United States Court of International Trade

Slip Op. 21-08

Before the Court in PrimeSource Bldg. Prods., Inc. v. United States, Slip Op. 21-08, Court No. 20-32 (January 27, 2021) was the Governments motion to dismiss a case filed by a U.S. importer of steel nails, challenging Presidential Proclamation 9980, which imposed 25% Section 232 tariff on derivative steel products. Plaintiff argued that the Secretary of Commerce violated Section 232 and the Administrative Procedure Act (“APA”) in providing the assessments on which Proclamation 9980 was based, that the President’s actions under Section 232 were untimely, and that the implementation of Proclamation 9980 was a violation of the Constitution’s Due Process Clause. The Government argued that plaintiff’s complaint did not state a claim on which relief can be granted, and therefore should be dismissed. Plaintiff opposed the Government’s motion to dismiss and moved for summary judgment to declare Proclamation 9980 invalid.  For the following reasons, the Court dismissed the case in part, denied the motion to dismiss in part and denied the motion for summary judgment.  

The Court dismissed the claims concerning the assessment of the Secretary of Commerce because “the assessments … merely provided facts and recommendations for potential action by the President rather than impose duties.” Id. at 12. “They were, therefore, not final actions … under the APA.” Id. The Court dismissed the due process claim because plaintiff failed to prove “it had a protected property interest in maintaining the tariff treatment applicable to its imported merchandise” and because the Due Process Clause does “not require the President … to provide notice or the opportunity to comment before imposing duties on imported merchandise under delegated legislative authority.” Id. at 14-15. The Court also dismissed a Constitutional “non-delegation” argument, which had failed to succeed in other litigation before the Court and Federal Circuit Court of Appeals. 

However, in regards to the timeliness arguments the Court declined to dismiss the claim. Section 232 “requires the President to make certain determinations within 90 days of receiving the Commerce Secretary’s report … [and] directs the President, if determining to take action …, to implement that action within 15 days of making that determination.” Id. at 19. Plaintiff argued “Proclamation 9980 was issued 638 days after the transmittal of that report to the President and is, therefore, null and void.” Id. The Court found “the 90- and 15-day time limitations in Section 232(c)(1) expressly confine the exercise of the President’s discretion.” Id. at 32.

In regards to plaintiff’s summary judgment motion, the Court said “although Proclamation 9980 was issued long after the 105-day period beginning with the receipt of the Steel Report, it also was issued pursuant to an ‘assessment’ of the Commerce Secretary.” Id. at 52.  The Court said without a record of these assessments “there remain genuine issues of material fact precluding us from granting plaintiff’s motion for summary judgment.” Id. at 55. As such, the Court dismissed four of the five claims bought by plaintiff, and denied the motion to dismiss in regards to the timeliness claim. The Court then proceeded to order the filing of a scheduling order, so that the case could proceed for final resolution. Judge Miller Baker filed a lengthy dissent arguing the Court errored in not dismissing the case in its entirety.