495 F.Supp.3d 1336
Ct. Int'l Trade2021Background
- Plaintiffs (U.S. steel importers) challenged tariffs imposed under 19 U.S.C. § 1862 (Section 232) after the Commerce Secretary’s steel investigation and report (initiated Apr. 19, 2017; report Jan. 11, 2018).
- Secretary Ross concluded steel imports threatened to impair national security and recommended remedial action; President Trump issued Proclamation 9705 (Mar. 8, 2018) imposing a 25% tariff (with subsequent modifications/exemptions and later adjustments by Proclamations 9711, 9740, 9759, 9772, 9777, 9894).
- Plaintiffs sued, alleging (1) the Steel Report is final agency action and procedurally defective under the APA; (2) the Secretary and President misinterpreted Section 232 by not requiring an "impending" threat; (3) the President failed to determine a lawful "duration" for the measures; and (4) timing violations relating to exemptions/negotiation periods.
- The Government moved for judgment on the pleadings; plaintiffs cross-moved for partial summary judgment. The Court granted the Government’s motion and denied plaintiffs’ cross-motion.
- The court decided (a) the Steel Report is not final agency action under the APA, (b) courts lack review of the President’s discretionary national-security judgment under Section 232 (including the alleged "impending" requirement), (c) the President satisfied the statute’s "duration" requirement by linking continuation to his judgment that the threat persists, and (d) timing/180-day negotiation and 15-day implementation arguments failed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Reviewability of the Commerce Secretary’s Steel Report (final agency action under APA) | The Steel Report is final and produced legal consequences, so APA review is available | The report is advisory/recommendation to the President and not final; APA review is unavailable | The report is not final agency action; APA claims dismissed |
| Statutory requirement that the Secretary/President identify an "impending" threat | Section 232 requires an "impending" threat ("threat" means something impending); failure to so find undermines action | Statute uses "threaten to impair" and grants President discretion; no textual "impending" requirement | Court will not review President's national-security judgment; claim not reviewable and fails |
| Requirement to "determine the ... duration" of action under §1862(c)(1)(A)(ii) | "Duration" requires a finite termination date or specified end-conditions at issuance | "Duration" can be satisfied by President determining the action continues until he judges the threat abated; statute leaves determination to President's judgment | Held that Proclamation 9705 satisfied "duration" by tying continuation to the President's judgment; plaintiffs’ claim rejected |
| Timing/negotiation provisions (15-day implementation; 180-day negotiation safe harbor; expiry of temporary exemptions) | President impermissibly allowed exemptions to expire and acted before required 180-day negotiation; prolonged exemptions violated timing rules | Section 232 does not require the President to delay alternative action for a minimum 180 days; President implemented negotiation-based exemptions within 15 days and later imposed tariffs within 180 days | Held statutory timing was satisfied; plaintiffs’ timing challenge fails |
Key Cases Cited
- Bennett v. Spear, 520 U.S. 154 (1997) (articulates two-part test for final agency action under APA)
- Franklin v. Massachusetts, 505 U.S. 788 (1992) (agency recommendations that remain subject to Presidential approval are not final)
- Dalton v. Specter, 511 U.S. 462 (1994) (agency recommendation to President not final where President’s approval is required for effect)
- Corus Group PLC v. International Trade Commission, 352 F.3d 1351 (Fed. Cir. 2003) (distinguishes statutes that compel Presidential action, making agency findings reviewable)
- Motion Systems Corp. v. Bush, 437 F.3d 1356 (Fed. Cir. 2006) (recommendations to President under trade statutes held non-final)
- Michael Simon Design, Inc. v. United States, 609 F.3d 1335 (Fed. Cir. 2010) (Commission recommendations to President are advisory and not final agency action)
- Silfab Solar, Inc. v. United States, 892 F.3d 1340 (Fed. Cir. 2018) (nonstatutory review of Presidential action is narrowly available; procedural defects in agency report do not automatically invalidate Presidential action)
- Fed. Energy Admin. v. Algonquin SNG, Inc., 426 U.S. 548 (1976) (upholds Section 232 as a permissible delegation with statutory preconditions)
- Maple Leaf Fish Co. v. United States, 762 F.2d 86 (Fed. Cir. 1985) (limits judicial review of Presidential Section 232 action to clear misconstruction, significant procedural violation, or action beyond delegated authority)