MAPLE LEAF FISH CO., Aрpellant, v. The UNITED STATES, Appellee.
Appeal No. 85-534.
United States Court of Appeals, Federal Circuit.
May 8, 1985.
The district court noted that the plaintiff‘s First Amendment claim might have had merit, but that it was too conclusory to allow a judgment on its merit. The court gave plaintiff ample opportunity to remedy the inadequacies of the complaint, which plaintiff failed to do. Under these circumstances, we are unable to say that the district court was in error in dismissing the First Amendment claim made by plaintiff.
We remand this case for trial only on the alleged violation of plaintiff‘s liberty interest.
and actions of the Defendants during the period of approximately May 11, 1982 to the present.
10. Plaintiff was never made aware of the specific charges for which he was being investigated; was never told the identity of the witnesses supplying the investigative material and basis for the charges; was never supplied with the results of the investigation pursuant to which his dismissal was based upon; was never given a hearing or opportunity to refute the charges, and present his own witnesses and evidence all prior to his employment and accompanying benefits being terminated and infringed.
11. These actions were taken in order to deprive the Plaintiff of a fair hearing in violation of his rights of due process and equal protection as guaranteed by the
12. Plaintiff avers that had he been given a fair and impartial hearing in accordance with basic and elementary due process, he could demonstrate with substantial and credible evidence that the action of suspension, on May 11, 1982, and termination, on June 7, 1982, by Dеfendants, was arbitrary, capricious and perjorative [sic] without any basis in truth or fact.
David O. Elliott, Barnes, Richardson & Colburn, New York City, for appellant.
Michael P. Maxwell, Commercial Litigation Branch, Dept. of Justice, New York City, for appellee. With him on the brief were Richard K. Willard, Acting Asst. Atty. Gen., David M. Cohen, Director, Washington, D.C., and Joseph I. Liebman, Atty. in Charge, Intern. Trade Field Office, New York City.
Before RICH and DAVIS, Circuit Judges, and COWEN, Senior Circuit Judge.
DAVIS, Circuit Judge.
This “escape clause” case brings to us the narrow question whether frozen mushrooms were properly included in determinations by the International Trade Commission (ITC) and the President in imposing additional duties on “mushrooms, prepared and preserved” provided for in item 144.20 of the Tariff Schedules of the United States (TSUS). The Court of International Trade (Carman, J.) ruled that they were so included. Maple Leaf Fish Co. v. United States,
I.
After it has finished its investigation the ITC makes a report to the President.
On receipt of an affirmative report from the ITC the President shall provide import relief “unless he determines that provision of such relief is not in the national economic interest of the United States.”
In March 1980, the American Mushroom Institute (a trade association representing domestic canners and growers of mushrooms) filed a petition with the ITC under the “escape clause” legislation described in Part I, supra. The ITC commenced and рursued an investigation to determine whether mushrooms classifiable under item 144.20 of TSUS as “[m]ushrooms [o]therwise prepared or preserved” were being imported in such increased quantities as substantially to cause serious injury or the threat thereof to a like or competing domestic industry.
The ITC‘s report to the President began with the statement: “On the basis of the information developed in the course of the investigation, the Commission has determined . . . that mushrooms, prepared or preserved, provided for in item 144.20 of the Tariff Schedules of the United States (TSUS), are being imported into the United States in such increased quantities as to be a substantial cause of serious injury, or the threat thereof to the domestic industry producing an article like or directly competitive with the imported article.” The report then recommended import relief taking the form of quantitative restrictions, or import quotas, for a 3-year period. The President accepted the Commission‘s determinations but decided to give import relief in the form of increased duties, and so proclaimed in October 1980. As a result, supplemental or cumulative duties were imposed on all mushrooms covered by item 144.20 of the TSUS.
Appellant Maple Leaf Fish Co. (Maple Leaf), a Canadian importer of frozen battered and breaded mushrooms, imported the mushrooms involved in this action and protested Customs’ assessment of the increased duties. The protest was denied. Maple Leaf then filed this suit in the CIT in October 1981, challenging the assessment of the supplemental duties so far as such frozen and battered mushrooms are concerned. Appellant‘s position is, first, that such mushrooms were not included in the ITC‘s determinations and report and accordingly were beyond the scope of the President‘s power to award import relief as to them, and, second, that if those products were intended by the ITC to be covered by its report the investigation, evidence, and findings did not permit their inclusion. The matter came before the CIT on cross-motions for summary judgment.2 As we have indicated, supra, the court rejected both grounds in a comprehensive opinion.
III.
The initial inquiry is whether the ITC report covered frozen mushrooms (like appellant‘s) or whether it confined itself to canned mushrooms. Judge Carman read the report as including frozen mushrooms, and so do we.
The notice instituting the investigation broadly covered “mushrooms, prepared or preserved (provided for in item 144.20 of the Tariff Schedule of the United States (TSUS)“, and the parties agree that appellant‘s frozen and battered mushrooms fall into that category of “mushrooms, prepared or preserved” and are blanketed by item 144.20. We have already pointed out that the opening paragraph of the ITC report expressly stated that its affirmative determination covered the same broad category. In addition, the first footnote in the joint views of three of the four participating ITC commissioners specifically says that “the subject imports in this case” are the class provided for in item 144.20, and then adds: “While the item includes mushrooms in jars and frozen mushrooms, 97 percent of all those imports are in cans. Furthermore, the vast majority of domestic production in these categories is canned as opposed to jarred or frozen” (emphasis added). This is a specific recognition of
IV.
Maple Leaf then says that, if this is so, the Commission—and therefore the President—violated statutory requirements because there is no adequate finding of injury to the frozen mushroom industry (as distinct from the canned mushroom industry). Appellant makes the argument as if the ITC had gone wildly beyond its own investigation to include frozen mushrooms, without the slightest basis in the record before it. The fact is, however, that a part of the report entitled “Information Obtained in the Investigation” contains a section headed “Dried, frozen and fresh mushrooms,” giving in detail the statistics on imports of those particular varieties, including imports from Canada. We therefore have before us an ITC report which followed an investigation that actually included frozen mushrooms, and a report which (as we have held in Part III, supra), covered frozen mushrooms in its final determinations.
The question then is to what extent the courts can review the challenged actions of the Commission and the President in such a case. The critical element is that the area of the “escape clause” legislation undoubtedly involves the President and his close relationship to foreign affairs, our nation‘s connections with other countries, and the external ramifications of international trade. More than that, Congress has vested the President with very broad discretion and choice as to what he decides to do affirmatively, or even whether he should do anything. See Part I, supra. Similarly, the ITC has great leeway to consider various factors—including all economic factors it deems relevant—bearing on its final determination “whether an article is being imported into the United States in such increased quantities as to be a substantial сause of serious injury, or the threat thereof, to the domestic industry producing an article like or directly competitive with the imported article.”
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, е.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. On the other hand, “[t]he President‘s findings of fact and the motivations for his action are not subject to review.” Florsheim, supra, 744 F.2d at 795. The same is true, we think, of ITC “escape clause” action which is preparatory to, and designed to aid, presidential action. The same factors which have led, in this kind of
Appellant‘s submission to us runs counter to those principles. There is at this point no substantial showing of a misreading of the “escape clause” statute, a trenching beyond delegated power, or a significant violation of appellant‘s procedural rights. Instead, we are told—despite our holding that the ITC and the President did include frozen mushrоoms in their final determinations (Part III, supra) and despite the fact that this ITC investigation specifically included that kind of mushroom, see supra—that nevertheless the Commission could not properly find that the domestic frozen mushroom industry was injured or threatened by the importation of foreign frozen mushrooms. This is said to be so because the commissioners, in other parts of their discussion, considered canning of mushrooms as the domestic industry producing a “like” article,4 and did not specifically discuss injury to frozen mushrooms. It is plain that this contention asks us, contrary to our precedents, to review the ITC‘s ultimate factual determination that there was injury to domestic frozen mushroom producers. We cannot, however, turn this case into the ordinary administrative review in other areas in which the court looks to see if substantial evidence supports the agency‘s findings. Nor should we decide whether the Commission had to be more specific as to a class of mushroom importers (bringing in frozen mushrooms) who were responsible for less than 3 percent of all mushroom imports into this country. It is enough for this case that, as we have held, the ITC did in fact make the ultimate finding and determination that there was such injury (or threat). Cf. Florsheim, supra, 744 F.2d at 796-797 (sufficient that Executive Order cited a certain statute despite contention that the President was actually acting under another provision with a different underlying theory).
AFFIRMED.
COWEN, Senior Circuit Judge, specially concurring.
While I concur in the court‘s opinion, I write here to emphasize my agreement with one aspect of the trial judge‘s opinion which the majority may have implicitly adopted. The Government has argued that in determining whether the International Trade Commission (ITC) misconstrued
In my opinion, the Court of Internationаl Trade properly rejected this argument. Although the ITC‘s findings of fact are not subject to the same substantial evidence standard that prevails in judicial review of most administrative action, the agency is required by
In an analogous case, the Supreme Court recognized that the findings of the ITC‘s predecessor, the Tariff Commission, were not subject to the same standard of review as might ordinarily apply in administrative law cases. Norwegian Nitrogen Co. v. United States, 288 U.S. 294, 321, 53 S.Ct. 350, 360, 77 L.Ed. 796 (1933). Because Congress required by statute that the Com-
In the instant case, the Report of the ITC shows that this requirement has been met. Although the ITC‘s footnote referenced by the majority is not a model of clarity, I discern only one way in which it could be read, in the context of the remainder of the report—that frozen mushrooms are among “the subject imports in this case,” but since canned mushrooms constitute 97 percent of the subject imports, the ITC‘s conclusions would be the same regardless of whether the import statistics for frozen and dried mushrooms were included in its analysis. It was thus for apparent reasons of convenience or conciseness of expression, rather than neglect or intentional exclusion, that the remainder of the Commissioners’ statements of views dealt only with canned mushrooms. On that analysis, together with the specific inclusion of frozen mushrooms in the ITC‘s determination, I agree that the ITC acted within the confines of its discretion.
PAYNE 22, INC., on behalf of itself and all others similarly situated, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
No. DC-102.
Temporary Emergency Court of Appeals.
Argued Jan. 30, 1985.
Decided March 29, 1985.
Rehearing Denied May 10, 1985.
Patricia F. Bak, Kohn, Milstein, Cohen & Hausfeld, Washington, D.C., with whom Jerry S. Cohen and Michael D. Hausfeld, of the same firm, were on the brief for plaintiff-appellаnt.
June Wagoner Edwards and Stephen E. Hart, Dept. of Justice, Washington, D.C.,