American Coalition for Competitive Trade v. Clinton

• Decision Date: 21 November 1997
• Docket Number: No. 97-1036,97-1036
• Citation: 128 F.3d 761
• Parties: , 327 U.S.App.D.C. 27 AMERICAN COALITION FOR COMPETITIVE TRADE, Petitioner v. William J. CLINTON and United States of America, Respondents Government of Canada, Intervenor.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 761

128 F.3d 761

19 ITRD 1769, 327 U.S.App.D.C. 27

AMERICAN COALITION FOR COMPETITIVE TRADE, Petitioner v. William J. CLINTON and United States of America, Respondents Government of Canada, Intervenor.

No. 97-1036.

United States Court of Appeals District of Columbia Circuit.

Argued Oct. 21, 1997.

Decided Nov. 14, 1997.

As Amended Nov. 21, 1997.

Complaint and Petition for Declaratory Judgment.

Donald R. Dinan, Washington, DC, argued the cause and filed the briefs for petitioner.

Douglas Letter, Attorney, United States Department of Justice, argued the cause for respondents, with whom Frank W. Hunger, Assistant Attorney General, Mary Lou Leary, United States Attorney, Stephen W. Preston and Anne M. Lobell, Attorneys, United States Department of Justice, Washington, DC, were on the brief.

Homer E. Moyer, Jr. and Mark V. Holmes, Washington, DC, were on the brief for intervenor Government of Canada.

Elliot J. Feldman and Stephen M. Truitt, Washington, DC, were on the brief for amicus curiae Gouvernement du Quebec.

Robert E. Herzstein and Perry S. Bechky, Washington, DC, were on the brief for amicus curiae Government of Mexico.

Rufus E. Jarman, New York City, was on the brief for amicus curiae Customs and International Trade Bar Association.

Before: WALD, WILLIAMS and ROGERS, Circuit Judges.

Opinion for the Court filed by Circuit Judge WALD.

WALD, Circuit Judge:

Petitioner, the American Coalition for Competitive Trade ("ACCT"), has filed an original action in this court to challenge the constitutionality of the binational panel review provisions in the United States-Canada Free-Trade Agreement Implementation Act of 1988, Pub.L. No. 100-449, 102 Stat. 1851, and the North American Free Trade Agreement Implementation Act, Pub.L. No. 103-182, 107 Stat.2057 (1993) ("NAFTA Act"), which implement the North American Free Trade Agreement with Canada and Mexico, Dec. 17, 1992, Can.-Mex.-U.S., 32 I.L.M. 605 (1993)("NAFTA").

We conclude that petitioner does not meet the constitutional requirements for standing and does not satisfy the jurisdictional requirements of the NAFTA Act, requirements whose constitutionality we uphold. Accordingly, we dismiss this case.

I. BACKGROUND

Any private party that falls within the definition of an "interested party" may bring an administrative claim to the International Trade Administration of the Department of Commerce charging that an importer to the United States is "dumping" his goods at below-market prices in order to harm his American competitors, or is unfairly benefitting from subsidies from his nation of origin. Once an interested party has made such a charge, the Department of Commerce determines whether dumping has occurred or whether an exporting nation has provided a subsidy. See 19 U.S.C. §§ 1671b(b), 1673b(b) (1994). If the Commerce Department finds dumping or a subsidy, the United States International Trade Commission then determines whether the importer's behavior has actually injured or threatened to injure a U.S. industry. See 19 U.S.C. §§ 1671b(a), 1673b(a) (1994). The statutes define "interested party" broadly to include, inter alia, "a manufacturer, producer, or wholesaler in the United States of a domestic like product"; "a certified union or recognized union or group of workers which is representative of an industry engaged in the manufacture, production, or wholesale in the United States of a domestic like product"; and "a trade or business association a majority of whose members manufacture, produce, or wholesale a domestic like product in the United States." 19 U.S.C. § 1677(9)(C)-(E) (1994). ¹

The NAFTA Act creates a special procedure for reviewing such administrative determinations when they concern goods imported from Canada or Mexico. Under this scheme, any "interested party" that appeared in the administrative proceedings before the Commerce Department or the International Trade Commission may request a binational panel to review the decisions those domestic agencies made. See 19 U.S.C.A. § 1516a(g)(8), 1516a(f)(3) (Supp.1997). Panel members are selected by the United States and the other nation involved, with the United States Trade Representative appointing this country's panel candidates. See 19 U.S.C.A. § 3432(a)(1)(D)-(E) (Supp.1997); NAFTA Annex 1901.2, 32 I.L.M. at 687. These panels apply the substantive law of the importing country. See NAFTA Art.1904(2), 32 I.L.M. at 683. Their decisions are binding and domestic judicial review of panel determinations is prohibited. See 19 U.S.C.A. § 1516a(g)(2) (Supp.1997). While either of the governments involved may request a binational "extraordinary challenge committee" to review a panel decision, private parties cannot initiate such a process. See, e.g., 19 U.S.C.A. § 1516a(a)(5)(C)(ii) (Supp.1997); NAFTA Art.1904.13, 32 I.L.M. at 683; NAFTA Annex 1904.13, 32 I.L.M. at 688. The binational panels, however, are only empowered to uphold the final determinations of domestic agencies or to remand cases to these agencies for further action consistent with the panel's decision. They do not consider the constitutionality of the binational panel review system under United States law. See NAFTA Art.1904.8, 32 I.L.M. at 683.

Instead, Congress has granted this court exclusive original jurisdiction to review all constitutional challenges to the binational panel review provisions. See 19 U.S.C.A. § 1516a(g)(4)(A) (Supp.1997). Under the NAFTA Act, 19 U.S.C.A. § 1516a(g)(4)(C) (Supp.1997), "an interested party" that participated in a binational review panel proceeding may commence such a constitutional challenge "within 30 days after the date of publication in the Federal Register of notice that binational panel review has been completed."

ACCT, "a non-profit organization established for the purpose of protecting American jobs and workers from unfair trade practices," Petitioner's Brief at 5, contends that the binational panel review system infringes on the sovereignty of the United States and violates several constitutional provisions, including the Appointments Clause, Article III, and the Due Process Clause. ACCT also challenges the constitutionality of section 1516a(g)(4)(C)'s exhaustion requirement, and does not claim to meet the provision's criteria. Specifically, ACCT does not allege that it or any ACCT members have participated in any binational panel review proceeding whose completion was published within thirty days of ACCT's filing of this action.

According to the affidavit of William J. Gill, ACCT's president, "members of the Coalition work in industries which have suffered material injury as determined by the U.S. International Trade Commission in antidumping and countervailing duty cases concerning imports from Canada and Mexico. Certain of these cases have been appealed to the binational panels where the decision of the United States government was overturned by the binational panel causing significant numbers of our members [to lose] their jobs, i.e., the Softwood Lumber cases." Affidavit of William J. Gill, Petitioner's Reply Brief App. at 1-2 (internal citations omitted) ("Gill Affidavit"). The "Softwood Lumber cases" is an apparent reference to a 1994 suit by the Coalition for Fair Lumber Imports. The Coalition for Fair Lumber Imports had participated in a binational panel proceeding as an interested party and, having lost in that proceeding, brought suit in this court to challenge the constitutionality of the binational panel review system. The parties settled this suit, however, before the court issued any decision on the merits. SeeCoalition for Fair Lumber Imports v. United States, No. 94-1627 (D.C.Cir. filed Sept. 14, 1994, withdrawn by voluntary motion to dismiss Jan. 5, 1995). ACCT states that it has no evidence that any of its members have ever participated in a binational panel proceeding.

II. ANALYSIS

A. Standing

As the party that seeks to invoke this court's jurisdiction, ACCT is required to "clearly ... allege facts" demonstrating its standing under Article III. United States v. Hays, 515 U.S. 737, 742, 115 S.Ct. 2431, 2435, 132 L.Ed.2d 635 (1995) (quoting Warth v. Seldin, 422 U.S. 490, 518, 95 S.Ct. 2197, 2215, 45 L.Ed.2d 343 (1975)). ACCT has not established the causation necessary to meet the requirements of constitutional standing.

Article III standing contains three "irreducible" elements. First, the petitioner must have suffered an injury that "is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of--the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court. Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 2136-37, 119 L.Ed.2d 351 (1992) (citations and internal quotation and alteration marks omitted). For an association to have standing to sue on behalf of its members, its members must " 'otherwise have standing to sue in their own right.' " Pennell v. City of San Jose, 485 U.S. 1, 7, 108 S.Ct. 849, 855, 99 L.Ed.2d 1 (1988) (quoting Hunt v. Washington Apple Advertising Comm'n, 432 U.S. 333, 343, 97 S.Ct. 2434, 2441, 53 L.Ed.2d 383 (1977)); see also Int'l Union, United Automobile, Aerospace and Agricultural Implement Workers v. Brock, 477 U.S. 274, 282, 106 S.Ct. 2523, 2529, 91 L.Ed.2d 228 (1986); Hunt, 432 U.S. at 343, 97 S.Ct. at 2441 ("[A]n association has standing to bring suit on behalf of its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the...