Primesource Bldg. Prods., Inc. v. United States, Slip Op. No. 21-36

• Court: U.S. Court of International Trade
• Writing for the Court: Stanceu, Chief Judge
• Citation: 505 F.Supp.3d 1352
• Parties: PRIMESOURCE BUILDING PRODUCTS, INC., Plaintiff, v. UNITED STATES, et al., Defendants.
• Docket Number: Slip Op. No. 21-36,Court No. 20-00032
• Decision Date: 05 April 2021

505 F.Supp.3d 1352

PRIMESOURCE BUILDING PRODUCTS, INC., Plaintiff,
v.
UNITED STATES, et al., Defendants.

Slip Op. No. 21-36
Court No. 20-00032

United States Court of International Trade.

April 5, 2021

505 F.Supp.3d 1353

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, 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, and Stephen C. Tosini, Senior Trial Counsel.

Stanceu, Chief Judge:

Plaintiff PrimeSource Building Products, Inc. ("PrimeSource"), a U.S. importer of steel nails, contested a proclamation issued by the President of the United States ("Proclamation 9980") in January 2020. 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 "). Before the court is a "Joint Status Report" the parties submitted in response to our order in PrimeSource Bldg. Prods., Inc. v. United States , 45 CIT ––––, Slip. Op. 21-8, 497 F.Supp.3d 1333, 1343–45 – ––––, (Jan. 27, 2021) (" PrimeSource I "). Joint Status Report (Mar. 5, 2021), ECF No. 108. In response to statements of the parties in the Joint Status Report, the court enters summary judgment in favor of plaintiff.¹

I. BACKGROUND

The background of this action is set forth in our prior opinion and summarized briefly herein. See PrimeSource Bldg. Prods., Inc. v. United States , 45 CIT ––––, Slip. Op. 21-8, 497 F.Supp.3d 1333, 1343–45 – ––––, (Jan. 27, 2021) (" PrimeSource I ").

A. Proclamation 9980

On January 24, 2020, President Donald Trump issued Proclamation 9980, which imposed a 25% duty on certain imported articles made of steel, including steel nails, and a 10% duty on certain imported articles made of aluminum. As authority for its imposition of duties on the articles, identified as "derivative aluminum articles" and "derivative steel articles," Proclamation 9980 cited Section 232 of the Trade Expansion Act of 1962, 19 U.S.C. § 1862 ("Section 232").² Proclamation 9980 also cited previous Presidential proclamations that invoked Section 232, including Proclamation 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 Proclamation 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.

505 F.Supp.3d 1354

B. Procedural History of this Litigation

On February 4, 2020, PrimeSource commenced this action, naming the United States, et al., as defendants and asserting five claims in contesting Proclamation 9980. Summons, ECF No. 1; Compl., ECF Nos. 8 (conf.), 9 (public). Defendants filed a Rule 12(b)(6) motion to dismiss an amended complaint on March 20, 2020 for failure to state a claim on which relief can be granted. Defs.’ Mot. to Dismiss for Failure to State a Claim, ECF No. 60 ("Defs.’ Mot."). Plaintiffs opposed defendants’ motion to dismiss and moved for summary judgment on April 14, 2020. 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. Defendants 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. On June 9, 2020, plaintiff replied in support of its summary judgment motion. Pl. PrimeSource Bldg. Prods. Inc.’s Reply Br. in Supp. of its Mot. for Summ. J., ECF No. 91.

C. Our Decision in PrimeSource I

In PrimeSource I , we granted defendants’ motion to dismiss as to all of plaintiff's claims in the amended complaint except one, stated as "Count 2," in which plaintiff claimed that Proclamation 9980 was issued beyond the statutory time limits set forth in Section 232. PrimeSource I , 45 CIT at ––––, Slip Op. at 55, 497 F.Supp.3d at 1361. In Count 2, plaintiff argued that Proclamation 9980 was issued after the expiration of the 105-day time period set forth in Section 232(c)(1), which PrimeSource described as commencing upon the President's receipt, on January 11, 2018, of a report the Secretary of Commerce issued under Section 232(b)(3)(A) on the effect of certain steel articles on the national security of the United States (the "2018 Steel Report"). That report culminated in the President's issuance of Proclamation 9705 in March 2018, which imposed 25% duties on various steel articles, see Proclamation 9705 , ¶¶ 1–2, 83 Fed. Reg. at 11,625, but not on the derivative steel articles affected by Proclamation 9980 in January 2020.

We stated in PrimeSource I that "[d]efendants 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." PrimeSource I , 45 CIT at ––––, Slip Op. at 20, 497 F.Supp.3d at 1345 (citing Defs.’ Mot. 24–29). In denying defendants’ motion to dismiss Count 2, we concluded that Proclamation 9980 does not comply with the limitation on the President's authority imposed by the 105-day time limitation of Section 232(c)(1) if that time period is considered to have commenced upon the President's receipt of the 2018 Steel Report. Id. at ––––, Slip Op. at 44–45, 497 F.Supp.3d at 1356–57 – ––––. We held that in this circumstance Count 2 stated a plausible claim for relief. Id. at ––––, Slip Op. at 50, 497 F.Supp.3d at 1359.

After denying defendants’ motion to dismiss as to the claim in Count 2, we denied plaintiff's motion for summary judgment on that remaining claim upon determining that there existed one or more genuine issues of material fact. 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 concluded that there were genuine issues of material fact that bore on the extent to which the subsequent "assessment" or "assessments" of the

505 F.Supp.3d 1355

Commerce Secretary, as identified in Proclamation 9980, validly could be held to have served a function analogous to that of a Section 232(b)(3)(A) report. Id. at ––––, Slip Op. at 54, 497 F.Supp.3d at 1360–61. We also noted that we did not know what form of inquiry or investigation the Commerce Secretary conducted prior to his submission of these communications to the President and whether, or to what extent, that inquiry or investigation satisfied the essential requirements of Section 232(b)(2)(A), 19 U.S.C. § 1862(b)(2)(A). Id.

In summary, we concluded in PrimeSource I that factual information pertaining to the Secretary's inquiry on, and his reporting to the President on, the derivative articles would be required in order for us to examine whether and to what extent there was compliance by the President with the procedural...