CORUS GROUP PLC, Corus UK Ltd, Corus Staal BV, Corus Packaging Plus Norway AS, Corus Steel USA Inc., and Corus America Inc., Plaintiffs-Appellants, v. INTERNATIONAL TRADE COMMISSION, Defendant-Appellee, and George W. Bush, President of the United States, and Robert C. Bonner, Commissioner, United States Customs Service, Defendants-Appellees, and Weirton Steel Corporation, Defendant-Appellee, and Bethlehem Steel Corporation, National Steel Corporation, and UNITED STATES Steel Corporation, Defendants.
No. 03-1040.
United States Court of Appeals, Federal Circuit.
Decided December 11, 2003.
352 F.3d 1351
Mary Elizabeth Jones, Attorney, Office of the General Counsel, United States International Trade Commission, of Washington, DC, argued for Defendant-Appellee United States International Trade Commission. With her on the brief were Lyn M. Schlitt, General Counsel; and James M. Lyons, Deputy General Counsel.
Lucius B. Lau, Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for Defendants-Appellees, George W. Bush, President of the United States, and Robert C. Bonner, Commissioner, United States Customs Service. With him on the brief was David M. Cohen. Stephen C. Tosini, Attorney, for defendants-appellees. Of counsel was Jeanne E. Davidson, Deputy Director.
Roger B. Schagrin, Schagrin Associates, of Washington, DC, argued for Defendant-Appellee Weirton Steel Corporation.
Before NEWMAN, GAJARSA, and DYK, Circuit Judges.
Opinion for the court filed by Circuit Judge DYK. Opinion concurring in the judgment, dissenting in part filed by Circuit Judge NEWMAN.
Opinion for the court filed by Circuit Judge DYK.
The appellants argue that the President acted beyond his delegated authority because the International Trade Commission (“the Commission“) was not evenly divided and thus could not trigger the President‘s authority to impose the duty under the Trade Act of 1974,
BACKGROUND
I
The Trade Act of 1974 grants the President broad powers to enter into trade agreements with foreign countries and to either decrease or increase duties on imported articles as required to carry out any such trade agreement.
Although the President may not take action unless the Commission makes an affirmative injury determination, once such a determination is made, the President has broad latitude to determine the type of action to take. The Act provides an expansive, non-exclusive list of actions the President may take, including “any ... action which may be taken by the President under the authority of law and which the President considers appropriate and feasible.”
The Commission is composed of six commissioners who vote on the injury determination question. In the event that “the commissioners voting are equally divided with respect to [an injury] determination, then the determination agreed upon by either group of commissioners may be considered by the President as the determination of the Commission.”
On June 22, 2001, the United States Trade Representative made a request under
Of the four commissioners who defined “certain carbon flat-rolled steel” as a separate category from tin mill steel, three commissioners (Koplan, Okun, and Hillman) determined that the increase in imports of tin mill products did not cause serious injury to the domestic tin mill industry. Id., slip op. at 74.
Commissioner Miller agreed with Commissioners Koplan, Okun, and Hillman that tin mill products should be analyzed as a separate category, but disagreed with those commissioners’ negative injury determination as to tin mill products standing alone. Commissioner Miller found “that increased imports of tin mill products are a substantial cause of serious injury to the domestic tin mill industry.” Id., slip op. at 307.
Commissioners Bragg and Devaney, rather than analyzing tin mill products separately, each determined that all carbon and alloy flat products (including tin mill products) should be analyzed together as a single category. Id., slip op. at 272-73. Based on this approach, Commissioners Bragg and Devaney each made an affirmative determination that increased importation of carbon and alloy flat products was a substantial cause of serious injury to domestic industry. Id., slip op. at 282, 311. Commissioner Devaney, in footnotes throughout the majority opinion, joined the majority‘s conclusion that the importation of “certain carbon flat-rolled steel” (excluding tin mill) caused serious injury. See, e.g., id., slip op. at 50 n. 186. Neither Commissioner Bragg nor Devaney, however, joined the majority‘s reasoning as to tin mill products.
Despite Commissioners Bragg and Devaney‘s broader definition of the relevant domestic industry as encompassing all carbon and alloy flat products including tin mill products, they both voted affirmatively at the public hearing announcing the determination of the Commission on October 22, 2001, that there was serious injury to the domestic industry, defined as covering the smaller category of tin mill products, as well as to the broader market, defined as carbon and alloy flat products. Commissioner Miller also voted affirmatively as to tin mill products as well as to the broader category of carbon and alloy flat products. The Commission reported that it was evenly divided as to whether increased importation of tin mill products caused serious injury. The Commission found:
Chairman Koplan, Vice Chairman Okun, and Commissioner Hillman determine that carbon and alloy tin mill products are not being imported into the United States in such increased quantities as to be a substantial cause of serious injury to the domestic industry; Commissioners Bragg, Miller, and Devaney make an affirmative determination regarding imports of carbon and alloy tin mill products.
Id., slip op. at 25.
On March 5, 2002, the President issued the “Steel Products Proclamation,” whereby he took action under
On March 22, 2002, the appellants filed suit in the Court of International Trade challenging the validity of the duty imposed on tin mill products. Pertinent to this appeal, the appellants contended “that the [Commission] votes supporting an affirmative injury determination were improperly counted [as a tie] with respect to tin mill products,” Corus Group, 217 F.Supp.2d at 1350, such that the President did not have authority under
On August 9, 2002, the court granted the government summary judgment as to these issues. Corus Group, 217 F.Supp.2d at 1359. The court applied the standard of review announced by this court in Maple Leaf Fish Co. v. United States, 762 F.2d 86 (Fed.Cir.1985), for reviewing determinations by the President and the Commission under the escape clause provision of the Trade Act of 1974. In that case, we decided that “[f]or a court to interpose, there has to be a clear misconstruction of the governing statute, a significant procedural violation, or action outside delegated authority.” Corus Group, 217 F.Supp.2d at 1352 (citing Maple Leaf, 762 F.2d at 89). Applying that standard, the Court of International Trade held that because “[t]here is no statutory or regulatory provision enumerating how the Commission should count its vote ... [t]he court, therefore, cannot find that there has been a clear misconstruction of the statute or a significant procedural violation.”
The court granted the government summary judgment on the appellants’ remaining claims, which are not on appeal, and entered final judgment in favor of the government on September 5, 2002. Judgment. The appellants timely filed this appeal.4
DISCUSSION
I
Although neither party contests the jurisdiction of the Court of International Trade in this case, we are nonetheless obligated to consider whether that court had jurisdiction and whether the appellants have standing. “[E]very federal appellate court has a special obligation to ‘satisfy itself not only of its own jurisdiction, but also that of the lower courts in a cause under review,’ even though the parties are prepared to concede it.” Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986) (quoting Mitchell v. Maurer, 293 U.S. 237, 244 (1934)). “[S]ince the question of standing goes to this [c]ourt‘s jurisdiction ... we must decide the issue even though the court below passed over it without comment.” Jenkins v. McKeithen, 395 U.S. 411, 421 (1969); see also Info. Tech. & Applications Corp. v. United States, 316 F.3d 1312, 1319 (Fed.Cir.2003).
The appellants suggest that the court had statutory jurisdiction here pursuant to
[T]he Court of International Trade shall have exclusive jurisdiction of any civil action commenced against the United States, its agencies, or its officers, that arises out of any law of the United States providing for —
* * *
(2) tariffs, duties, fees, or other taxes on the importation of merchandise for reasons other than the raising of revenue....
There is, however, another jurisdictional issue that we must examine. Appellants here seek review of the Commission‘s decision certifying that it had reached a divided vote with respect to tin mill products and of the President‘s action in relying on that vote to impose a duty under
However, under the Supreme Court‘s cases, an agency recommendation is subject to judicial review if “the action... mark[s] the consummation of the agency‘s decisionmaking process,” and “the action [is] one by which rights or obligations have been determined, or from which legal consequences will flow.” Bennett v. Spear, 520 U.S. 154, 177-78 (1997) (citations omitted). In Bennett, the issue was whether the district court had jurisdiction to review a Biological Opinion of the Fish and Wildlife Service, advising the Bureau of Reclamation as to how the Bureau‘s proposed action would affect endangered species or habitats. Id. at 158. Because the Bureau of Reclamation was authorized to take action only if it complied with the terms and conditions specified in the Biological Opinion, it “alter[ed] the legal regime to which the action agency [was] subject.” Id. at 178. The Court held that the Biological Opinion was subject to judicial review and distinguished Dalton and Franklin. The Court concluded, “[u]unlike the reports in Franklin and Dalton, which were purely advisory and in no way affected the legal rights of the relevant actors, the Biological Opinion at issue here has direct and appreciable legal consequences.” Id. at 178.
The cases establishing these principles have arisen under the Administrative Procedure Act (“APA“), which has a strict finality requirement,
II
We must consider still another jurisdictional issue. Although the President‘s actions are subject to judicial review, it does not necessarily follow that a claim for relief may be asserted against the President directly. The Supreme Court has twice held that the APA does not authorize an action directly against the President. In Franklin v. Massachusetts, 505 U.S. 788 (1992), the Court held that because the APA‘s definition of “agency,”
In summary, we conclude that the Court of International Trade had jurisdiction over this case, except that the President should have been dismissed as a party. We, therefore, have jurisdiction over the merits of this appeal pursuant to
III
In reviewing the grant of summary judgment on the administrative record, we reapply the standard of review that the Court of International Trade applied. Alloy Piping Prods., Inc. v. Kanzen Tetsu Sdn. Bhd., 334 F.3d 1284, 1289 (Fed.Cir. 2003). We announced the standard of review for decisions of the Commission and the President under the escape clause provision of the Trade Act of 1974 as articulated in Maple Leaf. 762 F.2d at 89.
The appellants’ first contention on the merits is that the Commission determination was not a 3-3 tie as to tin-mill products as the Commission reported it to be. The Commission reported as follows:
Chairman Koplan, Vice Chairman Okun, and Commissioner Hillman determine that carbon and alloy tin mill products are not being imported into the United States in such increased quantities as to be a substantial cause of serious injury to the domestic industry; Commissioners Bragg, Miller, and Devaney make an affirmative determination regarding imports of carbon and alloy tin mill products.
Determination, slip op. at 25. By statute, if “the commissioners voting are equally divided with respect to [a] determination, then the determination agreed upon by either group of commissioners may be considered by the President as the determination of the Commission.”
Commissioners Bragg and Devaney each specifically voted affirmatively with regard to tin mill products. On October 22, 2001, the commissioners recorded their votes at a public hearing. Commissioner Devaney voted as follows: “I find one domestic industry producing all flat products. In this investigation, I am voting in the affirmative with respect to slab, plate, hot-rolled products, cold-rolled products, GOES, corrosion-resistant products, and tin mill products.” App. at 297 (emphasis added). Commissioner Bragg voted as follows:
In this investigation, I find that there are 13 domestic like products and 13 corresponding domestic industries. I find domestic like product number one includes carbon and alloy flat products consisting of slabs, cut-to-length plate, hot-rolled, cold-rolled, grain-oriented electrical steel, coated products, and tin mill products. I vote in the affirmative with respect to domestic like product number one.
App. at 303 (emphasis added). Moreover, neither commissioner objected when the Commission tallied their votes as affirmative with regard to tin mill products. The Commission tallied three votes, Commissioners Devaney, Bragg, and Miller, as affirmative with regard to tin mill products. It is, therefore, clear that Commissioners Bragg and Devaney intended their votes with regard to tin mill products to be affirmative. Having reached this conclusion, we are not “compelled ... to probe the mental processes” of the commissioners any further to determine whether their votes were properly counted as affirmative despite those commissioners’ different underlying reasoning. Voss, 628 F.2d at 1332 (holding that the Commission properly recorded a non-voting commissioner‘s vote as an abstention rather than as a dissent); cf. Pub. Serv. Comm‘n v. Fed. Power Comm‘n, 543 F.2d 757, 777 (D.C.Cir.1974) (holding that “in each instance, what counted in the definition of agency action was the vote rather than the individual view” of each member of the Federal Power Commission). Accordingly, the Commission did not err in counting the votes as to tin mill products as a 3-3 tie.
IV
The more difficult question is whether the Commission determination must be set aside because the Commission failed to adequately explain the basis for the decision of the three commissioners who found serious injury with respect to tin mill products.7 The statutory standard for that analysis here is not the traditional APA standard of review. See
The statute requires that “the Commission shall submit to the President a report on each investigation undertaken....”
The majority opinion in Maple Leaf did not address these statutory provisions or delineate what kind of explanation the statute requires from the Commission. The government candidly urges that the statute does not require any rational explanation from the Commission concerning its determinations of serious injury. Once the commissioners have voted, says the government, the inquiry is at an end, even if the statutory report is “totally inconsistent” or “completely irrational.”8 We cannot agree that the statute was designed to leave the Commission so completely unfettered by normal requirements of administrative law. Cf. SKF USA, Inc. v. United States, 263 F.3d 1369, 1382 (Fed.Cir.2001) (stating that Commerce must provide an explanation for its failure to interpret identical statutory terms consistently).
The legislative history of this provision confirms this requirement. The commissioners’ report was “to present the facts and in a manner which will render the report useful to the President.” H.R.Rep. No. 91-1435, at 31 (1970). And the Senate Finance Committee “fe[lt] strongly that the Commission ought to reach a clear, definitive majority view on the nature of the remedy that is most suitable to the injury found.” S.Rep. No. 93-1298, at 123 (1974).
V
Our decisions establish that in reviewing a Commission determination, each of the various separate opinions making up the majority decision is subject to judicial scrutiny under the applicable statutory standard. Angus Chem. Co. v. United States, 140 F.3d 1478, 1485-86 (Fed.Cir. 1998) (reviewing each commissioner‘s opinion separately); U.S. Steel Group v. United States, 96 F.3d 1352, 1362-65 (Fed.Cir. 1996) (reviewing each commissioner‘s opinion separately). If any opinion necessary to the majority, or in this case the three-vote plurality, fails to satisfy the statutory standard, the decision must be set aside. For example, in United States Steel Group, the court found that two of the commissioner‘s opinions were based, in part, on erroneous findings, and, therefore, the court had to exclude those findings in determining whether those commissioners’ opinions were based on substantial evidence. 96 F.3d at 1363.
However, under our decision in United States Steel Group, it is not necessary that separate opinions comprising a majority (or here a plurality), agreeing on a single result, adopt identical or even consistent reasoning in reaching that particular result. In that case, the appellants challenged the Commission‘s determination that domestic industry was not injured by the importation of hot and cold-rolled steel, contending that two of the commissioners who constituted the majority adopted different tests from the other commissioners to determine material injury — a “one-step test” rather than a “two-step test.” Id. We rejected the appellants’ argument (there under the APA) that the commissioners composing a majority must employ a single methodology. We determined that “[t]he statute on its face compels no such uniform methodology, and we are not persuaded that we should create one, even were we so empowered.” Id. at 1362. We then observed the complexity of factors that Congress had directed the commissioners to consider in determining material injury, and concluded, “[t]he invitation to employ such diversity in methodologies is inherent in the statutes themselves, given the variety of the considerations to be undertaken and the lack of any Congressionally mandated procedure or methodology for assessment of the statutory tests.” Id. Hence, “[s]o long as the Commission‘s analysis does not violate any statute and is not otherwise arbitrary and capricious,” id., the various commissioners composing a majority need not rely on identical or consistent methodologies in explaining their conclusions. Accord Angus, 140 F.3d at 1484. Thus, here the three-member plurality of the Commission agreed that both the articles included in the broader category of carbon and alloy products and in the narrower category of tin mill products caused serious injury. Commissioner Miller treated the two categories separately. Commissioners Bragg and Devaney treated them together. This inconsistency is not a ground for setting aside the decision.
Nonetheless, it is necessary that each commissioner‘s separate opinion be internally consistent, and that each opinion adequately explain the commissioner‘s vote. Here the appellants argue that the opinions of Commissioners Bragg and Devaney also do not satisfy that requirement. On the one hand these commissioners reasoned that tin mill is not a separate category. This view was rejected by a majority of the Commission. Yet, these two Commissioners voted to treat the import of tin mill as a cause of serious injury. Appellants argue that the reasoning of Commissioners Bragg and Devaney (analyzing tin mill as part of a larger category) and their votes (treating tin mill separately) are not consistent and that this inconsistency is potentially significant. Appellants point out that tin mill products comprise only a small percent of the total larger domestic industry. (Appellants’ Br. at 40 (stating that “tin mill products represent only 1.7 percent of total flat-rolled product consumption and 2.7 percent of total flat-rolled imports“)). Thus, it does not necessarily follow that because the importation of all carbon and alloy flat products causes serious injury to the domestic market, the importation of tin mill products, standing alone, would cause serious injury.
But we think the claimed inconsistency in the opinions of Commissioners Bragg and Devaney is more theoretical than real. They simply voted to treat tin mill as part of a larger category and viewed their votes as to serious injury as a reaffirmation of this position. It is not immediately apparent here that finding that articles A and B combined (here carbon and alloy products and tin mill combined) causes serious injury has different consequences than finding that articles A and B treated separately cause serious injury. To be sure, it is possible that there would be different consequences from a combined finding of serious injury with respect to carbon and alloy products including tin mill than separate findings as to tin mill and other carbon and alloy products, in which event the reasoning of Commissioners Bragg and Devaney might be at variance with their votes. But appellants have not argued that point here. We decline to speculate as to whether such a showing, if made, would invalidate the President‘s order.
In short, we conclude that appellants have failed to establish that the opinions of Commissioners Bragg and Devaney do not provide adequate explanation or are internally inconsistent.
CONCLUSION
For the foregoing reasons, the appeal with respect to the President is dismissed. In all other respects the decision of the Court of International Trade is affirmed.
DISMISSED IN PART; AFFIRMED IN PART
COSTS
No costs.
CORUS GROUP PLC, Corus UK Ltd, Corus Staal BV, Corus Packaging Plus Norway AS, Corus Steel USA Inc., and Corus America Inc., Plaintiffs-Appellants, v. INTERNATIONAL TRADE COMMISSION, Defendant-Appellee, and George W. Bush, President of the United States, and Robert C. Bonner, Commissioner, United States Customs Service, Defendants-Appellees, and Weirton Steel Corporation, Defendant-Appellee, and Bethlehem Steel Corporation, National Steel Corporation, and UNITED STATES Steel Corporation, Defendants.
No. 03-1040.
United States Court of Appeals, Federal Circuit.
Decided December 11, 2003.
352 F.3d 1351
This action arose upon a request by the United States Special Trade Representative, for investigation concerning whether certain imports of tin mill steel were being imported in such increased quantities as to be a substantial cause of serious injury, or the threat thereof, to the domestic industry. The request initiated a complex proceeding whereby the members of the International Trade Commission, after conducting an investigation, issued several reports and recommendations to the President of the United States. The President is required by statute to take “all action within his power which the President determines will facilitate efforts by the domestic industry to make a positive adjustment to import competition,”
The Corus group of companies was the subject of such an investigation and presidential levy. In appealing to the Court of International Trade, as the statute authorizes, Corus named as defendants the International Trade Commission, the President, the Commissioner of Customs, and several domestic steel companies. Corus states that the President exceeded his authority. My colleagues on this panel hold, sua sponte, that the President cannot be named as a defendant. That is incorrect, for the President has a direct role in the administration of this statute. His role is not one of executive privilege, but of statutory actor. In that role, the President is as subject to process as any other executive whose ruling is subject to challenge by judicial process. The President, routinely appearing through counsel, has not argued otherwise.
Neither the President nor the International Trade Commission nor the Court of International Trade nor any party suggested that the President was not a proper party to this action. No one requested his dismissal. The position gratuitously taken by this court is extraordinary, and incorrect. Thus I write to state my concern about this ruling of Presidential immunity for actions taken under the Tariff Act.
I agree with the court that the judgment of the Court of International Trade, affirming the Commission, should be affirmed. My concern is with this court‘s conclusion that “the President should have been dismissed as a party,” upon which my colleagues sua sponte dismiss the President from the case.
Long-standing precedent distinguishes challenges to the President‘s actions of policy and political discretion from challenges to ministerial actions of the President as provided by statute, starting with Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803), where the Court explained that whether an executive act is subject to judicial examination depends on the nature of the act being examined. The Court observed that just as the protection of the law was available against the King, so it is available against the President, depending on the act whose legality is questioned. The Court explained that when the President exercises the political power of the office, that is a matter of discretion in which he “is accountable to his country only in his political character and to his conscience.”
In contrast, when the President performs legislatively imposed acts, and when those acts impact the rights of individuals, he is an officer of the law, and responsible as is any other official:
The conclusion from this reasoning is, that where the heads of departments are the political or confidential agents of the executive, merely to execute the will of the President, or rather to act in cases in which the executive possesses a constitutional or legal discretion, nothing can be more perfectly clear than that their acts are only politically examinable. But 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.
The panel majority, in its insistence that the President cannot be sued, departs from precedent elaborated since United States v. Burr, 25 F. Cas. 30 (C.C.D.Va. 1807) (No. 14,692d). I need not repeat this jurisprudence, summarized, for example, in United States v. Nixon, 418 U.S. 683 (1974), for the case now before us is much simpler. This is not a political question, see Baker v. Carr, 369 U.S. 186, 217 (1962), and raises no issue of national security or executive confidentiality. It is a matter of statutory assignment. In this case the statute assigns a substantive duty to the President — a duty that the President performed in accordance with the assignment, and that was directed to this appellant‘s property and trade. The President has not disputed his amenability as a party to judicial review; the panel majority‘s spontaneous ruling that he is outside the court‘s jurisdiction is contrary to precedent, contrary to constitutional principle, and contrary to statute.
In administering the Trade Act of 1974,
Thus when the statute granting presidential authority places limits on the exercise of that authority, courts may review whether the President has observed those limits. See Florsheim Shoe, 744 F.2d at 795 (review of “whether the statutory language has been properly construed“). This court reexamined these issues in Maple Leaf Fish Co. v. United States, 762 F.2d 86 (Fed.Cir.1985), and explained that the statute vests broad discretionary authority in the President, reiterated that “the President‘s findings of fact and the motivations for his action are not subject to review,” quoting Florsheim, 744 F.2d at 795, but also confirmed that the court may review whether there was “a clear misconstruction of the governing statute, a significant procedural violation, or action outside delegated authority.” Maple Leaf, 762 F.2d at 89. The panel majority errs in ruling that only the implementing agency (through the Commissioner of Customs) can be subjected to judicial process if the President‘s actions warrant judicial correction.
Other circuits are in accord. For example, the District of Columbia Circuit, in a case challenging a series of proclamations issued by President Clinton pursuant to the American Antiquities Preservation Act,
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 Proclamations are consistent with constitutional principles and that the President has not exceeded his statutory authority.
The court found no jurisdictional infirmity in permitting the plaintiff to challenge the President‘s actions and seek relief directly from the President. See also Sneaker Circus, Inc., v. Carter, 566 F.2d 396, 402 (2d Cir.1977) (explaining that the court is not reviewing the substance of the trade agreements, which are within presidential discretion, but reviews the statutorily mandated procedures by which these agreements were made).
Again, the D.C. Circuit held that it had jurisdiction when the National Treasury Employees Union sued President Nixon over a pay raise mandated by Congress. In National Treasury Employees Union v. Nixon, 492 F.2d 587, 616 (D.C.Cir.1974) the court “concludes that in this case the constitutional principles enunciated by Mr. Chief Justice Marshall in Marbury v. Madison as to the Secretary of State are equally applicable to the President and holds that jurisdiction in this case exists pursuant to
Cases before the Court of International Trade, naming the President as a defendant, have been decided by that court and reviewed by us with no jurisdictional impediment or immunity such as the panel majority now announces. In Humane Society of the United States v. Clinton, 44 F.Supp.2d 260 (Ct. Int‘l Tr.1999) the plaintiffs sought a writ of mandamus directing President Clinton to impose sanctions on Italy for violation of the Driftnet Fishing Act,
Similarly in Arjay Assocs., Inc. v. Reagan, 707 F.Supp. 1346 (Ct. Int‘l Tr.1989), the plaintiffs sued the President to challenge an import ban on products manufactured by Toshiba Machine Co., as directed by § 2443 of the Omnibus Trade and Competitiveness Act of 1988. The Court of International Trade dismissed the suit, not because it lacked jurisdiction of the President, but because the plaintiffs did not have standing to bring it. We affirmed on that basis, Arjay Assocs., Inc. v. Bush, 891 F.2d 894 (Fed.Cir.1989), stating that “appellants have not even a colorable right to the continued importation of the excluded TMC products, and thus no standing to challenge either the exclusion set forth in section 2443 or the constitutionality thereof.” Id. at 898.
None of these cases held that the “President should have been dismissed as a party,” as the panel majority now holds. Maj. op. at 1360. The panel majority cites Franklin v. Massachusetts, 505 U.S. 788 (1992) and Dalton v. Specter, 511 U.S. 462 (1994) for the proposition that “actions of the President cannot be reviewed under the Administrative Procedure Act because the President is not an ‘agency’ under that Act.” Maj. op. at 1360. However, as the majority recognizes, the case before us is not under the APA, which authorizes judicial review of “final agency action for which there is no other adequate remedy in a court,”
A similar argument was raised and resolved in the Humane Society cases. See Humane Society v. Clinton, 44 F.Supp.2d at 267 (“Despite case law holding the President is not an agency within the meaning of the APA, he continues to be an officer of the United States, and thus is subject to being sued in this Court under section 1581(i).“) (citing Clinton v. Jones, 520 U.S. 681, 699 n. 29 (1997)). The Federal Circuit in Humane Society v. Clinton stated:
We note in passing that the Government, having assumed that § 1581 does not constitute a waiver of sovereign immunity, looks instead in its brief to this court to § 702 of the APA for the requisite waiver. That leads the Government into extensive consideration of standing under the APA. We need not go there; neither party raises the standing issue independently of the APA issue, and since we do not rely on the APA for its waiver of sovereign immunity, questions of standing under the APA are not before us.
The issues of this suit are not matters of executive privilege or sensitivity; they are matters of statutory authority and obligation that are assigned to the President. By statute the President selects the remedy to “facilitate efforts by the domestic industry to make a positive adjustment to import competition,”
The enforcement of the President‘s action is by the Customs officials who levy the tariff. Again, there is no hint under
The petitioner here has invoked the ordinary mechanism for judicial review and judicial correction of legal error, asserting that error was made by the President in the course of exercising his statutory assignment under
[Section 204 of the Agriculture Act of 1956] is a broad grant of authority to the President in the international field in which congressional delegations are normally given a broad construction. Of course, the President‘s regulations must pertain to the general subject of the agreements, or else the President (absent another statutory authorization) has invaded a field granted by the Constitution to Congress.
A charge that the President exceeded his statutory authority is raised in this case. The appellants allege that there was no presidential authority to act because there was not a majority decision of the Commission. Appellants’ requested relief includes the prayer to “hold unlawful the President‘s determination to consider the ITC‘s vote on tin mill products as an affirmative determination by the ITC and his order imposing a 30 percent additional tariff on imports of tin mill products....” The Trade Act of 1974 assigned a direct role to the President in implementing the Act, and the structure of judicial review embraces controversies arising from that implementation. The President is not excluded from this judicial purview, and indeed the President did not request exclusion. I respectfully dissent from the court‘s distortion of the structure of
Notes
The President may, for purposes of taking action under paragraph (1) —
(A) proclaim an increase in, or the imposition of, any duty on the imported article;
(B) proclaim a tariff-rate quota on the article;
(C) proclaim a modification or imposition of any quantitative restriction on the importation of the article into the United States;
(D) implement one or more appropriate adjustment measures, including the provision of trade adjustment assistance under part 2 of this subchapter;
(E) negotiate, conclude, and carry out agreements with foreign countries limiting the export from foreign countries and the import into the United States of such article;
(F) proclaim procedures necessary to allocate among importers by the auction of import licenses quantities of the article that are permitted to be imported into the United States;
(G) initiate international negotiations to address the underlying cause of the increase in imports of the article or otherwise to alleviate the injury or threat thereof;
(H) submit to Congress legislative proposals to facilitate the efforts of the domestic industry to make a positive adjustment to import competition;
(I) take any other action which may be taken by the President under the authority of law and which the President considers appropriate and feasible for purposes of paragraph (1); and
(J) take any combination of actions listed in subparagraphs (A) through (I).
THE COURT: So you‘re basically saying that all that‘s necessary under Maple Leaf and under the statute is if she casts the vote, that‘s it? It doesn‘t make any difference how totally inconsistent she is with the majority or how contrary she is to the majority? Is the answer to that yes? All we look at is the vote?
COUNSEL FOR THE ITC: Well, under Maple Leaf, the standard for whether or not what [the commissioners] put in is sufficient is very low and it seems unclear. But yes, my answer is yes.
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COUNSEL FOR THE PRESIDENT: I do recall a provision of the statute that requires some sort of explanation, so if there were just a series of votes and no explanation at all, one could fairly argue that the Commission has not followed the statutory provision.
THE COURT: So you read the statute as saying there has to be an explanation, but it can be completely irrational?
COUNSEL FOR THE PRESIDENT: Yes.