PrimeSource Building Products, Inc. v. United States et al

Slip Op. No. 21-8
UNITED STATES COURT OF INTERNATIONAL TRADE
PRIMESOURCE BUILDING
PRODUCTS, INC.,
Plaintiff,
v.
UNITED STATES, et al.,
Defendants.
Before: Timothy C. Stanceu, Chief Judge
Jennifer Choe-Groves, Judge
M. Miller Baker, Judge
Court No. 20-00032
OPINION AND ORDER
[Granting defendants’ motion to dismiss plaintiff’s amended complaint as it
pertains to all claims therein except the claim stated as Count 2; denying the motion to
dismiss as to the claim in Count 2 but also denying plaintiff’s motion for summary
judgment as to that remaining claim. In a separate opinion, Judge Baker concurs in the
dismissal of Counts 1, 3, 4, and 5 and dissents from the denial of defendants’ motion to
dismiss Count 2.]
Dated: January 27, 2021
Jeffrey S. Grimson, Mowry & Grimson, PLLC, of Washington, D.C., for plaintiff.
With him on the brief were Kristin H. Mowry, Jill A. Cramer, Sarah M. Wyss, James C.
Beaty, Bryan P. Cenko, and Wenhui Ji.
Jeanne E. Davidson, Director, Commercial Litigation Branch, Civil Division, U.S.
Department of Justice, of Washington, D.C., for defendants. With her on the brief were
Tara K. Hogan, Assistant Director, Stephen C. Tosini, Senior Trial Counsel, and Meen Geu
Oh and Kyle S. Beckrich, Trial Attorneys.
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Stanceu, Chief Judge: Plaintiff PrimeSource Building Products, Inc.
(“PrimeSource”), a U.S. importer of steel nails, challenges on various grounds a
proclamation issued by the President of the United States (“Proclamation 9980”) that
imposed 25% tariffs on, inter alia, various imported products made of steel (identified in
the proclamation as “derivatives” of steel products), including steel nails. Arguing that
plaintiff’s complaint does not state a claim on which relief can be granted, defendants
move to dismiss this action according to USCIT Rule 12(b)(6). Plaintiff opposes
defendants’ motion to dismiss and moves for summary judgment, urging us to declare
Proclamation 9980 invalid and order the refund of any duties that previously may have
been collected on its affected entries. In moving to dismiss and in their response to
PrimeSource’s summary judgment motion, defendants argue that the President’s action
was within the authority delegated by Congress and must be upheld.
We grant defendants’ motion to dismiss as to four of plaintiff’s claims, which are
set forth as Counts 1, 3, 4, and 5 of the Amended Complaint, and deny it as to Count 2,
in which plaintiff claims that Proclamation 9980 is invalid because it was issued after
the authority delegated to the President by the governing statute had expired. Because
plaintiff has not shown “that there is no genuine dispute as to any material fact,” USCIT
R. 56(a), we deny plaintiff’s summary judgment motion as to the remaining claim.
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I. BACKGROUND
A. The Challenged Presidential Proclamation
On January 24, 2020, President Trump issued Proclamation 9980, Adjusting
Imports of Derivative Aluminum Articles and Derivative Steel Articles Into the United States,
85 Fed. Reg. 5,281 (Exec. Office of the President Jan. 29, 2020) (“Proclamation 9980”).
Proclamation 9980 imposed a duty of 25% ad valorem on various imported products
made of aluminum and of steel, including steel nails and other steel fasteners as well as
“bumper stampings of steel” for motor vehicles and “body stampings of steel” for
agricultural tractors. Id. at 5,291, 5,293.
The 25% duties imposed by Proclamation 9980 went into effect on February 8,
2020. Id. at 5,290. As authority for the President’s action, Proclamation 9980 cited
Section 232 of the Trade Expansion Act of 1962, 19 U.S.C. § 1862 (“Section 232”), 1 and
certain previous proclamations of the President that also invoked Section 232, including
Proclamations 9704, Adjusting Imports of Aluminum Into the United States, 83 Fed. Reg.
11,619 (Exec. Office of the President Mar. 15, 2018) (“Proclamation 9704”), and 9705,
Adjusting Imports of Steel Into the United States, 83 Fed. Reg. 11,625 (Exec. Office of the
President Mar. 15, 2018) (“Proclamation 9705”). Proclamation 9980 ¶¶ 9–10, 85 Fed. Reg.
at 5,283.
1 All citations to the United States Code are to the 2012 edition.
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Proclamation 9705 imposed 25% duties on various steel products in basic and
semi-finished form but did not impose duties on the products that were the subject of
Proclamation 9980, 2 which Proclamation 9980 described as “Derivatives of Steel
Products.”3
2 The products affected by Proclamation 9705 are certain iron and steel products
classified within chapters 72 and 73 of the Harmonized Tariff Schedule of the United
States (“HTSUS”), as follows:
(1) Flat-rolled products provided for in HTSUS headings 7208 (of iron or nonalloy
steel, 600 mm or more in width, hot-rolled, not clad, plated or coated), 7209
(of iron or nonalloy steel, 600 mm or more in width, cold-rolled, not clad,
plated or coated), 7210 (of iron or nonalloy steel, 600 mm or more in width,
clad, plated or coated), 7211 (of iron or non-alloy steel, less than 600 mm in
width, not clad, plated or coated), 7212 (of iron or non-alloy steel, less than
600 mm in width, clad, plated or coated), 7225 (of alloy steel other than
stainless, 600 mm or more in width) or 7226 (of alloy steel other than stainless,
less than 600 mm in width);
(2) Bars and rods provided for in HTSUS headings 7213 (hot-rolled, in irregularly
wound coils, of iron or nonalloy steel), 7214 (other, of iron or nonalloy steel,
not further worked than forged, hot-rolled, hot-drawn or hot-extruded, but
including those twisted after rolling), 7215 (other, of iron or nonalloy steel),
7227 (hot-rolled, in irregularly wound coils, of alloy steel other than stainless),
or 7228 (other bars and rods of alloy steel other than stainless; angles, shapes
and sections, of alloy steel other than stainless; hollow drill bars and rods, of
alloy or nonalloy steel); angles, shapes and sections of HTSUS heading 7216
(angles, shapes and sections of iron or nonalloy steel) except products not
further worked than cold-formed or cold-finished, of subheadings 7216.61.00,
7216.69.00, or 7216.91.00; wire provided for in HTSUS headings 7217 (wire of
iron or nonalloy steel) or 7229 (wire of alloy steel other than stainless); sheet
piling provided for in HTSUS subheading 7301.10.00; rails provided for in
HTSUS subheading 7302.10 (rail and tramway track construction material of
iron or steel: rails); fish-plates and sole plates provided for in HTSUS
subheading 7302.40.00 (rail and tramway track construction material of iron
(continued . . .)
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(. . . continued)
or steel: fish plates and sole plates); and other products of iron or steel
provided for in HTSUS subheading 7302.90.00 (other railway or tramway
track construction material of iron or steel, other than switch blades, crossing
frogs, point rods and other crossing pieces, fish plates and sole plates);
(3) Tubes, pipes, and hollow profiles provided for in HTSUS headings 7304
(seamless, of iron (other than cast iron) or steel), or 7306 (other (for example,
open seamed or welded, riveted or similarly closed), of iron or steel); tubes
and pipes provided for in HTSUS heading 7305 (other tubes and pipes (for
example, welded, riveted or similarly closed), having circular cross sections,
the external diameter of which exceeds 406.4 mm, of iron or steel);
(4) Ingots, other primary forms and semi-finished products provided for in HTSUS
heading 7206 (iron and nonalloy steel in ingots or other primary forms
(excluding certain iron in lumps, pellets or similar forms, of heading 7203)),
7207 (semi-finished products of iron or nonalloy steel) or 7224 (alloy steel
other than stainless in ingots or other primary forms; semi-finished products
of alloy steel other than stainless); and
(5) Products of stainless steel provided for in HTSUS heading 7218 (stainless steel
in ingots or other primary forms; semi-finished products of stainless steel),
7219 (flat-rolled products of stainless steel, 600 mm or more in width), 7220
(flat-rolled products of stainless steel, less than 600 mm in width), 7221 (bars
and rods, hot-rolled, in irregularly wound coils, of stainless steel), 7222 (other
bars and rods of stainless steel; angles, shapes and sections of stainless steel),
or 7223 (wire of stainless steel).
Proclamation 9705, Adjusting Imports of Steel Into the United States, Annex (“To Modify
Chapter 99 of the Harmonized Tariff Schedule of the United States”), 83 Fed. Reg.
11,625, 11,629 (Exec. Office of the President Mar. 15, 2018).
3 Proclamation 9980 imposed 25% tariffs on four categories of products that it
described as “Derivatives of Steel Articles.” The four categories of products are as
follows:
(1) Threaded steel fasteners suitable for use in powder-actuated handtools, classified in
subheading 7317.00.30, HTSUS (nails, tacks (other than thumb tacks),
(continued . . .)
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B. Proceedings Before the Court of International Trade
Plaintiff commenced this action on February 4, 2020, naming as defendants the
United States, the U.S. Department of Commerce, U.S. Customs and Border Protection,
and various officers of the United States in their official capacities (the President of the
(. . . continued)
drawing pins, corrugated nails, staples (other than staples in strips of HTSUS
heading 8305) and similar articles, of iron or steel, whether or not with heads
of other material, but excluding such articles with heads of copper;
(2) Certain other steel fasteners: nails, tacks (other than thumb tacks), drawing pins,
corrugated nails, staples (other than staples in strips of HTSUS heading 8305)
and similar articles, of iron or steel, of one piece construction, made of round
wire (other than certain collated roofing nails), classified in HTSUS statistical
subheadings 7317.00.5503 (collated, assembled in a wire coil, not galvanized),
-5505 (collated, assembled in a plastic strip, galvanized), -5507 (collated,
assembled in a plastic strip, not galvanized), -5560 (not collated, coated,
plated, or painted), -5580 (vinyl, resin or cement coated), and other steel
fasteners of one-piece construction (other than thumb tacks), not made of
round wire, and other than cut, classified in HTSUS statistical subheading
7317.00.6560;
(3) Bumper stampings of steel for motor vehicles (classified in HTSUS subheading
8708.10.30 (parts and accessories of the motor vehicles of HTSUS headings
8701 to 8705: bumpers); and
(4) Body stampings of steel for tractors suitable for agricultural use, classified in
HTSUS subheading 8708.29.21 (parts and accessories of the motor vehicles of
headings 8701 to 8705: other parts and accessories of bodies (including cabs):
other: body stampings: for tractors suitable for agricultural use).
Proclamation 9980, Adjusting Imports of Derivative Aluminum Articles and Derivative Steel
Articles into the United States, Annex II (“Derivatives of Steel Articles”), 85 Fed. Reg.
5,281, 5,290 (Exec. Office of the President Jan. 29, 2020).
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United States, the Secretary of Commerce, and the Acting Commissioner of Customs
and Border Protection). Summons, ECF No. 1; Compl., ECF Nos. 8 (conf.), 9 (public).
Plaintiff amended its complaint on February 11, 2020. First Am. Compl., ECF
Nos. 21 (conf.), 22 (public) (“Am. Compl.”). Defendants filed their Rule 12(b)(6) motion
to dismiss the amended complaint on March 20, 2020. Defs.’ Mot. to Dismiss for Failure
to State a Claim, ECF No. 60 (“Defs.’ Mot.”). On April 14, 2020, plaintiff opposed
defendants’ motion to dismiss and moved for summary judgment. Rule 56 Mot. for
Summ. J., Pl. PrimeSource Bldg. Prods. Inc.’s Mem. of Points and Authorities in Supp.
of Mot. for Summ. J. and Resp. to Defs.’ Mot. to Dismiss for Failure to State a Claim,
ECF No. 73-1 (“Pl.’s Br.”). Defendants replied in support of their motion to dismiss and
responded to plaintiff’s summary judgment motion on May 12, 2020. Defs.’ Reply in
Supp. of their Mot. to Dismiss and Resp. to Pl.’s Mot. for Summ. J., ECF No. 78 (“Defs.’
Reply”). Plaintiff replied in support of its summary judgment motion on June 9, 2020.
Pl. PrimeSource Bldg. Prods. Inc.’s Reply Br. in Supp. of its Mot. for Summ. J., ECF
No. 91 (“Pl.’s Reply”).
II. DISCUSSION
A. Subject Matter Jurisdiction
We exercise subject matter jurisdiction according to section 201 of the Customs
Courts Act of 1980, 28 U.S.C. § 1581(i)(2), (i)(4). Paragraph (i)(2) of § 1581 grants this
Court jurisdiction of a civil action “that arises out of any law of the United States
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providing for . . . tariffs, duties, fees, or other taxes on the importation of merchandise
for reasons other than the raising of revenue.” Id. § 1581(i)(2). Paragraph (i)(4) grants
this Court jurisdiction of a civil action arising “out of any law of the United States
providing for . . . administration and enforcement with respect to the matters referred to
in paragraphs (1)–(3) of this subsection.” Id. § 1581(i)(4).
B. Standards of Review
A court reviewing a challenge to Presidential action taken pursuant to authority
delegated by statute does so according to a standard of review that is highly deferential
to the President. “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.” Maple Leaf Fish Co. v. United States, 762 F.2d 86, 89 (Fed. Cir. 1985). Review
of Proclamation 9980 according to the Administrative Procedure Act, 5 U.S.C. § 706
(“APA”), is not available because the President is not an agency for purposes of the
APA. Franklin v. Massachusetts, 505 U.S. 788, 800–01 (1992). In an action such as this
one, where a statute commits a determination to the President’s discretion, a reviewing
court lacks authority to review the President’s factual determinations. United States v.
George S. Bush & Co., 310 U.S. 371, 379–80 (1940); Silfab Solar, Inc. v. United States, 892
F.3d 1340, 1349 (Fed. Cir. 2018) (“In particular, courts have repeatedly confirmed that,
where the statute authorizes a Presidential ‘determination,’ the courts have no authority
to look behind that determination to see if it is supported by the record.” (citing George
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S. Bush & Co., 310 U.S. at 379)); Maple Leaf Fish Co., 762 F.2d at 89 (“The President’s
findings of fact and the motivations for his action are not subject to review.” (citing
Florsheim Shoe Co. v. United States, 744 F.2d 787, 795 (Fed. Cir. 1984))).
To avoid dismissal for failure to state a claim on which relief can be granted, a
complaint must contain “a short and plain statement of the claim showing that the
pleader is entitled to relief.” USCIT R. 8(a)(2). A court will grant a motion to dismiss if
the complaint fails to allege “enough facts to state a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “Threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not suffice.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
The court will grant a motion for summary judgment “if the movant shows that
there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” USCIT R. 56(a).
C. Defendants’ Motion to Dismiss
Plaintiff raises five claims in its complaint. Am. Compl. In its first claim
(“Count 1”), id. ¶¶ 62–69, PrimeSource alleges that the Secretary of Commerce violated
the Commerce Department’s regulations, 15 C.F.R. § 705, and the Administrative
Procedure Act in various ways when providing the “assessments” on which the
President based Proclamation 9980. PrimeSource alleges, inter alia, that the Secretary
failed to initiate an investigation, failed to notify the Secretary of Defense of an initiation
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of an investigation, failed to publish an Executive Summary in the Federal Register, and
failed to provide for public hearings, as required by its regulation, id. ¶¶ 66–67, and
violated the APA when he “failed to provide interested parties with sufficient notice
and an opportunity to comment” on the imposition of the duties on derivatives, id. ¶ 68,
and when he failed to provide a reasoned explanation for its assessments, id. ¶ 69.
PrimeSource’s second claim (“Count 2”) is that Proclamation 9980 was issued in
violation of the time limits specified in Section 232. Id. ¶¶ 70–73. Specifically, plaintiff
alleges: (1) noncompliance with Section 232(c)(1)(A), 19 U.S.C. § 1862(c)(1)(A), which
directs the President to make a determination on a report submitted by the Commerce
Secretary under 19 U.S.C. § 1862(b)(3)(A) within 90 days of receiving such report, and
(2) noncompliance with 19 U.S.C. § 1862(c)(1)(B), which directs the President to
implement any determination the President makes to adjust tariffs on an article and its
derivatives within 15 days after the President makes such a determination. Id.
Maintaining that the relevant report issued under § 1862(b)(3)(A) was the report the
President received on January 11, 2018, which resulted in Proclamation 9705, a
Presidential action that imposed 25% duties on steel products other than the derivatives
affected by Proclamation 9980, PrimeSource alleges that “[i]n issuing Proclamation 9980
a full 653 days since the 90-day window closed for the President to determine what
action must be taken and 638 days after the 15-day window to implement such action,
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the President failed to follow the mandated procedures set forth in Section 232.” Id.
¶ 73.
In Count 3, id. ¶¶ 74–78, plaintiff asserts that it has a property interest in its
imports of steel derivative products, id. ¶ 76, and that “[b]y failing to provide parties
with notice and an opportunity to comment before issuing Proclamation 9980 imposing
Section 232 tariffs on steel and aluminum derivative products, the President violated
PrimeSource’s due process rights protected under the Fifth Amendment,” id. ¶ 78.
Count 4, id. ¶¶ 79–80, alleges that “Section 232 is unconstitutional and not in
accordance with the law because it represents an over-delegation by Congress to the
President of its legislative powers by failing to set forth an intelligible principle for the
President to follow when implementing Section 232,” id. ¶ 80.
Finally, Count 5, id. ¶¶ 81–82, asserts that “[t]he Secretary of Commerce violated
Section 232 by making ‘assessments’, ‘determinations’ and providing other
‘information’ to the President without following any of the statutory procedures for
new action and by doing so outside the statutory time periods applicable to the 2017-18
investigation conducted by the Secretary of Commerce that resulted in Proclamation
9705,” id. ¶ 82.
1. Plaintiff’s First, Third, Fourth, and Fifth Claims Must Be Dismissed
Plaintiff’s first claim (Count 1), in challenging the “assessments” of the Secretary
of Commerce addressing steel and aluminum derivatives, alleges various violations of
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the Commerce Department’s regulations, 15 C.F.R. § 705, and the APA. The
assessments by the Commerce Secretary merely provided facts and recommendations
for potential action by the President rather than impose duties under the authority of
Section 232. These actions had no direct or independent effect on PrimeSource. They
were, therefore, not final actions PrimeSource could challenge in a cause of action
brought under the APA. See 5 U.S.C. § 704 (“final agency action for which there is no
other adequate remedy in a court are subject to judicial review”); Motion Sys. Corp. v.
Bush, 437 F.3d 1356, 1362 (Fed. Cir. 2006) (en banc) (citing Franklin, 505 U.S. at 798); DRG
Funding Corp. v. Sec’y of HUD, 76 F.3d 1212, 1214 (D.C. Cir. 1996) (citing 5 U.S.C. § 704).
PrimeSource argues that the Commerce Secretary’s actions should be deemed
“final,” and therefore judicially reviewable, because the Secretary’s actions “represent
the consummation of the Secretary’s decision-making process that have direct legal
consequences on importers of derivative steel products like PrimeSource, and,
therefore, are reviewable under the APA.” Pl.’s Br. 26 (citing Bennett v. Spear, 520 U.S.
154, 177–78 (1997) (agency action held final where it marks consummation of agency’s
decision-making process and is one that either determines rights or obligations or is one
from which legal consequences flow)). Here, however, the legal consequence, which is
the imposition of tariffs on imported steel “derivatives,” resulted from an exercise of the
President’s broad discretion, not from the actions of the Commerce Secretary.
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For its “finality” argument, PrimeSource relies, erroneously, on Corus Group PLC
v. U.S. Int’l Trade Comm’n, 352 F.3d 1351 (Fed. Cir. 2003). Pl.’s Br. 28–32. Corus Group
considered whether a “serious injury” determination of the U.S. International Trade
Commission (“ITC”) in an “escape clause” investigation involving the U.S. steel
industry under Section 201 of the Trade Act of 1974 could be challenged in this Court as
a final agency action. 352 F.3d at 1358. Under the statutory scheme, an affirmative
determination of serious injury to a U.S. domestic industry is a statutory prerequisite to
the exercise of the President’s discretion to impose temporary tariff protection. Id. at
1359. If the ITC commissioners were equally divided on the question of serious injury
(as occurred in that case, in which the vote on injury was a three-to-three tie), the
President could consider the decision agreed upon by either group of commissioners as
the determination of the ITC. The President considered the decision of the three
commissioners voting affirmatively to be the ITC determination and, on that basis,
imposed safeguard duties on certain steel imports. In the situation presented, and
under the unique statutory scheme, the ITC vote, which itself was challenged in the
litigation, had legal consequence and therefore could be contested in the Court of
International Trade. Id. The Court of Appeals for the Federal Circuit (the “Court of
Appeals”) distinguished Corus Group in Michael Simon Design, Inc. v. United States, 609
F.3d 1335 (Fed. Cir. 2010), a case more closely analogous to this case. In Michael Simon,
the Court of Appeals held that ITC recommendations to the President for modifications
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to the Harmonized Tariff Schedule of the United States could not be subjected to
judicial challenge because, lacking any binding legal effect, they did not constitute
“final agency action” within the meaning of 5 U.S.C. § 704. 609 F.3d at 1339–40.
In further support of the claim in Count 1, PrimeSource argues that the
Commerce Secretary’s assessments regarding steel and aluminum derivatives are the
product of “rulemaking” that, under the APA, 5 U.S.C. § 553(b)–(c), required the
Secretary to provide the public notice and an opportunity for comment. Pl.’s Br. 34–38.
This argument lacks merit. The Secretary’s assessments did not themselves impose the
tariffs on derivatives or implement any other measure. They did not “implement,
interpret, or prescribe law or policy” within the meaning of the APA, 5 U.S.C. § 551(4).
Because the claim stated as Count 1 does not assert a valid cause of action, it
must be dismissed.
Plaintiff’s third claim, alleging a due process violation stemming from the
President’s failure to provide parties with notice and the opportunity to comment
before issuing Proclamation 9980, also must be dismissed. The Due Process Clause of
the Fifth Amendment did not require the President, in order to avoid a deprivation of
due process, to provide notice or the opportunity to comment before imposing duties
on imported merchandise under delegated legislative authority, and neither Section 232
nor any other statute required such a procedure. Moreover, PrimeSource fails to
identify any authority for its theory that, on the facts it has pled, it had a protected
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property interest in maintaining the tariff treatment applicable to its imported
merchandise that existed prior to Proclamation 9980. Plaintiff relies on NEC Corp. v.
United States, 151 F.3d 1361 (Fed. Cir. 1998) in support of that theory, Pl.’s Br. 41, but
NEC Corp. is not on point, having arisen from an action brought (unsuccessfully) to
enjoin the conducting of an antidumping duty investigation based on alleged
“prejudgment” on the part of the Commerce Department. PrimeSource also relies upon
Schaeffler Grp. USA, Inc. v. United States, 786 F.3d 1354 (Fed. Cir. 2015), Pl.’s Br. 41, but
that case also is inapposite. Rejecting a claim that the petition support requirement of
the Continued Dumping and Subsidy Offset Act of 2000 (the “CDSOA”) was
impermissibly retroactive according to the Due Process Clause, the Court of Appeals
“assume[d] without deciding, for purposes of our analysis, that Schaeffler had a
protected property interest implicating the Due Process Clause.” 786 F.3d at 1361. The
property interest claimed by plaintiff Schaeffler Group USA, Inc. was not pre-existing
tariff treatment but a claimed right that arose “because, when it checked the box to
oppose a petition, it believed that it would not be subjecting itself to competitive harm
through the aggrandizement of its competitors.” Id. Reasoning that the CDSOA was
not impermissibly retroactive, the appellate court chose not to reach the question of
whether there was a vested property right “because we find that Congress had a
rational basis for the retroactive effect of the petition support requirement.” Id.
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PrimeSource’s fourth claim, that Section 232 is impermissible under the U.S.
Constitution as an impermissibly broad delegation of legislative authority from
Congress to the Executive Branch, is foreclosed by the decision of the U.S. Supreme
Court in Federal Energy Admin. v. Algonquin SNG, Inc., 426 U.S. 548 (1976). Therefore, it
too must be dismissed.
The fifth count in PrimeSource’s complaint contains only one substantive
paragraph, as follows:
The Secretary of Commerce violated Section 232 by making
“assessments”, “determinations” and providing other “information” to
the President without following any of the statutory procedures for new
action and by doing so outside the statutory time periods applicable to the
2017-18 investigation conducted by the Secretary of Commerce that
resulted in Proclamation 9705.
Am. Compl. ¶ 82. This claim, which is similar to the claim in Count 1 but grounded in
alleged violations of Section 232 instead of alleged violations of the Commerce
Department regulations or the APA, also must be dismissed. Section 232 does not
provide for judicial review of any action taken thereunder. Accordingly, for
PrimeSource’s fifth count to be cognizable, judicial review must exist under the APA.
But as with Count 1, this claim cannot be brought under the APA, which “limits
nonstatutory judicial review to ‘final’ agency actions.” DRG Funding Corp., 76 F.3d at
1214 (citing 5 U.S.C. § 704); see Motion Sys. Corp., 437 F.3d at 1362.
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We address below plaintiff’s remaining claim, which is set forth as Count 2.
2. Defendants’ Motion to Dismiss the Claim in Count 2 Must Be Denied
Section 232, 19 U.S.C. § 1862, grants the President broad authority to “adjust the
imports of the article and its derivatives” that threaten to impair the national security,
id. § 1862(c)(1)(A). Congress conditioned the delegation of this authority upon the
President’s receipt of a report by the Secretary of Commerce on the findings of an
investigation “to determine the effects on the national security of imports” of an article
that is the subject of a request for such an investigation by “the head of any department
or agency” or that is the subject of an investigation initiated upon the Commerce
Secretary’s “own motion.” Id. § 1862(b)(1)(A). In conducting the investigation, the
Commerce Secretary must consult with the Secretary of Defense “regarding the
methodological and policy questions raised” in the investigation and seek “information
and advice from, and consult with, appropriate officers of the United States.” Id.
§ 1862(b)(2)(A)(i), (ii). The statute further provides that “if it is appropriate and after
reasonable notice,” the Commerce Secretary shall “hold public hearings or otherwise
afford interested parties an opportunity to present information and advice relevant to
such investigation.” Id. § 1862(b)(2)(A)(iii). The Secretary of Commerce is directed to
submit the report of the investigation to the President within 270 days after the
investigation is initiated. Id. § 1862(b)(3)(A). The statute lists numerous non-exclusive
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factors the Commerce Secretary and the President are to consider in making their
determinations. Id. § 1862(d).
Plaintiff’s claim in Count 2 is that Proclamation 9980 is invalid as untimely
because the President’s authority to adjust imports of a new set of products made of
steel (i.e., the “derivatives”) had expired.4 PrimeSource argues that Section 232
expressly limited, according to the time periods set forth in 19 U.S.C. § 1862(c)(1), any
action the President could take to adjust imports of such products, including steel nails.
Under PrimeSource’s interpretation of Section 232, the action effected by Proclamation
9980 could have been valid only had it been implemented within 105 days (i.e., the
90 days allowed by § 1862(c)(1)(A)5 plus the 15 days allowed by § 1862(c)(1)(B) 6 ) of the
4 Although plaintiff has named the President (among other officers of the United
States) in his official capacity as a defendant in this action, we do not construe the claim
in Count 2 as a claim against the President. The claim is directed against Proclamation
9980 itself, not the President, against whom no remedy is sought.
5 The provision setting forth the 90-day time period reads as follows:
Within 90 days after receiving a report submitted under subsection
(b)(3)(A) of this section [19 U.S.C. § 1862(b)(3)(A)] in which the Secretary
[of Commerce] finds that an article is being imported into the United
States in such quantities or under such circumstances as to threaten to
impair the national security, the President shall—(i) determine whether
the President concurs with the finding of the Secretary, and (ii) if the
President concurs, determine the nature and duration of the action that, in
the judgment of the President, must be taken to adjust the imports of the
article and its derivatives so that such imports will not threaten to impair
the national security.
(continued . . .)
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receipt of a report of the Commerce Secretary submitted under § 1862(b)(3)(A). See Am.
Compl. ¶¶ 70–73. According to PrimeSource, Proclamation 9980 was issued 638 days
after the transmittal of that report to the President and is, therefore, null and void. Id.
¶ 73.
Plaintiff’s Count 2 claim rests upon a “plain meaning” interpretation of Section
232(c)(1), 19 U.S.C. § 1862(c)(1). This provision, in subparagraph (A), requires the
President to make certain determinations within 90 days of receiving the Commerce
Secretary’s report under Section 232(b)(3)(A). In subparagraph (B), it directs the
President, if determining to take action “to adjust imports of an article and its
derivatives,” to implement that action within 15 days of making that determination.
The Secretary of Commerce, following an investigation initiated under Section
232, submitted a report to the President under 19 U.S.C. § 1862(b)(3)(A) (the “Steel
(. . . continued)
19 U.S.C. § 1862(c)(1)(A).
6 The provision setting forth the 15-day time period reads as follows:
If the President determines under subparagraph (A) [19 U.S.C.
§ 1862(c)(1)(A)] to take action to adjust imports of an article and its
derivatives, the President shall implement that action by no later than the
date that is 15 days after the day on which the President determines to
take action under subparagraph (A).
19 U.S.C. § 1862(c)(1)(B).
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Report”) 7 on January 11, 2018. Defs.’ Mot. 5–6; Pl.’s Br. 3–4; see Proclamation 9980 ¶ 1,
85 Fed. Reg. at 5,281. That report was the basis for Proclamation 9705. Proclamation
9980 states that the President, based on certain “assessments” of the Secretary of
Commerce, concluded that it was “necessary and appropriate in light of our national
security interests to adjust the tariffs imposed by previous proclamations to apply to the
derivatives of aluminum articles and steel articles described in Annex I and Annex II to
this proclamation.” Proclamation 9980 ¶ 9, 85 Fed. Reg. at 5,283. While mentioning
these “assessments” of the Commerce Secretary, Proclamation 9980 does not state that
the President was taking action pursuant to any report the Commerce Secretary issued
under Section 232(b)(3)(A), 19 U.S.C. § 1862(b)(3)(A), subsequent to the January 2018
Steel Report.
Defendants do not dispute that the 2018 Steel Report is, for purposes of Section
232(c), 19 U.S.C. § 1862(c), the report issued according to Section 232(b)(3)(A), 19 U.S.C.
§ 1862(b)(3)(A), upon which the President based his adjustment to imports of steel
derivatives, including steel nails. See Defs.’ Mot. 24–29. Instead, they offer a different
interpretation of Section 232(c)(1) (19 U.S.C. § 1862(c)(1)) than does plaintiff, arguing
that in issuing Proclamation 9980, the President remained free to adjust imports of
7 The Secretary’s Report was published in the Federal Register earlier this year.
Publication of a Report on the Effect of Imports of Steel on the National Security: An
Investigation Conducted Under Section 232 of the Trade Expansion Act of 1962, as Amended,
85 Fed. Reg. 40,202 (Dep’t of Commerce July 6, 2020). We take judicial notice of this
published document.
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Court No. 20-00032 	Page 21
articles not addressed in Proclamation 9705 that the President designates as
“derivatives” of those articles, despite the time limitation of Section 232(c)(1), including,
specifically, the 15-day window of § 1862(c)(1)(B). See id.
Defendants advance two arguments in support of their statutory interpretation.
Their first argument holds that the President complied with the time limits in Section
232(c)(1) when, in 2018, he issued Proclamation 9705 within 105 days of the President’s
receipt of the Steel Report. Their theory is that Proclamation 9980, rather than being an
“action,” or an implementation, separate from Proclamation 9705, was permissible
under Section 232(c)(1) as a “modification” of that earlier action. Def.’s Mot. 25–34.
Their second argument is in the alternative. The gist of this second argument is that
even if the issuance of Proclamation 9980 was not in compliance with the time
limitations of Section 232(c)(1), the court still should sustain Proclamation 9980 because
the time limitations are merely “directory” and therefore did not preclude the President
from adjusting imports of the products named therein. Id. at 34–36.
Defendants’ first argument is, essentially, that Proclamation 9980 was timely
according to Section 232(c)(1) because Proclamation 9705, of which Proclamation 9980
was a permissible modification, was timely. Further to this argument, defendants
maintain that “section 232 delegates broad authority to the President to make
adjustments to actions taken pursuant to the statute.” Id. at 25. They direct our
attention, specifically, to the words “nature and duration” in Section 232(c)(1)(A)(ii),
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19 U.S.C. § 1862(c)(1)(A)(ii), arguing that “[i]f the Secretary’s report recommends that
action be taken to protect the national security, and if the President concurs, the
President ‘must determine the nature and duration of the action that, in the judgment of the
President, must be taken to adjust the imports of the article and its derivatives so that
such imports will not threaten to impair the national security.’” Id. at 25 (quoting
19 U.S.C. § 1862(c)(1)(A)(ii)) (emphasis in original). Defendants characterize the terms
“nature and duration” as “necessarily flexible and broad.” Id. They also argue that the
word “implement” appearing in Section 232(c)(1)(B), 19 U.S.C § 1862(c)(1)(B), “should
not be read with the finality that PrimeSource appears to ascribe to it.” Id. at 26. They
urge that we interpret Section 232(c)(1) to mean that “[t]he statute contemplates
continued monitoring and adjustments to section 232(c) actions, as circumstances
change.” Id. While acknowledging that amendments made to Section 232 by the
Omnibus Trade and Competitiveness Act of 1988, Pub. L. No. 100–418, Title I, 102 Stat.
1107, Title I, §§ 1501(a), (b)(1) (the “1988 amendments”) imposed the time limits in
current Section 232(c)(1), they argue that the President’s authority to modify actions
previously taken predated those amendments, which they view as having preserved,
rather than having curtailed, that modification authority. Id. at 29–32.
Although defendants would define the issue before us in broad and general
terms, we conclude that the precise question is not whether, or to what extent, Section
232 provides general authority for “monitoring and adjustments” of an action
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Court No. 20-00032 	Page 23
previously taken. We conclude, instead, that the question before us is a narrower one:
whether the President’s having characterized the articles affected by Proclamation 9980
as “derivatives” of the steel products affected by Proclamation 9705 is, by itself,
sufficient for us to conclude that Proclamation 9980 was timely according to Section
232(c)(1).8 In considering this question, we conclude that Section 232(c)(1) would have
empowered the President, upon a timely issuance of Proclamation 9705 in 2018, to
include an adjustment to imports of, in addition to the specific articles identified by the
Commerce Secretary in the Steel Report, “derivatives” of those articles. Section 232(c)
allows the President the discretion to do so regardless of whether derivative products
were identified and recommended to him in a report the Secretary submits under
Section 232(b)(3)(A). Further, we presume that had the President done so, he would
have acted within his discretion in characterizing the products affected by Proclamation
9980 as derivatives of the articles affected by Proclamation 9705. We note that Section
232 does not confine the President’s discretion by defining the term “derivatives,” and,
in any event, we do not construe plaintiff’s claim as contesting this characterization.
8 Because Proclamation 9980 imposed tariffs on a new set of articles
(“derivatives” of previously affected articles) rather than raise the tariff on an article
already the subject of a Presidential action taken under Section 232, this case presents a
different factual circumstance than the one this Court addressed in Transpacific LLC v.
United States, et al., 43 CIT __, 415 F. Supp. 3d 1267 (2019) and Transpacific Steel LLC v.
United States, et al., 44 CIT __, 466 F. Supp. 3d 1246 (2020).
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Court No. 20-00032 	Page 24
Two provisions in Section 232—the only provisions in the statute that mention
“derivatives”—bear on the question before us. Section 232(c)(1)(A) directs the President
to make two determinations “[w]ithin 90 days after receiving a report submitted under
subsection (b)(3)(A) of this section [19 U.S.C. § 1862(b)(3)(A)] in which the Secretary [of
Commerce] finds that an article is being imported into the United States in such
quantities or under such circumstances as to threaten to impair the national security.”
19 U.S.C. § 1862(c)(1)(A) (emphasis added). Subparagraph (i) of Section 232(c)(1)(A)
provides that the President must determine whether he concurs with the affirmative
finding of the Commerce Secretary in the report submitted under Section 232(b)(3)(A).
Subparagraph (ii), the first of the two statutory provisions addressing derivatives,
provides that the President, if concurring, “shall . . . determine the nature and duration
of the action that, in the judgment of the President, must be taken to adjust the imports
of the article and its derivatives so that such imports will not threaten to impair the
national security.” Id. § 1862(c)(1)(A)(ii) (emphasis added). Section 232(c)(1)(B), the
second of the two statutory provisions mentioning derivatives, directs that, if
determining “under subparagraph (A) [19 U.S.C. § 1862(c)(1)(A)] to take action to adjust
imports of an article and its derivatives, the President shall implement that action by no
later than the date that is 15 days after the day on which the President determines to
take action under subparagraph (A).” Id. § 1862(c)(1)(B) (emphasis added).
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A predecessor to the current Section 232, Section 7 of the Trade Agreements
Extension Act of 1955, 9 did not contain the current reference to “derivatives.” In
pertinent part, Section 7 provided as follows:
In order to further the policy and purpose of this section, whenever the
Director of the Office of Defense Mobilization has reason to believe that
any article is being imported into the United States in such quantities as to
threaten to impair the national security, he shall so advise the President,
and if the President agrees that there is reason for such belief, the
President shall cause an immediate investigation to be made to determine
the facts. If, on the basis of such investigation, and the report to him of the
findings and recommendations made in connection therewith, the
President finds that the article is being imported into the United States in
such quantities as to threaten to impair the national security, he shall take
such action as he deems necessary to adjust the imports of such article to a
level that will not threaten to impair the national security.
Trade Agreements Extension Act of 1955, Pub. L. No. 86–169, § 7, 69 Stat. 162, 166. As
defendants point out, Defs.’ Mot. 27, the conference report on this legislation stated that
“[i]t is the understanding of all the conferees that the authority granted to the President
under this provision is a continuing authority.” H.R. Rep. No. 84–745 at 7 (1955).
In renewing trade agreement authority in the Trade Agreements Extension Act
of 1958, Congress made numerous changes to the national security provisions. Among
9 The immediate predecessor of this provision, enacted as Section 2 of the Trade
Agreements Extension Act of 1954, contained a very brief national security provision:
“No action shall be taken pursuant to such section 350 [negotiating authority] to
decrease the duty on any article if the President finds that such reduction would
threaten domestic production needed for projected national defense requirements.”
Pub. L. No. 83– 464, 68 Stat. 360 (1954). This provision remains in current law as Section
232(a), 19 U.S.C. § 1862(a).
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Court No. 20-00032 	Page 26
the changes was a lengthy new subsection describing the factors to be considered when
determining the effects of imports on national security; this provision is continued in
current law as current Section 232(d), 19 U.S.C. § 1862(d). The Trade Agreements
Extension Act of 1958, in § 8(a), streamlined the existing national security investigative
procedure by eliminating the requirement that the President initiate an investigation
and placing that responsibility instead upon the Director of the Office of Defense and
Civilian Mobilization. Most pertinent to this case is that Congress also granted the
President, if advised by the Director that imports of an “article” threaten to impair the
national security, the authority to adjust the imports of “such article and its
derivatives”:
Upon request of the head of any Department or Agency, upon application
of an interested party, or upon his own motion, the Director of the Office
of Defense and Civilian Mobilization (hereinafter in this section referred
to as the “Director”) shall immediately make an appropriate investigation,
in the course of which he shall seek information and advice from other
appropriate Departments and Agencies, to determine the effects on the
national security of imports of the article which is the subject of such
request, application, or motion. If, as a result of such investigation, the
Director is of the opinion that the said article is being imported into the
United States in such quantities or under such circumstances as to
threaten to impair the national security, he shall promptly so advise the
President, and, unless the President determines that the article is not being
imported into the United States in such quantities or under such
circumstances as to threaten to impair the national security as set forth in
this section, he shall take such action, and for such time, as he deems
necessary to adjust the imports of such article and its derivatives so that
such imports will not so threaten to impair the national security.
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Court No. 20-00032 	Page 27
Pub. L. No. 85–686, § 8(a), 72 Stat. 673, 678 (1958) (emphasis added). This provision
authorized the President, on his own authority, to adjust the imports of derivatives of
the article that was investigated and reported to him.
The language on derivatives was added to the legislation (H.R. 12591, the “Trade
Agreements Extension Bill of 1958”) by an amendment (Amendment No. 20) in the
Senate, to which the House receded. Trade Agreements Extension Bill of 1958,
Conference Report [to accompany H.R. 12591], Rep. No. 2502, 85th Cong., 2d Sess., at 7
(1958). The debate in the House on the Conference Report on H.R. 12591 indicates that
the purpose of Amendment No. 20 in the Senate was to ensure that the President could
address the possibility that derivatives of the investigated article would circumvent the
measures taken to adjust imports of the article itself. 104 Cong. Rec. 16,537, 16,542
(1958). There was a specific concern involving derivatives of imports of crude oil and
other natural resources, but Amendment 20 effected a change that was without
limitation as to the type of product involved. 10 See id. Significantly, Proclamation 9980
10 The floor statement of House Ways and Means Chairman Mills, 104 Cong. Rec.
16,537, 16,542 (1958), included the following:
The Senate further authorized the President that if he should take such
action as he deems necessary to adjust the imports of the particular article,
he may also adjust the imports of its derivatives. The effect of the addition
of the language with respect to derivatives in the statute serves the same
purpose as the expression of intent on the part of the Committee on Ways
and Means which was elaborated in a colloquy between the gentleman
from Texas [Mr. IKARD ] and myself on the floor of the House when the
(continued . . .)
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identified “circumvention” of the tariffs on the steel products affected by Proclamation
9705 as a justification for the President’s decision. Proclamation 9980, ¶ 8, 85 Fed. Reg. at
5,282.
In enacting Section 232 of the Trade Expansion Act of 1962, Congress essentially
carried over the language of § 8(a) of the 1958 statute, reassigning the investigative
responsibility from the Director of the Office of Defense and Civilian Mobilization to the
(. . . continued)
legislation was under consideration by the House. At that time, in
response to an inquiry from the gentleman from Texas, I observed that
prudent administration of this provision of the law would require that, if
action in the interest of national security is indicated with respect to the
imports of a particular article, it would follow that appropriate action with
respect to the derivatives of such article would also be in order if it has
been found that the imports of such derivatives would have the effect of
threatening to impair the national security.
The colloquy to which Chairman Mills referred included the following:
Mr. IKARD. Is it intended that when the imports of a natural
resource are controlled under the provisions of the national security
section of the committee bill, and with particular reference to petroleum,
that such control should take into consideration the importation of
products, derivatives, or residues of petroleum so that these products and
derivatives could not be imported in a way that would circumvent the
control of the imports of the basic natural resource?
Mr. MILLS. Yes. Clearly, when a decision is taken to restrict
imports in the interest of national security, it is our intention that the
decision be effective and not rendered ineffective by circumvention.
House debate on H.R. 12591, 104 Cong. Rec. 10,672, 10,750 (1958).
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Director of the Office of Emergency Planning. 11 Neither the 1958 version nor the 1962
version of the statute placed any time limits on the President’s authority to adjust
imports of the investigated article or derivatives of that article, and in that respect the
authority delegated to the President by the 1962 statute could be described as
“continuing.”
Congress again amended Section 232 in 1975. The investigative responsibility
was transferred from the Director of the Office of Emergency Planning to the Secretary
11 The new provision read as follows:
Upon request of the head of any department or agency, upon application
of an interested party, or upon his own motion, the Director of the Office
of Emergency Planning (hereinafter in this section referred to as the
“Director”) shall immediately make an appropriate investigation, in the
course of which he shall seek information and advice from other
appropriate departments and agencies, to determine the effects on the
national security of imports of the article which is the subject of such
request, application, or motion. If, as a result of such investigation, the
Director is of the opinion that the said article is being imported into the
United States in such quantities or under such circumstances as to
threaten to impair the national security, he shall promptly so advise the
President, and, unless the President determines that the article is not being
imported into the United States in such quantities or under such
circumstances as to threaten to impair the national security as set forth in
this section, he shall take such action, and for such time, as he deems
necessary to adjust the imports of such article and its derivatives so that
such imports will not so threaten to impair the national security.
Trade Expansion Act of 1962, Pub. L. No. 87–794, § 232(b), 76 Stat. 872, 877.
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of the Treasury, 12 the current language on public participation was added, and, for the
first time, Congress placed a time limit on the investigation:
The Secretary [of the Treasury] shall, if it is appropriate and after
reasonable notice, hold public hearings or otherwise afford interested
parties an opportunity to present information and advice relevant to such
investigation. The Secretary shall report the findings of his investigation
under this subsection with respect to the effect of the importation of such
article in such quantities or under such circumstances upon the national
security and, based on such findings, his recommendation for action or
inaction under this section to the President within one year after receiving
an application from an interested party or otherwise beginning an
investigation under this subsection.
Pub. L. No. 93–618, 88 Stat. 1978, 1993–94 (1975). Congress placed no time limit on the
exercise of discretion by the President.
Congress next made major changes to Section 232 in the 1988 amendments,
which resulted in the current Section 232. 13 Among a number of new procedural
requirements, including requirements for reporting to the Congress on actions taken or
declined to be taken, the 1988 amendments imposed, for the first time, time limits on
the exercise of discretion by the President. These were the aforementioned 90-day time
period in which the President is to “determine the nature and duration of the action
12 Along with certain other responsibilities pertaining to international trade, this
responsibility was transferred to the Secretary of Commerce by Reorganization Plan No. 3
of 1979, § 5(a)(1)(B), eff. Jan. 2, 1980, 44 Fed. Reg. 69,273, 69,274, 93 Stat. 1381, 1383.
13 An intervening amendment in 1980 added current Section 232(f), which
provided that Congress could invalidate Presidential action to adjust imports of
petroleum or petroleum products upon a “disapproval resolution.” Crude Oil Windfall
Profit Tax Act of 1980, Pub. L. No. 96–223, Title IV, § 402, 94 Stat. 229.
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Court No. 20-00032 	Page 31
that, in the judgment of the President, must be taken to adjust the imports of the article
and its derivatives . . . ,” 19 U.S.C. § 1862(c)(1)(A)(ii), and the 15-day time period in
which the President, if determining “to take action to adjust imports of an article and its
derivatives,” is directed to “implement that action,” id. § 1862(c)(1)(B).
Defendants maintain that “[n]othing in the 1988 amendments’ text or legislative
history . . . suggests that Congress intended to alter, let alone withdraw, its long-
standing delegation of authority to take continuing action” and that “[t]he
circumstances leading to passage of the 1988 amendments make clear Congress’ desire
to prevent inaction, not to curtail further action.” Defs.’ Mot. 29–30. Turning first to the
text of the 1988 amendments, we are unconvinced by defendants’ argument that these
amendments maintained, unchanged, the “continuing” authority of the President.
As amended, the statute expressly requires the President, “[w]ithin 90 days after
receiving a report submitted under subsection (b)(3)(A),” (i.e., the report the Commerce
Secretary is to issue within 270 days of the initiation of an investigation under 19 U.S.C.
§ 1862(b)) to “determine the nature and duration of the action that, in the judgment of
the President, must be taken to adjust the imports of the article and its derivatives . . . .”
Id. § 1862(c)(1)(A)(ii) (emphasis added). Section 232(c)(1)(B) provides that “[i]f the
President determines . . . to take action to adjust imports of an article and its derivatives,
the President shall implement that action by no later than the date that is 15 days after the
day on which the President determines to take action . . . .” Id. § 1862(c)(1)(B) (emphasis
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Court No. 20-00032 	Page 32
added). Contrary to defendants’ urging that we read Section 232(c)(1) broadly and
flexibly, we find no ambiguity in the time limitations it imposes. Nor do we find the
provision ambiguous in its application of those time limits to an action taken to adjust
imports of “derivatives.” In short, there is no “flexible” reading of this provision under
which the express time limitations on a Presidential “action,” and implementation
thereof, do not apply. And we find no indication anywhere in the text of the statute as
amended by the Omnibus Trade and Competitiveness Act that the President retained
authority to adjust imports of articles identified in the Secretary’s report and then, after
an extended period of time, adjust imports of derivatives of those articles without
complying with the detailed procedures of Section 232(b) and (c). To the contrary, the
90- and 15-day time limitations in Section 232(c)(1) expressly confine the exercise of the
President’s discretion regardless of whether the President determines to adjust imports
only of the “article” named in the Secretary’s report or, instead, to adjust imports of the
“article and its derivatives.” See 19 U.S.C. § 1862(c)(1). No other provision in Section
232 provides to the contrary or, for that matter, addresses in any way the authority to
adjust imports of derivatives. Had Congress intended, in the 1988 amendments, to
preserve Presidential authority to adjust imports of derivatives after the close of the
105-day period, presumably it would have created an exception to the general time
limitation it imposed in Section 232(c)(1). But we see no indication of such an intent in
the plain meaning of the statute and find indications to the contrary.
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Defendants’ “flexible” reading of Section 232(c)(1) would require us to interpret
the “action” taken by Proclamation 9980 and that taken by Proclamation 9705 as parts of
the same “action.” This presents several interpretive problems. For one, it is contrary
to the plain and ordinary meaning of the words “action” and “implement” as used in
Section 232(c)(1). There can be no question, as a factual matter, that the two, separately-
published proclamations stemmed from two separate Presidential determinations and
were directed at two different sets of products. Each necessarily required its own
implementation. See 19 U.S.C. § 1862(c)(1)(B) (“[T]he President shall implement that
action by no later than the date that is 15 days after the day on which the President
determines to take action under subparagraph A”). The President “implemented” the
“action” he determined to take following his receipt of the Steel Report when he issued
Proclamation 9705 in 2018. In enacting Section 232(c)(1) as part of the 1988
amendments, Congress placed time limits on the exercise of the President’s discretion
for the first time in the history of the statute. The straightforward language by which
Congress did so did not leave room for an interpretation that the President retained,
indefinitely, discretion to adjust imports of derivatives of an article affected by an
earlier action and implementation. Despite the express time limitation Congress
imposed, defendants insist that the President may resume his “implementation”
indefinitely—presumably even repeatedly through subsequent measures, and even
many years later—and thereby sidestep the express time limitations Congress imposed.
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Additionally, defendants’ interpretation of Section 232 would require us to
ascribe a different meaning to the word “action” as used in Section 232(c)(1) than that
indicated by the use of that term in another provision added to the statute by the 1988
amendments, Section 232(c)(3) (19 U.S.C. § 1862(c)(3)). In Section 232(c)(3), Congress
created an exception to the time limitations in Section 232(c)(1), and an alternate
procedure, to apply when the “action” the President chooses to take under Section
232(c)(1) is to pursue a trade agreement “which limits or restricts the importation into,
or the exportation to, the United States of the article that threatens to impair national
security.” 19 U.S.C. § 1862(c)(3)(A)(i). Under this alternate procedure, if, after 180 days,
no agreement is reached or if an agreement “is ineffective in eliminating the threat to
the national security posed by imports of such article,” the President may “take such
other actions as the President deems necessary to adjust the imports of such article so
that such imports will not threaten to impair the national security.”
Id. § 1862(c)(3)(A)(ii) (emphasis added). Section 232(c)(1) uses the singular term
“action”—which Section 232(c)(3) also uses to refer to the determination taken under
Section 232(c)(1)—and then distinguishes that term by using the term “other actions”
(also identified as “additional actions”), 19 U.S.C. § 1862(c)(3)(B)(ii) (emphasis added),
that the President is authorized to take under Section 232(c)(3) in the event the Section
232(c)(1) “action,” i.e., any trade agreement, or attempt to obtain one, is deemed by the
President to be insufficient to eliminate the threat from imports of the article. Thus,
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defendants’ reading of the word “action” as used in Section 232(c)(1) to encompass,
broadly, a series of continuing measures to adjust imports, as opposed to a discrete
action that may be implemented, cannot be reconciled with the use of that term in
Section 232(c)(3). We disfavor an interpretation that ascribes different meanings to the
same term as used in different provisions of the same statute. See Brown v. Gardner, 513
U.S. 115, 118 (1995) (“[T]here is a presumption that a given term is used to mean the
same thing throughout a statute.”).
Although placing no express time limits on the “other actions” in Section
232(c)(3), as it did in Section 232(c)(1), Congress limited these “additional actions” to
those that adjust imports of the article that was, or would have been, affected by the
trade agreement. Id. § 1862(c)(3)(A) (confining the additional actions to actions “to
adjust the imports of such article” (emphasis added)). In substance, Proclamation 9980
concludes that the previously-imposed tariffs on steel articles were (in the words of
19 U.S.C. § 1862(c)(3)) “ineffective in eliminating the threat to the national security.”
But Proclamation 9980 differs from an “additional action” taken under Section 232(c)(3)
in two critical respects: it did not follow a determination to enter into a trade agreement
(a determination of which the President must give timely notification to Congress under
Section 232(c)(2)), and even if it had, it would not have conformed to the procedure
thereunder because the “additional action” was not directed to the same article as was
the original action.
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Where a statute creates an exception to a general rule (as Section 232(c)(3) does in
creating an exception to the time limitations of Section 232(c)(1)), such exception is to be
read narrowly and not interpreted to apply where Congress did not expressly provide
for it. Comm’r v. Clark, 489 U.S. 726, 739 (1989) (“In construing provisions . . . in which a
general statement of policy is qualified by an exception, we usually read the exception
narrowly in order to preserve the primary operation of the provision.”) (citing A.H.
Phillips, Inc. v. Walling, 324 U.S. 490, 493 (1945) (“To extend an exemption to other than
those plainly and unmistakably within its terms and spirit is to abuse the interpretative
process and to frustrate the announced will of the people.”)). When we read the statute
as a whole, we see the detailed, specialized procedure Congress set forth as Section
232(c)(3) as another indication that Proclamation 9980 must be viewed as untimely
under Section 232(c)(1) if considered to be an action that was taken based solely on the
Steel Report.
Defendants’ argument referring to the words “nature and duration” in Section
232(c)(1)(A)(ii) also fails to convince us that the President retains authority, indefinitely,
to take additional steps to adjust imports of articles not addressed in his original action.
Because different products were affected, the “nature” of the action the President took
in 2020 differed from the nature of the action he took in 2018.
Defendants argue that specific factors set forth in Section 232(d), 19 U.S.C.
§ 1862(d), that the President is to consider in exercising his authority under Section 232
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Court No. 20-00032 	Page 37
signify that “[t]he statute contemplates continued monitoring and adjustments to
section 232(c) actions, as circumstances change.” Defs.’ Mot. 26. According to
defendants, “[m]any of these factors, including the ‘domestic production needed for
projected national defense requirements,’ the ‘capacity of domestic industries to meet
such requirements,’ and ‘the impact of foreign competition on the economic welfare of
individual domestic industries,’ are dynamic by nature and invite ongoing evaluation
and, as necessary, course correction.” Id. (quoting 19 U.S.C. § 1862(d)). This argument,
too, is unpersuasive, confusing the non-exclusive list of factors the President is to
consider in his determination of what action is needed with the time periods in which
he must make and implement that determination. As we discussed above, the list of
non-exclusive factors set forth in current Section 232(d) were added by Trade
Agreements Extension Act of 1958. We find nothing in the text of Section 232(d) that
creates an exception to the time limits Congress imposed, as Section 232(c)(1), thirty
years later.
In support of their motion to dismiss, defendants argue, additionally, that “[i]t is
no defect that the Secretary’s investigation covered steel articles and not derivatives of
steel articles, such as nails.” Defs.’ Mot. 37 (citing Compl. ¶¶ 41–42); Defs.’ Reply 2
(arguing that “Commerce plays no statutory role with respect to derivative articles.”).
According to defendants, “the President is authorized to adjust imports of derivatives
of articles, even when the Secretary’s investigation and report addressed only the article
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itself.” Defs.’ Mot. 37 (quoting 19 U.S.C. § 1862(c)(1)(A)(ii) (“if the President concurs,
determine the nature and duration of the action that, in the judgment of the President,
must be taken to adjust the imports of the article and its derivatives . . . .”)). As we
discussed above, the President is empowered to adjust imports of derivatives of the
investigated article regardless of whether the investigation, and the Commerce
Secretary’s Section 232(b)(3)(A) report, included them. Defendants’ argument does not
confront the question of timeliness: PrimeSource challenges the timeliness of the
President’s action on the ground that the time limitations of Section 232(c)(1) apply
regardless of whether or not the President’s action is directed to derivatives of an article
affected by an earlier action.
In support of their argument that nothing in the legislative history of the 1988
amendments evinces congressional intent to limit the Presidents’ discretion as to
modifications of earlier actions, defendants cite congressional testimony showing, they
argue, that the 1988 amendments were motivated by frustration on the part of certain
members of Congress with President Reagan’s delay in taking actions under Section
232, in particular with respect to machine tools. Id. at 30–31 (citing Hearings Before the
Comm. on Ways & Means on H.R. 3 Trade and International Economic Policy Other
Proposals Reform Act, 100th Cong. (1987); Hearings Before the Subcomm. on Trade of
H. Comm. On Ways & Means, 99th Cong., 2d Sess. 1282 (1986)).
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A Senate report on the legislation, while noting that then-current law imposed a
one-year requirement for the investigation (shortened to 270 days by the 1988
amendments), also noted that under current law “[t]here is no time limit for the
President’s decision.” Report of the Committee on Finance on S. 490, S. Rep. 100-71, at
135 (1987). “The basic need for the amendment arises from the lengthy period provided
by present law—one year for investigations and no time limit for decisions by the
President—before actions to remove a threat posed by imports of particular products to
the national security are taken. For example, in the machine tools case, the President
waited over 2½ years before taking any action to assist the domestic industry.” Id.
“The Committee [on Finance] believes that if the national security is being affected or
threatened, this should be determined and acted upon as quickly as possible.” Id.
At least arguably, the legislative history defendants cite, and the quoted Senate
report, are consistent with a view that Congress could have intended that the President
retain “modification” authority such as defendants posit, so long as he imposes an
initial measure within the time limits. But Section 232(c)(1) as effected by the 1988
amendments unambiguously placed time limits on the President’s authority to adjust
imports of derivatives as well as the imports of the investigated article. Were there
intent to retain the authority to impose subsequent measures to adjust imports of
derivatives after the expiration of the 105-day period, we would expect to see at least
some indication of that intent in the legislative history. However, we find nothing in
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the legislative history to indicate that Congress intended to do so. Such indications as
we are able to find are to the contrary. The conference agreement on the Omnibus
Trade and Competitiveness Act of 1988 summarizes the amendment to Section 232 as
follows:
A. Amends section 232 of the Trade Expansion Act of 1962 to require the
Secretary of Commerce to report to the President within 270 days of
initiating an investigation.
B. 	Requires the Secretary of Commerce to consult with the Secretary of
Defense regarding the methodological and policy questions raised by
the investigation; and requires the Secretary of Defense, upon request
of the Commerce Secretary, to provide defense requirements with
respect to the article under investigation.
C. Requires the President to decide, within 90 days of receiving the
Commerce Secretary’s report, on whether to take action and if so to
proclaim such action within 15 days.
D. Requires the President to report to Congress within 30 days on the
action taken and reasons for such action.
E. 	Authorizes the enforcement of the quantitative restrictions negotiated
with respect to machine tool imports.
Summary of the Conference Agreement on H.R. 3, The Omnibus Trade and Competitiveness
Act of 1988 at 15–16 (Comm. Print 1988). The use of the words “proclaim such action” in
paragraph C, above, casts further doubt on defendants’ expansive and flexible
interpretation of the word “implement” as used in 19 U.S.C. § 1862(c)(1)(B). “Proclaim”
is the verb form of the noun “proclamation,” and “proclaim such action” is inconsistent
with an interpretation under which Congress intended the President to have authority
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to proclaim additional “actions” indefinitely (through subsequent proclamations), after
the time period had passed.
In summary, we view defendants’ argument on legislative history as confusing
an apparent motivation with the specific statutory means Congress chose to achieve its
objective, which is reflected in the plain meaning of the language of the amendments.
The solution Congress adopted was to require, generally, that the President implement
an import adjustment (whether on the investigated article or on that article and its
derivatives) within the 105-day time period following receipt of the report the Secretary
submits under Section 232(b)(3)(A) (with the limited “trade agreement” exception
discussed previously). The statute did not provide general authority for the President
to take, or implement, another “action” (or actions) on derivatives after that time period
elapsed.
According to defendants, “[t]hat the statute also involves foreign affairs and
national security cautions against an inflexible reading” of the provisions governing the
exercise of the President’s Section 232 authority. Defs.’ Mot. 33. In support of this
argument, they cite B-West Imports, Inc. v. United States, 75 F.3d 633, 636 (Fed. Cir. 1996),
Florsheim, 744 F.2d at 793, and American Ass’n of Exporters & Importers-Textile & Apparel
Grp. v. United States, 751 F.2d 1239, 1248 (Fed. Cir. 1985). While the statutory
interpretation principle defendants identify is a valid one, it does not serve the
arguments they make in favor of their particular interpretation of Section 232. As we
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have explained, there is no “flexible” reading of Section 232(c)(1) that suffices to allow
the President to adjust, through new tariffs, imports of derivatives of previously-
affected articles outside of the time limits Congress imposed, and the appellate
decisions on which defendants rely do not lend support to any such reading.
In B-West Imports and in Florsheim Shoe Co., the Court of Appeals addressed
interpretations of statutes conferring Presidential authority in matters involving import
regulation. Each of these cases rejected an appellant’s statutory interpretation that was
plainly unreasonable. B-West Imports held that a provision in the Arms Export Control
Act, 22 U.S.C. § 2778, which granted the President authority to “control” arms imports,
encompassed the authority to revoke previously-issued permits for importations of
munitions from the People’s Republic of China. The Court of Appeals rejected the
interpretation of § 2778 advanced by appellants, who conceded that the term “‘control’
is broad enough to allow the President to ban imports by denying licenses or permits
for future imports.” 75 F.3d at 635. The opinion states that “if the term ‘control’
includes the power to prohibit, as appellants concede that it does, we are unable to
discern any basis for construing the statute to convey the power to deny permits and
licenses in advance, but to withhold the power to revoke them once they have been
issued.” Id. at 636. The case did not involve an attempt to invoke delegated authority to
adjust imports that was claimed to have expired. Florsheim Shoe Co. rejected an
importer’s challenge to an action by the President that withdrew duty-free treatment
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provided under the Generalized System of Preferences (“GSP”) program for certain
leather articles from India. The Court of Appeals, upon interpreting statutory language
providing that “[t]he President may withdraw, suspend, or limit the application of the
duty-free treatment accorded under section 2461 of this title with respect to any article
or with respect to any country . . . ,” 19 U.S.C. § 2464 (1982) (amended to 19 U.S.C.
§ 2463(c)(1) (1996)), rejected appellant’s argument that “the President may only limit
duty-free treatment for a particular article from all countries or for all articles from a
particular country” and therefore lacked authority to withdraw duty-free treatment
from a specific article from a particular beneficiary country. 744 F.2d at 794. The Court
of Appeals viewed appellant’s argument as based on an “over-emphasis on the word
‘or’” in § 2464 that was at odds with the overall provision. In the instant case, plaintiff
advocates a “plain meaning” construction of Section 232(c)(1), rather than one such as
that advocated in Florsheim Shoe Co., which was a strained interpretation of a provision
delegating tariff authority to the President that failed to recognize that the greater
power the provision granted must be read to include the lesser.
The third decision defendants cite, American Ass’n of Exporters & Importers-Textile
& Apparel Grp., adjudicated, and rejected, claims that an administrative agency, the
Committee on the Implementation of Textile Agreements, “failed to abide by its
statutory authority,” “acted arbitrarily,” and violated “the statutory and constitutional
rights” of members of plaintiff’s organization “to have notice of the proposed actions
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and an opportunity to be heard.” 751 F.2d at 1246. In disposing of appellant’s
“statutory authority” claim, the Court of Appeals disagreed with a narrow construction
of section 204 of the Agricultural Act of 1956, under which the President negotiated
agreements on importations of textiles and textile products. The Court of Appeals
rejected the argument that Congress, in authorizing the President “to issue regulations
governing the entry or withdrawal from warehouse of any such commodity, product,
textiles, or textile products to carry out such agreements,” 7 U.S.C. § 1854 (1982),
“intended to incorporate the terms of any agreements concluded pursuant to section
204 into that statute itself.” 751 F.2d at 1241, 1247 (footnote omitted). The Court
reasoned that the statutory phrase “to carry out” as used in § 1854 “does not imply that
Congress restricted the President’s discretion in this regard by requiring him to
implement the agreements in the particular manner seen by appellant” but rather “is a
broad grant of authority to the President in the international field in which
congressional delegations are normally given a broad construction.” Id. This case, in
contrast, does not involve delegated authority to promulgate implementing regulations,
and there is no “broad construction” of the express time limitations in Section 232(c)(1)
that plausibly supports defendants’ argument.
In summary, the action taken by Proclamation 9980 to adjust imports of
derivatives was not implemented during the 105-day time period set forth in
§ 1862(c)(1), if that time period is considered to have commenced upon the President’s
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receipt of the Steel Report. The President’s having characterized the articles affected by
Proclamation 9980 as “derivatives” of the steel products affected by Proclamation 9705
is, therefore, insufficient by itself to support a conclusion that Proclamation 9980 was
timely according to Section 232(c)(1).
We turn next to defendants’ second argument, which is that the statutory
deadlines in Section 232(c)(1) are directory, not mandatory, an argument apparently in
the alternative to their argument that the President complied with all procedural
requirements. Defs.’ Mot. 35. They maintain that where Congress did not expressly
state the consequences of failures to meet deadlines, the deadlines ordinarily should not
be construed as mandatory, and the court should so construe them here. But as we
pointed out above, accepting this logic would require us to conclude that Congress
established the time limitations, which were central to the 1988 amendments and
related to other procedural requirements imposed by those amendments, while at the
same time intending that these limitations would have no binding effect on the exercise
of the President’s discretion. It also would require us to conclude that the President
could take virtually any action he chose, even one adjusting imports of products that
are not derivatives of those affected by an earlier action, despite the express time
limitations in Section 232(c)(1). Such an interpretation essentially renders Section
232(c)(1), as added by the 1988 amendments, a nullity. As the court has explained, the
plain meaning and structure of Section 232 are to the contrary.
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The aforementioned Section 232(c)(3), another provision added by the 1988
amendments, also is inconsistent with an interpretation that the Section 232(c)(1) time
limitations are merely directory. As the court has discussed, this alternate procedure
applies when the President determines that the appropriate “action” is to seek a trade
agreement limiting or restricting the importation into, or exportation to, the United
States of “the article that threatens to impair national security.” 19 U.S.C.
§ 1862(c)(3)(A)(i). But it is axiomatic that when interpreting a statute, a court is to give
effect to every word and every provision. See Duncan v. Walker, 533 U.S. 167, 174 (2001)
(“It is our duty ‘to give effect, if possible, to every clause and word of a statute.’”) (citing
United States v. Menasche, 348 U.S. 528, 538–39 (1955)); see also Williams v. Taylor, 529 U.S.
362, 404 (2000) (describing the above rule as the “cardinal principle of statutory
construction”). The procedure Congress spelled out in detail in Section 232(c)(3) would
appear to be rendered superfluous if the time limitations in Section 232(c)(1) were
interpreted to have no binding effect. In summary, defendants’ conception of a
“flexible” statutory scheme under which the Section 232(c)(1) time limits are merely
directory is inconsistent with the elaborate procedural mechanisms Congress included
to ensure oversight generally, and to provide, specifically, for the special situation
arising from the President’s negotiation of a trade agreement.
In support of their argument that the time limitations in Section 232(c)(1) are
merely directory, defendants cite Barnhart v. Peabody Coal Co., 537 U.S. 149, 159 (2003)
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(citing United States v. James Daniel Good Real Property, 510 U.S. 43, 63 (1993)), Hitachi
Home Elecs., Inc. v. United States, 661 F.3d 1343, 1345–46 (Fed. Cir. 2011), Gilda Industries,
Inc. v. United States, 622 F.3d 1358, 1365 (Fed. Cir. 2010), and Canadian Fur Trappers Corp.
v. United States, 884 F.2d 563, 566 (Fed. Cir. 1989). Defs.’ Mot. 35. These cases are
inapposite. They did not involve an express limitation Congress imposed on the
delegation to the Executive Branch of a legislative power the Constitution vested in the
Congress. See U.S. C ONST . art. I, § 8, cl. 1 (conferring the power to lay and collect
Duties) & cl. 3 (conferring the power to regulate commerce with foreign nations). In
each, the Supreme Court or the Court of Appeals, using established methods of
statutory interpretation, concluded that Congress intended for the time limitation at
issue to be merely directory. We approach the issue in this case not by applying a
blanket presumption as to whether a deadline is directory or mandatory, as defendants
would have us do, but by examining the statute as a whole, giving effect to “every
clause and word,” Duncan, 533 U.S. at 174, to discern congressional intent as to the
statutory time limits in question. Here, the nature of the delegation (a delegation of a
legislative power reserved by the Constitution to the Congress), the plain meaning of
Section 232(c)(1), and the indicia of congressional intent appearing elsewhere in Section
232 preclude us from concluding that the time limits are merely directory.
Barnhart v. Peabody Coal Co. arose from a statutory requirement in the Coal
Industry Retiree Health Benefit Act of 1992, 26 U.S.C. § 9706(a) (“Coal Act”), that the
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Secretary of Labor assign, before October 1, 1993, retired coal miners whose former
employers were no longer in business to extant “signatory operators,” who would
assume the annual premium obligations for those retirees’ benefits. After the
Department of Labor was unable to complete the lengthy assignment process by the
statutory due date, it proceeded to assign some 10,000 previously-unassigned
beneficiaries to signatory operators. 537 U.S. at 155–56. The issue in the case was
whether those assignments were valid regardless of the untimeliness of the
Department’s actions. From a comprehensive examination of the Coal Act, including
the legislative purpose of requiring the assignments and the consequence of holding
assignments made after the deadline to be invalid, which the Court considered to be
contrary to the overall intent of the statute, the Court held that the statutory date for the
assignments did not invalidate the subsequent assignments. Id. at 172 (“The way to
reach the congressional objective, however, is to read the statutory date as a spur to
prompt action, not as a bar to tardy completion of the business of ensuring that benefits
are funded, as much as possible, by those identified by Congress as principally
responsible.”). The case at bar does not present an analogous situation. Rather than
spur agency action to complete a complex administrative task such as that required by
the Coal Act, Congress endeavored in the 1988 amendments to Section 232 to impose
new controls, through time limitations and reporting requirements, on the exercise of
Presidential discretion.
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Hitachi Home Elecs., Inc. involved the requirement in Section 515(a) of the Tariff
Act that Customs and Border Protection act on a protest within two years. Rejecting the
plaintiff’s argument that a protest not acted upon within the two-year period is
“deemed allowed,” the Court of Appeals noted that a protestant desiring to obtain
expeditious allowance or denial, or alternatively judicial review, may seek accelerated
disposition under Section 515(b). 661 F.3d at 1348–49. Nothing in the Tariff Act even
suggested congressional intent that a protest not acted upon during the two-year period
should be deemed to have been allowed, and the provision for accelerated disposition is
contrary to such an intent.
Gilda Industries, Inc. held that a failure of the U.S. Trade Representative to make a
notification required by 19 U.S.C. § 2417(c)(2) to be made to domestic parties of the
impending termination of a retaliatory trade action occurring by operation of
§ 2417(c)(1) four years after its imposition, in the absence of a written request from a
domestic party for continuation, did not nullify the statutorily-required termination.
Under the reasoning of the Court of Appeals, the termination of the retaliatory trade
action on the four-year anniversary date, absent a continuation request by a party
already on notice of the termination, was unaffected by the absence of the notification
required by § 2417(c)(2). 622 F.3d at 1365.
Canadian Fur Trappers Corp. involved a previous version of Section 504(d) of the
Tariff Act, which directed the Customs Service to liquidate an entry within 90 days of
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removal of a suspension of liquidation but did not provide a consequence for a failure
by the Customs Service to do so. The Court of Appeals rejected the importers’
argument that such failure resulted in a deemed liquidation at the entered duty rate, a
highly consequential result for which the statute did not then provide. 884 F.2d at 566.
In summary, we are not convinced by either of the two arguments defendants
put forth to support their motion to dismiss plaintiff’s Count 2 claim. The President’s
characterization of the articles affected by Proclamation 9980 as derivatives of the
articles affected by Proclamation 9705 is insufficient, by itself, to support a conclusion
that the challenged decision satisfied the time limitations in Section 232(c)(1), and
Congress did not intend for those time limits to be merely directory. Count 2 of
plaintiff’s complaint states “a claim to relief that is plausible on its face,” Twombly, 550
U.S. at 570, and we decline to dismiss it at this stage of the proceedings.
D. Plaintiff’s Motion for Summary Judgment
PrimeSource characterizes its motion as a USCIT Rule 56 motion for summary
judgment, Pl.’s Br. 1 (moving pursuant to USCIT Rule 56 “because there is no genuine
dispute as to any material fact and PrimeSource is entitled to judgment as a matter of
law”). Nevertheless, it appears that plaintiff also is moving for relief under USCIT Rule
56.1 (“Judgment on an Agency Record for an Action Other Than That Described in
28 U.S.C. § 1581(c)(1)”). Plaintiff refers to its motion as a “Motion for Judgment on the
Agency Record,” Pl.’s Br. 50, and in this way identifies its motion as one brought under
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USCIT Rule 56.1. To date, neither plaintiff nor defendants have raised the question of
whether an administrative agency record will be relevant to this litigation.
Rule 56.1 applies when “a party believes that the determination of the court is to
be made solely on the basis of the record made before an agency.” USCIT R. 56.1(a).
Certain of the claims we have dismissed in this litigation were APA claims, which we
dismissed for the reason discussed above, which is that there is no final agency action
that may be contested under the APA. The remaining claim, that of Count 2, is not an
APA claim as it contests an action of the President, not an agency action. Therefore, we
consider plaintiff’s motion as a Rule 56 motion for summary judgment, not a motion
under Rule 56.1. But it does not necessarily follow that an agency record will be
irrelevant to this proceeding or that individualized procedures similar to those specified
under Rule 56.1 will not be useful as this litigation proceeds.
Under USCIT Rule 56(a), the burden is on the moving party to show “that there
is no genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” At this pleading stage of the litigation, we cannot conclude that plaintiff
has met this burden. To declare Proclamation 9980 invalid, and on that basis enter
summary judgment in plaintiff’s favor, we must find “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. As we discussed previously, defendants
conceded that Proclamation 9980 was not based on a report, other than the Steel Report,
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that was designated as a report issued pursuant to Section 232(b)(3)(A). This concession
was relevant to our conclusion that Proclamation 9980 was not issued within the time
period imposed by Section 232(c)(1), if that time period is deemed to have begun with
the President’s receipt of the Steel Report. But at this stage of the litigation, we cannot
conclude that the time period imposed by Section 232(c)(1) necessarily began on
January 11, 2018, the date the Steel Report was received by the President. Therefore, we
are not now able to determine whether or not the claim in Count 2 is validly based on a
“significant procedural violation,” Maple Leaf Fish Co., 762 F.2d at 89.
Although Proclamation 9980 was issued long after the 105-day period beginning
with the receipt of the Steel Report, it also was issued pursuant to what Proclamation
9980 describes as an “assessment” (or “assessments”) of the Commerce Secretary.
Proclamation 9980 states that “[i]t is the Secretary’s assessment that foreign producers of
these derivative articles have increased shipments of such articles to the United States to
circumvent the duties on aluminum articles and steel articles imposed in Proclamation
9704 and Proclamation 9705, and that imports of these derivative articles threaten to
undermine the actions taken to address the risk to the national security . . . .”
Proclamation 9980 ¶ 8, 85 Fed. Reg. at 5,282 (emphasis added). It further states that
“[t]he Secretary has assessed that reducing imports of the derivative articles . . . would
reduce circumvention” and identifies the reduction of those imports as a measure to
address the threatened impairment of the national security. Id. (emphasis added). The
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Court No. 20-00032 	Page 53
Proclamation states that the adjustment of the tariffs on the derivative articles is being
taken “[b]ased on the Secretary’s assessments.” Id. ¶ 9, 85 Fed. Reg. at 5,283 (“Based on
the Secretary’s assessments, I have concluded that it is necessary and appropriate in light
of our national security interests to adjust the tariffs imposed by previous
proclamations to apply to the derivatives of aluminum articles and steel articles
described in Annex I and Annex II to this proclamation.”) (emphasis added).
The Secretary of Commerce is the official Section 232 identifies as having the
responsibility of conducting a Section 232(b) investigation and preparing a Section
232(b)(3)(A) report. Proclamation 9980 did not characterize as a “report” submitted
under Section 232(b)(3)(A) the communication or communications by which the
Secretary of Commerce transmitted his recommendation to the President to adjust
tariffs on the aluminum and steel products Proclamation 9980 identified. Nevertheless,
it is clear from the text of Proclamation 9980 that the Secretary of Commerce undertook
certain preparations prior to the President’s action and also that the Secretary made a
recommendation relating to the subject matter of Section 232(b)(3)(A) (“If the Secretary
finds that such article is being imported into the United States in such quantities or
under such circumstances as to threaten to impair the national security, the Secretary
shall so advise the President in such report.”).
Even though the Secretary’s communications to the President on derivative
articles were not designated in Proclamation 9980 as having been made pursuant to
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Court No. 20-00032 	Page 54
Section 232(b)(3)(A), we are not in a position to ascertain the extent to which these
communications nevertheless met the fundamental requirements of Section
232(b)(3)(A), for the straightforward reason that those communications, and any related
records, are not before us. Although concluding that Proclamation 9980 was untimely
under Section 232(c)(1) when viewed solely as an action taken in response to the Steel
Report, we also conclude that there are genuine issues of material fact that bear on the
extent to which the subsequent “assessment” or “assessments” of the Commerce
Secretary identified in Proclamation 9980 validly could be held to have served a
function analogous to that of a Section 232(b)(3)(A) report. Nor do we know what form
of inquiry or investigation, if any, the Commerce Secretary conducted prior to his
submission of these communications to the President and whether, or to what extent,
any such inquiry or investigation satisfied the essential requirements of Section
232(b)(2)(A), 19 U.S.C. § 1862(b)(2)(A).
We do not imply that the Secretary’s actions are judicially reviewable in this case.
We conclude instead that factual information pertaining to the Secretary’s
communicating to the President on the derivative articles would be required in order
for us to examine whether, and to what extent, there was or was not compliance by the
President with the procedural requirements of Section 232 and whether any
noncompliance that occurred was a “significant procedural violation,” Maple Leaf Fish
Co., 762 F.2d at 89. Moreover, at this early stage of the litigation, we lack a basis to
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Court No. 20-00032 	Page 55
presume that these unresolved factual issues are unrelated to the issue of whether the
President clearly misconstrued the statute or the issue of whether the President took
action outside of his delegated authority.
In summary, there remain genuine issues of material fact precluding us from
granting plaintiff’s motion for summary judgment, and as a result plaintiff has not met
the burden required to obtain a judgment in its favor on its Count 2 claim. It would
appear that the filing of a complete administrative record could be a means of resolving,
or helping to resolve, these factual issues, but rather than directing a specific procedure,
we believe it advisable that the parties first consult on these matters and report to the
court on a scheduling order that will govern the remainder of this litigation.
III. C ONCLUSION AND O RDER
We grant the government’s motion to dismiss as to Counts 1, 3, 4, and 5 of the
amended complaint and deny it as to Count 2. We deny plaintiff’s motion for summary
judgment as to Count 2 because plaintiff has not met the burden of showing “that there
is no genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” USCIT R. 56(a). Therefore, upon consideration of all papers and
proceedings herein, and upon due deliberation, it is hereby
ORDERED that the claims stated as Counts 1, 3, 4, and 5 of the amended
complaint be, and hereby are, dismissed for failure to state a claim on which relief can
be granted; it is further
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Court No. 20-00032 	Page 56
ORDERED that plaintiff’s motion for summary judgment be, and hereby is,
denied with respect to the claim stated in Count 2 of the amended complaint; it is
further
ORDERED that the parties shall consult and submit to the court, by February 26,
2021, a joint schedule to govern the remainder of this litigation; and it is further
ORDERED that if the parties are unable to agree upon a schedule, each shall
submit a proposed schedule by February 26, 2021 that includes a justification for its
position.
__________________________________
Timothy C. Stanceu, Chief Judge
__________________________________
Jennifer Choe-Groves, Judge
Dated: January 27, 2021
New York, New York
/s/ Timothy C. Stanceu
/s/ Jennifer Choe-Groves
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Ct. No. 20-32 	Page 57
Baker, Judge, concurring in part and dissenting in part:
I respectfully dissent from my colleagues’ parrying the question of
whether we have subject-matter jurisdiction over claims against the President.
In my view, both Federal Circuit precedent and the separation of powers com-
pel that we sua sponte raise the question and then dismiss him from the case.
On the merits, I concur in my colleagues’ decision to grant the govern-
ment’s motion to dismiss (and deny PrimeSource’s cross-motion for summary
judgment as to) Counts 1, 3, and 4 of the amended complaint and therefore join
the majority opinion’s discussion of those claims. I also concur in dismissing
(and denying PrimeSource’s cross-motion as to) Count 5 but write separately
to explain my views on why that claim fails.
Finally, although I concur in my colleagues’ denial of PrimeSource’s
cross-motion for summary judgment as to Count 2 of the amended complaint,
my reasons differ, and I respectfully dissent from their denial of the govern-
ment’s motion to dismiss that claim, which alleges that the President violated
Section 232 by imposing tariffs on steel derivative products after the statutory
implementation deadline.
In my view, if the President timely implements Section 232 action to re-
strict imports—and there is no dispute that the President did so in the original
Proclamation 9705 restricting steel articles—the statute also permits him to
later modify such restrictions, and that modification power is coextensive with
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Ct. No. 20-32 	Baker, J., concurring in part and dissenting in part 	Page 58
the original power to act in the first instance. Because the President could have
also acted as to steel derivatives when he initially restricted steel article im-
ports in Proclamation 9705, Section 232 permitted him to later extend those
restrictions to derivatives. I would therefore grant the government’s motion to
dismiss Count 2 for failure to state a claim.
Statutory and Factual Background
A. 	Section 232
As its title indicates, Section 232 of the Trade Expansion Act of 1962, as
amended, authorizes the President to impose import restrictions to “[s]afe-
guard[] national security.” 19 U.S.C. § 1862. In short, the statute directs that
in various circumstances, the Secretary of Commerce is to investigate the na-
tional security effects of specified imports. Id. § 1862(b)(1)(A).
Once the Secretary initiates an investigation, the statute prescribes the
following steps:
x 	The Secretary is to give the Secretary of Defense immediate notice
of the investigation, id. § 1862(b)(1)(B), and is then to consult with
him about “the methodological and policy questions raised in any
investigation,” id. § 1862(b)(2)(A)(i).
x 	The Secretary is to “seek information and advice from, and consult
with, 	appropriate 	officers 	of 	the 	United 	States.” 	Id.
§ 1862(b)(2)(A)(ii).
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Ct. No. 20-32 	Baker, J., concurring in part and dissenting in part 	Page 59
x 	“[I]f it is appropriate and after reasonable notice,” the Secretary is
to “hold public hearings or otherwise afford interested parties an
opportunity to present information and advice relevant to such in-
vestigation.” Id. § 1862(b)(2)(A)(iii). In other words, hearings or
other opportunity for comment are not mandatory.
x 	The Secretary may also ask the Secretary of Defense to assess “the
defense requirements of any article that is the subject of an inves-
tigation.” Id. § 1862(b)(2)(B).
Section 232 requires the Secretary to submit a report to the President by
no later than the date that is 270 days after the date on which the investigation
commenced. Id. § 1862(b)(3)(A).1 The report is to discuss “the effect of the im-
portation of such article in such quantities or under such circumstances upon
the national security” and to set forth the Secretary’s recommendations for ac-
tion or inaction; in addition, if the Secretary believes the importation threatens
“to impair the national security,” the report must so state. Id.
If the Secretary finds a threat to national security, the President then
has 90 days to determine whether he “concurs” with the Secretary’s finding.
Id. § 1862(c)(1)(A)(i). If he so concurs, the President must
1 The statute directs that in executing their duties, the Secretary and the President
are to keep in mind, among other things, various enumerated considerations bearing
on national security. See 19 U.S.C. § 1862(d).
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Ct. No. 20-32 	Baker, J., concurring in part and dissenting in part 	Page 60
determine the nature and duration of the action that, in the judg-
ment of the President, must be taken to adjust the imports of the
article and its derivatives so that such imports will not threaten to
impair the national security.
Id. § 1862(c)(1)(A)(ii).2
The statute further directs that if the President determines to take ac-
tion to restrict imports to protect national security, he must “implement” that
action within 15 days of determining to do so. Id. § 1862(c)(1)(B). Taken to-
gether, the two deadlines (to “determine” and then to “implement”) give the
President 105 days to act after receiving the Secretary’s report.
If the President’s action is to attempt to negotiate an agreement restrict-
ing the imports in question, the statute provides that if such an agreement is
not reached within 180 days of his decision, id. § 1862(c)(3)(A)(ii)(I), or if such
an agreement, having been reached, is “not being carried out or is ineffective,”
§ 1862(c)(3)(A)(ii)(II), the President may “take such other actions as [he] deems
necessary to adjust imports of such article so that they do not threaten national
security. Id. § 1862(c)(3)(A)(ii).3
2 The statute also requires the President to submit a written statement to Congress
within 30 days of his determination explaining his reasons for acting or declining to
act on the Secretary’s report. 19 U.S.C. § 1862(c)(2).
3 The statute further requires that when there has been such a failure to conclude an
agreement restricting imports or that such an agreement, if reached, was ineffective,
the President must publish in the Federal Register notice of either (1) any such “ad-
ditional actions” taken, see 19 U.S.C. § 1862(c)(3)(A)(ii), or (2) his determination not
to take any such additional actions. See id. § 1862(c)(3)(A)(B).
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Ct. No. 20-32 	Baker, J., concurring in part and dissenting in part 	Page 61
B. 	Proclamation 9705’s steel tariffs
Following a Section 232 investigation, the Secretary here issued a report
finding that steel imports threatened national security.4 Based on this report,
in 2018 the President issued Proclamation 9705, which imposed 25 percent
duties on imported raw steel. See Proclamation No. 9705 of March 8, 2018,
Adjusting Imports of Steel into the United States, 83 Fed. Reg. 11,625 (Mar. 15,
2018). The proclamation further directed the Secretary to monitor steel im-
ports and their effect on national security and, after appropriate consultations
with other Executive Branch officials, inform the President of “any circum-
stances that . . . might indicate” the need for further Section 232 duties or that
“the increase in duty rate provided for in this proclamation is no longer neces-
sary.” Id. at 11,628.
C. 	Proclamation 9980’s extension of tariffs to steel deriv-
ative products
On January 24, 2020, the President issued Proclamation 9980, which
stated that the Secretary had informed him as follows:
[I]mports of certain derivatives of steel articles have significantly
increased since the imposition of the tariffs and quotas [in Procla-
mation 9705]. The net effect of the increase of imports of these de-
rivatives has been to erode the customer base for U.S. producers of
. 	. 	. 	steel 	and 	undermine 	the 	purpose 	of 	the 	proclamations
4 See generally U.S. Dep’t of Commerce, Bureau of Industry & Security, The Effect of
Imports of Steel on the National Security (Jan. 11, 2018), https://www.bis.doc.gov/in
dex.php/documents/steel/2224-the-effect-of-imports-of-steel-on-the-national-security
-with-redactions-20180111/file, 85 Fed. Reg. 40,202 (Dep’t Commerce July 6, 2020).
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Ct. No. 20-32 	Baker, J., concurring in part and dissenting in part 	Page 62
adjusting imports of . . . steel articles to remove the threatened
impairment of the national security.
Proclamation No. 9980 of January 24, 2020, Adjusting Imports of Derivative
Aluminum Articles and Derivative Steel Articles into the United States, 85 Fed.
Reg. 5281, 5282 (Jan. 29, 2020). The President further explained that the Sec-
retary had advised him that foreign producers of steel derivative products had
“increased shipments of such articles to the United States to circumvent . . .
Proclamation 9705.” Id.
Based on that information and recommendation from the Secretary, the
President extended Proclamation 9705’s 25-percent duties to certain steel de-
rivative products (e.g., steel nails) not previously addressed by the Secretary’s
report on steel article imports or by Proclamation 9705. Id. at 5283. 5 The gov-
ernment implicitly concedes that unlike Proclamation 9705, Proclamation
9980 was not preceded by a Section 232 investigation and report by the Secre-
tary. See ECF 60, at 49 (“The Secretary was not required to conduct another
investigation or to follow the procedures for an investigation . . . .”); ECF 78,
at 37 (referring to PrimeSource’s “incorrect belief that the President had to
request an entirely separate investigation . . .”).
5 Proclamation 9980 also extended tariffs to certain aluminum article derivatives not
at issue in this case.
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Ct. No. 20-32 	Baker, J., concurring in part and dissenting in part 	Page 63
D. 	This suit and the pending motions
Plaintiff PrimeSource Building Products, Inc., brought this suit chal-
lenging Proclamation 9980. ECF 1.6 PrimeSource’s amended complaint alleges
that it is an importer of steel nails injured by duties imposed by Proclamation
9980. ECF 22, at 7–10. 7 An affidavit of a PrimeSource executive attached to its
amended complaint provides evidentiary substantiation of these allegations.
ECF 22-1, at 16–17.
PrimeSource’s amended complaint names the United States, the Presi-
dent, the U.S. Department of Commerce, the Secretary of Commerce, U.S. Cus-
toms and Border Protection, and the Acting Commissioner of Customs as de-
fendants. ECF 22, at 7.
PrimeSource asserts the following claims: Count 1—an Administrative
Procedure Act claim based on the Secretary’s alleged violations of Section 232’s
procedural requirements, id. at 19–21; Count 2—a nonstatutory review claim
based 	on 	the 	President’s 	alleged 	violation 	of 	Section 	232’s 	procedural
6 Chief Judge Stanceu thereafter assigned this case to this three-judge panel. See
28 U.S.C. § 255(a) (authorizing the chief judge to designate a three-judge panel to
hear and determine any civil action which “(1) raises an issue of the constitutionality
of . . . a proclamation of the President . . .; or (2) has broad or significant implications
in the administration or interpretation of the customs laws.”). Chief Judge Stanceu
concurrently assigned several other related cases challenging Proclamation 9980 to
the same panel.
7 In this opinion, pagination references in citations to the Court record are to the
pagination found in the ECF header at the top of each page.
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Ct. No. 20-32 	Baker, J., concurring in part and dissenting in part 	Page 64
requirements, id. at 22; Count 3—a due process claim based on the President’s
alleged actions, id. at 22–23; Count 4—a constitutional claim based on Con-
gress’s alleged overdelegation of authority to the President in Section 232, id.
at 23–24; and Count 5—a nonstatutory review claim based on the Secretary’s
alleged violations of Section 232’s procedural requirements, id. at 24.
PrimeSource requests that the Court “[e]njoin Defendants from imple-
menting or further enforcing Proclamation 9980,” “declare Proclamation 9980
unlawful,” and order a “[r]efund to PrimeSource [of] any duties that may be
collected on its imported articles pursuant to Proclamation 9980.” Id. at 25.
The government moves to dismiss for failure to state a claim, see USCIT
R. 12(b)(6). ECF 60. PrimeSource opposes and cross-moves for summary judg-
ment, see USCIT 56. ECF 73.8
Analysis
I. 	We have no jurisdiction to enter relief directly against the
President and should dismiss him from the case.
In my view, we should dismiss the President as a party for two separate
and independent reasons. 9 First, the statute giving us jurisdiction to hear this
8 The affidavit attached to the amended complaint establishes PrimeSource’s consti-
tutional standing for purposes of its cross-motion for summary judgment.
9 My colleagues avoid the jurisdictional issue, stating “we do not construe the claim
in Count 2 [the lone claim surviving today’s decision] as a claim against the President.
The claim is directed against Proclamation 9980 itself, not the President, against
whom no remedy is sought.” Ante at 18 n.4. Unfortunately, we cannot so easily wish
this 	jurisdictional 	problem 	away. 	The 	President, 	not 	Proclamation 	9980, 	is 	a
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Ct. No. 20-32 	Baker, J., concurring in part and dissenting in part 	Page 65
case does not confer jurisdiction over such claims. Second, even if our jurisdic-
tional statute permitted us to award relief against the President, the separa-
tion of powers does not.
Although the government has not questioned our jurisdiction to enter
relief against the President, our subject-matter jurisdiction, like standing, “is
not dispensed in gross.” Lewis v. Casey, 518 U.S. 343, 358 n.6 (1996). Jurisdic-
tion must exist as to “each claim” a plaintiff “seeks to press and for each form
of relief that is sought.” Town of Chester, N.Y. v. Laroe Estates, 137 S. Ct. 1645,
1650 (2017) (quoting Davis v. FEC, 554 U.S. 724, 734 (2008)).
Thus, we have an independent obligation to determine whether we have
subject-matter jurisdiction to enter relief directly against the President, see
Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006) (federal courts have an inde-
pendent 	duty 	to 	examine 	their 	jurisdiction), 	even 	though 	the 	practical
defendant in this litigation. Count 2, which alleges that Proclamation 9980 is invalid,
is merely a legal claim asserted against the President and the other defendants. See
ECF 22, at 22. As relief for this claim, PrimeSource requests that the Court issue a
declaratory judgment and injunction against all defendants, including the President.
Id. at 25. There is no plausible basis upon which to state that Count 2 is directed
against every defendant except the President, or that—even if we withhold injunctive
relief against the President—any declaratory relief that we might ultimately grant
would merely apply against Proclamation 9980, as opposed to the defendants, includ-
ing the President. Declaratory relief under 28 U.S.C. § 2201 binds parties, not things.
See Restatement (Second) of Judgments § 33 (1982) (“A valid and final judgment in
an action brought to declare rights or other legal relations of the parties is conclusive
in a subsequent action between them as to the matters declared, and, in accordance
with the rules of issue preclusion, as to any issues actually litigated by them and
determined in the action.”).
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Ct. No. 20-32 	Baker, J., concurring in part and dissenting in part 	Page 66
consequences of our decision may be the same because we can enjoin the Pres-
ident’s subordinates from executing his unlawful orders in limited situations
through nonstatutory review.10 Cf. McGirt v. Oklahoma, 140 S. Ct. 2452, 2504
(2020) (Thomas, J., dissenting) (“The Court might think that, in the grand
10 “Nonstatutory review” is “the type of review of administrative action which is avail-
able, not by virtue of those explicit review provisions contained in most modern stat-
utes which create administrative agencies, but rather through the use of traditional
common-law remedies—most notably, the writ of mandamus and the injunction—
against the officer who is allegedly misapplying his statutory authority or exceeding
his constitutional power.” 33 Wright & Miller, Federal Practice and Procedure § 8304
(2d ed. 2020) (quoting Antonin Scalia, Sovereign Immunity Nonstatutory Review of
Federal Administrative Action: Some Conclusions from the Public-Lands Cases, 68
Mich. L. Rev. 867, 870 (1969–70)).
Federal courts entertain claims for nonstatutory review against the President’s sub-
ordinates to enjoin them from enforcing allegedly unlawful Presidential orders. See
Franklin v. Massachusetts, 505 U.S. 788, 828 (1992) (Scalia, J., concurring) (“Review
of the legality of Presidential action can ordinarily be obtained in a suit seeking to
enjoin the officers who attempt to enforce the President’s directive . . . .”). The Su-
preme Court has assumed, but never directly recognized, the availability of such non-
statutory review for claims against Presidential subordinates based on the Presi-
dent’s alleged violation of a statutory mandate. See Dalton v. Specter, 511 U.S. 462,
474 (1994) (“We 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.”).
In the Federal Circuit, nonstatutory review claims against Presidential subordi-
nates for the President’s alleged violation of a statute are “only rarely available,”
Silfab Solar, Inc. v. United States, 892 F.3d 1340, 1346 (Fed. Cir. 2018), and are lim-
ited to whether the President has violated “an explicit statutory mandate.” Id. (quot-
ing Motion Sys. Corp. v. Bush, 437 F.3d 1356, 1361 (Fed. Cir. 2006) (en banc)); see
also Maple Leaf Fish Co. v. United States, 762 F.2d 86, 89 (Fed. Cir. 1985) (federal
court review of Presidential action under a statute is limited to situations involving
“a clear misconstruction of the governing statute, a significant procedural violation,
or action outside delegated authority”). Thus, dismissal of the President from this
suit would not preclude us from granting declaratory and injunctive relief against the
President’s subordinates based on his alleged violation of Section 232’s procedural
requirements in issuing Proclamation 9980.
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Ct. No. 20-32 	Baker, J., concurring in part and dissenting in part 	Page 67
scheme of things, this jurisdictional defect is fairly insignificant. After all, we
were bound to resolve this . . . question sooner or later. But our desire . . . for
. . . convenience and efficiency must yield to the overriding and time-honored
concern about keeping the Judiciary’s power within its proper constitutional
sphere.”) (cleaned up).
Our obligation to consider our jurisdiction is even more pronounced in
this case because the Judiciary has the “responsibility to police the separation
of powers in litigation involving the executive,” Cheney v. U.S. Dist. Ct. for
D.C., 542 U.S. 367, 402 (2004) (Ginsburg, J., dissenting) (cleaned up), even if,
as here, the Executive Branch declines to defend its own constitutional prerog-
atives. The “separation of powers does not depend on the views of individual
Presidents, see Freytag v. Comm’r of Internal Revenue, 501 U.S. 868, 879–80
(1991), nor on whether ‘the encroached-upon branch approves the encroach-
ment.’ ” Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 497
(2010) (quoting New York v. United States, 505 U.S. 144, 182 (1992)). The Pres-
ident “cannot . . . choose to bind his successors by diminishing their powers.”
Id. The government’s failure to seek dismissal of the President does not relieve
us of our obligations under the separation of powers.
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Ct. No. 20-32 	Baker, J., concurring in part and dissenting in part 	Page 68
A. 	Jurisdiction under 28 U.S.C. § 1581(i) does not encom-
pass claims against the President.
PrimeSource invokes 28 U.S.C. § 1581(i) as the jurisdictional basis for
this suit. ECF 22, at 4.11 In 2003, the Federal Circuit held that § 1581(i) juris-
diction does not encompass claims against the President, noting that while “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.” Corus
Grp. PLC v. ITC, 352 F.3d 1351, 1359 (Fed. Cir. 2003) (emphasis added). The
court recognized the principle that the APA does not authorize an action di-
rectly against the President12 and then explained as follows:
This reasoning seems equally applicable to actions under 28 U.S.C.
§ 1581(i), which refers only to actions “against the United States,
its agencies, or its officers” and does not specifically include the
President. We conclude that section 1581(i) does not authorize pro-
ceedings directly against the President.
Since the complaint in this action relied solely on section 1581 as
the basis of jurisdiction, the President should have been dismissed
as a party.
Corus Grp., 352 F.3d at 1359 (cleaned up).
11 The statute provides in relevant part that our Court “shall have exclusive jurisdic-
tion of any civil action commenced against the United States, its agencies, or its of-
ficers, that arises out of any law of the United States providing for,” inter alia, “(2) tar-
iffs, duties, fees, or other taxes on the importation of merchandise for reasons other
than the raising of revenue.” 28 U.S.C. § 1581(i).
12 See, e.g., Franklin, 505 U.S. at 801 (“As the APA does not expressly allow review of
the President’s actions, we must presume that his actions are not subject to its re-
quirements.”).
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Ct. No. 20-32 	Baker, J., concurring in part and dissenting in part 	Page 69
Six months later, a decision of this court held that Corus Group was
wrongly decided because it misread an earlier Federal Circuit decision holding
that § 1581(i) waived the sovereign immunity of the President and other offi-
cials. See Motion Sys. Corp. v. Bush, 342 F. Supp. 2d 1247, 1254–56 (CIT 2004)
(discussing Corus Group and Humane Society of the United States v. Clinton,
236 F.3d 1320 (Fed. Cir. 2001)).
On appeal in Motion Systems, the Federal Circuit granted rehearing en
banc to consider whether Corus Group should “be overruled en banc insofar as
it holds that § 1581(i) does not authorize relief against the President.” Motion
Sys. Corp. v. Bush, 140 F. App’x 257, 258 (Fed. Cir. 2005) (en banc) (per cu-
riam). Significantly, the later merits opinion never addressed this question,
apparently because the en banc court found the President’s actions not subject
to judicial review. See Motion Sys. Corp. v. Bush, 437 F.3d 1356, 1359 (Fed.
Cir. 2006) (en banc).13
13 Because it did not directly address the question, Motion Systems cannot be read as
implicitly endorsing the conclusion that the President can be sued under § 1581(i).
The Supreme Court has “described such unrefined dispositions as ‘drive-by jurisdic-
tional rulings’ that should be accorded ‘no precedential effect’ on the question whether
the federal court had authority to adjudicate the claim in suit.” Arbaugh, 546 U.S.
at 511 (quoting Steel Co. v. Citizens for Better Env’t, 523 U.S. 83, 91 (1998)); cf. Am.
Legion v. Am. Humanist Ass’n, 139 S. Ct. 2067, 2100 (2019) (Gorsuch, J., concurring)
(explaining that “drive-by jurisdiction” means that a court’s failure to directly address
issues such as standing or jurisdiction “cannot be mistaken as an endorsement of it”).
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Ct. No. 20-32 	Baker, J., concurring in part and dissenting in part 	Page 70
In my view, Corus Group is binding on us, notwithstanding the earlier
Federal Circuit decision in Humane Society allowing the President and other
officers to be sued under § 1581(i).14 First, the Corus Group court explained
that Humane Society “dealt only with the general issue of the government’s
sovereign immunity and not with the applicability of § 1581(i) to the President
individually.” Corus Grp., 352 F.3d at 1359 n.5. Thus, in the eyes of the Federal
Circuit, the two cases do not conflict. If judicial hierarchy means anything, it
must mean that the Federal Circuit’s reading of its own cases binds this Court.
Because the Corus Group court distinguished Humane Society, we are
bound to follow Corus Group and to dismiss the President as a party. See Pre-
minger v. Sec’y of Veterans Affairs, 517 F.3d 1299, 1309 (Fed. Cir. 2008) (“A
prior precedential decision on a point of law by a panel of this court is binding
precedent and cannot be overruled or avoided unless or until the court sits en
banc.”) (emphasis added).
Second, even if Corus Group’s reading of Humane Society is not binding
on us, my own reading of Humane Society is the same as Corus Group’s. As the
Humane Society panel merely assumed that § 1581(i)’s jurisdictional grant in-
cludes claims against the President, that drive-by jurisdictional assumption is
14 Where two Federal Circuit panel decisions directly conflict, the earlier opinion con-
trols unless and until the en banc court rules otherwise. Newell Cos. v. Kenney Mfg.
Co., 864 F.2d 757, 765 (Fed. Cir. 1988).
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Ct. No. 20-32 	Baker, J., concurring in part and dissenting in part 	Page 71
not entitled to any weight, see supra note 13, and Corus Group controls that
question.
B. 	The separation of powers prevents us from issuing in-
junctive 	or 	declaratory 	relief 	directly 	against 	the
President in the performance of his official duties.
For separation of powers purposes, “[t]he President’s unique status un-
der the Constitution distinguishes him from other executive officials.” Nixon v.
Fitzgerald, 457 U.S. 731, 750 (1982); see also Harlow v. Fitzgerald, 457 U.S.
800, 811 n.17 (1982) (“Suits against other officials—including Presidential
aides—generally do not invoke separation-of-powers considerations to the
same extent as suits against the President himself.”).
Because of these separation of powers considerations, any request for re-
lief directly against the President “should . . . raise[] judicial eyebrows.” Frank-
lin, 505 U.S. at 802 (plurality opinion of O’Connor, J.). The Franklin plurality
of four justices15 observed that “in general, ‘this court has no jurisdiction of a
bill to enjoin the President in the performance of his official duties.’ ” Id.
at 802–03 (plurality opinion of O’Connor, J.) (quoting Mississippi v. Johnson,
4 Wall. 475, 501 (1867)). On this point, Justice Scalia agreed with the plurality
and explained that “[t]he apparently unbroken historical tradition supports
the view that . . . the President and the Congress (as opposed to their agents)—
15 Chief Justice Rehnquist and Justices White and Thomas joined the relevant portion
of Justice O’Connor’s opinion in Franklin.
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Ct. No. 20-32 	Baker, J., concurring in part and dissenting in part 	Page 72
may not be ordered to perform particular executive or legislative acts at the
behest of the Judiciary.” See id. at 827 (Scalia, J., concurring).16
If the Supreme Court cannot grant injunctive relief against the President
in the performance of his official duties, as five justices of the Court agreed
that it cannot do, then lower federal courts may not do so either. 17
16 Although the Supreme Court has recognized that the President is not totally im-
mune to judicial process, see, e.g., Trump v. Vance, 140 S. Ct. 2412, 2421–24 (2020)
(tracing over 200 years of case law involving subpoenas directed to presidents), the
critical distinction is that in those cases the President was to “provide information
relevant to an ongoing criminal prosecution [or, in Trump v. Vance, a grand jury in-
vestigation], which is what any citizen might do; [the court orders] did not require
him to exercise the ‘executive Power’ in a judicially prescribed fashion.” Franklin, 505
U.S. at 826 (Scalia, J., concurring). In Franklin, the plurality also noted that “[w]e
have left open the question whether the President might be subject to a judicial in-
junction requiring the performance of a purely ‘ministerial’ duty.” Id. at 802 (plurality
opinion of O’Connor, J.); see also id. at 827 n.2 (Scalia, J. concurring) (making the
same observation). The President’s issuance of Proclamation 9980 plainly does not
involve “ministerial” duties.
17 See, e.g., In re Trump, 958 F.3d 274, 297 (4th Cir. 2020) (en banc) (Wilkinson, J.,
dissenting) (“Over the course of this nation’s entire existence, there has been an un-
broken historical tradition implicit in the separation of powers that a President may
not be ordered by the Judiciary to perform particular Executive acts.”) (cleaned up),
vacated as moot, No. 20-331 (U.S. Jan. 25, 2021); Hawaii v. Trump, 859 F.3d 741, 788
(9th Cir.) (“Finally, the Government argues that the district court erred by issuing an
injunction that runs against the President himself. This position of the government
is well taken. Generally, we lack jurisdiction of a bill to enjoin the President in the
performance of his official duties. . . . [T]he extraordinary remedy of enjoining the
President is not appropriate here.”) (cleaned up), vacated on other grounds, 138 S. Ct.
377 (2017) (mem.); Newdow v. Roberts, 603 F.3d 1002, 1013 (D.C. Cir. 2010) (“The
only apparent avenue of redress for plaintiffs’ claimed injuries would be injunctive or
declaratory relief against all possible President-elects and the President himself. But
such relief is unavailable. . . . With regard to the President, courts do not have juris-
diction to enjoin him and have never submitted the President to declaratory relief.”)
(cleaned up); Anderson v. Obama, 2010 WL 3000765, at *2 (D. Md. July 28, 2010)
(denying motion for preliminary injunction seeking to prevent President Obama from
signing or enforcing the Affordable Care Act “because the Court lacks power to grant
the requested relief. The Court has no jurisdiction to issue an injunction against the
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Ct. No. 20-32 	Baker, J., concurring in part and dissenting in part 	Page 73
Nor may we issue even declaratory relief against the President. In at
least two different contexts, the Supreme Court has recognized that because
declaratory relief is functionally equivalent to injunctive relief, any bar on the
latter also applies to the former. See, e.g., California v. Grace Brethren Church,
457 U.S. 393, 407–08 (1982) (holding that “because there is little practical dif-
ference between injunctive and declaratory relief,” the Tax Injunction Act bars
federal court jurisdiction over suits seeking declaratory as well as injunctive
relief to “enjoin, suspend or restrain the . . . collection of any tax under State
law”) (quoting 28 U.S.C. § 1341); Samuels v. Mackell, 401 U.S. 66, 73 (1971)
(holding that because “the practical effect of the two forms of relief will be vir-
tually identical,” Younger abstention principles apply to declaratory relief as
much as injunctive relief). Lower courts have applied this principle in addi-
tional contexts. See, e.g., Tex. Emps.’ Ins. Ass’n v. Jackson, 862 F.2d 491, 506
(5th Cir. 1988) (“If an injunction would be barred by [the Anti-Injunction Act,
28 U.S.C.] § 2283, this should also bar the issuance of a declaratory judgment
President in his official capacity and in the performance of non-ministerial actions.”);
Willis v. U.S. Dep’t of Health & Human Servs., 38 F. Supp. 3d 1274, 1277 (W.D. Okla.
2014) (finding that suit attempting to enjoin President Obama from enforcing any
part of the ACA “contravenes an extensive amount of well-settled law” and “raises
serious separation of powers concerns” because “[l]ongstanding legal authority estab-
lishes that the judiciary does not possess the power to issue an injunction against the
President or Congress”).
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Ct. No. 20-32 	Baker, J., concurring in part and dissenting in part 	Page 74
that would have the same effect as an injunction.”) (cleaned up and quoting
Charles Alan Wright, Federal Courts § 47, at 285 (4th ed. 1983)).
Because declaratory relief is functionally equivalent to injunctive relief,
the same structural separation of powers principles that counsel against en-
joining the President necessarily also apply to issuing “a declaratory judgment
against the President. It is incompatible with his constitutional position that
he be compelled personally to defend his executive actions before a court.”
Franklin, 505 U.S. at 827 (Scalia, J., concurring); see also Newdow, 603 F.3d
at 1013 (D.C. Cir. 2010) (declaratory relief against the President is unavaila-
ble); In re Trump, 958 F.3d at 302 (“We have no more power to issue a declar-
atory judgment against the President regarding the performance of an official
duty than we do an injunction.”) (Wilkinson, J., dissenting).
In short, even if § 1581(i) permitted the assertion of claims against the
President in our Court, in my view the statute would violate the separation of
powers. We should dismiss all claims against the President for lack of jurisdic-
tion. Our failure to do so only invites “more and more disgruntled plaintiffs [to]
add his name to their complaints” in our Court and thereby produce “needless
head-on confrontations between [us] and the Chief Executive.” Franklin, 505
U.S. at 827 (Scalia, J., concurring).
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Ct. No. 20-32 	Baker, J., concurring in part and dissenting in part 	Page 75
II. 	Count 5 fails because PrimeSource has abandoned any
claim for nonstatutory review against the Secretary out-
side of the APA.
In Count 5, PrimeSource appears to assert a claim against the Secretary
outside of the APA for alleged procedural violations of Section 232:
The Secretary of Commerce violated Section 232 by making “as-
sessments”, “determinations” and providing other “information” to
the President without following any of the statutory procedures for
new action and by doing so outside the statutory time periods ap-
plicable to the 2017–18 investigation conducted by the Secretary
of Commerce that resulted in Proclamation 9705.
ECF 22, at 24. According to my colleagues, “for PrimeSource’s fifth count to be
cognizable, judicial review must exist under the APA” because “Section 232
does not provide for judicial review of any action taken thereunder.” Ante at 16.
My colleagues therefore conclude that because PrimeSource’s APA claim
against the Secretary in Count 1 fails for lack of final agency action, then
Count 5 necessarily fails as well.
My colleagues imply that absent a statutory cause of action in the statute
under which official action is taken, which Wright and Miller refer to as “spe-
cial statutory review,” see 33 Federal Practice & Procedure § 8301 (2d ed. 2020),
the only recourse that a person or entity injured by official action has is an
action under the APA, which Wright and Miller denominate as “general statu-
tory review.” Id. My colleagues overlook a third possible avenue for judicial
relief against official agency action, nonstatutory review.
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Ct. No. 20-32 	Baker, J., concurring in part and dissenting in part 	Page 76
Courts have recognized that a person threatened with injury by actions
of Executive Branch officials may sometimes seek declaratory and injunctive
relief against such officials even though the underlying statute provides no
cause of action and no relief is available under the APA. Such actions are
known as “nonstatutory review.” Id.; see also supra note 10 (explaining non-
statutory review in the context of challenges to agency enforcement of Presi-
dential actions); 33 Federal Practice & Procedure § 8304 (2d ed. 2020). “It does
not matter . . . whether traditional APA review is foreclosed” because nonstat-
utory review is available “when an agency is charged with acting beyond its
authority.” Aid Ass’n for Lutherans v. U.S. Postal Serv., 321 F.3d 1166, 1172
(D.C. Cir. 2003) (quoting Dart v. United States, 848 F.2d 217, 221 (D.C. Cir.
1988)).
Nevertheless, nonstatutory review is available in only very limited cir-
cumstances. “Non-statutory review is a doctrine of last resort, ‘intended to be
of extremely limited scope’ and applicable only to preserve judicial review when
an agency acts ‘in excess of its delegated powers.’ ” Schroer v. Billington, 525
F. Supp. 2d 58, 65 (D.D.C. 2007) (quoting Griffith v. Fed. Lab. Rel. Auth., 842
F.2d 487, 493 (D.C. Cir. 1988)); see also Kathryn E. Kovacs, Revealing Redun-
dancy: The Tension Between Federal Sovereign Immunity and Nonstatutory
Review, 54 Drake L. Rev. 77, 107 (2005) (to state a claim for nonstatutory re-
view challenging agency action, “[a] plaintiff must allege more than that an
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Ct. No. 20-32 	Baker, J., concurring in part and dissenting in part 	Page 77
agency acted illegally or even interfered with his rights; he must allege that
the agency did so in a manner that exceeded its statutory or constitutional
authority”). In short, nonstatutory review relief against an agency official is
roughly analogous to mandamus relief against a district court or our Court—
strong medicine that is only rarely available. Cf. Cheney v. U.S. Dist. Court for
D.C., 542 U.S. 367, 380 (2004) (mandamus “is a ‘drastic and extraordinary’
remedy ‘reserved for really extraordinary causes’ ” such as when the district
court has departed from “the lawful exercise of its prescribed jurisdiction”)
(quoting Ex parte Fahey, 332 U.S. 258, 259–60 (1947)).
Given these principles, I read Count 5 of PrimeSource’s complaint as as-
serting a nonstatutory review claim based on the Secretary’s alleged violations
of Section 232’s procedural requirements, just as Count 2 is a nonstatutory
review claim based on the President’s alleged violations of Section 232’s proce-
dural requirements.
Nevertheless, PrimeSource has effectively abandoned Count 5 by tether-
ing it to its APA claim in Count 1. See ECF 73-1, at 7 n.1 (characterizing “both
Counts 1 and 5 from PrimeSource’s amended complaint” as involving whether
the Secretary, “in failing to follow the procedures set forth in Section 232 . . .
violated the Administrative Procedure[] Act”) (emphasis added). Because I
agree with my colleagues that PrimeSource’s APA claim under Count 1 fails
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Ct. No. 20-32 	Baker, J., concurring in part and dissenting in part 	Page 78
for lack of final agency action, see ante at 11–14, PrimeSource’s linkage of
Count 5 to Count 1 dooms the former.
III. 	Proclamation 9980 did not violate Section 232.
PrimeSource contends that Proclamation 9980 violated Section 232 by
imposing tariffs on steel derivative products outside of the statutory deadlines
for 	implementing 	such 	action. 	Although 	not 	expressly 	framed 	as 	such,
PrimeSource appears to assert two alternative theories (even as it repeatedly
blurs the two theories together).
First, citing the Court’s decision in Transpacific Steel LLC v. United
States, 415 F. Supp. 3d 1267 (CIT 2019) (Transpacific I ), 18 PrimeSource argues
that after the President timely implements Section 232 import restrictions, he
cannot later modify such restrictions outside of the 105-day period for taking
action upon receiving a report from the Secretary.19 See ECF 73-1, at 20
18 In Transpacific I, a different three-judge panel of the Court held—in the context of
denying the government’s Rule 12(b)(6) motion to dismiss—that the President’s mod-
ification of Proclamation 9705 to increase duties on Turkish steel imports violated
Section 232 because the statute does not permit such modifications after the statutory
implementation deadline has passed absent another formal investigation and report
by the Secretary. See 415 F. Supp. 3d at 1273–76; see also Transpacific Steel LLC v.
United States, 466 F. Supp. 3d 1246, 1253 (CIT 2020) (Transpacific II) (holding, in
the context of summary judgment, that “nothing in the statute . . . support[s] . . .
continuing authority to modify Proclamations outside of the stated timelines.”), ap-
peal docketed, No. 20-2157 (Fed. Cir. Aug. 17, 2020).
19 The “105-day period” reflects the initial 90-day period for the President to deter-
mine whether he concurs in the Secretary of Commerce’s finding and, if so, to deter-
mine the nature and duration of the action he deems necessary, plus the subsequent
15-day period for him to “implement that action.” See 19 U.S.C. § 1862(c)(1)(A)–(B).
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Ct. No. 20-32 	Baker, J., concurring in part and dissenting in part 	Page 79
(invoking Transpacific I against the government’s argument that Section 232
“provide[s] the President with flexibility to modify his actions” outside of the
statutory deadline for acting).
Although my colleagues distinguish the Transpacific litigation on its
facts, see ante at 23 n.8 (noting that case involved a modification to the means
of Section 232 import restrictions rather than—as here—the products covered
by such restrictions), in denying the government’s motion to dismiss Count 2
my colleagues nonetheless appear to tacitly embrace the Transpacific opinions’
rationale, which reads the 1988 amendments as barring modifications to Sec-
tion 232 action after the statutory implementation deadline has passed. See
ante at 31 (“[W]e are unconvinced by defendants’ argument that the[] [1988]
amendments maintained, unchanged, the ‘continuing authority’ of the Presi-
dent.”); ante at 32 (“[T]here is no ‘flexible’ reading of [Section 232] under which
the express time limitations on a Presidential ‘action,’ and implementation
thereof, do not apply.”); ante at 39 (“Section 232(c)(1) . . . unambiguously placed
time limits on the President’s authority to adjust imports of derivatives as well
as the imports of the investigated article.”). Thus, notwithstanding my col-
leagues’ distinguishing of the Transpacific case on its facts, their rationale
would—like 	Transpacific’s—bar 	modifications 	of 	Section 	232 	import 	re-
strictions after the statutory deadline for implementation even as to the means
of such restrictions.
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Ct. No. 20-32 	Baker, J., concurring in part and dissenting in part 	Page 80
PrimeSource also appears to argue in the alternative that even if Section
232 permits such modifications of import restrictions outside of the statutory
deadlines for taking new action, Proclamation 9980’s tariffs on steel derivative
products nevertheless constituted entirely new Section 232 action subject to
the statute’s procedural requirements, rather than a permissible modification,
because Proclamation 9705 was limited to steel articles and did not include
steel derivatives. See ECF 73-1, at 30 (contending that Proclamation 9980 “was
not “a permissible modification of Proclamation 9705”) (emphasis added); id.
at 31 (“The instant case goes one step beyond TransPacific because here the
untimely additional duties are being extended to types of products that were
never even previously investigated.”) (emphasis added); id. at 53 (“Given that
the Secretary determined a hearing was appropriate in the initial investiga-
tion, he cannot now issue additional recommendations to the President on new
products that were not subject to initial investigation.”) (emphasis added).
My colleagues also appear to embrace this alternative theory as a basis
for denying the government’s motion to Count 2. See ante at 33 (stating that
Proclamation 9705 and 9980 “stemmed from two separate Presidential deter-
minations and were directed at two different sets of products. Each necessarily
required its own implementation.”).
I disagree with both of PrimeSource’s alternative theories, and for that
reason would grant the government’s motion to dismiss Count 2. I begin with
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Ct. No. 20-32 	Baker, J., concurring in part and dissenting in part 	Page 81
the Transpacific theory—namely, that the 1988 amendments to the statute bar
the President from modifying Section 232 import restrictions after the statu-
tory deadline for implementing those restrictions has passed.
A. 	Section 232 permits the President to modify import
restrictions after the statutory implementation dead-
line has passed.
In my view, Section 232 permits the President to modify import re-
strictions without repeating the formal procedures necessary for initial action.
As explained below, (1) the original statute that Congress enacted in 1955 and
later reenacted as Section 232 permitted the President to modify import re-
strictions; (2) the 1988 amendments to Section 232 did not withdraw the Pres-
ident’s preexisting authority to modify such restrictions; and (3) given that Sec-
tion 232 import restrictions can last for decades, it would be both incongruous
and unworkable to read the statute as precluding later modifications of such
restrictions.
1. 	The pre-1988 statutory language permitted the
President to modify import restrictions.
a. 	The word “action” in the original 1955 stat-
ute gave the President continuing author-
ity to modify import restrictions.
Section 232 originated in the Trade Agreements Extension Act of 1955,
Pub. L. No. 86–169, § 7, 69 Stat. 162, 166. That statute required the Director
of the Office of Defense Mobilization to notify the President whenever the
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Ct. No. 20-32 	Baker, J., concurring in part and dissenting in part 	Page 82
Director had “reason to believe that any article is being imported into the
United States in such quantities as to threaten to impair the national secu-
rity.” Id. If the President agreed, the statute required him to order the Director
to investigate the matter and report back. If, in turn, the investigation and the
subsequent report led the President to conclude that imports of the article
threatened national security, the statute required that he “take such action as
he deems necessary to adjust the imports of such article to a level that will not
threaten to impair the national security.” Id. (emphasis added). 20
In 1975, Attorney General William Saxbe examined this statutory lan-
guage and opined21 that the words “such action” implied a continuing course of
conduct that could include modifications:
The normal meaning of the phrase “such action,” in a context such
as this, is not a single act but rather a continuing course of action,
with respect to which the initial investigation and finding would
satisfy the statutory requirement. This interpretation is amply
supported by the legislative history of the provision, which clearly
contemplates a continuing process of monitoring and modifying
the import restrictions, as their limitations become apparent and
their effects change.
Restriction of Oil Imports, 43 Op. Att’y Gen. No. 20, at 3–4 (Jan. 14, 1975). 22
20 The original 1955 statute did not include the words “and its derivatives” following
the words “imports of such article.”
21 Although issued in the name of Attorney General Saxbe, the Justice Department
official responsible for this memorandum presumably was then–Assistant Attorney
General Antonin Scalia, who headed the Office of Legal Counsel from 1974 until 1977.
22 Attorney General Saxbe noted a statement by Congressman Cooper, floor manager
for the legislation, that “having taken an action, [the President] would retain
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Ct. No. 20-32 	Baker, J., concurring in part and dissenting in part 	Page 83
Attorney General Saxbe opined that for both modification or continua-
tion of restrictions, the statute presumed that the appropriate agency would
monitor the factual situation and the effectiveness of any restrictions and ad-
vise the President to act accordingly. 43 Op. Att’y Gen. No. 20, at 3–4. This
continued monitoring did “not have to comply with the formal investigation
and finding requirements applicable to the original imposition of the re-
striction.” Id. at 4.
b. 	The 1958 amendments enhanced the Presi-
dent’s power.
In the Trade Agreements Extension Act of 1958, Congress amended the
statute while retaining the key language—“such action”—authorizing modifi-
cations of import restrictions. As amended, the statute provided:
(b) Upon request of the head of any Department or Agency, upon
application of an interested party, or upon his own motion, the Di-
rector of the Office of Defense Mobilization (hereinafter in this sec-
tion referred to as the “Director”) shall immediately make an ap-
propriate investigation, in the course of which he shall seek infor-
mation and advice from other appropriate Departments and Agen-
cies, to determine the effects on the national security of imports of
the article which is the subject of such request, application, or mo-
tion. If, as a result of such investigation, the Director is of the opin-
ion that the said article is being imported into the United States
in such quantities or under such circumstances as to threaten to
flexibility with respect to the continuation, modification, or suspension of any decision
that had been made.” 43 Op. Att’y Gen. No. 20, at 3 (quoting 101 Cong. Rec. 8160–61
(1955)). The Attorney General further referenced the Conference Report for the bill,
which stated that “it is . . . the understanding of all the conferees that the authority
granted to the President under this provision is a continuing authority.” Id. (quoting
H.R. Rep. 84-745, at 7 (1955)).
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Ct. No. 20-32 	Baker, J., concurring in part and dissenting in part 	Page 84
impair the national security, he shall promptly so advise the Pres-
ident, and unless the President determines that the article is not
being imported into the United States in such quantities or under
such circumstances as to threaten to impair the national security
as set forth in this section, he shall take such action, and for such
time, as he deems necessary to adjust the imports of such article
and its derivatives so that such imports will not so threaten to im-
pair the national security.
Pub. L. No. 85–686, § 8(a), 72 Stat. 673, 678 (emphasis added).
These amendments enhanced the President’s power under the statute in
at least three ways. First, Congress eliminated the wasteful requirement that
the relevant agency first seek the President’s approval to undertake the inves-
tigation, thereby allowing a more streamlined process for initiating action in
the first instance. Second, Congress made clear that the President’s discretion
regarding “action” also included the “time” that action would last. Third, Con-
gress gave the President the power to act with respect to derivatives of products
identified in the agency’s report, even if the report itself did not address such
derivatives.
As my colleagues observe, the legislative history of these 1958 amend-
ments reflects that Congress authorized the President to act as to derivatives
of an investigated article out of concern that such imports might allow circum-
vention of restrictions on that article. See ante at 26–27.
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Ct. No. 20-32 	Baker, J., concurring in part and dissenting in part 	Page 85
c. 	Congress made technical changes between
1962 and 1988.
In 1962, Congress reenacted the provision as Section 232 of the Trade
Expansion Act of 1962, Pub. L. No. 87–794, 76 Stat. 872, 877. This reenactment
and codification did not materially change the statute. See S. Rep. 87-2059,
1962 USCCAN 3118.
In the ensuing quarter century after the 1962 reenactment, Congress
made various technical changes to the statute, but none of them materially
changed the President’s powers under the statute conferred by the original
1955 legislation and enhanced by the 1958 amendments.23 Thus, on the eve of
Congress’s 1988 amendments, Section 232 provided in relevant part:
Upon request of the head of any department or agency, upon ap-
plication of an interested party, or upon his own motion, the Sec-
retary of the Treasury (hereinafter referred to as the “Secretary”)
shall immediately make an appropriate investigation . . . to deter-
mine the effects on the national security of imports of the article
which is the subject of such request, application, or motion.
The Secretary shall, if it is appropriate and after reasonable notice,
hold public hearings or otherwise afford interested parties an op-
portunity to present information and advice relevant to such in-
vestigation. The Secretary shall report the findings of his investi-
gation under this subsection with respect to the effect of the
23 In 1975, Congress amended the statute for the primary purpose of reassigning du-
ties to different subordinate officials. See Trade Act of 1974, § 127(d)(3), Pub. L. No.
93–618, 88 Stat. 1978, 1993 (1975). In 1980, Congress amended Section 232 to estab-
lish a procedure whereby Congress could invalidate Presidential action to adjust im-
ports of petroleum or petroleum products upon the enactment of a disapproval reso-
lution. See Crude Oil Windfall Profit Tax Act of 1980, § 402, Pub. L. No. 96–223,
94 Stat. 229, 301.
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Ct. No. 20-32 	Baker, J., concurring in part and dissenting in part 	Page 86
importation of such article in such quantities or under such cir-
cumstances upon the national security and, based on such find-
ings, his recommendation for action or inaction under this section
to the President within one year after receiving an application
from an interested party or otherwise beginning an investigation
under this subsection.
If the Secretary finds that such article is being imported into the
United States in such quantities or under such circumstances as
to threaten to impair the national security, he shall so advise the
President and the President shall take such action, and for such
time, as he deems necessary to adjust the imports of such article
and its derivatives so that such imports will not threaten to impair
the national security, unless the President determines that the ar-
ticle is not being imported into the United States in such quantities
or under such circumstances as to threaten to impair the national
security.
19 U.S.C. § 1862(b) (1980) (emphasis added). 24
d. 	Presidents 	repeatedly 	modified 	Section
232 import restrictions in the three dec-
ades prior to the 1988 amendments.
In 1959, President Eisenhower invoked Section 232 after a formal agency
investigation and report found that crude oil and derivatives thereof were “be-
ing imported in such quantities and under such circumstances as to threaten
to impair the national security.” Proclamation No. 3729 of March 10, 1959, Ad-
justing Imports of Petroleum and Petroleum Products into the United States,
24 Fed. Reg. 1781 (Mar. 12, 1959). President Eisenhower imposed import quo-
tas on “crude oil, unfinished oils, and finished products.” Id. He also directed
24 To enhance readability, the block quotation above separates Section 232(b) into
separate paragraphs.
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Ct. No. 20-32 	Baker, J., concurring in part and dissenting in part 	Page 87
the relevant officials to advise him “of any circumstances which . . . might in-
dicate the need for further Presidential action” under the statute. Id. at 1784
§ 6(a).25
President Eisenhower and his successors thereafter modified Proclama-
tion 3279 at least 26 times between 1959 and the end of 1974, and none of those
amendments involved a further investigation or report even though some in-
volved significant alterations to the means of restricting petroleum imports.
See 43 Op. Att’y Gen. No. 20, at 3. No new investigation was conducted, and no
new report was issued, until 1975.26
Reviewing this history in 1975, Attorney General Saxbe emphasized that
Congress had acquiesced in this interpretation of Section 232: “The interpre-
tation here proposed, whereby import restrictions once imposed can be modi-
fied without an additional investigation and finding, has been sanctioned by
the Congress’ failure to object to the President’s proceeding on that basis
25 The quoted language is strikingly similar to the instruction in Proclamation 9705
directing the Secretary of Commerce to continue to monitor steel imports. See 83 Fed.
Reg. at 11,628 ¶ (5)(b).
26 Despite General Saxbe’s advice that there was no need to do so, the Secretary of
the Treasury decided to go through the investigation-and-report process in the leadup
to President Ford issuing Proclamation 4341, which amended Proclamation 3279 and
provided for a long-term system of license fees. See Proclamation No. 4341 of January
23, 1975, Modifying Proclamation 3279, Relating to Imports of Petroleum and Petro-
leum Products, and Providing for the Long-Term Control of Imports of Petroleum and
Petroleum Products Through a System of License Fees, 40 Fed. Reg. 3965 (Jan. 27,
1975) (referring to the Secretary of the Treasury’s investigation and report).
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Ct. No. 20-32 	Baker, J., concurring in part and dissenting in part 	Page 88
repeatedly during the past 15 years.” 43 Op. Att’y Gen. No. 20, at 5. After At-
torney General Saxbe issued his opinion in 1975, this practice continued. By
my count, Presidents modified prior Section 232 action without repeating the
statute’s formal investigation and report procedures over a dozen times be-
tween 1975 and the 1988 amendments. See Addendum.
This unbroken “statutory history” of administrative practice and inter-
pretation “form[s] part of the context of the statute, and . . . can properly be
presumed to have been before all the members of [Congress] when they voted”
on the 1988 amendments to Section 232. Antonin Scalia & Bryan Garner,
Reading Law: The Interpretation of Legal Texts 256 (2012); cf. Nike, Inc. v. Wal-
Mart Stores, Inc., 138 F.3d 1437, 1440–43 (Fed. Cir. 1998) (tracing a statute’s
evolution over time to ascertain a word’s meaning); Holmes v. Sec. Investor
Prot. Corp., 503 U.S. 258, 267–68 (1992) (interpreting a statute by tracing the
history of another provision upon which the one at issue was modeled and not-
ing that “we can only assume [Congress] intended them to have the same
meaning that courts had already given them”).
2. 	The 	1988 	amendments 	did 	not 	withdraw 	the
President’s preexisting modification power.
a. 	The 1988 amendments retained the statu-
tory language authorizing modifications.
In 1988, Congress amended Section 232. See Omnibus Trade and Com-
petitiveness Act of 1988, § 1501(a), Pub. L. No. 100–418, 102 Stat. 1107, 1258.
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Some of the amendments were clearly stylistic—the amended version, for ex-
ample, avoids the masculine pronouns “he” and “his” when referring to the
President and cabinet officials in favor of gender-neutral terminology (for ex-
ample, “as he deems necessary” versus “in the judgment of the President”).
Some of the changes were of a structural nature—the old statute contained
lengthy paragraphs and the amendments broke those down into shorter, more
readable pieces with multiple subparagraphs.
One of those structural changes entailed moving the provisions confer-
ring authority upon the President to subsection (c)(1), which as discussed be-
low also imposed a 105-day deadline for the President to exercise that author-
ity.27 As so amended, subsection (c)(1) provides:
(c)(1) (A) Within 90 days after receiving a report submitted under
subsection (b)(3)(A) in which the Secretary finds that an article is
being imported into the United States in such quantities or under
such circumstances as to threaten to impair the national security,
the President shall—
(i) determine whether the President concurs with the finding of
the Secretary, and
(ii) if the President concurs, determine the nature and duration
of the action that, in the judgment of the President, must be
taken to adjust the imports of the article and its derivatives so
that such imports will not threaten to impair the national secu-
rity.
27 The 1988 amendments also imposed a 270-day deadline for the Secretary to issue
a report upon initiating an investigation. See 19 U.S.C. § 1862(b)(3)(A).
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Ct. No. 20-32 	Baker, J., concurring in part and dissenting in part 	Page 90
(B) If the President determines under subparagraph (A) to take ac-
tion to adjust imports of an article and its derivatives, the Presi-
dent shall implement that action by no later than the date that is
15 days after the day on which the President determines to take
action under subparagraph (A).
19 U.S.C. § 1862(c)(1) (emphasis added).
Critically for present purposes, subsection (c)(1) retained the statutory
language noted by Attorney General Saxbe granting the President’s continuing
authority to modify Section 232 action previously taken—the words “the ac-
tion,” “take action,” and “that action.” See 43 Op. Att’y Gen. No. 20, at 3–4.
Under the prior-construction canon of statutory construction, Congress’s reen-
actment of the same statutory language implicitly ratified Attorney General
Saxbe’s interpretation and the prior administrative practice of the preceding
three decades. See Bragdon v. Abbott, 524 U.S. 624, 645 (1998) (“When admin-
istrative and judicial interpretations have settled the meaning of an existing
statutory provision, repetition of the same language in a new statute indicates,
as a general matter, the intent to incorporate its administrative and judicial
interpretations as well.”); see also Scalia & Garner, supra, at 324 (explaining
that “when a term . . . has been authoritatively interpreted by a high court, or
has been given uniform interpretation by the lower courts or the responsible
agency . . . [t]he term has acquired . . . a technical sense . . . that should be
given effect in the construction of later-enacted statutes”).
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Ct. No. 20-32 	Baker, J., concurring in part and dissenting in part 	Page 91
My colleagues contend that reading “action” as investing the President
with continuing authority is “contrary to [its] plain and ordinary meaning.”
Ante at 33. But they do not proffer any definition of action to support this con-
tention.
Even if their reading of the word “action” were correct, however, my dis-
agreement with my colleagues is that they read the statute as if Congress
wrote the 1988 legislation on a blank slate. But 1988 is not Year One for our
purposes. The 1988 legislation amended a statute with a preexisting 30-year
history of administrative interpretation and practice under which the word
“action” invests the President with continuing authority. As Congress is pre-
sumed to have been aware of that history when it amended the statute and
retained the word “action,” this is one of those contexts in which “[t]he past is
never dead. It’s not even past.” William Faulkner, Requiem for a Nun 73 (Knopf
Doubleday Publishing Group 2011).
In Transpacific II, the court acknowledged this history of Presidential
modifications to Section 232 import restrictions, but reasoned that the 1988
amendments removed this authority by deleting “language that could be read
to give the President the power to continually modify Proclamations.” 466
F. Supp. 3d at 1253. The 1988 amendments changed “the President shall take
such action, and for such time, as he deems necessary,” 19 U.S.C. § 1862(b)
(1980), to the President shall “determine the nature and duration of the action
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Ct. No. 20-32 	Baker, J., concurring in part and dissenting in part 	Page 92
that, in the judgment of the President, must be taken . . . .” 19 U.S.C.
§ 1862(c)(1)(A)(ii) (emphasis added). The Transpacific II court noted that the
1988 amendments “omit[ted] the clause ‘and for such time.’ ” 466 F. Supp. 3d
at 1253.
In my view, Transpacific II erred in ascribing significance to this change.
First, the President’s modification authority under the pre-1988 version of the
statute stemmed from the words “such action,” not “for such time.” See 43 Op.
Att’y Gen. No. 20, at 2 (“The normal meaning of the phrase ‘such action,’ in a
context such as this, is not a single act but rather a continuing course of ac-
tion.”) (emphasis added).
Second, even if “for such time” in the pre-1988 statute were the source of
the President’s modification authority, that clause means the same thing as
“the . . . duration” in the current statute: “[T]he length of time something lasts.”
Duration, Black’s Law Dictionary (11th ed. 2019). Thus, the change from “for
such time” to “the duration” was purely stylistic.
The legislative history bears out this reading. For example, the House
Committee report included the following side-by-side comparison summaries
of the then-existing statutory language and the meaning of the proposed
changes. The key elements of the then-existing law and proposed amendments
are underscored; notably, there is no underscoring of either “for such time” in
the then-existing law or “the . . . duration” in the proposed amendments:
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Ct. No. 20-32 	Baker, J., concurring in part and dissenting in part 	Page 93
Staff of H. Comm. on Ways and Means, 100th Cong., Amendments to H.R. 3,
Comprehensive Trade Policy Reform Legislation, As Reported by the Sub-
comm. on Trade, Explanation and Comparison with Present Law 92 (Comm.
Print 1987).
* * *
If I am correct and Congress’s retention of the word “action” presump-
tively carried forward the meaning reflected in the preceding three decades of
administrative interpretation and practice, the question then becomes whether
other language in the 1988 amendments rebuts that presumption by effectively
repealing the President’s modification authority in the word “action.” I now
turn to that question.
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Ct. No. 20-32 	Baker, J., concurring in part and dissenting in part 	Page 94
b. 	The 1988 amendments’ insertion of a dead-
line for the President to implement his ac-
tion 	did 	not 	impliedly 	repeal 	the 	Presi-
dent’s continuing authority to modify ac-
tion once taken.
According to PrimeSource, the statute’s 15-day deadline to “implement”
Section 232 action bars later modification of such action. ECF 73-1, at 30. The
plain meaning of the word “implement,” however, does not foreclose future
modifications to action—rather, the word “implement,” in its relevant sense,
merely means to “put (a decision or plan) into effect.” 1 Shorter Oxford English
Dictionary 1330 (5th ed. 2002); 28 see also The American Heritage Dictionary of
the English Language 660 (1981) (defining “implement” as “[t]o provide a defi-
nite plan or procedure to ensure the fulfillment of”). Although my colleagues
invoke the plain meaning of “implement” to hold that it repealed the Presi-
dent’s preexisting modification authority, see ante at 33–34, they do not proffer
any competing definition.
As amended in 1988, all the statute requires is that the President “im-
plement” the action within the 15 days of determining to act, that is, to put the
plan of action into effect. It does not contain any language limiting the Presi-
dent’s preexisting statutory authority to modify that action later as necessary
to protect the national security. Put differently, Section 232 does not prohibit
28 The other definitions of “implement” as a transitive verb are of a sort that cannot
be relevant in the Section 232 context.
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Ct. No. 20-32 	Baker, J., concurring in part and dissenting in part 	Page 95
the President from “implementing” a plan of continuing action that says, in
essence, “We’ll try x, but if our ongoing monitoring reveals that x doesn’t work
or that the relevant facts have changed, then we’ll adjust it as necessary.”
Consistent with the practice of his predecessors, that’s what the Presi-
dent did here. In Proclamation 9705, he “implemented” a system of tariffs in-
tended to address steel imports on an ongoing basis. Under that action, he di-
rected the Secretary to monitor the effectiveness of the restrictions taken. See
83 Fed. Reg. at 11,628. After the Secretary advised the President that further
action was necessary because steel derivative imports circumvented Proclama-
tion 9705, the President issued Proclamation 9980.
To read Section 232 as granting the President ongoing authority to mod-
ify his actions, as past presidents did, does not—contrary to Transpacific I—
read the deadlines out of the statute. See Transpacific I, 415 F. Supp. 3d
at 1275 n.13 (“If the President has the power to continue to act, to modify his
actions, beyond these deadlines, then these deadlines are meaningless.”). The
new deadlines inserted by the 1988 amendments require prompt implementa-
tion, i.e., putting a plan of action into effect, without which the President has
no authority to act at all assuming those deadlines are mandatory,29 but those
29 For present purposes, I assume that the statute’s deadlines are mandatory. I do
not reach, and therefore express no view on, the government’s alternative argument
that that the statute’s deadlines are directory rather than mandatory. See ECF 60,
at 45–47.
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Ct. No. 20-32 	Baker, J., concurring in part and dissenting in part 	Page 96
deadlines do not apply to modifications of action that was otherwise timely
implemented in the first instance. Thus, as amended in 1988, the statute re-
quires the President to decide on his plan within 90 days of receiving the Sec-
retary’s report and put that plan into place within 15 days of so deciding, but
so long as he does so, it does not prohibit him from later modifying that plan.
Because the 1988 amendments’ insertion of deadlines for the President
to “implement action” can peacefully coexist with Congress’s retention of the
President’s modification authority in the word “action” from the pre-1988 stat-
ute, those deadlines cannot be read as impliedly repealing the latter. “Repeal
by implication is invoked only when an enactment is irreconcilable with an
earlier statute, or the enactment so comprehensively covers the subject matter
of the earlier statute that it must have been intended as a substitute. In either
case, Congress’ intention to repeal the earlier law must be ‘clear and mani-
fest.’ ” Todd v. Merit Sys. Prot. Bd., 55 F.3d 1574, 1577 (Fed. Cir. 1995) (cleaned
up and emphasis added); see also 1A Sutherland Statutes and Statutory Con-
struction § 22:34 (7th ed. 2020 update) (“[P]rovisions introduced by an amenda-
tory act should be read together with provisions of the original section that
were reenacted or left unchanged as if they had originally been enacted as one
section. Effect is to be given to each part, and they are interpreted so they do
not conflict.”). Here, because the implementation deadline added by the 1988
amendments is reconcilable with the President’s continuing authority to act in
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Ct. No. 20-32 	Baker, J., concurring in part and dissenting in part 	Page 97
the word “action,” there is no clear and manifest intention on the part of Con-
gress to repeal that preexisting authority.
The presumption against an implied repeal of the President’s preexisting
authority to modify Section 232 action is even stronger here because of the
three decades of administrative practice and interpretation of Section 232 rec-
ognizing that authority prior to the 1988 amendments. If Congress removed
the authority, we should expect to find a clear indication that Congress affirm-
atively sought to make such a radical change. “Here, the applicable principle
is that Congress does not enact substantive changes sub silentio.” United
States v. O’Brien, 560 U.S. 218, 231 (2010) (citing Director of Revenue of Mo. v.
CoBank ACB, 531 U.S. 316, 323 (2001)); see also CoBank ACB, 531 U.S. at 324
(rejecting interpretation of statutory amendments “that Congress made a rad-
ical—but entirely implicit—change” that overruled a “50-year history”); In re
Cuozzo Speed Techs., Inc., 793 F.3d 1268, 1277 (Fed. Cir. 2015) (noting that
Congress is assumed to recognize longstanding existing law and that it is im-
proper to assume Congress alters that sort of thing sub silentio).
To appreciate just how radical a change PrimeSource’s reading of the
1988 amendments represents, it’s worth considering President Reagan’s use of
Section 232 authority in the runup to those amendments. In 1982, Muammar
Kaddafi’s 	Libya 	was 	a 	serious, 	lethal 	menace 	to 	U.S. 	national 	security
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Ct. No. 20-32 	Baker, J., concurring in part and dissenting in part 	Page 98
interests.30 That year, without a formal Section 232 investigation and report,
President Reagan modified the oil import restrictions of Proclamation 3729—
issued by President Eisenhower in 1959—to exclude Libyan oil imports indef-
initely. President Reagan explained he did so because the applicable cabinet
officials had advised him that continued oil imports from Libya were “inimical
to the United States national security.” Proclamation No. 4907 of March 10,
1982, Imports of Petroleum, 47 Fed. Reg. 10,507 (Mar. 11, 1982).
Under the theory advanced by PrimeSource, Congress in 1988 outlawed
President Reagan’s restriction of Libyan oil imports because he failed to receive
a formal Section 232 report before acting. This is purportedly so even though
only two years earlier, in 1986, Libyan agents had executed a terrorist attack
on American servicemembers in West Berlin, and President Reagan ordered
military strikes on Libya in retaliation. Hayward, supra note 30, at 489–91. In
view of this contemporaneous statutory history, PrimeSource’s theory asks us
to read the 1988 amendments as implicitly working a revolutionary change in
the statute.
In short, because the 1988 amendments requiring the President to exer-
cise Section 232 action within 105 days of receiving the Secretary’s report do
30 Among other things, in late 1981 “American intelligence picked up reports from
multiple sources (including an intercepted phone call of Kaddafi himself) that Kad-
dafi was plotting to assassinate Reagan.” Steven F. Hayward, The Age of Reagan—
The Conservative Counterrevolution 1980–1989 at 178 (Three Rivers Press 2009).
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Ct. No. 20-32 	Baker, J., concurring in part and dissenting in part 	Page 99
not clearly indicate that Congress also sought to curtail the “systematic, un-
broken, executive practice, long pursued to the knowledge of the Congress and
never before questioned,” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S.
579, 610–11 (1952) (Frankfurter, J., concurring), of the type taken by President
Reagan in 1982 as to Libyan oil imports, we should construe the statute as
preserving that authority.
c. 	The President’s continuing authority to act
under subsection (c)(3) added by the 1988
amendments is consistent with the Presi-
dent’s continuing authority to act retained
in subsection (c)(1).
One of the substantive changes made by the 1988 amendments was to
add a completely new provision broadening the scope of permissible Section
232 “action” to include seeking to negotiate an agreement restricting the im-
ports of articles threatening national security. This provision was inserted as
a new paragraph (3) in subsection (c), where it functions in tandem with the
preexisting grant of Presidential authority to take “action” in paragraph (1). It
provides:
(3) (A) If—
(i) the action taken by the President under paragraph (1) is the
negotiation of an agreement which limits or restricts the impor-
tation into, or the exportation to, the United States of the article
that threatens to impair national security, and
(ii) either—
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Ct. No. 20-32 	Baker, J., concurring in part and dissenting in part 	Page 100
(I) no such agreement is entered into before the date that is
180 days after the date on which the President makes the
determination under paragraph (1)(A) to take such action, or
(II) such an agreement that has been entered into is not be-
ing carried out or is ineffective in eliminating the threat to
the national security imposed by imports of such article,
the President shall take such other actions as the President deems
necessary to adjust the imports of such article so that such imports
will not threaten to impair the national security. The President
shall publish in the Federal Register notice of any additional ac-
tions being taken under this section by reason of this subpara-
graph.
(B) If—
(i) clauses (i) and (ii) of subparagraph (A) apply, and
(ii) the President determines not to take any additional actions
under this subsection,
the President shall publish in the Federal Register such determi-
nation and the reasons on which such determination is based.
19 U.S.C. § 1862(c)(3) (emphasis added).
Subsection (c)(3) thus contains an alternative procedure, with different
time periods, applicable when the President decides—as the “action” taken un-
der (c)(1)—to negotiate an agreement restricting the importation of the article
that threatens to impair national security. It provides that if either no agree-
ment is reached within 180 days of the President’s decision to negotiate or an
agreement was reached but is not being carried out or is ineffective, “the Pres-
ident shall take such other actions as the President deems necessary to adjust
the imports of such article so that imports will not threaten to impair the
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Ct. No. 20-32 	Baker, J., concurring in part and dissenting in part 	Page 101
national security.” 19 U.S.C. § 1862(c)(3)(A) (emphasis added). Under subsec-
tion (c)(3), the President plainly has authority to take further action without
first obtaining a new report and investigation from the Secretary.
Invoking Transpacific I, PrimeSource contends that subsection (c)(3)’s
grant of modification authority implies that no similar authority exists under
subsection (c)(1). See ECF 73-1, at 19 (citing Transpacific I, 415 F. Supp. 3d
at 1276 n.15). The Transpacific I court reasoned that Section 232 did not per-
mit the President to modify import restrictions by increasing them, in part be-
cause “[w]here Congress envisioned ongoing action by the President it provided
for 	it.” 	Transpacific 	I, 	415 	F. 	Supp. 	3d 	at 	1276 	n.15 	(citing 	19 	U.S.C.
§ 1862(c)(3)). My colleagues make essentially the same point. See ante at 34–
35.
I disagree with this conclusion for several reasons. To begin with, it ig-
nores that the 1988 amendments were only that—amendments to a preexist-
ing statute that already permitted the President to modify import restrictions.
As explained above, the 1988 amendments left intact the statutory language
in subsection (c)(1) permitting such modifications—“action”—and under the
prior-construction canon Congress is presumed to have incorporated that
meaning into the amended Section 232.
Subsection (c)(3), on the other hand, represented an entirely new sub-
stantive grant of authority uncontemplated in the pre-1988 statute. It makes
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Ct. No. 20-32 	Baker, J., concurring in part and dissenting in part 	Page 102
clear that the “action” taken by the President under (c)(1) within the new dead-
lines now includes—in addition to the unilateral action by the President con-
templated by the pre-1988 statute such as tariffs or import quotas—an attempt
to negotiate import restrictions with foreign partners, i.e., bilateral action. Of
course, such negotiations might fail, meaning that the President’s bilateral ac-
tion within the relevant deadline might be stillborn.
In specifying that the President can take “other actions” in such circum-
stances, Congress simply made the President’s authority to take bilateral ac-
tion under the new subsection (c)(3) symmetrical with the President’s preex-
isting authority under subsection (c)(1) to make such modifications in the con-
text of unilateral action. Far from implying that no such power exists under
subsection (c)(1), Congress’s provision of such authority in subsection (c)(3)
simply provides further support that Congress did not repeal such preexisting
authority in subsection (c)(1).
Finally, neither PrimeSource nor the Transpacific decisions have any
answer to this question: Why would Congress repeal the President’s preexist-
ing authority to modify Section 232 action in the context of unilateral action,
and yet in the same breath expressly grant that same authority solely in the
limited context of unsuccessful attempts to restrict imports by agreement? It
defies common sense that for no apparent reason Congress would take away
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Ct. No. 20-32 	Baker, J., concurring in part and dissenting in part 	Page 103
preexisting authority in every other context that it was simultaneously confer-
ring in the new context of failed bilateral action.
When statutory interpretation yields such irrational results, it suggests
that something is wrong with the interpretation. See, e.g., W. Air Lines, Inc. v.
Bd. of Equalization of State of S.D., 480 U.S. 123, 133 (1987) (noting that where
an interpretation yields illogical results, it “argue[s] strongly against the con-
clusion that Congress intended these results”); Greenlaw v. United States, 554
U.S. 237, 251 (2008) (citing the foregoing language from Western Air Lines to
support the conclusion that “[w]e resist attributing to Congress an intention to
render a statute so internally inconsistent”); Bayer AG v. Housey Pharms., Inc.,
340 F.3d 1367, 1377–78 (Fed. Cir. 2003) (refusing to interpret statute in a way
that yielded “an illogical result”).31
3. 	Interpreting Section 232 to bar modifications of
import restrictions compromises the statute’s ef-
fectiveness.
Section 232 import restrictions might last for years. Proclamation 3729
is a good example—President Eisenhower promulgated it in 1959 and it
31 My colleagues imply that the President’s authority under subsection (c)(3)—either
as to action in the first instance or continuing authority—does not extend to deriva-
tives because, unlike subsection (c)(1), subsection (c)(3) does not expressly encompass
derivatives. See ante at 34–35. As this case does not involve action under (c)(3), we do
not have to resolve that issue today, but I note that (c)(3) cross-references action taken
under (c)(1), and therefore (c)(3)’s grant of authority may extend to derivatives as
well.
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remained in effect, with a substantial number of modifications, until President
Reagan eventually revoked it in 1983. See Proclamation No. 5141 of December
22, 1983, Imports of Petroleum and Petroleum Products, 48 Fed. Reg. 56,929,
56,929, 98 Stat. 3543, 3544, § 1 (Dec. 27, 1983) (“Proclamation No. 3279, as
amended, is revoked.”). In effect, Section 232 authorizes the President to es-
tablish an ongoing regulatory program as to imports of an article and its de-
rivatives.
It is precisely because Section 232 allows the President to establish a
regulatory program that it is essential and appropriate for the President to be
able to quickly adjust the program after the cumbersome initial machinery of
the formal investigative and reporting process has already determined the ex-
istence of a national security threat. As General Saxbe noted in 1975, “facts
constantly change.” 43 Op. Att’y Gen. No. 20, at 6.
To read the statute as restricting the President’s authority to make ad-
justments in real time to respond to evolving threats violates the canon of ef-
fectiveness, under which “[a] textually permissible interpretation that furthers
rather than obstructs the document’s purpose should be favored.” Scalia & Gar-
ner, supra, at 63. “This canon follows inevitably from the facts that (1) inter-
pretation always depends on context, (2) context always includes evident pur-
pose, and (3) evident purpose always includes effectiveness.” Id.
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Ct. No. 20-32 	Baker, J., concurring in part and dissenting in part 	Page 105
By precluding the President from using Section 232 to establish an on-
going regulatory program to adjust imports, PrimeSource’s theory compro-
mises the effectiveness of the statute as a tool for “[s]afeguarding national se-
curity.” 19 U.S.C. § 1862; cf. 2A Sutherland Statutory Construction § 45:12 (7th
ed. 2019 update) (“[A] statute should not be read in an atmosphere of sterility,
but in the context of what actually happens when humans fulfill its purpose.”).
Even if PrimeSource’s interpretation were textually permissible, it would be
disfavored against another textually permissible interpretation that preserves,
rather than diminishes, the statute’s effectiveness. 32
Finally, if there is any context where the canon of effectiveness must not
be overlooked, it is in this realm of national security. The President’s most sol-
emn duty is to protect the nation in a perilous world, and to that end we should
choose a textually permissible interpretation of the statute that allows the
President to “anticipate distant danger, and meet the gathering storm[.]”
A. Hamilton, The Federalist No. 25, at 161 (J. Cooke ed. 1961).33
32 Indeed, the 1988 amendments were motivated by Congress’s “frustration” with the
President’s failure to take timely Section 232 action once the Secretary had identified
a national security threat. See Transpacific II, 466 F. Supp. 3d at 1252. It is incon-
gruous that in moving to expedite action under the statute, Congress would have
simultaneously enfeebled longstanding Presidential authority to adjust such action
to respond to changing facts in real time.
33 On this issue, my colleagues may eventually reach the same destination as I do,
but they take a more circuitous route. They deny PrimeSource’s motion for summary
judgment as to Count 2, reasoning that there is a genuine issue of material fact in
dispute as to whether the Secretary’s “assessments” referenced in Proclamation 9980
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Ct. No. 20-32 	Baker, J., concurring in part and dissenting in part 	Page 106
B. 	Proclamation 9980’s extension of import restrictions
to steel derivatives was a permissible modification of
Proclamation 9705 rather than new action.
PrimeSource appears to argue in the alternative, and my colleagues
agree, that even if the President has the power to modify Section 232 action
that was otherwise timely implemented, that power is limited to the specific
universe of imported articles and derivatives addressed by the original procla-
mation and that any later action restricting derivatives not included in the
original action requires a new Section 232 investigation and report. Specifi-
cally, my colleagues conclude that because Proclamation 9705’s restrictions
were limited to steel articles, Proclamation 9980’s restrictions of steel deriva-
tives “implemented” a new action for purposes of Section 232’s procedural re-
quirements. Ante at 33.
I disagree for two reasons. First, the President’s power to act in the first
instance 	extends 	to 	derivatives 	of 	articles 	that 	are 	the 	subject 	of 	an
might qualify as a Section 232 report, see ante at 50–55, notwithstanding the govern-
ment’s concession to the contrary. While my colleagues may be correct that we might
ultimately be able to characterize Proclamation 9980 as a timely “new” Section 232
action by characterizing the Secretary’s assessments as a “report,” I would take the
government at its word here rather than invite the President to characterize every
recommendation by the Secretary as a Section 232 report authorizing new action. In
effect, my colleagues’ reading of the 1988 amendments as revoking the President’s
modification authority on the back end compels them to potentially water down the
statute’s procedural requirements on the front end to avoid compromising the stat-
ute’s effectiveness as a national security tool. Cf. Transpacific II, 466 F. Supp. 3d
at 1255 (“The President is not authorized to act under Section 232 based on any off-
handed suggestion by the Secretary; the statute requires a formal investigation and
report.”).
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Ct. No. 20-32 	Baker, J., concurring in part and dissenting in part 	Page 107
investigation and report by the Secretary, even if such an investigation and
report did not address derivatives. Second, if the President has the power to
modify Section 232 action, that power is necessarily coextensive with his power
to act in the first instance.
1. 	The President’s power to act in the first instance
extends to an article and its derivatives.
Section 232 directs the Secretary to investigate, and report to the Presi-
dent about, the national security effects of imports of “the article.” 19 U.S.C.
§§ 1862(b)(1)(A), (b)(2)(B), (b)(3)(A), (c)(1)(A).34 The statute directs the Presi-
dent, provided he concurs with the Secretary’s findings, to take action to adjust
the imports “of the article and its derivatives.” Id. § 1862(c)(1)(A)(ii) (emphasis
added); see also id. § 1862(c)(1)(B) (directing the President to “implement” his
decision “to take action to adjust imports of an article and its derivatives”) (em-
phasis added).
Thus, it is indisputable that the Secretary is to investigate imports of an
article, but the President can then act as to the article and its derivatives, even
if 	the 	Secretary’s 	investigation 	and 	report 	did 	not 	address 	derivatives.
PrimeSource complains that the Secretary’s investigation and report were
34 19 U.S.C. § 1862(c)(1)(A) is focused on what actions the President is to take after
receiving a report from the Secretary, but it begins by referring to the President’s
“receiving a report submitted under subsection (b)(3)(A) in which the Secretary finds
that an article is being imported into the United States in such quantities or under
such circumstances as to threaten to impair the national security.”
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Ct. No. 20-32 	Baker, J., concurring in part and dissenting in part 	Page 108
focused on “imports of steel” and “did not mention steel nails specifically, nor
any derivative articles generally,” and further complains that none of the pub-
lic comments “put PrimeSource on notice that Commerce was considering” ap-
plying tariffs to imported steel nails. ECF 73-1, at 9. But had the President
included steel nails—derivatives of the steel articles that were the subject of
the Secretary’s report and investigation—in Proclamation 9705, PrimeSource
would have no valid objection because Section 232(c)(1)(A)(ii) and (B) allow the
President to act to adjust imports of the “article and its derivatives.” 19 U.S.C.
§ 1862(c)(1)(A)(ii), (c)(1)(B) (emphasis added). That the Secretary’s investiga-
tion and report did not address derivatives of steel articles did not mean that
the President’s proclamation could not do so.
2. 	The 	President’s 	power 	to 	modify 	import 	re-
strictions is coextensive with his power to act in
the first instance.
If the President has the power to modify Section 232 action without an-
other formal investigation and report by the Secretary—and as discussed
above at length, I believe that he does—I see nothing in the statute suggesting
that the President’s modification power is narrower than his power to act in
the first instance. The statute—not the President’s original Section 232 ac-
tion—sets the boundaries on the scope of the President’s power to modify such
action, and the statute permits the President to take action—both initial action
within the 105 days after the Secretary’s report and thereafter continuing
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Ct. No. 20-32 	Baker, J., concurring in part and dissenting in part 	Page 109
action under the pre-1988 interpretation ratified by the 1988 amendments—
as to an “article and its derivatives.” 19 U.S.C. § 1862(c)(1)(A)(ii), (c)(1)(B) (em-
phasis added). In short, the President’s statutory power to modify is neces-
sarily coextensive with the original power to act in the first instance absent
any statutory restriction to the contrary.
Thus, that Proclamation 9705’s import restrictions on steel articles did
not encompass steel derivatives did not mean that the President could not later
extend those restrictions to such derivatives absent another formal investiga-
tion and report. To read the statute otherwise—that is, as prohibiting the Pres-
ident from extending Section 232 import restrictions to derivatives unless the
Secretary has first formally investigated and reported on those derivatives—
makes no sense when the statute permits the President to act as to derivatives
in the first instance without any such formal investigation and report by the
Secretary as to derivatives. What is the point of requiring a formal investiga-
tion and report as to derivatives at the modification stage when no such inves-
tigation and report (as to derivatives) is even necessary at the implementation
stage?
As Attorney General Saxbe opined in 1975, the statute presumes that
the relevant officials will advise the President in real time of changes in un-
derlying facts that warrant adjusting Section 232 action. 43 Op. Att’y Gen.
No. 20, at 3–4. And there is no question here that the Secretary did just that
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Ct. No. 20-32 	Baker, J., concurring in part and dissenting in part 	Page 110
by timely advising the President that steel article derivative imports were un-
dermining Proclamation 9705 and therefore required prompt remedial action.
See 85 Fed. Reg. at 5282.
To read the statute as nevertheless demanding that the President defer
acting on such advice until the Secretary conducts a formal investigation and
report as to the continued existence of a national security threat is to exalt
supposed form over actual substance and reintroduces into the statute waste-
ful inefficiency akin to that which Congress eliminated in 1958. See supra
at 81–83 (discussing pre-1958 version of the statute that permitted the Secre-
tary to initiate an investigation only after first receiving direction from the
President to do so, even though the Secretary had already advised the Presi-
dent of the need for action). Such a reading also violates the canon of effective-
ness previously discussed. See Scalia & Garner, supra, at 63.
Finally, I note that the historical record confirms my reading of the stat-
ute. That record shows that Presidents repeatedly modified Proclamation
3279—President Eisenhower’s Section 232 import restrictions on petroleum
products that lasted almost a quarter century—to add derivative products not
encompassed by the original proclamation. See, e.g., Proclamation No. 3509 of
November 30, 1962, Modifying Proclamation 3279 Adjusting Imports of Petro-
leum and Petroleum Products, 27 Fed. Reg. 11,985, 11,985–87, 77 Stat. 963
(Dec. 5, 1962) (adding natural gas); Proclamation No. 3823 of January 29, 1968,
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Ct. No. 20-32 	Baker, J., concurring in part and dissenting in part 	Page 111
Modifying Proclamation 3279 Adjusting Imports of Petroleum and Petroleum
Products, 33 Fed. Reg. 1171, 1171–73, 82 Stat. 1603 (Jan. 30, 1968) (adding
liquids derived from tar sands); Proclamation No. 4178 of January 17, 1973,
Modifying Proclamation No. 3279, Relating to Imports of Petroleum and Petro-
leum Products, 38 Fed. Reg. 1719, 1719–21, 87 Stat. 1150 (Jan. 18, 1973) (add-
ing liquid hydrocarbons produced from gilsonite and oil shale).
As discussed above, this history of administrative interpretation and
practice forms part of the statutory history that “can properly be presumed to
have been before all the members of the legislature when they voted” on the
1988 amendments. Scalia & Garner, supra, at 256. If the 1988 amendments
retained the President’s power to modify Section 232 action without another
formal investigation and report—and, as explained above, my view is that they
did—those amendments also necessarily retained the President’s power to
modify Section 232 action by extending import restrictions to derivatives of an
article encompassed by an original action. See Bragdon, 524 U.S. at 645
(“When administrative and judicial interpretations have settled the meaning
of an existing statutory provision, repetition of the same language in a new
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Ct. No. 20-32 	Baker, J., concurring in part and dissenting in part 	Page 112
statute indicates, as a general matter, the intent to incorporate its administra-
tive and judicial interpretations as well.”). 35
Conclusion
For the reasons set forth above, I respectfully dissent from my colleagues’
decision to avoid confronting the question of whether we have subject-matter
jurisdiction over claims against the President. I concur in their decision to
grant the government’s motion to dismiss Counts 1, 3, 4, and 5 of the amended
complaint for failure to state a claim, as well as in their decision to deny
PrimeSource’s cross-motion for summary judgment as to those same counts. I
join their opinion as to Counts 1, 3, and 4. Finally, although I concur in their
decision to deny PrimeSource’s cross-motion for summary judgment as to
Count 2, I respectfully dissent from their decision to deny the government’s
motion to dismiss that count for failure to state a claim.
/s/ M. Miller Baker
M. Miller Baker, Judge
35 This case does not present, and therefore I express no view on, the issue of whether
the President’s Section 232 modification authority extends to articles that were not
the subject of any investigation and report by the Secretary.
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Court No. 20-32 	Addendum to opinion of Baker, J. 	Page 113
Presidential Modifications of Section 232 Actions Without New
Formal Investigations and Reports Between 1975 and 1988
1. 	Proclamation No. 4355 of March 4, 1975, Modifying Proclamation 3279,
as Amended, Relating to Imports of Petroleum and Petroleum Products,
and Providing for the Long-Term Control of Imports of Petroleum and
Petroleum Products Through a System of License Fees, 40 Fed. Reg.
10,437, 89 Stat. 1248 (Mar. 6, 1975).
2. 	Proclamation No. 4377 of May 27, 1975, Modifying Proclamation No.
3279, as Amended, Relating to Imports of Petroleum and Petroleum Prod-
ucts, and Providing for the Long-Term Control of Imports of Petroleum
and Petroleum Products Through a System of License Fees, 40 Fed. Reg.
23,429, 89 Stat. 1275 (May 30, 1975).
3. 	Proclamation No. 4412 of January 3, 1976, Modifying Proclamation No.
3279, as Amended, Relating to Imports of Petroleum and Petroleum Prod-
ucts, and Providing for the Long-Term Control of Imports of Petroleum
Products Through a System of License Fees, 41 Fed. Reg. 1037, 90 Stat.
3073 (Jan. 6, 1976).
4. 	Proclamation No. 4543 of December 27, 1977, Modifying Proclamation
No. 3279, as Amended, Relating to Imports of Petroleum and Petroleum
Products, and Providing for the Long-Term Control of Imports of Petro-
leum and Petroleum Products Through a System of License Fees, 42 Fed.
Reg. 64,849, 92 Stat. 3907 (Dec. 29, 1977).
5. 	Proclamation No. 4629 of December 8, 1978, Imports of Petroleum and
Petroleum Products, 43 Fed. Reg. 58,077, 93 Stat. 1476 (Dec. 12, 1978).
6. 	Proclamation No. 4655 of April 6, 1979, Imports of Petroleum and Petro-
leum Products, 44 Fed. Reg. 21,243, 93 Stat. 1508 (Apr. 10, 1979).
7. 	Proclamation No. 4702 of November 12, 1979, Imports of Petroleum and
Petroleum Products, 44 Fed. Reg. 65,581, 93 Stat. 1554 (Nov. 14, 1979).
8. 	Proclamation No. 4748 of April 11, 1980, Technical Amendments to Proc-
lamation 4744, 45 Fed. Reg. 25,371, 94 Stat. 3747 (Apr. 15, 1980).
9. 	Proclamation No. 4751 of April 23, 1980, Amendment to Proclamation
4744, 45 Fed. Reg. 27,905, 94 Stat. 3750 (Apr. 25, 1980).
10. 	Proclamation No. 4762 of June 6, 1980, Petroleum Import Licensing Re-
quirements, 45 Fed. Reg. 39,237, 94 Stat. 3760 (June 10, 1980).
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Court No. 20-32 	Addendum to opinion of Baker, J. 	Page 114
11. 	Proclamation No. 4766 of June 19, 1980, Imports of Petroleum and Pe-
troleum Products, 45 Fed. Reg. 41,899, 94 Stat. 3763 (June 23, 1980).
12. 	Proclamation No. 4907 of March 10, 1982, Imports of Petroleum, 47 Fed.
Reg. 10,507, 96 Stat. 2709 (Mar. 11, 1982).
13. 	Proclamation No. 5141 of December 22, 1983, Imports of Petroleum and
Petroleum Products, 48 Fed. Reg. 56,929, 98 Stat. 3543 (Dec. 27, 1983).
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