Motions Systems Corp. v. Bush, 04-1428.

• Decision Date: 10 February 2006
• Docket Number: No. 04-1428.,04-1428.
• Citation: 437 F.3d 1356
• Parties: MOTIONS SYSTEMS CORPORATION, Plaintiff-Appellant, v. George W. BUSH, President of the United States, and Robert B. Zoellick, United States Trade Representative, Defendants-Appellees, and CCL Industrial Motor Ltd., Defendant-Appellee.
• Court: U.S. Court of Appeals — Federal Circuit

Page 1356

437 F.3d 1356

MOTIONS SYSTEMS CORPORATION, Plaintiff-Appellant, v. George W. BUSH, President of the United States, and Robert B. Zoellick, United States Trade Representative, Defendants-Appellees, and CCL Industrial Motor Ltd., Defendant-Appellee.

No. 04-1428.

United States Court of Appeals, Federal Circuit.

February 10, 2006.

Richard C. King, Fitch, King and Caffentzis, of New York, New York, argued for plaintiff-appellant. With him on the brief was James Caffentzis.

Stephen C. Tosini, Trial Attorney, 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 B. Zoellick, United States Trade Representative. With him on the brief were Peter D. Keisler, Assistant Attorney General, David M. Cohen, Director, and Jeanne E. Davidson, Deputy Director. Of counsel was Maria Pagan, Office of the United States Trade Representative, of Washington, DC.

Michael P. House, McDermott Will & Emery LLP, of Washington, DC, argued for defendant-appellee CCL Industrial Motor Ltd. With him on the brief was Raymond Paretzky. Of counsel was David J. Levine.

Before MICHEL, Chief Judge, NEWMAN, MAYER, LOURIE, Circuit Judges, CLEVENGER, Senior Circuit Judge, RADER, SCHALL, BRYSON, GAJARSA, LINN, DYK, and PROST, Circuit Judges.

Opinion for the court filed PER CURIAM.

Opinion concurring in part and concurring in the judgment filed by Circuit Judge GAJARSA, in which Circuit Judge NEWMAN joins.

PER CURIAM.

Motion Systems Corp. ("Motion Systems") brought suit against George W. Bush, President of the United States, and Robert B. Zoellick, United States Trade Representative ("Trade Representative"), in the United States Court of International Trade, challenging the President's determination not to grant import relief to the domestic pedestal actuator industry under section 421 of the U.S.-China Relations Act of 2000, Pub.L. No. 106-286, 114 Stat. 880 (codified at 19 U.S.C. § 2451) ("section 421"). The Court of International Trade granted judgment in favor of the defendants. Motion Systems Corp. v. Bush, 342 F.Supp.2d 1247 (Ct. Int'l Trade 2004). Motion Systems appealed and for the reasons set forth below, we affirm.

I

Section 421, added to the Trade Act of 1974 by the U.S.-China Relations Act of 2000, establishes procedures under which the President may provide import relief in the form of "increased duties or other such import restrictions" for domestic industries threatened by "market disruption" caused by increased importation of products from China. 19 U.S.C. § 2451(a) (2000).

In accordance with section 421(b)(1), Motion Systems filed a petition with the United States International Trade Commission ("ITC"), alleging that importation of Chinese pedestal actuators had increased rapidly from 2000-2002, resulting in market disruption within the meaning of section 421. At the time, Motions Systems was one of three domestic producers of pedestal actuators, electromechanical devices used principally to raise and lower the seats of mobility scooters and motorized wheelchairs. See Pedestal Actuators from China: Investigation No. TA-421-1, Pub. 3557 (U.S. Int'l Trade Comm'n, Nov. 2002), at 3, 11-16.

Upon receipt of the petition, the ITC promptly investigated "whether products of the People's Republic of China are being imported into the United States in such increased quantities or under such conditions as to cause or threaten to cause market disruption to the domestic producers of like or directly competitive products." 19 U.S.C. § 2451(b)(1). On October 18, 2002, the ITC issued an affirmative finding of market disruption and transmitted its report and remedial recommendations to the President and the Trade Representative. See 19 U.S.C. § 2451(f)-(g). The ITC recommended that "the President impose a quantitative restriction for a three-year period on imports of the subject pedestal actuators from China," and suggested specific amounts for each year. In accordance with section 421(h)(1), a summary of the ITC's determination and an invitation for public comment was published in the Federal Register. See Notice of Proposed Measure and Opportunity for Public Comment Pursuant to Section 421 of the Trade Act of 1974: Pedestal Actuators from the People's Republic of China, 67 Fed.Reg. 71007-03 (Nov. 27, 2002).

On January 2, 2003, after attempts to negotiate a remedial agreement with China proved unsuccessful, the Trade Representative submitted to the President his recommendations regarding the ITC's determination. However, the President did not provide the requested import relief. Rather, the President concluded that "providing import relief for the U.S. pedestal actuator industry is not in the national economic interest of the United States" because "the import relief would have an adverse impact on the United States economy clearly greater than the benefits of such action." Presidential Determination on Pedestal Actuator Imports from the People's Republic of China, 68 Fed.Reg. 3157 (Jan. 17, 2003). The President found that the ITC's recommended import quota would not likely benefit the domestic pedestal actuator industry, but instead would cause imports to shift to other offshore sources. Moreover, the President found that even if the import quota would provide some benefit to domestic producers of pedestal actuators, this benefit would be substantially outweighed by the increased cost to the downstream purchasers and the ultimate consumers of pedestal actuators. Motion Systems requested reconsideration of the President's determination, which the President denied.

On April 9, 2003, Motion Systems filed suit against the President and the Trade Representative in the Court of International Trade, challenging the President's denial of import relief and seeking declaratory and injunctive relief. The complaint alleged that the President's denial of relief was beyond his statutory authority under section 421, arguing that the President misconstrued the provisions of section 421 specifying the circumstances in which he may deny import relief and that the relevant facts did not support the conclusion that the import relief would have an adverse impact clearly greater than its benefits. The complaint also alleged that the Trade Representative's actions were in error, arguing that he too misconstrued section 421 and that he did not follow proper procedures in conducting the public hearing on the ITC's findings.

The Court of International Trade granted judgment in favor of the defendants, concluding that the President did not exceed his statutory authority and that the President's action was not invalid because of any defect in the procedures followed by the Trade Representative. Motion Systems, 342 F.Supp.2d at 1262, 1265.

II

Section 421 defines the role of the President and the Trade Representative in determining whether to provide import relief for market disruption due to importation of products from China. An ITC investigation into market disruption may be initiated upon the request of the President or the Trade Representative, upon resolution of the House Committee on Ways and Means or the Senate Finance Committee, upon petition by a private entity "which is representative of an industry" in accordance with 19 U.S.C. § 2252(a), or by the ITC's own motion. 19 U.S.C. § 2451(b)(1). If, after an investigation, the ITC makes an affirmative determination of market disruption, it must propose import relief in the form of an "increase in, or imposition of, any duty or other import restrictions necessary to prevent or remedy the market disruption." 19 U.S.C. § 2451(f). The ITC must submit to the President and the Trade Representative a report containing its determination and recommendations, along with an explanation thereof, and must make that report available to the public. 19 U.S.C. § 2451(g).

After receiving this report, and following a period of public notice and comment, the Trade Representative must make a recommendation to the President concerning what action, if any, to take. 19 U.S.C. § 2451(h). However, the President has discretion to determine whether import relief should be awarded. Under section 421(k)(1), the President must, within fifteen days of receiving the Trade Representative's final recommendation, "provide import relief ... unless the President determines that provision of such relief is not in the national economic interest of the United States ...." 19 U.S.C. § 2451(k)(1). Further, the statute provides that "[t]he President may determine... that providing import relief is not in the national economic interest of the United States only if the President finds that the taking of such action would have an adverse impact on the United States economy clearly greater than the benefits of such action." 19 U.S.C. § 2451(k)(2).

III

No right of judicial review exists to challenge the acts of either the President or the Trade Representative in this case. There is no explicit statutory cause of action granting a petitioner who is denied import relief under section 421 the right to sue the President and the Trade Representative in the Court of International Trade. Thus, Motion Systems has only two potential sources for relief: (1) the Administrative Procedure Act ("APA"), 5 U.S.C. § 701; or (2) some form of nonstatutory review. Motion Systems acknowledges that it cannot challenge the President's actions under the APA because the President is not an "agency." See Franklin v. Massachusetts, 505 U.S. 788, 800-01, 112 S.Ct. 2767, 120 L.Ed.2d 636 (1992). Thus, Motion Systems must resort to some form of nonstatutory review as its only potential source for relief.

As regards Motion Systems' challenge to the President's actions, this case reduces down to a rather simple issue: Can Motion Systems challenge the President's discretionary actions under 19 U.S.C. § 2451 as outside the scope of authority...