November 18, 2003, stating that plaintiff now considered
summary judgment to be inappropriate and seeking to “withdraw
any concession that consideration under Rule 56 is in order.” In its
opposition to defendants’ motion under Rule 56.1, plaintiff had
acknowledged that “[t}here are no material issues of fact in issue in
this action” and sought judgment on the record in its favor. Plaintiff
has not sought to amend its pleadings. Most significantly, plaintiff's
letter-of November 18, 2003 does not establish that this case presents
a genuine issuc as to any material fact. Under these circumstances,
Rule 56 is the applicable rule under which this case is to be decided.
67a
Appendix B
subjected generally to standards of review prescribed by the
Administrative Procedure Act (“APA”), 5 U.S.C. § 706. The
APA provisions include the standard of review commonly
referred to as the “arbitrary and capricious” or “abuse of
discretion” standard, under which a court will “hold unlawful
and set aside agency action, findings, and conclusions found
to be . . . arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A).
For cases brought under 28 U.S.C. § 1581(i), 28 U.S.C.
§ 2640 refers this court to the APA, providing that the court
“shall review the matter as provided in section 706 of title
5.” However, 5 U.S.C. § 706 is expressly confined to the
review of an “agency action.” As the Supreme Court
recognized in Franklin v. Massachusetts, 505 U.S. 788, 112
S.Ct. 2767, 120 L.Ed.2d 636 (1992), “the President is not an
agency within the meaning of the Act,” concluding in that
instance that “there is no final agency action that may be
reviewed under the APA standards.” /d. at 796, 112 S.Ct.
2767. The Franklin Court reasoned as follows:
The President is not explicitly excluded from the
APA’s purview, but he is not explicitly included,
either. Out of respect for the separation of powers
and the unique constitutional position of the
President, we find that textual silence is not
enough to subject the President to the provisions
of the APA. We would require an express
statement by Congress before assuming it
intended the President’s performance of his
statutory duties to be reviewed for abuse of
discretion.
68a
Appendix B
505 U.S. at 800-801, 112 S.Ct. 2767. “Although the
President’s actions may still be reviewed for constitutionality,
we hold that they are not reviewable for abuse of discretion
under the APA... .” Jd. at 801, 112 S.Ct. 2767 (citations
Omitted).
Franklin v. Massachusetts involved a judicial challenge
to presidential action under the statutory congressional
reapportionment provisions. When reviewing presidential
actions taken under the authority of tariff statutes, courts also
have limited the scope of their reviews, noting in particular
the relationship between actions taken under tariff statutes
and the President’s unique role in foreign affairs. In Maple
Leaf Fish Co. v. United States, 762 F.2d 86 (Fed.Cir.1985),
the Court of Appeals for the Federal Circuit stated as follows:
In international trade controversies of this highly
discretionary kind-involving the President and
foreign affairs-this court and its predecessors have
often reiterated the very limited role of reviewing
courts. See, e.g., American Association of
Exporters and Importers v. United States, 751 F.2d
1239, 1248-49 (Fed.Cir.1985); Florsheim Shoe
Co. v. United States, 744 F.2d 787, 793 795-97
(Fed.Cir. 1984). 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.
762 F.2d at 89. Maple Leaf Fish Co. involved the review of
presidential action under the “escape clause” established by |
section 201 of the Trade Act of 1974, 19 U.S.C. § § 2251-
69a
Appendix B
53. In Florsheim Shoe Co., the Federal Circuit applied
essentially the same standard of review in considering a
challenge to the President’s exercise of authority under the
Generalized System of Preferences (“GSP”) program
(specifically, Section 504 of Title V of the Trade Act of 1974,
. 19 U.S.C. § 2464) to limit duty-free tariff treatment for a
certain class of imported goods. The Federal Circuit in
Florsheim Shoe Co. concluded that “[b]Joth the Supreme
Court and Court of Customs and Patent Appeals precedent
have established that the Executive’s decisions in the sphere
of international trade are reviewable only to determine
whether the President’s action falls within his delegated
authority, whether the statutory language has been properly
construed, and whether the President’s action conforms with
the relevant procedural requirements.” Florsheim Shoe Co.
v. United States, 744 F.2d 787, 795 (1984). The court further
concluded that “[{t]he President’s findings of fact and the
motivations for his action are not subject to review.” Jd.
(citing United States v. George S. Bush & Co., 310 U.S. 371,
379-80, 60 S.Ct. 944, 84 L.Ed. 1259 (1940); United States
Cane Sugar Refiners’ Association v. Block, 683 F.2d at 404;
Aimcee Wholesale Corp. v. United States, 60 C.C.P.A. 1, 468
F.2d 202, 206 (1972)).
As do the trade enactments at issue in Maple Leaf Fish
Co., supra, and Florsheim Shoe Co., supra, Section 421
grants the President considerable discretion. The President
may decide to provide import relief to the domestic industry,
or, after making certain findings, may decide not to do so. If
he decides to provide such relief, he may do so by means of
“increased duties or other import restrictions.” Section
421(a), 19 U.S.C. § 2451(a). The time period for the relief is
\
70a
Appendix B
also left to the President’s discretion; the relief is to remain
in effect “for such period as the President considers necessary
to prevent or remedy the market disruption.” /d.
Section 421 does not indicate congressional intent to
subject the President’s determinations thereunder to an APA
“abuse of discretion” or similar standard. Therefore, in
reviewing the President’s determination of January 17, 2003
not to proclaim restrictive measures on imports of pedestal
actuators from China, this court will uphold the President’s
action absent “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.
D. Analysis of the President’s Decision under the
Applicable Standard of Review
1. Construction of the Governing Statute and
Action Within Delegated Authority
This court finds no basis to conclude that the January
17, 2003 decision not to grant import relief to the U.S.
pedestal actuator industry is based on a misconstruction of
Section 421. The decision is consistent with the statute with
respect to the types of factual determinations that-are required
to support a denial of import relief to a domestic industry
and with respect to the requirement that the published
decision include the “reasons therefor.” Moreover, because
it contains a specific determination and a specific finding
responsive to the statutory criteria for denying relief and
presents reasons that are sufficient under the applicable
standard for judicial review, the President’s decision did not
exceed the authority delegated by Congress in Section 421.
Tila
Appendix B
The aforementioned statutory criteria are set forth in
Section 421(k). Section 421(k)(1) requires that a decision
denying import relief be based on a presidential determination
that provision of relief is “not in the national economic
interest of the United States, or, in extraordinary cases, that
the taking of action pursuant to subsection (a) of this section
would cause serious harm to the national security of the
United States.” 19 U.S.C. § 2451(k)(1). If the President
decides to deny relief under the “economic interest” criterion
as opposed to the “national security” criterion, the President
may do so only upon a presidential finding under Section
421(k)(2) that “the taking of such action would have an
adverse impact on the United States economy clearly greater
than the benefits of such action.” 19 U.S.C. § 2451(k)(2).
The President’s January 17, 2003 decision contains a
presidential determination under the economic interest
criterion: “After considering all relevant aspects of the
investigation, I have determined that providing import relief
for the U.S. pedestal actuator industry is not in the national
economic interest of the United States.” The decision also
contains a presidential finding that “the import relief would
have an adverse impact on the United States economy clearly
greater than the benefits of such action.” Finally, with respect
to the President’s decision to deny relief, the notice states
“reasons therefor.”
This court’s consideration of the reasons stated in the
presidential decision must be informed by the degree of
deference to be accorded to the President under the applicable
standard of review. As discussed previously, “[t]he
President’s findings of fact and the motivations for his action
72a
Appendix B
are not subject to review.” Florsheim Shoe Co. v. United
States, 744 F.2d at 795. Although the President must state
reasons for his decision, those reasons are not to be reviewed
in this court under the “abuse of discretion” standard of 5
U.S.C. § 706(2)(A), nor are the underlying findings of fact
to be subjected to a standard such as the “substantial
evidence” standard described in 5 U.S.C. § 706(2)(E).
The reasons set forth in the President’s notice refer to
factual matters that were before the President as a result of
the investigation conducted by the USITC. They relate
specifically to the statutory “economic interest” criterion and
the statutory requiremeni that denial of relief under that
criterion be based on a presidential finding that “the taking
of such action would have an adverse impact on the United
States economy clearly greater than the benefits of such
action.” As a result, they are directed to the specific
determination and finding which, under the plain meaning
of Section 421(k), must guide the exercise of presidential
discretion to deny relief. Having made both the “economic
interest” determination required by subsection (k)(1) and the
finding under subsection (k)(2) that imposing import relief
would have an adverse impact on the United States economy
clearly greater than the benefits of such action, and having
presented reasons for his decision in the published notice
that are sufficient under the applicable standard for judicial
review, the President was acting within the boundaries of
the discretion Congress delegated to him in deciding not to
impose import relief for the domestic pedestal actuator
industry.
73a
Appendix B
Motion Systems contends that the President, in denying
import relief following the affirmative determination of
market disruption by the USITC, both misconstrued Section
421 and exceeded his authority thereunder. Once the USITC
has made such a determination, plaintiff argues, the President
“is acting under a mandate to provide relief,” unless the
President invokes what plaintiff views “is meant to be a rare
exception to that relief.” Pl. ’s Br. in Supp. of its Opp. to Defs.’
Mot. for Summ. J. upon an Agency R. (“Pl.’s Br.”) at 28. In
plaintiff’s view, the statute creates a presumption of relief in
the use of the words “shall . . . proclaim” in subsection (a) of
Section 421, under which the President, following an
affirmative USITC determination, “shall, in accordance with
the provisions of this section, proclaim increased duties or
other import restrictions.” Pl.’s Br. at 24. Motion Systems
finds further support for its interpretation in the language of
subsection (j)(2) of Section 421, which provides that the
President, in the absence of an agreement with the People’s
Republic of China, “shall provide import relief in accordance
with subsection (a) of this section.” /d.
In asserting that the provision in subsection (k)(2) of
Section 421 “is meant to be a rare exception” to relief, Motion
Systems places emphasis on the words “clearly greater” as
used therein (“The President may determine under paragraph
(1) that providing import relief is not in the national economic
interest of the United States only if the President finds that
the taking of such action would have an adverse impact on
the United States economy clearly greater than the benefits
of such acticn’’). Based on the words “clearly greater” as
used in subsection (k)(2), plaintiff construes the statute to
require that “[i]n order to support a denial of relief... the
74a
Appendix B
evidence supporting the denial must be ‘clear,’ or beyond a
reasonable doubt” and that “the burden was on the President
to make such a negative determination only where such more-
than-substantial evidence was produced.” Pl.’s Br. at 3.
Plaintiff further contends that “[t]he record must contain
evidence quantifying the adverse economic impact on the
United States economy of providing such relief, not mere
conjecture that there might be some adverse impact.” /d.
Regarding benefits of relief, plaintiff argues that “[t]he
President has simply not examined or quantified the benefits
of relief, and thus the Court cannot sustain his determination
that the adverse impact on the United States economy of
providing the recommended import relief would be greater
than those benefits.” Pl.’s Br. at 46.
The court does not agree with plaintiff's construction of
Section 421. Subsection (k)(2) describes the nature of the
presidential finding that must precede a presidential
determination that providing import relief is not in the
national economic interest. It does not impose on the
President a burden to establish or support that finding with
“evidence quantifying the adverse economic impact,”
“evidence beyond a reasonable doubt,” “clear and convincing
evidence,” or “more-than-substantial evidence.” The
provision itself makes no reference to evidence or burden of
proof. Nor does it indicate congressional intent to impose a
standard of review different from that which the courts
consistently have applied in the judicial review of presidential
action under tariff statutes.
75a
Appendix B
The use of the words “shall . . . proclaim” and “shall
provide” in subsections (a) and (j)(2) of Section 421,
respectively, when read together with subsection (k)(2), do
not impose on the President the evidentiary requirements that
plaintiff ascribes to these statutory provisions. The words
“shall... . proclaim increased import duties or other
restrictions,” as used in subsection (a), are expressly qualified —
with the phrase “in accordance with the provisions of this
section,” which includes the exceptions provided for in
subsections (k)(1) and (k)(2). Similarly, the “shall provide”
language of subsection (j)(2) incorporates the same
exceptions through the use of the phrase “in accordance with
subsection (a) of this section.”
A judicial inquiry commensurate with plaintiff’s
construction of the statute would require this court to-evaluate
the sufficiency of the evidence underlying the President’s
findings. That is not within the court’s power. Again, “[t]he
President’s findings of fact and the motivations for his action
are not subject to review.” Florsheim Shoe Co., 744 F.2d at
795.
Plaintiff relies on a number of cases for its contention
that the President’s findings should be subjected upon judicial
review to a “clear and convincing” evidentiary standard. The
cited cases include Finnigan Corp. v. Int’l Trade Comm'n.,
180 F.3d 1354, 1366 n. 8 (1999) (The applicable standard
for determining existence of invalidating activities in a patent
case is “clear, satisfactory and beyond a reasonable doubt,”
which is “indistinguishable from the more modern parlance
of ‘clear and convincing’ evidence.”); United States v. United
States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.
76a
Appendix B
Ed. 746 (1948) (Appellate review of a trial court’s findings
of fact will be affirmed unless “clearly erroneous.”); Connor
v. United States, 24 CIT 195, 198 (2000) (To establish
jurisdiction under 28 U.S.C. § 1581(h) plaintiff must show
by clear and convincing evidence that the immediate threat
of a harm occurring exists.). The cases cited by plaintiff are
unavailing. None establishes a rule of law under which this
court, based on the effect of statutory words such as “clearly
greater” or any words to similar effect, is to subject
presidential findings to a substantial evidence test or a more
stringent test requiring “clear and convincing” evidence or
evidence “beyond a reasonable doubt.”
In summary, the President’s decision of January 17, 2003
contains the determination and the finding required by
Section 421 to support a denial of import relief and presents
“reasons therefor” that are sufficient to support that decision
under the applicable standard for judicial review. The court
finds no basis to conclude that the President’s decision is
based on “a clear misconstruction of the governing statute”
or that it constituted “action outside delegated authority.”
Maple Leaf Fish Co., 762 F.2d at 89.
2. Compliance with Procedures
The President’s decision not t
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