T. M. Duche & Sons v. United States , 1952 CCPA LEXIS 113 ( 1952 )

Johnson, Judge,

delivered the opinion of the court:

This is an appeal from a judgment of the United States Customs Court, Third Division (one judge dissenting), in conformity with its decision, C. D. 1300, overruling a protest of appellant against the assessment of duty at the rate of 27 cents per pound on an importation of dried egg albumen under the provisions of paragraph 713 of the Tariff Act of 1930 as amended by a proclamation of the President, T. D. 44997, made pursuant to section 336 of said act.

Appellant claimed the imported merchandise to he properly dutiable at 18 cents per pound, which is the rate for dried egg albumen as provided for in the Tariff Act of 1930.

No evidence was introduced at the trial but it was stipulated as follows:

It is hereby stipulated and agreed by and between the attorneys for the parties hereto that the record in the case of T. M. Duche & Sons, Inc. v. United States, Suit 4576 reported in 36 C. C. P. A. (Customs) 19, C. A. D. 391 may be incorporated herein and the above-entitled protest be submitted for decision. [Italics supplied.]

The record in suit 4576, supra, incorporates, in turn, the record in T. M. Duche & Sons et al. v. United States, 13 Cust. Ct. 26, C. D. 863, and David L. Moss Co., Inc. v. United States, 26 C. C. P. A. (Customs) 381, C. A. D. 45. Included in that record are a copy of Senate Resolution 389, 71st Congress, Third Session, directing the Tariff Commission to investigate the difference in costs of production of dried whole eggs, dried egg yolks, and bried egg albumen under section 336 of the Tariff Act of 1930; a copy of the public notice of investigation issued by the Tariff Commission; a copy of the testimony taken at the public hearing held by the Commission; photostatic copies of the documentary exhibits introduced in the Commission's investigation; photostatic copies of depositions taken of witnesses not in attendance at the public hearing; and report of the Tariff Commission, No. 25, entitled “Report to the President on Dried Egg Products.”

The issues are the same as those in the case of T. M. Duche & Sons, Inc. v. United States, 36 C. C. P. A. (Customs) 19, C. A. D. 391, except that in this case appellant presents a new issue of whether under the Administrative Procedure Act, 5 U. S. C., section 1001, et seq., it is the right and duty of this court and the Customs Court to review the proceedings before the Tariff Commission to determine if there was substantial evidence in the record to establish compliance with the statutory prerequisites for the issuance of a presidential proclamation changing the tariff rates on the imported merchandise.

The brief for appellant states:

* * * In asking the Court to review this matter again it should be made clear that appellant is not asking a review of the factual findings and conclusions of the Tariff Commission nor is it asking the Court to weigh the evidence before the Commission nor to' substitute its opinion or discretion for that of the Commission and the President.

The protest herein is based upon the claim that there is no validity in the entire proceedings of the Tariff Commission and the President; that the tariff changing powers delegated by the Congress in said Section 336 were strictly defined and limited, that the Tariff Commission has exceeded such statutory limits, and its investigation and findings and the proclamation of the President based thereon are illegal, null and void because of failure to follow and stay within such express jurisdictional requirements.

It will be noted that the question of the jurisdictional requirements of section 336, supra, were passed upon adversely to appellant’s contention in T. M. Duche & Sons, Inc. v. United States, 36 C. C. P. A. (Customs) 19, supra, insofar as the provisions of the Tariff Act of 1930 are concerned. We adhere to our decision in that case and think it unnecessary to discuss in this opinion the issues there involved.

The one new remaining issue is that regarding the applicability of the Administrative Procedure Act, supra.

Section 1009 of that act contains the following provisions:

Judicial review of agency action

Except so far as (1) statutes precluded judicial review or (2) agency action is by law committed to agency discretion.

Rights of review

(a) Any person suffering legal wrong because of any agency .action, or adversely affected or aggrieved by such action within the meaning of any relevant statute, shall be entitled to judicial review thereof.

Acts reviewable

(c) Every agency action made reviewable by statute and every final agency action for which there is no other adequate remedy in any court shall be subject to judicial review. Any preliminary, procedural, or intermediate agency action or ruling not directly reviewable shall be subject to review upon the review of the final agency action. Except as otherwise' expressly required by statute, agency action otherwise final shall be final for the purposes of this subsection whether or not there has been presented or determined any application for a declaratory order, for any form of reconsideration, or (unless the agency otherwise requires by rule and provides that the action meanwhile shall be inoperative) for an appeal to superior agency authority.

Scope of review

(e) So far as necessary to decision and where presented the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of any agency action. It shall (A) compel agency action unlawfully withheld or unreasonably delayed; and (B) hold unlawful and set aside agency action, findings, and conclusions found to be (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) contrary to constitutional right, power, privilege or immunity; (3) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; (4) without observance of 'procedure required by law; (6) unsupported by substantial evidence in any case subject to the requirements of sections 1006 and 1007 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or (6) unwarranted by the facts to the-extent that the facts are subject to trial de novo by the reviewing court. In making: the foregoing determinations the court shall review the whole record or such portions thereof as may be cited by any party, and due account shall be taken of the rule of prejudicial error. [Italics added.]

Section 1001 of that act relates to definitions and states:

As used in this chapter—

Agency

(a) “Agency” means each authority (whether or not within or subject to-review by another agency) of the Government of the United States other than Congress, the courts, or the governments of the possessions, territories, or the-District of Columbia. Nothing in this chapter shall be construed to repeal delegations of authority as provided by law. * * *

It is apparent from the above definition that Congress, the courts, and the governments of the possessions, territories, and the District of Columbia are not federal “administrative” agencies within the purview of that act.

The courts have held that the President, acting under the flexible tariff statute, cannot be regarded as an administrative agency, but is an agent of Congress. J. W. Hampton, Jr., & Company v. United States, 276 U. S. 394, 411. In that case the Court stated:

* * * What the President was required to do was merely in execution of the act of Congress. It was not the making of law. He was the mere agent of the law-making department to ascertain and declare the event upon which its expressed will was to take effect.

In Norwegian Nitrogen Products Co. v. United States, 288 U. S. 294, 305, the Court stated:

* * * What is done by the Tariff Commission and the President in changing the tariff rates to conform to new conditions is in substance a delegation, though a permissible one, of the legislative process. Hampton & Co. v. United States 276 U. S. 394; Buttfield v. Stranahan, supra; Field v. Clark, 143 U. S. 649. * * *

Referring to hearings by the Interstate Commerce Commission, Public Service Commissions, and like tribunals, as distinguished from the Tariff Commission, the Court said:

* * * The Tariff Commission advises; these others ordain. There is indeed this common bond that all alike are instruments in a governmental process which according to the accepted classification is legislative, not judicial. Prentis v. Atlantic Coast Line Co., 211 U. S. 210, 226; Keller v. Potomac Electric Power Co., 261 U. S. 428, 440. Cf. People ex rel. C. P. R. Co. v. Willcox, 194 N. Y. 383, 386; 87 N. E. 517. Whatever the appropriate label, the kind of order that emerges from a hearing before a body with power to ordain is one that impinges upon legal rights in a very different way from the report of a commission which merely investigates and advises. The traditionary forms of hearing appropriate to the one body are unknown to the other. What issues from the Tariff Commission as a report and recommendation to the President, may be accepted, modified or rejected. If it happens to be accepted, it does not bear ■fruit in anything that trenches upon legal rights. No one has a legal right to . the maintenance of an existing rate of duty. Neither the action of Congress in ■fixing a new tariff nor that of the President in exercising his delegated power is ¡■subject to impeachment if the prescribed forms of legislation have been regularly -observed. * * *

While the Norwegian Nitrogen Products Co. case, supra, did not involve a review of the action of the Tariff Commission under the Administrative Procedure Act, it so clearly defined the scope and duties •of the Tariff Commission and the function it serves under section 315 of the Tariff Act of 1922, that we consider it a decisive authority on the issue Rere in controversy.

In United States v. George S. Bush & Co., Inc., 310 U. S. 371, it was Reid tRat neitRer tRe action of the President, taken pursuant to section ■336 of the Tariff Act of 1930, nor the hearing of the Tariff Commission upon which such action was based was subject to judicial review if the •statutory authority authorizing such action. Rad been followed. In that case the Court stated:

■* * * the judgment of the President that on the facts, adduced in pursuance of the procedure prescribed by Congress, a change of rate is necessary is no more subject to judicial review under this statutory scheme than if Congress itself had exercised that judgment. * * *

Appellant’s contention that it is entitled to a judicial review of the procedure of the Tariff Commission under the Administrative Procedure Act is predicated upon its claim that it is “a person suffering legal wrong because of any agency action, or adversely affected or aggrieved by such action.” We think appellant has suffered no legal wrong because, as stated by the Supreme Court in the Norwegian Nitrogen Products case, supra, “No one has a legal right to the maintenance of an existing rate of duty.” The action of the Tariff Commission being advisory only, its advice that the rate of duty should be increased cannot be considered to “adversely affect” appellant because it is only when the President acts upon that advice that appellant could be affected and, as above set out, the action of the President “is no more subject to judicial review under this statutory scheme than if Congress itself bad exercised that judgment.” Certainly the action of the Tariff Commission can be reviewed to determine whether or not it followed the statutory formula in compiling its report to the President. That is provided for by section 514 of the Tariff Act of 1930 and such a review was bad by appellant in the previous Duche case, supra, reported in 36 C. C. P. A. (Customs) 19 C. A. D. 391. In our opinion, the Administrative Procedure Act did not broaden the scope of review to which appellant is entitled under section 514, supra. We think that act does not authorize a judicial review of the proceedings before the Tariff Commission or of the discretionary acts of the President.

The decision of the Customs Court is therefore affirmed.

O’Connell, J., dissents.