Corus Group Plc. v. International Trade Com'n.

Page 1351

352 F.3d 1351

CORUS GROUP PLC, Corus UK Ltd, Corus Staal BV, Corus Packaging Plus Norway AS, Corus Steel USA Inc., and Corus America Inc., Plaintiffs-Appellants, v. INTERNATIONAL TRADE COMMISSION, Defendant-Appellee, and George W. Bush, President of the United States, and Robert C. Bonner, Commissioner, United States Customs Service, Defendants-Appellees, and Weirton Steel Corporation, Defendant-Appellee, and Bethlehem Steel Corporation, National Steel Corporation, and UNITED STATES Steel Corporation, Defendants.

No. 03-1040.

United States Court of Appeals, Federal Circuit.

Decided December 11, 2003.

Richard O. Cunningham, Steptoe & Johnson, LLP, of Washington, DC, argued for plaintiffs-appellants. With him on the brief were Peter Lichtenbaum and Troy H. Cribb.

Mary Elizabeth Jones, Attorney, Office of the General Counsel, United States International Trade Commission, of Washington, DC, argued for Defendant-Appellee United States International Trade Commission. With her on the brief were Lyn M. Schlitt, General Counsel; and James M. Lyons, Deputy General Counsel.

Lucius B. Lau, Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for Defendants-Appellees, George W. Bush, President of the United States, and Robert C. Bonner, Commissioner, United States Customs Service. With him on the brief was David M. Cohen. Stephen C. Tosini, Attorney, for defendants-appellees. Of counsel was Jeanne E. Davidson, Deputy Director.

Roger B. Schagrin, Schagrin Associates, of Washington, DC, argued for Defendant-Appellee Weirton Steel Corporation.

Before NEWMAN, GAJARSA, and DYK, Circuit Judges.

Opinion for the court filed by Circuit Judge DYK. Opinion concurring in the judgment, dissenting in part filed by Circuit Judge NEWMAN.

Opinion for the court filed by Circuit Judge DYK.

Corus Group PLC, Corus UK Ltd., Corus Staal BV, Corus Packaging Plus Norway AS, Corus Steel USA, and Corus America, Inc. ("the appellants"), appeal the decision of the United States Court of International Trade granting summary judgment for the government and dismissing the appellants' challenge to the President's imposition of an ad valorem duty on imported tin mill products. Corus Group PLC v. Bush, 217 F.Supp.2d 1347, 1359 (Ct. Int'l Trade 2002); Corus Group PLC v. Bush, No. 02-00253 2002 WL 31008986 (Ct. Int'l Trade Sept. 5, 2002) ("Judgment"). The appellants named as defendants in this case are George W. Bush, President of the United States, Robert C. Bonner, Commissioner of the United States Customs Service (now the United States Bureau of Customs and Border Patrol), and the United States International Trade Commission (collectively, "the government").¹

The appellants argue that the President acted beyond his delegated authority because the International Trade Commission ("the Commission") was not evenly divided and thus could not trigger the President's authority to impose the duty under the Trade Act of 1974, 19 U.S.C. §§ 2101-2495 (2000), and that the three-member plurality did not, in any event, sufficiently explain its decision as required by the statute, 19 U.S.C. § 2252(f)(1) (2000). We hold that: 1) the Court of International Trade had jurisdiction over the case, and the appellants had standing; 2) the President should have been dismissed as a party because 28 U.S.C. § 1581(i) does not authorize actions against the President; 3) the Commission determination was a tie vote; and 4) the plurality of commissioners, finding serious injury to the tin mill domestic market, adequately explained their determinations. Accordingly, we dismiss the appeal with respect to the President and affirm the judgment of the Court of International Trade in all other respects.

BACKGROUND

I

The Trade Act of 1974 grants the President broad powers to enter into trade agreements with foreign countries and to either decrease or increase duties on imported articles as required to carry out any such trade agreement. 19 U.S.C. § 2111 (2000). The Act includes an "escape clause" provision, which allows the President to provide "temporary relief" to domestic industries from the lowering of trade barriers as the result of such trade agreements, "so that the industry will have sufficient time to adjust to the freer international competition." S.Rep. No. 93-1298, at 119 (1974); 19 U.S.C. § 2251 (2000); see generally Peter Buck Feller, U.S. Customs and International Trade Guide §§ 22.00, 22.01 (2d ed. 2003). Under the escape clause provision, on petition, the Commission is directed to "make an investigation to determine whether an article is being imported into the United States in such increased quantities as to be a substantial cause of serious injury, or the threat thereof, to the domestic industry." 19 U.S.C. § 2252(b)(1)(A) (2000). If the Commission makes an affirmative injury determination, the President is directed to "take all appropriate and feasible action within his power which the President determines will facilitate efforts by the domestic industry to make a positive adjustment to import competition and provide greater economic and social benefits than costs." Id. § 2251(a).

Although the President may not take action unless the Commission makes an affirmative injury determination, once such a determination is made, the President has broad latitude to determine the type of action to take. The Act provides an expansive, non-exclusive list of actions the President may take, including "any ... action which may be taken by the President under the authority of law and which the President considers appropriate and feasible." Id. § 2253(a)(3)(I).² The recommendation and report of the Commission is only one factor the President must consider in determining what action to take. Id. § 2253. Among the actions the President may take is "the imposition of, any duty on the imported article." Id. § 2253(a)(3)(A).

The Commission is composed of six commissioners who vote on the injury determination question. In the event that "the commissioners voting are equally divided with respect to [an injury] determination, then the determination agreed upon by either group of commissioners may be considered by the President as the determination of the Commission." Id. § 1330(d). The Act requires the Commission, upon reaching a determination, to submit a report to the President that provides "an explanation of the basis for the determination." Id. § 2252(f)(2)(A).

II

On June 22, 2001, the United States Trade Representative made a request under 19 U.S.C. § 2252(b)(1)(A) that the Commission conduct an investigation to determine whether various steel products were being imported into the United States in such increased quantities as to be a substantial cause of serious injury to the domestic steel industry. Steel, USITC Pub. 3479, Inv. No. 201-TA-73, slip op. at 28 (Dec. 2001) ("Determination"). On July 26, 2001, the Senate Finance Committee requested an investigation as to the same question. Id.

All six commissioners then composing the Commission, including Commissioners Bragg, Devaney, Hillman, Koplan, Miller, and Okun, participated in the subsequent investigation. According to the Commission, the first step in an injury investigation is to "define[] `the domestic industry producing an article that is like or directly competitive with the imported article.'" Id., slip op. at 29 (quoting 19 U.S.C. § 2252(b)(1)(A) (2000)). Relevant to this appeal, a majority of four commissioners, Commissioners Hillman, Koplan, Miller, and Okun, determined that tin mill products should be analyzed separately from other carbon and alloy products, based on tin's distinct manufacturing processes and producers. Id., slip op. at 48-49. Specifically, the majority defined one market comprising "slab, hot-rolled steel, plate, cold-rolled steel, and coated steel," which it called "certain carbon flat-rolled steel," and a separate market comprising tin mill steel. Id., slip op. at 36. This same majority determined that the increase in importation of "certain carbon flat-rolled steel" (excluding tin mill) caused serious injury to the domestic market. Id., slip op. at 50.

Of the four commissioners who defined "certain carbon flat-rolled steel" as a separate category from tin mill steel, three commissioners (Koplan, Okun, and Hillman) determined that the increase in imports of tin mill products did not cause serious injury to the domestic tin mill industry. Id., slip op. at 74.

Commissioner Miller agreed with Commissioners Koplan, Okun, and Hillman that tin mill products should be analyzed as a separate category, but disagreed with those commissioners' negative injury determination as to tin mill products standing alone. Commissioner Miller found "that increased imports of tin mill products are a substantial cause of serious injury to the domestic tin mill industry." Id., slip op. at 307.

Commissioners Bragg and Devaney, rather than analyzing tin mill products separately, each determined that all carbon and alloy flat products (including tin mill products) should be analyzed together as a single category. Id., slip op. at 272-73. Based on this approach, Commissioners Bragg and Devaney each made an affirmative determination that increased importation of carbon and alloy flat products was a substantial cause of serious injury to domestic industry. Id., slip op. at 282, 311. Commissioner Devaney, in footnotes throughout the majority opinion, joined the majority's conclusion that the importation of "certain carbon flat-rolled steel" (excluding tin mill) caused serious injury. See, e.g., id., slip op. at 50 n. 186. Neither Commissioner Bragg nor Devaney, however, joined the majority's reasoning as to tin mill products.

Despite Commissioners Bragg and Devaney's broader definition of the relevant domestic industry as encompassing all carbon and alloy flat products including tin mill products, they both voted affirmatively at...