Silfab Solar, Inc. v. United States, U.S. Customs & Border Prot., U.S. Int'l Trade Comm'n, Chairman Rhonda K. Schmidtlein, Comm'r Kevin K. McAleenan, Office of the U.S. Trade Representative, U.S. Trade Representative Robert E. Lighthizer, Solarworld Americas, Inc. , 892 F.3d 1340 ( 2018 )

United States Court of Appeals
for the Federal Circuit
______________________
SILFAB SOLAR, INC., HELIENE, INC., CANADIAN
SOLAR (USA), INC., CANADIAN SOLAR
SOLUTIONS, INC.,
Plaintiffs-Appellants
v.
UNITED STATES, UNITED STATES CUSTOMS
AND BORDER PROTECTION, UNITED STATES
INTERNATIONAL TRADE COMMISSION,
CHAIRMAN RHONDA K. SCHMIDTLEIN,
COMMISSIONER KEVIN K. MCALEENAN, OFFICE
OF THE U.S. TRADE REPRESENTATIVE, U.S.
TRADE REPRESENTATIVE ROBERT E.
LIGHTHIZER, SOLARWORLD AMERICAS, INC.,
Defendants-Appellees
SUNIVA, INC.,
Defendant
______________________
2018-1718
______________________
Appeal from the United States Court of International
Trade in No. 1:18-cv-00023-TCS, Chief Judge Timothy C.
Stanceu.
______________________
Decided: June 15, 2018
______________________
2 SILFAB SOLAR, INC. v. UNITED STATES
JONATHAN THOMAS STOEL, Hogan Lovells US LLP,
Washington, DC, argued for plaintiffs-appellants. Also
represented by CRAIG ANDERSON LEWIS, MITCHELL REICH,
ROBERT B. WOLINSKY.
JEANNE DAVIDSON, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, argued for defendants-appellees United
States, United States Customs and Border Protection,
Kevin K. McAleenan, Office of the U.S. Trade Representa-
tive, Robert E. Lighthizer. Also represented by CHAD A.
READLER, TARA K. HOGAN, JOSHUA E. KURLAND, STEPHEN
CARL TOSINI.
JOHN DAVID HENDERSON, Office of the General Coun-
sel, United States International Trade Commission,
Washington, DC, argued for defendants-appellees United
States International Trade Commission, Rhonda K.
Schmidtlein. Also represented by DOMINIC L. BIANCHI,
ANDREA C. CASSON.
TIMOTHY C. BRIGHTBILL, Wiley Rein, LLP, Washing-
ton, DC, for defendant-appellee SolarWorld Americas, Inc.
Also represented by TESSA V. CAPELOTO, LAURA EL-
SABAAWI, USHA NEELAKANTAN, MAUREEN E. THORSON.
DANIEL L. PORTER, Curtis, Mallet-Prevost, Colt &
Mosle LLP, Washington, DC, for amicus curiae Govern-
ment of Canada. Also represented by CHRISTOPHER A.
DUNN, JAMES P. DURLING.
______________________
Before DYK, MOORE, and REYNA, Circuit Judges.
DYK, Circuit Judge.
Silfab Solar Inc., Heliene Inc., Canadian Solar (USA)
Inc., and Canadian Solar Solutions Inc. (“appellants”)
SILFAB SOLAR, INC. v. UNITED STATES 3
sought a preliminary injunction to bar the enforcement of
presidentially imposed tariffs on solar products. The
Court of International Trade (“CIT”) denied the injunc-
tion. We affirm. We conclude that the President’s actions
here were lawful and that accordingly, appellants have
not established a probability of success on the merits as
required for a preliminary injunction.
BACKGROUND
I
Section 201 of the Trade Act of 1974 is commonly
known as the “escape clause” and authorizes the Presi-
dent to impose tariffs under prescribed conditions. Section
201 provides that if the International Trade Commission
(“ITC” or “the Commission”) determines that
an article is being imported into the United States
in such increased quantities as to be a substantial
cause of serious injury, or the threat thereof, to
the domestic industry producing an article like or
directly competitive with the imported article, the
President, in accordance with this part, shall take
all appropriate and feasible action within his
power which the President determines will facili-
tate efforts by the domestic industry to make a
positive adjustment to import competition and
provide greater economic and social benefits than
costs.
19 U.S.C. § 2251(a) (emphases added). Such actions are
typically referred to as “safeguard measures.” Section
2253(a) provides the same authorization that
[a]fter receiving a report . . . containing an affirm-
ative finding regarding serious injury, or the
threat thereof, to a domestic industry, the Presi-
dent shall take all appropriate and feasible action
within his power which the President determines
will facilitate efforts by the domestic industry to
4 SILFAB SOLAR, INC. v. UNITED STATES
make a positive adjustment to import competition
and provide greater economic and social benefits
than costs.
19 U.S.C. § 2253(a) (emphases added).
In May 2017, a United States manufacturer of solar
products, Suniva, Inc., filed a petition with the ITC,
requesting that the President undertake measures to
protect U.S. solar manufacturers against foreign imports.
The goods at issue in this case are crystalline silicon
photovoltaic (CSPV) cells, manufactured and sold either
as standalone cells or as functional modules. In accord-
ance with Section 2252(b)(1)(A), the ITC conducted an
investigation “to determine whether an article is being
imported into the United States in such increased quanti-
ties as to be a substantial cause of serious injury, or the
threat thereof, to the domestic industry producing an
article like or directly competitive with the imported
article.” 19 U.S.C. § 2252(b)(1)(A). On November 17, 2017,
the ITC issued a report, in which it made an affirmative
serious injury determination under 19 U.S.C. § 2252(b).
The ITC determined that solar products were “being
imported into the United States in such increased quanti-
ties as to be a substantial cause of serious injury to the
domestic industry producing an article like or directly
competitive with the imported article.” J.A. 92.
When making the determination, there were only four
Commissioners serving on the ITC. While the four Com-
missioners were united in their affirmative finding of
serious injury, they divided into three groups with respect
to relief. Vice Chairman Johanson and Commissioner
Williamson recommended a tariff of 30% on imports in
excess of 1 gigawatt for the first year. Similarly, Chair-
man Schmidtlein recommended both tariffs and quotas
under which (1) cells that exceed the 0.5 gigawatts vol-
ume level would be subject to a 30% tariff, (2) modules
would be subject to 35% tariff, and (3) a tariff of 10% ad
SILFAB SOLAR, INC. v. UNITED STATES 5
valorem to be instituted on imports of up to 0.5 gigawatts.
Commissioner Broadbent recommended a quantitative
restriction on cells and modules. Since no recommenda-
tion received the assent of “a majority of the commission-
ers voting” or of “not less than three commissioners,” none
was an official Commission recommendation under 19
U.S.C. § 1330(d)(2).
After determining that a serious injury was occurring,
the ITC reported specifically on imports from Canada.
This appeal only involves solar imports from Canada, and
not Mexico. The NAFTA Implementation Act requires
that
the International Trade Commission shall also
find (and report to the President at the time such
injury determination is submitted to the Presi-
dent) whether (1) imports of the article from a
NAFTA country, considered individually, account
for a substantial share of total imports; and
(2) imports of the article from a NAFTA country,
considered individually or, in exceptional circum-
stances, imports from NAFTA countries consid-
ered collectively, contribute importantly to the
serious injury, or threat thereof, caused by im-
ports.
Pub. L. No. 103-182, 107 Stat. 2057 (1993) (codified at 19
U.S.C. § 3371) (emphases added). The ITC explained in its
finding on “substantial share” that Canada contributed
only roughly 2% of the relevant solar imports during the
applicable period. The industry in Canada was not among
the top five suppliers of imports of CSPV products during
the relevant time period and, on average, was the ninth-
largest source of solar products. The ITC also pointed out
that imports from Canada declined between 2015 and
2016, even though global imports continued to increase. A
3-1 majority of the ITC concluded that Canadian imports
did not account for a “substantial share” of solar imports.
6 SILFAB SOLAR, INC. v. UNITED STATES
It further found that Canadian imports did not “contrib-
ute importantly” to the serious injury, an issue not perti-
nent to this appeal.
While Chairman Schmidtlein recommended that the
President should not exempt Canadian goods from the
safeguard, given their high rate of growth, the other
Commissioners recommended excluding Canadian im-
ports. These Commissioners noted that if a surge of
imports from Canada took place in the future, the domes-
tic industry had options to pursue relief under the
NAFTA import-surge mechanism, 19 U.S.C. § 3372(c).
Section 3372(c)(1) provides that if the
President . . . excludes imports from a NAFTA
country or countries from action . . . but thereafter
determines that a surge in imports from that
country or countries is undermining the effective-
ness of the action—(A) the President may take
appropriate action . . . to include those imports in
the action.
II
After the ITC makes an affirmative injury determina-
tion under Section 2252(b), as noted earlier, the President
“shall take all appropriate and feasible action within his
power which the President determines will facilitate
efforts by the domestic industry to make a positive ad-
justment to import competition and provide greater
economic and social benefits than costs.” 19 U.S.C.
§ 2253(a)(1)(A). When determining what action to take,
the statute directs the President to “take into account” ten
factors, ranging from “the recommendation and report of
the Commission,” to broader considerations such as the
national economic interest. 19 U.S.C. § 2253(a)(2).
After the ITC made its report, the Trade Policy Staff
Committee (“TPSC”) was tasked with offering a remedy
recommendation to the President. 19 U.S.C.
SILFAB SOLAR, INC. v. UNITED STATES 7
§ 2253(a)(1)(C). On behalf of the TPSC, the Office of the
United States Trade Representative (“USTR”) issued a
request for comments and a notice of public hearing about
the determination of import injury with regard to CSPV
cells. Request for Comments and Public Hearing About
the Administration’s Action Following a Determination of
Import Injury With Regard to Certain Crystalline Silicon
Photovoltaic Cells, 82 Fed. Reg. 49,469 (Oct. 25, 2017).
After the hearing, the TPSC provided the President with
its recommendation concerning appropriate safeguard
measures. This recommendation is not a public document
and was not supplied to this court.
On January 23, 2018, President Trump issued Proc-
lamation No. 9693, entitled “To Facilitate Positive Ad-
justment to Competition From Imports of Certain
Crystalline Silicon Photovoltaic Cells (Whether or Not
Partially or Fully Assembled Into Other Products) and for
Other Purposes.” J.A. 74 (“Proclamation”). The Proclama-
tion announced a four year safeguard, including a 30-
percent tariff on solar products, whether assembled as
cells or modules. As noted earlier, under the NAFTA
Statute, the President must determine whether the tariffs
apply to Canadian imports. The President acknowledged
that the ITC “made negative findings with respect to
imports of CSPV products from Canada.” J.A. 74, ¶ 3.
Notwithstanding this, he determined that “imports of
CSPV products from . . . Canada . . . account for a sub-
stantial share of total imports and contribute importantly
to the serious injury or threat of serious injury found by
the ITC.” J.A. 75, ¶ 7. Accordingly, he did not exempt
Canadian imports. The President’s safeguard action, i.e.,
the tariffs, took effect on February 7, 2018.
III
On the same day, the plaintiffs, three Canadian man-
ufacturers of solar panels and a U.S. importer of solar
cells and modules, filed suit in the CIT, seeking a declara-
8 SILFAB SOLAR, INC. v. UNITED STATES
tory judgment that the Proclamation, as applied to them,
is contrary to law and an injunction barring enforcement
of the tariffs. Plaintiffs named as defendants the United
States, U.S. Customs and Border Protection and its acting
Commissioner, the U.S. International Trade Commission
and its Chairman, and the Office of the U.S. Trade Repre-
sentative and the U.S. Trade Representative. Defendant-
Intervenors Suniva and SolarWorld, Inc., U.S. manufac-
turers of solar cells and modules, intervened in support of
the President’s decision.
Plaintiffs submitted declarations detailing an immi-
nent, severe threat of irreparable injury from the solar
tariffs to their businesses and an expert report containing
economic analysis of the injury.
IV
On March 5, 2018, the CIT denied the motion for a
preliminary injunction in a careful and thorough opinion.
The CIT held that, even if it “presume[d], without decid-
ing” that plaintiffs could demonstrate irreparable harm in
the absence of an injunction, and that the balance of
hardships weighed in their favor, plaintiffs would not
qualify for preliminary relief, because they were not likely
to succeed on the merits of their claim and the public
interest did not favor a preliminary injunction. J.A. 7. As
to the public interest factor, the CIT expressed concern
that the nominal bond requested “could expose the gov-
ernment to the risk of being unable to collect safeguard
duties owed once the entries are liquidated should it
ultimately prevail in this litigation.” J.A. 40. Although
plaintiffs asked the court to stay proceedings and grant
an injunction pending appeal, the CIT denied both mo-
tions.
SILFAB SOLAR, INC. v. UNITED STATES 9
Appellants appealed the denial of the injunction to
our court. 1 At this court, they sought, and we denied, a
motion for injunction pending appeal. The CIT had juris-
diction pursuant to 28 U.S.C. § 1581(i). We have jurisdic-
tion pursuant to 28 U.S.C. § 1292(c)(1). “The governing
standard of review on appeal of a grant or denial of a
preliminary injunction is abuse of discretion.” Am. Signa-
ture, Inc. v. United States, 598 F.3d 816, 823 (Fed. Cir.
2010) (citing Titan Tire Corp. v. Case New Holland, Inc.,
566 F.3d 1372, 1375 (Fed. Cir. 2009)).
DISCUSSION
I
A preliminary injunction “is an extraordinary reme-
dy.” Winter v. Nat. Res. Def. Council, 555 U.S. 7, 24 (2008)
(citing Munaf v. Geren, 553 U.S. 674, 689-90 (2008)). The
moving party has to show the following factors in order to
obtain a preliminary injunction: (1) likelihood of success
on the merits, (2) irreparable harm absent immediate
relief, (3) the balance of interests weighing in favor of
relief, and (4) that the injunction serves the public inter-
est. Id. at 20; accord Wind Tower Trade Coal. v. United
States, 741 F.3d 89, 95 (Fed. Cir. 2014).
On appeal, the appellants focus primarily on the first
factor – likelihood of success on the merits. In Winter, the
Supreme Court made clear that “[i]ssuing a preliminary
injunction based only on a possibility of irreparable harm
is inconsistent with our characterization of injunctive
relief.” Winter, 555 U.S. at 22. Since Winter, we have held
that the party seeking the injunction must be able to
1 At the CIT, plaintiffs also argued for a prelimi-
nary injunction on the grounds that the presidential
action violated quantitative restriction limitations under
19 U.S.C. § 3372(d). Plaintiffs do not raise this issue on
appeal.
10 SILFAB SOLAR, INC. v. UNITED STATES
“demonstrate that it has at least a fair chance of success
on the merits for a preliminary injunction to be appropri-
ate.” Wind Tower, 741 F.3d at 96 (citing Qingdao Taifa
Grp. Co. v. United States, 581 F.3d 1375, 1381 (Fed. Cir.
2009)).
Appellants rely on past cases where we have held that
the probability of success factor can be decided on a
sliding scale, and a lesser showing of likelihood of success
is acceptable, where there is a significant showing of
irreparable injury. See, e.g., Belgium v. United States, 452
F.3d 1289, 1292-93 (Fed. Cir. 2006). Appellants argue
that they have shown a strong likelihood of irreparable
injury and that, accordingly, only a reduced showing of
probability of success should be required. Even accepting
(without deciding) the theory that our sliding-scale juris-
prudence remains good law after Winter, we conclude that
appellants have not shown any probability of success on
the merits, so that a preliminary injunction would not be
appropriate even under the most lenient sliding-scale
standard.
II
Under Corus and other decisions of this court, there
are limited circumstances when a presidential action may
be set aside if the President acts beyond his statutory
authority, but such relief is only rarely available. Corus
Grp. PLC v. Int’l. Trade Comm’n, 352 F.3d 1351, 1356
(Fed. Cir. 2003) (highlighting that review is available to
determine whether the President “clear[ly] miscon-
stru[ed]” his statutory authority); see also Motion Sys.
Corp. v. Bush, 437 F.3d 1356, 1361 (Fed. Cir. 2006) (en
banc) (explaining that courts may consider whether “the
President has violated an explicit statutory mandate”);
Maple Leaf Fish Co. v. United States, 762 F.2d 86, 89
(Fed. Cir. 1985) (holding that “[f]or a court to interpose,
there has to be a clear misconstruction of the governing
statute, a significant procedural violation, or action
SILFAB SOLAR, INC. v. UNITED STATES 11
outside delegated authority”). We conclude that such
relief is not available in this case and reject appellants’
various arguments to the contrary.
First, appellants argue that the President had no
power to act because the ITC made no recommendation as
to remedy. The simple answer to this claim is that the
President’s authority to act is not conditioned on the
existence of such a recommendation. It is conditioned only
on an ITC’s finding of serious injury, or the threat thereof.
19 U.S.C. § 2253 provides that
[a]fter receiving a report . . . containing an affirm-
ative finding regarding serious injury, or the
threat thereof, to a domestic industry, the Presi-
dent shall take all appropriate and feasible action
within his power which the President determines
will facilitate efforts by the domestic industry to
make a positive adjustment to import competition
and provide greater economic and social benefits
than costs.
19 U.S.C. § 2253(a) (emphasis added).
In Corus, we held that the President lacks authority
under Section 2253 to act, unless the ITC makes a deter-
mination of serious injury or threat thereof. 352 F.3d at
1354. However, nothing in the statute or in Corus sug-
gests that the existence of an ITC recommendation as to
remedy is a condition of the President’s power to act.
Indeed, the statute makes clear that the only condition
necessary for the President to take action is the affirma-
tive finding regarding serious injury or the threat thereof.
As the CIT pointed out, it is difficult to believe that Con-
gress would have wanted an injury to go unremedied,
simply because the ITC’s Commissioners could not agree
on a particular remedy.
Appellants argue that if the President is allowed to
act without an ITC recommendation as to remedy, Con-
12 SILFAB SOLAR, INC. v. UNITED STATES
gress will not be able to exercise its fast track authority.
The statute provides that if “the action taken . . . differs
from the action recommended by the Commission under
section 2252(e)(1)” a fast track congressional override is
available, allowing Congress to institute “the action
recommended by the Commission . . . upon the enactment
of a joint resolution . . . within the 90-day period begin-
ning on the date on which the [recommendation] is
transmitted to the Congress.” 19 U.S.C. § 2253(c). We
express no opinion about whether, in the absence of a
remedy recommendation, Congress has authority to
invoke the fast track provision of Section 2253(c). The
question of whether the President’s action here “differs
from the action recommended by the Commission” when
the ITC makes no recommendation is a matter for Con-
gress, and not this court.
Second, appellants argue that the statute gives the
President authority only if he acts under the statute and
that the President cannot do so if the ITC has failed to
comply with the statute. Section 2252(f)(1) states that
“[t]he Commission shall submit to the President a report
on each investigation.” While the ITC did not make the
required remedy recommendation, we have rejected the
contention that the failure of the ITC to comply with its
statutory obligations invalidates presidential action. In
Michael Simon Design, Inc. v. United States, 609 F.3d
1335, 1342-43 (Fed. Cir. 2010), as here, the plaintiff
claimed that the President’s action was unlawful because
the ITC’s recommendation failed to comport with the
applicable statute. We held that an allegedly unlawful
ITC recommendation to the President did not invalidate
the President’s determination. We explained that a “rec-
ommendation does not cease to be made ‘under’ [the
relevant] section . . . simply because the recommendation
is assertedly contrary to the substantive requirements of
that provision.” Id. at 1341. This was the case, because, as
in Dalton v. Specter, 511 U.S. 462, 476 (1994), “[n]othing
SILFAB SOLAR, INC. v. UNITED STATES 13
in [the relevant statute] requires the President to deter-
mine whether the Secretary or Commission committed
any procedural violations in making their recommenda-
tions, nor does [the relevant statute] prohibit the Presi-
dent from approving recommendations that are
procedurally flawed.”
Third, appellants argue that the President did not
make the required report to Congress. Section 2253(b)(1)
requires that
[o]n the day the President takes action . . . the
President shall transmit to Congress a document
describing the action and the reasons for taking
the action. If the action taken by the President
differs from the action required to be recommend-
ed by the Commission under section 2252(e)(1) of
this title, the President shall state in detail the
reasons for the difference.
19 U.S.C. § 2253(b)(1) (emphasis added). In fact, it ap-
pears that the President did make a report to Congress.
J.A. 829-51. But even if the President had not, or, if the
report was in some way deficient, that would not be a
ground for setting aside the President’s action. Under the
statute, the making of the required report is not a condi-
tion precedent to valid presidential action, and the failure
to make a required report, even if it occurred, is not
grounds to set aside the presidential action. In Michael
Simon, after “the appellants argue[d] that it was improp-
er for the President to adopt modifications that were not
rate neutral,” we held that “section 3006(a) does not make
rate neutrality a condition of the President’s decision.”
609 F.3d at 1342. Therefore, “any claim that the Presiden-
tial proclamation does not produce rate neutrality is not
subject to judicial review.” Id. at 1342-43. This was the
case, because “the statute [at issue] contains no language
that expressly mandates substantial rate neutrality as a
prerequisite to the President’s authority to proclaim
14 SILFAB SOLAR, INC. v. UNITED STATES
HTSUS modifications.” Id. at 1343. Similarly, the making
of a report is not a precondition for presidential action in
this case.
Fourth, appellants contend that the President did not
consider the ITC report as required by the statute. The
statute requires that the President “shall take into ac-
count – (A) the recommendation and report of the Com-
mission.” 19 U.S.C. § 2253(a)(2). The Proclamation states
that the President considered the report. J.A. 74 ¶¶ 2-6
(stating that the President made his decision “[a]fter
taking into account the considerations specified in section
203(a)(2) of the Trade Act . . . [including] the ITC Re-
port”). We have no authority to determine whether the
President’s statement is factually accurate. See Maple
Leaf, 762 F.2d at 89. To the extent that appellants argue
that the President did not take account of the recommen-
dation of the ITC because there was none, this is merely a
reprisal of the argument that the President has no au-
thority to act without an ITC recommendation. We ad-
dressed and rejected this above.
Finally, appellants argue that the President’s action
violated the NAFTA Implementation Act, specifically 19
U.S.C. § 3372. Section 3372(a) instructs that, “[i]n deter-
mining whether to take action under . . . the Trade Act of
1974 . . . with respect to imports from a NAFTA country,
the President shall determine whether” a NAFTA coun-
try’s exports to the United States “account for a substan-
tial share of total imports” and whether those imports
“contribute importantly to the serious injury . . . found by
the International Trade Commission.” Imports from a
NAFTA country will be excluded from the action “if the
President makes a negative determination” regarding
either substantial share or contribute importantly “with
respect to imports from such country.” 19 U.S.C.
§ 3372(b). The President thus must exempt Canada if he
SILFAB SOLAR, INC. v. UNITED STATES 15
“determines” that Canadian imports do not constitute a
“substantial share” of total imports. 2 As set forth in the
Proclamation, President Trump determined that “imports
of CSPV products from . . . Canada . . . account for a
substantial share of total imports.” J.A. 75, ¶ 7.
Appellants argue that there is no support for such a
determination. Appellants point out that the ITC deter-
mined that imports from Canada did not constitute a
“substantial share.” J.A. 159. 3 The Proclamation itself
recognized that the ITC made findings “as to whether
imports from . . . Canada, considered individually, account
for a substantial share of total imports and contribute
importantly to the serious injury, or threat thereof,
caused by imports. The ITC . . . made negative findings
2 Subsections 3372(a)-(b) provide that
the President shall determine whether – (1) im-
ports from such country, considered individually,
account for a substantial share of total imports; or
(2) imports from a NAFTA country, considered in-
dividually, or in exceptional circumstances im-
ports from NAFTA countries considered
collectively, contribute importantly to the serious
injury, or threat thereof, found by the Interna-
tional Trade Commission. . . . [And that] [i]n de-
termining the nature and extent of action to be
taken under chapter 1 of title II of the Trade Act
of 1974 [19 U.S.C.A. § 2251 et seq.], the President
shall exclude from such action imports from a
NAFTA country if the President makes a negative
determination under subsection (a)(1) or (2) of this
section with respect to imports from such country.
3 Appellants do not argue that the President erred
in his “contribute to injury” finding, the second factor
required.
16 SILFAB SOLAR, INC. v. UNITED STATES
with respect to imports of CSPV products from Canada.”
J.A. 74, ¶ 3. Moreover, according to the record, Canadian
imports seem to account for only roughly 2% of the rele-
vant solar imports during the applicable period. The
industry in Canada was not among the top five suppliers
of imports of CSPV products during the relevant time
period, and on average, Canada was only the ninth larg-
est source of solar products. The NAFTA Implementation
Act provides that a NAFTA country should “normally” be
deemed “to account for a substantial share” only if it is
“among the top 5 suppliers” over “the most recent 3-year
period.” 19 U.S.C. § 3371(b)(1).
The presidential action cannot be set aside because it
conflicts with the ITC’s conclusion. While the ITC made a
negative finding as to substantial share with respect to
solar products from Canada, these findings in no way bind
the President. Indeed, the ITC has a duty only to find and
report regarding determinations of substantial share, and
the President is free to reach a different decision regard-
ing those determinations.
Nor do we have authority to review the President’s
substantial share determination. The question regarding
substantial share is factual, and we have no authority to
review the President’s factual determinations. “The
President’s findings of fact and the motivations for his
action are not subject to review.” Maple Leaf, 762 F.2d at
89 (citation omitted); see also United States v. George S.
Bush & Co., 310 U.S. 371, 379-80 (1940) (“[T]he judgment
of the President . . . on the facts . . . is no more subject to
judicial review . . . than if Congress itself had exercised
that judgment.”); Michael Simon, 609 F.3d at 1340 (“The
language . . . does not implicitly or explicitly limit the
President’s discretion in a way that would render the
President’s actions in this case judicially reviewable.”).
In particular, courts have repeatedly confirmed that,
where the statute authorizes a Presidential “determina-
SILFAB SOLAR, INC. v. UNITED STATES 17
tion,” the courts have no authority to look behind that
determination to see if it is supported by the record. See,
e.g., George S. Bush & Co., 310 U.S. at 379 (finding no
review when the statute committed the decision to the
President’s “judgment”); Motion Sys., 437 F.3d at 1359
(finding no review when the statute authorized the Presi-
dent to “provide import relief . . . unless the President
determines that provision of such relief is not in the
national economic interest of the United States”); Maple
Leaf, 762 F.2d at 87-90 (finding no review of the Presi-
dent’s “determin[ations]” under Sections 2251-53 of Title
19 of the U.S. Code). Congress could not have intended
that courts review a presidential determination, based on
an ITC record, when the President can and does rely on
information that is neither public, nor part of that record.
CONCLUSION
The CIT correctly determined that appellants cannot
demonstrate likelihood of success on the merits, and thus
we need not consider the other preliminary injunction
factors. If Congress desires to eliminate these tariffs or to
cabin the President's authority, that is a matter for Con-
gress to address in future legislation, not a matter for this
court on this appeal.
AFFIRMED