Consumers Union of U.S., Inc. v. Kissinger

• Decision Date: 02 December 1974
• Docket Number: Nos. 73-1095,s. 73-1095
• Citation: 165 U.S.App.D.C. 75,506 F.2d 136
• Parties: , 165 U.S.App.D.C. 75, 1974-2 Trade Cases 75,280 CONSUMERS UNION OF U.S., INC. v. Henry A. KISSINGER, Secretary of State, et al., United States SteelCorporation, Appellant. CONSUMERS UNION OF U.S., INC. v. Henry A. KISSINGER, Secretary of State, and Julius L. Katz, Deputy AssistantSecretary of State for Economic Affairs, Appellants. CONSUMERS UNION OF U.S., INC. v. Henry A. KISSINGER, Secretary of State, et al., American Iron and SteelInstitute, Appellant. CONSUMERS UNION OF U.S., INC., Appellant, v. Henry A. KISSINGER, Secretary of State, et al. CONSUMERS UNION OF U.S., INC. v. Henry A. KISSINGER, Secretary of State, et al., British Steel Corporation, Appellant. CONSUMERS UNION OF U.S., INC. v. JAPAN IRON AND STEEL EXPORTERS ASSOCIATION and Nippon Steel Corporation, Appellants. CONSUMERS UNION OF U.S., INC. v. Henry A. KISSINGER, Secretary of State, et al., Fried, Krupp Huettenwerke,A.G., Appellant. to 73-1097, 73-1132, 73-1133, 73-1135 and 73-1138.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 136

506 F.2d 136

1 ITRD 1549, 165 U.S.App.D.C. 75, 1974-2

Trade Cases 75,280

CONSUMERS UNION OF U.S., INC. v. Henry A. KISSINGER, Secretary of State, et al., United

States SteelCorporation, Appellant.

CONSUMERS UNION OF U.S., INC. v. Henry A. KISSINGER, Secretary of State, and Julius L. Katz,

Deputy AssistantSecretary of State for Economic

Affairs, Appellants.

CONSUMERS UNION OF U.S., INC. v. Henry A. KISSINGER, Secretary of State, et al., American

Iron and SteelInstitute, Appellant.

CONSUMERS UNION OF U.S., INC., Appellant, v. Henry A. KISSINGER, Secretary of State, et al.

CONSUMERS UNION OF U.S., INC. v. Henry A. KISSINGER, Secretary of State, et al., British

Steel Corporation, Appellant.

CONSUMERS UNION OF U.S., INC. v. JAPAN IRON AND STEEL EXPORTERS ASSOCIATION and Nippon Steel

Corporation, Appellants.

CONSUMERS UNION OF U.S., INC. v. Henry A. KISSINGER, Secretary of State, et al., Fried, Krupp

Huettenwerke,A.G., Appellant.

Nos. 73-1095 to 73-1097, 73-1132, 73-1133, 73-1135 and 73-1138.

United States Court of Appeals, District of Columbia Circuit.

Argued May 31, 1973.

Decided Oct. 11, 1974, Rehearing Denied Dec. 2, 1974.

Abe Krash, Washington, D.C., with whom Jerome I. Chapman and David Bonderman, Washington D.C., were on the brief, for appellant in No. 73-1095.

Irwin Goldbloom, Atty. Dept. of Justice, with whom Morton Hollander and David J. Anderson, Attys. Dept. of Justice J. Dapray Muir, Asst. Legal Adviser, Dept. of State, were on the brief for appellants in No. 73-1096.

Lloyd N. Cutler, Washington, D.C., with whom Max O. Truitt, Jr., Daniel K. Mayers and Ronald J. Greene, Washington, D.C., were on the brief, for appellants in No. 73-1097, also argued for all other appellants.

William B. Pennell, New York City, with whom Richard A. Whiting, Monroe Leigh, Daniel J. Plaine and Virginia M. Dondy, Washington, D.C., were on the brief, for appellant in No. 73-1133 also argued for appellants in No. 73-1135 and No. 73-1138.

Steven Brodsky, Washington, D.C., with whom Richard A. Frank, Washington, D.C., was on the brief, for appellant in No. 73-1132 and appellee in Nos. 73-1095, 73-1096, 73-1097, 73-1133, 73-1135, and 73-1138.

Noel Hemmendinger, Washington, D.C., and Isaac Shapiro, New York City, were on the brief for appellants in No. 73-1135.

Milo G. Coerper, Washington, D.C., was on the brief for appellant in No. 73-1138.

Shirley Z. Johnson, Washington, D.C., filed a brief on behalf of Philip A. Hart as amicus curiae urging affirmance.

Before DANAHER, Senior Circuit Judge, and McGOWAN and LEVENTHAL, Circuit Judges.

McGOWAN, Circuit Judge:

These consolidated cross-appeals are directed respectively to two declarations made by the District Court in a suit challenging efforts by the Executive Branch of the United States Government to bring about reductions in steel imports by means of self-imposed limitations on foreign producers. Arrayed against each other are a complaining consumers organization, on the one side, and, on the other, the State Department, and foreign and domestic steel producers, individually and in association. In the form eventually taken by the litigation in the District Court, we consider that the only question before us is whether the actions of the Executive were a regulation of foreign commerce foreclosed to it generally by Article I, Section 8, Clause 3 of the Constitution, and in particular by the Trade Expansion Act of 1962, 19 U.S.C. 1801 et seq. To the extent that the District Court declared no such conflict to exist, we affirm its decision.

I

Steel imports into the United States increased more than tenfold over the period 1958-68, with the great bulk of imports coming from Japan and the countries of the European Communities. ¹ The effect of this development on the domestic steel industry, which is deemed to be of great importance to the nation's security as well as to its peacetime economy, became a matter of widespread concern. In 1968 bills with substantial backing were introduced in Congress to impose mandatory import quotas on steel.

The Executive Branch regarded the problem created by steel imports as temporary in nature ² and thus amenable to a short-term solution. ³ It concluded, moreover, that unilaterally imposed mandatory quotas would pose a danger of retaliation under the General Agreement on Trade and Tariffs, prove inflexible and difficult to terminate, and have a seriously adverse impact on the foreign relations of the United States. Import limiting agreements negotiated with other governments were likewise rejected on the State Department's advice that negotiated official restrictions, if achievable, would have political consequences for the foreign governments that would also affect our external affairs adversely. Accordingly, the Executive Branch concluded in 1968 that voluntary import restraint undertakings by foreign producers offered the best hope of alleviating the domestic industry's temporary problems at the least cost to United States foreign, economic and trade policies.

After an initial showing of interest by the foreign producer associations, State Department officials entered into discussions that lasted from June to December, 1968, and resulted in letters being sent to the Secretary in which the Japanese and European producer associations stated their intentions to limit steel shipments to the United States to specified maximum tonnages for each of the years 1969, 1970, and 1971. ⁴ During 1970, domestic industry and union representatives urged the State Department to seek renewal of the restraints beyond 1971 to provide greater time within which to achieve needed changes, and the House Ways and Means Committee issued a report to like effect. When various executive organs, such as the President's Council of Economic Advisors, had made the same recommendation, the President directed the Secretary to seek extensions of the limitation representations. Such extensions, covering 1972 through 1974, were forthcoming in letters dated early in May, 1972, and announced by the President on May 6. ⁵

The two 1972 letters are substantially alike. Each states the signatories' intention to limit exports of steel products to the United States both in aggregate tonnage and, within such limits, in terms of product mix. Each represents that the signatories 'hold themselves (itself) ready to consult with representatives of the United States Government on any problem or question that may arise with respect to this voluntary restraint undertaking' and expect the United States Government so to hold itself ready. ⁶ In addition, each states that its undertaking is based on the assumptions that (1) the effect will not be to place the signatories at a disadvantage relative to each other, (2) the United States will take no unilateral actions to restrict exports by the signatories to the United States, and (3) the representations do not violate United States or international laws.

II

The original complaint in this action contained two separate and distinct claims. They were respectively denominated 'FIRST CLAIM (Antitrust)' and 'SECOND CLAIM (Unlawful Action by State Department Officials)'. The first claim sought declaratory and injunctive relief with respect to what were said to be continuing violations of Section 1 of the Sherman Act, 15 U.S.C. 1. The court was asked to declare the 1972 letters of intent to be in violation of that statute, and to enjoin all of the named defendants from engaging in any act to effectuate the import reductions contemplated by those letters.

The second claim, as its title implies, sought relief only with respect to the State Department defendants, who were said to have violated the law by 'facilitating, bringing about and negotiating' the limitations set forth in the 1972 letters of intent without compliance with Section 301 or Section 352 of the Trade Expansion Act of 1962. The relief sought was a declaration that the 1972 export limitations are illegal, and an injunction addressed to all the defendants, prohibiting acts in furtherance of the arrangement.

After answers had been filed by some of the defendants and a motion to dismiss or alternatively for summary judgment had been made by the State Department defendants, the parties stipulated that the first claim in the complaint be dismissed with prejudice, and an amended complaint was filed. The violation of law alleged in the amended complaint was that the State Department officials had acted to regulate foreign commerce within the meaning of Article 1, Section 8, Clause 3 of the Constitution, and of the laws relating to the regulation of foreign trade set forth in Title 19 of the U.S.Code, including Sections 301 and 352 of the Trade Expansion Act of 1962. The foreign producer defendants were said to be violating the same laws to the extent that they took steps to effectuate the limitations sought by the defendant State Department officials acting in excess of their authority. The relief sought was a declaration that the actions of the State Department officials in seeking the export limitations were ultra vires, and an injunction against the defendants from furthering the 1972 letters of intent in any way.

Answers to the amended complaint were filed by certain of the defendants and others moved for summary judgment, as did the plaintiff. The matter came on for hearing in the District Court on the cross-motions for summary judgment. Its disposition was embodied in what is styled a 'Memorandum Opinion, Declaration and Order.' The court concluded its discussion of the issues by making two declarations. The first was that 'the Executive has no authority under the Constitution or acts of Congress to exempt the Voluntary Restraint Arrangements on Steel from the antitrust laws and that such arrangements are not exempt.' The second was that 'the Executive is not preempted and may enter into agreements or diplomatic arrangements with private foreign steel concerns so long...