Almond Bros. Lumber v. United States

United States Court of Appeals
for the Federal Circuit
______________________
ALMOND BROS. LUMBER CO., BIGHORN
LUMBER COMPANY, BLUE MOUNTAIN LUMBER
PRODUCTS, LLC, CF INDUSTRIES, INC.
(FORMERLY KNOWN AS CLEARWATER FOREST
INDUSTRIES), COLLINS PINE COMPANY, CODY
LUMBER, INC., D.R. JOHNSON LUMBER CO.,
EMPIRE LUMBER CO., F.H. STOLTZE LAND &
LUMBER COMPANY, GRAYSON LUMBER CORP.,
HAMPTON RESOURCES, INC., HARWOOD
PRODUCTS INC., HEDSTROM LUMBER
COMPANY, INC., IDAHO VENEER COMPANY,
INTERMOUNTAIN RESOURCES, LLC, MOUNTAIN
VALLEY LUMBER CO., INC., NEIMAN SAWMILLS,
INC., NORTHERN LIGHTS TIMBER & LUMBER,
INC., OCHOCO LUMBER COMPANY, PINECREST
LUMBER CO. (DIVISION OF GREEN BAY
PACKAGING, INC.), PRECISION PINE & TIMBER,
INC., ROSBORO, LLC, RSG FOREST PRODUCTS,
INC., RUSHMORE FOREST PRODUCTS, INC.,
SANDERS WOOD PRODUCTS, INC., SPANISH
TRAIL LUMBER CO., LLC, SUNDANCE LUMBER
COMPANY, INC., THRIFT BROTHERS LUMBER
CO., INC., TRINITY RIVER LUMBER COMPANY,
TRIPLE T STUDS CO., VIKING LUMBER
COMPANY, INC., WARM SPRINGS FOREST
PRODUCTS INDUSTRIES, WESTERN CASCADE
INDUSTRIES LLC, WRENN BROTHERS, INC.,
WYOMING SAWMILLS, INC., AND ZIP-O-LOG
MILLS, INC.,
Plaintiffs-Appellants,
2 ALMOND BROS. LUMBER CO. v. US
AND
HERBERT LUMBER CO.,
Plaintiff,
v.
UNITED STATES AND RON KIRK, UNITED STATES
TRADE REPRESENTATIVE,
Defendants-Appellees.
______________________
2012-1393
______________________
Appeal from the United States Court of International
Trade in No. 08-CV-0036, Judge Richard K. Eaton.
______________________
Decided: July 1, 2013
______________________
ALAN I. SALTMAN, Smith, Currie & Hancock, LLP, of
Washington, DC, argued for plaintiffs-appellants. With
him on the brief was ALAN F. HOLMER.
DAVID S. SILVERBRAND, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, argued for defend-
ants-appellees. With him on the brief were STUART F.
DELERY, Acting Assistant Attorney General, JEANNE E.
DAVIDSON, Director, and FRANKLIN E. WHITE, JR., Assis-
tant Director.
______________________
Before MOORE, LINN, and REYNA, Circuit Judges.
REYNA, Circuit Judge.
ALMOND BROS. LUMBER CO. v. US 3
Plaintiffs (collectively, “Almond”) are domestic pro-
ducers of softwood lumber products. Almond initiated
this action in the Court of International Trade (“Trade
Court”), alleging that United States Trade Representative
(“USTR”) exceeded its authority by agreeing to certain
terms in the Softwood Lumber Agreement it entered into
with Canada in 2006. The Trade Court dismissed counts
2, 3, and 4 of the complaint for failure to state a claim
and, alternatively, dismissed count 2 as a non-justiciable
political question. 1 Almond Bros. Lumber Co. v. United
States, No. 08-00036, 2012 WL 1372173 (Ct. Int’l Trade
April 19, 2012) (“Dismissal Order”). Because Almond
failed to allege facts to make plausible any of its claims
for relief, we affirm.
BACKGROUND
I
For over two decades, members of the United States
softwood lumber industry have accused Canada of unfair-
ly subsidizing 2 the production of softwood lumber. These
accusations have spawned an enormous amount of litiga-
tion. See Almond Bros. Lumber Co. v. United States, 651
F.3d 1343 (Fed. Cir. 2011) (“Almond III”). 3 Over the
years, the United States and Canada have entered into a
1 Count 1 was dismissed separately and is not at is-
sue in this appeal.
2 We note that not all subsidies are countervailable
under U.S. trade laws. The subsidies referenced in this
opinion are those that are alleged or deemed to be coun-
tervailable.
3 Almond III explains the history of this litigation
in great detail. We include here only what is necessary to
explain our decision.
4 ALMOND BROS. LUMBER CO. v. US
number of agreements intended to resolve this dispute.
See id. at 1345-48, 1351.
The history of this case begins in 1986, when the Coa-
lition for Fair Lumber Imports (“Coalition”), “an associa-
tion made up of many, but not all, domestic softwood
lumber producers, filed petitions with the Department of
Commerce (‘Commerce’) and the International Trade
Commission (‘ITC’) alleging that” Canada was subsidizing
its softwood lumber exports. Id. at 1344-45. Commerce
investigated and issued a “preliminary finding that Can-
ada was subsidizing its softwood lumber exports.” Id. at
1345. This dispute was resolved by a memorandum of
understanding (the “1986 MOU”) between the United
States and Canada that became the first of several such
agreements.
In September 1991, Canada terminated the 1986
MOU. Id. Shortly thereafter, Commerce initiated a
countervailing duty investigation, again determining that
Canada was subsidizing softwood lumber exports. Id.This initiated a new round of litigation, which the United
States and Canada eventually settled by entering into a
new settlement agreement (“the 1996 SLA”). Id. at 1345-
46. In return for Canada’s agreement to impose certain
export taxes on certain softwood lumber exports to the
United States, the United States agreed not to self-
initiate any countervailing duty investigations and to
dismiss any countervailing duty petitions that were filed
on softwood lumber from Canada. Id. at 1346.
The 1996 SLA expired on March 31, 2001, and in
April 2001, the Coalition filed new petitions with Com-
merce and the ITC seeking the imposition of both anti-
dumping and countervailing duty orders. Id. This
eventually resulted in the entry of an antidumping duty
order and a countervailing duty order. Id. at 1346-47. A
new round of litigations between the United States and
Canada ensued, with Canada appealing these orders to
ALMOND BROS. LUMBER CO. v. US 5
various fora. Id. at 1347. This exhaustive litigation
concluded with the United States and Canada entering
into a third agreement: the 2006 Softwood Lumber
Agreement (“2006 SLA”).
Under the 2006 SLA, Commerce agreed to revoke the
outstanding antidumping and countervailing duty orders
and to refund duties collected on Canadian softwood
lumber after May 22, 2002. Id. At the time of the agree-
ment, these duties amounted to approximately $5 billion.
In return, Canada agreed that for a period of seven years
after the 2006 SLA’s effective date, it would impose export
taxes on certain softwood lumber exported to the United
States. Id. Paragraphs 4 and 5 of Annex 2C to the 2006
SLA required Canada to distribute $1 billion to various
groups in the United States:
4. By the Effective Date, the United States shall
provide Canada or its agent with information
identifying separate accounts whose beneficiaries
are respectively:
(a) the members of the Coalition for Fair
Lumber Imports;
(b) a binational industry council described
in Annex 13; and
(c) meritorious initiatives in the United
States identified by the United States in
consultation with Canada as described in
Article XIII(A).
5. Canada or its agent shall distribute $US 1 bil-
lion pursuant to the Irrevocable Directions to Pay
to the accounts referred to in paragraph 4 in the
following amounts: $US 500 million to the mem-
bers of the Coalition for Fair Lumber Imports,
$US 50 million to the binational industry council,
and $US 450 million for meritorious initiatives.
6 ALMOND BROS. LUMBER CO. v. US
Appellant’s Br. Addendum 61 (“Distribution Term”).
Notably, half of the $1 billion was to be distributed by
Canada to a fund benefitting members of the Coalition.
Although the 2006 SLA does not state its purpose, the
USTR, Canada’s Minister of International Trade, and
Canada’s Industry Minister announced in an April 27,
2006, press release that the 2006 SLA was aimed at
“resolving the softwood lumber dispute, including revoca-
tion of orders, refund of deposits, imposition of an export
measure in Canada and addressing long term policy
reform.” Almond III, 651 F.3d at 1347 (internal quotation
marks omitted).
II
Plaintiffs are domestic softwood lumber producers
who are not members of the Coalition and who therefore
do not stand to receive any of the $500 million set aside
by the Distribution Term to benefit Coalition members.
Plaintiffs brought suit in the Trade Court against the
United States and the USTR, asserting three theories
under which they believed the Distribution Term negoti-
ated by the USTR was contrary to law. Count 2 alleges
that by agreeing to a Distribution Term which did not
include all members of the domestic softwood lumber
industry, the USTR acted outside of its statutory authori-
ty. Count 3 alleges that the Distribution Term violates
equal protection. Count 4 alleges that the USTR wrong-
fully delegated the function of determining how much
each affected domestic producer should receive to the
Coalition, a non-governmental entity.
The Trade Court initially dismissed the complaint for
lack of jurisdiction, Almond Bros. Lumber Co. v. United
States, No. 08-00036, 2009 WL 1397182 (Ct. Int’l Trade
May 20, 2009), and denied reconsideration, Almond Bros.
Lumber Co. v. United States, No. 08-000362010, 2010 WL
1409656 (Ct. Int’l Trade April 8, 2010). This court re-
ALMOND BROS. LUMBER CO. v. US 7
versed, holding that the Trade Court had jurisdiction
under 28 U.S.C. § 1581(i). Almond III, 651 F.3d at 1351.
On remand, the Trade Court dismissed all counts.
The court concluded that count 2 failed to state a claim
because 19 U.S.C. § 2411(c)(4) did not prohibit the USTR
from negotiating the Distribution Term. Dismissal Order,
2012 WL 1372173, at *12. It concluded that count 3 failed
to state a claim because the Distribution Term “was
rationally related to the legitimate government purpose of
ending the undesirable trade practices of the Canadian
softwood lumber industry.” Id. at *14. Finally, it con-
cluded that count 4 failed to state a claim because Almond
had “failed to identify a governmental function that was
impermissibly delegated,” id. at *16, and because Almond
lacked standing to object to the Coalition’s allocation of
funds among its members. Id. at *17.
Plaintiffs timely appealed. This court has jurisdiction
under 28 U.S.C. § 1295(a)(5).
DISCUSSION
We review the Trade Court’s dismissal of a claim for
failure to state a claim de novo. See Sioux Honey Ass’n v.
Hartford Fire Ins. Co., 672 F.3d 1041, 1049 (Fed. Cir.
2012). To survive a motion to dismiss for failure to state a
claim, “[f]actual allegations must be enough to raise a
right to relief above the speculative level, on the assump-
tion that all the allegations in the complaint are true
(even if doubtful in fact).” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555-56 (2007) (footnote omitted) (citations
omitted). To the extent that the Trade Court based its
dismissal on standing, our review of that issue is also de
novo. Canadian Lumber Trade Alliance v. United States,
517 F.3d 1319, 1330 (Fed. Cir. 2008).
I
Count 2 of Almond’s complaint arises under the Ad-
ministrative Procedure Act (“APA”), 5 U.S.C. §§ 701-706,
8 ALMOND BROS. LUMBER CO. v. US
alleging that the USTR exceeded its authority by negoti-
ating the 2006 SLA’s Distribution Term. See 5 U.S.C.
§ 706(2). The USTR’s authority to enter into the 2006
SLA derives from 19 U.S.C. § 2411. See Almond III, 651
F.3d at 1355. Section 2411(c)(1)(D) provides:
For purposes of carrying out the provisions of sub-
section (a) or (b) of this section, the Trade Repre-
sentative is authorized to . . . enter into binding
agreements with such foreign country that com-
mit such foreign country to –
(i) eliminate, or phase out, the act, policy, or prac-
tice that is the subject of the action to be taken
under subsection (a) or (b) of this section,
(ii) eliminate any burden or restriction on United
States commerce resulting from such act, policy,
or practice, or
(iii) provide the United States with compensatory
trade benefits that –
(I) are satisfactory to the Trade Repre-
sentative, and
(II) meet the requirements of
[§ 2411(c)(4)].
(Emphasis added). Section 2411(c)(4) further requires
that:
Any trade agreement described in paragraph
(1)(D)(iii) shall provide compensatory trade bene-
fits that benefit the economic sector which in-
cludes the domestic industry that would benefit
from the elimination of the act, policy, or practice
that is the subject of the action to be taken under
subsection (a) or (b) of this section, or benefit the
economic sector as closely related as possible to
such economic sector, unless –
ALMOND BROS. LUMBER CO. v. US 9
(A) the provision of such trade benefits is not fea-
sible, or
(B) trade benefits that benefit any other economic
sector would be more satisfactory than such trade
benefits.
Almond argues, as it did below, that § 2411(c)(1)(D)
required the USTR to ensure that the $500 million be
distributed to all members of the softwood lumber indus-
try and to require that the funds be distributed on the
basis of the harm suffered. The government responds
that the Trade Court correctly determined that the provi-
sions of the Distribution Term were committed to agency
discretion by law, and therefore immune from judicial
review under 5 U.S.C. § 701(a)(2).
We agree with the government. Before review may be
had under the APA, “a party must first clear the hurdle of
§ 701(a).” Heckler v. Chaney, 470 U.S. 821, 828 (1985).
Section 701(a)(2) precludes review of “agency action[s that
are] committed to agency discretion by law.” This is a
narrow exception to the APA’s presumption of reviewabil-
ity, and applies “in those rare instances where ‘statutes
are drawn in such broad terms that in a given case there
is no law to apply.’” Citizens to Preserve Overton Park,
Inc. v. Volpe, 401 U.S. 402, 410 (1971) (quoting S. Rep.
No. 79-752, at 26 (1945)); see also Heckler, 470 U.S. at 830(“[R]eview is not to be had if the statute is drawn so that a
court would have no meaningful standard against which
to judge the agency’s exercise of discretion.”). A decision
is more likely to be committed to an agency’s discretion
when it requires “a complicated balancing of a number of
factors which are peculiarly within its expertise”; for
example, questions of whether agency action is likely to
be successful or whether a particular action best fits the
agency’s overall policies. Heckler, 470 U.S. at 831; see
also Lincoln v. Vigil, 508 U.S. 182, 193 (1993).
10 ALMOND BROS. LUMBER CO. v. US
Section 2411(c) limits the USTR’s authority to negoti-
ate for compensatory trade benefits in two ways. First,
the compensatory trade benefits must be “satisfactory to
the [USTR].” § 2411(c)(1)(D)(iii)(I). Second, the compen-
satory trade benefits must comply with § 2411(c)(4),
which requires that, subject to certain exceptions, the
compensatory trade benefits must benefit the economic
sector that includes the domestic industry harmed by the
unfair trade practice the USTR is seeking to curb, or “the
economic sector as closely related as possible to such
economic sector.”
Almond’s attacks go to the substance of the Distribu-
tion Term. In particular, Almond objects to (1) the
USTR’s choice to distribute funds only to those members
of the domestic softwood lumber industry that are mem-
bers of the Coalition, and (2) the USTR’s failure to require
that compensation be allocated in proportion to the harm
suffered. Neither of these arguments relates to
§ 2411(c)(4)’s requirement that the compensatory trade
benefits be directed at a particular economic sector.
Accordingly, Almond’s arguments can succeed only if the
Distribution Term is contrary to § 2411(c)(1)(D)(iii)(I)’s
requirement that the compensatory trade benefits must
be “satisfactory” to the USTR.
Under § 2411(c)(1)(D)(iii)(I)’s standard, the USTR has
discretion to craft whatever relief it deems necessary to
resolve the dispute. The negotiation and determination of
the terms of international agreements is a paradigmatic
example of “a complicated balancing of a number of fac-
tors which are peculiarly within [the USTR’s] expertise.”
Heckler, 470 U.S. at 831. The statute reflects this: the
provision of compensatory trade benefits is not mandato-
ry, any benefits provided need only be “satisfactory” to the
USTR, and when benefits are provided, they need not
even benefit the economic sector related to the harmful
trade practice. See § 2411(c). At least with respect to the
dispute in this case, the USTR’s discretion under
ALMOND BROS. LUMBER CO. v. US 11
§ 2411(c) is “drawn in such broad terms that . . . there is
no law to apply.” Overton Park, 401 U.S. at 410 (internal
quotation marks omitted).
Perhaps recognizing that the USTR’s decision under
§ 2411(c)(1)(D)(iii)(I) is immune to judicial review, Almond
attempts to ground its arguments elsewhere in the stat-
ute. First, Almond argues that the compensatory trade
benefits do not benefit the economic sector as required
under § 2411(c)(4) unless they benefit every member of
the affected domestic industry. The language of para-
graph four contains no such restriction, requiring only
that the compensatory trade benefits “benefit the econom-
ic sector which includes the domestic industry.”
§ 2411(c)(4) (emphasis added). Nevertheless, citing
Samish Indian Nation v. United States, 419 F.3d 1355,
1367 (Fed. Cir. 2005), Almond asserts that paragraph four
is a remedial statute and should be interpreted broadly.
But it is unclear, and Almond does not explain, whether §
2411(c) is in fact remedial and, if so, how this requires us
to construe “benefit the economic sector which includes
the domestic industry” to mean “benefits every member of
the domestic industry.”
Almond also attempts to ground its argument in the
term “compensatory,” arguing that this term requires that
compensation be distributed in proportion to the harm
experienced by each individual member of the domestic
industry. Almond is correct that the plain meaning of this
term “connotes offsetting an error or undesired effect.”
But the plain meaning of “compensatory” does not require
that damages be allocated in any particular way. Indeed,
as discussed above, such a restriction would be contrary to
the remainder of the statute, which allows the USTR
considerable latitude to distribute benefits not only to
members of the domestic industry, but also to other
economic sectors if, in the USTR’s judgment, this would
be more satisfactory. Reading additional restrictions into
the term “compensatory” would not comport with the
12 ALMOND BROS. LUMBER CO. v. US
statutory scheme. See Food & Drug Admin. v. Brown &
Williamson Tobacco Corp., 529 U.S. 120, 133 (2000) (“It is
a fundamental canon of statutory construction that the
words of a statute must be read in their context and with
a view to their place in the overall statutory scheme. A
court must therefore interpret the statute as a symmet-
rical and coherent regulatory scheme, and fit, if possible,
all parts into an harmonious whole.”) (citations omitted)
(internal quotation marks omitted).
We reject Almond’s arguments that § 2411(c) required
the USTR to compensate every member of the domestic
softwood lumber industry and that the compensation was
required to be proportional to the harm suffered. Al-
mond’s arguments attack the substance of the Distribu-
tion Term, which defines the compensatory trade benefits
that the USTR secured from Canada in the 2006 SLA.
Whether those benefits were satisfactory is a question
that is committed to the discretion of the USTR and
therefore beyond judicial review.
II
Count 3 of the complaint alleges that the Distribution
Term violates equal protection. The Trade Court found
that the term was “rationally related to the legitimate
government purpose of ending the undesirable trade
practices of the Canadian softwood lumber industry, and
to settle the ongoing litigation concerning the U.S.-
Canadian softwood lumber trade.” Dismissal Order, 2012
WL 1372173, at *14. It based this conclusion on its
findings (1) that the Coalition was the primary repre-
sentative of the industry in the various proceedings that
were ongoing when the 2006 SLA was negotiated, and (2)
that in exchange for the Distribution Term, counsel for
the Coalition agreed to dismiss more than 20 lawsuits
that were pending when the 2006 SLA was signed. Id.Almond argues that these two findings are clear error and
that the dismissal of count 3 should therefore be reversed.
ALMOND BROS. LUMBER CO. v. US 13
It is undisputed that rational basis scrutiny applies to
the equal protection claim alleged by Almond in count 3.
Under rational basis, “a classification must be upheld
against equal protection challenge if there is any reason-
ably conceivable state of facts that could provide a ration-
al basis for the classification.” Heller v. Doe, 509 U.S. 312,
320 (1993) (internal quotation marks omitted). “A statu-
tory classification fails rational-basis review only when it
rests on grounds wholly irrelevant to the achievement of
the State’s objective.” Id. at 324 (internal quotation
marks omitted). The burden is on Almond to negate every
conceivable basis that might support the Distribution
Term, regardless of whether the basis has a foundation in
the record. See id. at 320-21.
“Softwood lumber has been a perennial sore-spot in
trade relations between the United States and Canada,”
Tembec, Inc. v. United States, 441 F. Supp. 2d 1302, 1306
(Ct. Int’l Trade 2006), and the Coalition has been heavily
involved in this issue since at least 1982. See id. n.4.
Indeed, it was the Coalition’s 1986 unfair trade petitions
to Commerce and the ITC that began the series of events
leading to the 2006 SLA. The Trade Court determined
that “[t]he Coalition was the primary representative of
the domestic industry in the various proceedings that
were ongoing when the SLA was negotiated” and that
“[t]he Coalition bore the time and expense of extensive
legal battles to address the practices of the Canadian
industry.” Dismissal Order, 2012 WL 1372173, at *14-15.
It concluded that this provided “a sufficient rationale for
compensating its members to the exclusion of more pas-
sive members of the domestic lumber industry, such as
plaintiffs.” Id. at *15.
Almond’s challenges to the Trade Court’s observations
are unpersuasive. To the contrary: Almond concedes that
the Coalition filed the initial petitions in 1986, and that it
did so again in 2001, obtaining “letters from companies
representing at least 60% of the United States production
14 ALMOND BROS. LUMBER CO. v. US
of softwood lumber” supporting its petition. Appellant’s
Br. 8.
Instead, Almond contends that since the “Termination
of Litigation” provision in Annex 2A was not included in
the final agreement, the Trade Court’s ruling cannot
stand. But regardless of whether the Coalition agreed to
dismiss any suits, the fact remains that over a long period
the Coalition organized the necessary industry support,
including financial support and the submission of ques-
tionnaire responses, legal briefs, and industry trade data,
for the petitions that caused the government to initiate
investigations. To state a plausible equal protection
claim, Almond needed to negate every conceivable basis
that could support the Distribution Term. By resting its
argument on the distinction between the Coalition being
party to the suit and the Coalition acting as the driving
force behind this litigation, it has failed to do so.
III
Count 4 of the complaint alleges that the USTR
wrongfully delegated the function of determining how
much each affected domestic producer should receive to a
non-governmental entity, the Coalition. Almond cites to a
small number of non-binding cases dealing with different
statutes and different agencies as support for its argu-
ment that agency officials generally may not delegate
their authority to private entities. See, e.g., U.S. Telecom
Ass’n v. FCC, 359 F.3d 554, 565 (D.C. Cir. 2004) (“[C]ase
law strongly suggests that subdelegations to outside
parties are assumed to be improper absent an affirmative
showing of congressional authorization.”); see also Nat’l
Ass’n of Regulatory Utility Comm’rs v. FCC, 737 F.2d
1095, 1143 n.41 (D.C. Cir. 1984). We will assume, as did
the Trade Court, that this statement of the law is correct. 4
4 The Trade Court cited “5 U.S.C. § 706(a)(2)” for
the proposition that “[a]n agency’s impermissible delega-
ALMOND BROS. LUMBER CO. v. US 15
The Trade Court concluded that the USTR had not
delegated the decision to compensate only Coalition
members, noting that “the determination that some
domestic softwood lumber producers (i.e., Coalition mem-
bers) were to receive payments from Canada to the exclu-
sion of others was not delegated because the Distribution
Term was negotiated and agreed to by the USTR.” Dis-
missal Order, 2012 WL 1372173, at *17. We agree and
conclude that to the extent that count 4 alleges that the
USTR delegated this decision, it has failed to state a
claim.
In addition, the Trade Court observed that count 4
could also be read as an objection to the delegation of the
allocation of payments made among members of the
Coalition. Id. The court concluded that under this read-
ing, Almond lacked standing: since the USTR had lawful-
ly excluded Almond from the Distribution Term, Almond
could not be injured by the Coalition’s decision of how to
distribute the funds. We agree.
CONCLUSION
For the foregoing reasons, the decision of the Trade
Court dismissing counts 2, 3, and 4 for failure to state a
claim is affirmed. Because our decision affirms the dis-
missal of Almond’s entire complaint, we need not reach
tion is unlawful and will be set aside under the APA.”
Dismissal Order, 2012 WL 1372173, at *16 n.14. Assum-
ing that the court meant to cite § 706(2)(A), we under-
stand its use of the term “unlawful” to mean that the
court believed such a subdelegation to be “not in accord-
ance with law.” Section 706 is silent on the issue of
subdelegation, and we are aware of no case to have stated
that it precludes subdelegation. We note, however, that if
the USTR is allowed to subdelegate its power, count 4
must be dismissed. Accordingly, we assume for our
analysis that subdelegation is not allowed.
16 ALMOND BROS. LUMBER CO. v. US
the issue of whether count 2 presented a non-justiciable
political question.
AFFIRMED