Usp Holdings, Inc. v. United States

Case: 21-1726 Document: 62 Page: 1 Filed: 06/09/2022
United States Court of Appeals
for the Federal Circuit
______________________
USP HOLDINGS, INC., SUBSTITUTED FOR
UNIVERSAL STEEL PRODUCTS, INC., PSK STEEL
CORPORATION, DAYTON PARTS, LLC, BORUSAN
MANNESMANN PIPE U.S. INC., JORDAN
INTERNATIONAL COMPANY,
Plaintiffs-Appellants
v.
UNITED STATES, JOSEPH R. BIDEN, JR.,
PRESIDENT OF THE UNITED STATES, GINA M.
RAIMONDO, SECRETARY OF COMMERCE, TROY
MILLER, SENIOR OFFICIAL PERFORMING THE
DUTIES OF THE COMMISSIONER FOR U.S.
CUSTOMS AND BORDER PROTECTION,
Defendants-Appellees
______________________
2021-1726
______________________
Appeal from the United States Court of International
Trade in No. 1:19-cv-00209-GSK-MMB-LMG, Senior Judge
Leo M. Gordon, Judge Gary S. Katzmann, Judge M. Miller
Baker.
______________________
Decided: June 9, 2022
______________________
LEWIS LEIBOWITZ, The Law Office of Lewis E.
Leibowitz, Washington, DC, argued for plaintiffs-
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2 USP HOLDINGS, INC. v. US
appellants.
MEEN GEU OH, Commercial Litigation Branch, Civil Di-
vision, United States Department of Justice, Washington,
DC, argued for defendants-appellees. Also represented by
BRIAN M. BOYNTON, TARA K. HOGAN, PATRICIA M.
MCCARTHY, ANN MOTTO.
______________________
Before DYK, MAYER, and CHEN, Circuit Judges.
Opinion for the court filed by Circuit Judge DYK, in which
Circuit Judge MAYER joins, and in which Circuit Judge
CHEN joins except as to footnote 4.
Additional views filed by Circuit Judge CHEN.
DYK, Circuit Judge.
The Trade Expansion Act of 1962 authorizes the Pres-
ident to adjust imports—if he concurs with a determination
by the U.S. Secretary of Commerce (“Secretary”) “that an
article is being imported into the United States in such
quantities or under such circumstances as to threaten to
impair the national security”—and to “determine the na-
ture and duration” of the corrective action. 19 U.S.C.
§ 1862(c)(1)(A).
Based on an investigation under § 1862, the Secretary
here determined that excessive steel imports threatened to
impair the national security. The President concurred and
issued a series of proclamations beginning with Proclama-
tion 9705 on March 8, 2018. With those proclamations, the
President imposed a twenty-five percent tariff on steel im-
ports from a number of countries.
Appellants challenged the actions of both the President
and the Secretary in the Court of International Trade
(“Trade Court”), contending that the President’s and Sec-
retary’s finding of a threat to national security and the
President’s imposition of a tariff for an indefinite duration
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USP HOLDINGS, INC. v. US 3
conflicted with the statute. The Trade Court granted the
government’s motion for judgment on the pleadings. We
affirm.
BACKGROUND
I
Section 232 of the Trade Expansion Act of 1962, 19
U.S.C. § 1862, authorizes the President to adjust imports
that threaten national security. Section 1862 includes, as
relevant here, three subsections.
Section 1862(b) directs the Secretary, on the request of
an adversely affected party or an agency or department
head, or on his own, to “immediately initiate an appropri-
ate investigation to determine the effects on the national
security of imports of the article which is the subject of such
request, application, or motion.” § 1862(b)(1)(A). After the
investigation is concluded, the Secretary must submit “a
report on the findings of such investigation” to the Presi-
dent. § 1862(b)(3)(A). The report must include the Secre-
tary’s finding, if one is made, that an “article is being
imported into the United States in such quantities or under
such circumstances as to threaten to impair the national
security” and “the recommendations of the Secretary for ac-
tion or inaction” regarding such a finding. Id.
Section 1862(c) provides that, thereafter, the President
must determine if he agrees with the Secretary’s threat
finding and, if so, what action is necessary:
[If] the Secretary finds that an article is being im-
ported into the United States in such quantities or
under such circumstances as to threaten to impair
the national security, the President shall—
(i) determine whether the President concurs with
the finding of the Secretary, and
(ii) if the President concurs, determine the nature
and duration of the action that, in the judgment of
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4 USP HOLDINGS, INC. v. US
the President, must be taken to adjust the imports
of the article and its derivatives so that such im-
ports will not threaten to impair the national secu-
rity.
§ 1862(c)(1)(A).
Section 1862(d) 1 provides nonexclusive factors for the
President and the Secretary to consider regarding the
threat to national security determination:
For the purposes of this section, the Secretary and
the President shall, in the light of the requirements
of national security and without excluding other
relevant factors, give consideration to domestic
production needed for projected national defense
requirements, the capacity of domestic industries
to meet such requirements, existing and antici-
pated availabilities of the human resources, prod-
ucts, raw materials, and other supplies and
services essential to the national defense, the re-
quirements of growth of such industries and such
supplies and services including the investment, ex-
ploration, and development necessary to assure
such growth, and the importation of goods in terms
of their quantities, availabilities, character, and
use as those affect such industries and the capacity
of the United States to meet national security re-
quirements. In the administration of this section,
the Secretary and the President shall further rec-
ognize the close relation of the economic welfare of
the Nation to our national security, and shall take
into consideration the impact of foreign competi-
tion on the economic welfare of individual domestic
1 The statute includes two instances of subsection
(d), which is a typographical error. We refer to the first
instance of subsection (d).
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USP HOLDINGS, INC. v. US 5
industries; and any substantial unemployment, de-
crease in revenues of government, loss of skills or
investment, or other serious effects resulting from
the displacement of any domestic products by ex-
cessive imports shall be considered, without ex-
cluding other factors, in determining whether such
weakening of our internal economy may impair the
national security.
§ 1862(d) (emphasis added).
II
On April 19, 2017, the Secretary initiated an investiga-
tion under § 1862 to determine the effects of steel imports
on national security. See Publication of a Report on the
Effect of Imports of Steel on the National Security, 85 Fed.
Reg. 40,208 (July 6, 2020). The Secretary provided his re-
port and recommendation to the President on January 11,
2018. See id. at 40,202. The report included the Secre-
tary’s findings:
The Secretary has determined that the displace-
ment of domestic steel by excessive imports and the
consequent adverse impact of those quantities of
steel imports on the economic welfare of the domes-
tic steel industry, along with the circumstance of
global excess capacity in steel, are “weakening our
internal economy” and therefore “threaten to im-
pair” the national security as defined in Section
232.
Id. at 40,224 (emphasis added). In view of these findings,
the Secretary made the following recommendation:
Due to the threat of steel imports to the national
security, as defined in Section 232, the Secretary
recommends that the President take immediate ac-
tion by adjusting the level of imports through quo-
tas or tariffs on steel imported into the United
States, as well as direct additional actions to keep
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6 USP HOLDINGS, INC. v. US
the U.S. steel industry financially viable and able
to meet U.S. national security needs. The quota or
tariff imposed should be sufficient, after accounting
for any exclusions, to enable the U.S. steel produc-
ers to be able to operate at about an 80 percent or
better of the industry’s capacity utilization rate
based on available capacity in 2017.
Id. at 40,225.
The President concurred with the Secretary’s threat
finding and decided to take action in response. He an-
nounced those actions in multiple presidential proclama-
tions between March 8, 2018, and May 19, 2019. The
President issued Proclamation 9705 on March 8, 2018, and
established a twenty-five percent tariff on imports of steel
articles from all countries, except Canada and Mexico, to
take effect March 23, 2018. Proclamation No. 9705, 83 Fed.
Reg. 11,626–27 (Mar. 15, 2018). Proclamation 9705 also
invited “[a]ny country with which [the United States] ha[s]
a security relationship . . . to discuss with the United
States alternative ways to address the threatened impair-
ment of the national security caused by imports from that
country.” Id. at 11,626.
From March 22, 2018, to May 19, 2019, the President
issued a series of additional proclamations excluding vari-
ous countries from the twenty-five percent tariff, again in-
cluding Canada and Mexico. See Proclamation No. 9711 of
March 22, 2018, 83 Fed. Reg. 13,361–62 (Mar. 28, 2018);
Proclamation No. 9740 of April 30, 2018, 83 Fed. Reg.
20,683–84 (May 7, 2018); Proclamation No. 9759 of May 31,
2018, 83 Fed. Reg. 25,857–58 (June 5, 2018); Proclamation
No. 9777 of August 29, 2018, 83 Fed. Reg. 45,025–26 (Sept.
4, 2018); Proclamation No. 9894 of May 19, 2019, 84 Fed.
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USP HOLDINGS, INC. v. US 7
Reg. 23,987 (May 23, 2019). Many other countries re-
mained subject to the tariff. 2
Appellants USP Holdings, Inc., PSK Steel Corporation,
Dayton Parts, LLC, Jordan International Company, and
Borusan Mannesmann Pipe U.S. Inc. (collectively, “USP”
or “Appellants”) are all U.S. corporations primarily en-
gaged in the import of steel products. USP filed suit with
the Trade Court seeking a determination that the Presi-
dent’s and the Secretary’s threat determinations violated
§ 1862, that the imposition of the tariff was therefore un-
lawful, and that the indefinite duration of the tariff also
violated § 1862. As to the threat determination, USP ar-
gued that the statute required a finding of an “impending
threat,” a finding neither the Secretary nor the President
made. J.A. 17. As to the President’s determination to im-
pose a tariff indefinitely, USP challenged only the Presi-
dent’s action because the Secretary did not make any
finding or recommendation as to the duration. USP argued
that the statutory requirement that the President “deter-
mine the nature and duration of the action,”
§ 1862(c)(1)(A)(ii) (emphasis added), required the Presi-
dent to set a termination or end date, which he failed to do.
Appellants alleged they had paid the steel tariffs the Pres-
ident imposed in various amounts ranging from $500,000
to nearly $35 million.
The government moved for judgment on the pleadings,
which the Trade Court granted. See Universal Steel Prods.,
Inc. v. United States, 495 F. Supp. 3d 1336 (Ct. Int’l Trade
2021). The Trade Court held that Proclamation 9705 and
2 On August 10, 2018, the President issued Procla-
mation 9772 increasing the tariffs for steel from Turkey
from twenty-five to fifty percent. Proclamation No. 9772,
83 Fed. Reg. 40,429, ¶ 6 (Aug. 15, 2018). That increase was
the subject of Transpacific Steel LLC v. United States,
4 F.4th 1306 (Fed. Cir. 2021).
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8 USP HOLDINGS, INC. v. US
the subsequent proclamations imposing tariffs did not vio-
late § 1862. However, the court also held that the Secre-
tary’s report was not a final, reviewable action under the
Administrative Procedure Act (“APA”). Judge Katzmann,
joined by Judge Gordon, concurred separately. Judge
Baker concurred in part and dissented in part, arguing
that the court should dismiss the President as a party be-
cause it did not have jurisdiction “to enter relief against the
President” directly. Id. at 1360–61. USP subsequently
filed an unopposed motion for entry of partial judgment un-
der Rule 54(b), which the Trade Court granted.
USP appeals. We have jurisdiction under 28 U.S.C.
§ 1295(a)(5).
DISCUSSION
On appeal, “[w]e review a judgment on the pleadings
from the Court of International Trade de novo.” Forest
Lab’ys, Inc. v. United States, 476 F.3d 877, 881 (Fed. Cir.
2007).
I
We first address the determinations by the President
and the Secretary that steel imports threaten to impair the
national security. USP challenges both determinations.
We consider the reviewability of this determination as to
both the President and the Secretary.
Under the Constitution, Congress has exclusive au-
thority to regulate international commerce. U.S. Const.
art. I, § 8, cl. 3. However, Congress is permitted to delegate
that authority to the Executive under appropriate circum-
stances. See, e.g., A.L.A. Schechter Poultry Corp. v. United
States, 295 U.S. 495, 529–30 (1935). The Supreme Court
has considered the specific delegation of authority to con-
trol imports in § 1862 and upheld the statute. Fed. Energy
Admin. v. Algonquin SNG, Inc., 426 U.S. 548, 559 (1976).
Approving the delegation to the President, the Supreme
Court noted that § 1862 satisfies the “intelligible principle”
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USP HOLDINGS, INC. v. US 9
requirement because “[i]t establishes clear preconditions to
Presidential action—inter alia, a finding by the Secretary
. . . ‘[that imports] threaten to impair the national secu-
rity.’” Id. (quoting § 1862(b)(3)(A)).
The Supreme Court has held that the “President’s ac-
tions may [] be reviewed for constitutionality.” Franklin v.
Massachusetts, 505 U.S. 788, 801 (1992). But USP does not
assert a constitutional challenge here because “claims
simply alleging that the President has exceeded his statu-
tory authority are not ‘constitutional’ claims, subject to ju-
dicial review under the exception recognized in Franklin.”
Dalton v. Specter, 511 U.S. 462, 473–74 (1994).
Nonetheless, claims that the President’s actions vio-
lated the statutory authority delegated to him in § 1862 are
reviewable. Such review is available to determine whether
the President “clear[ly] misconstru[ed]” his statutory au-
thority. Corus Grp. PLC v. Int’l Trade Comm’n, 352 F.3d
1351, 1356 (Fed. Cir. 2003); see Motions Sys. Corp. v. Bush,
437 F.3d 1356, 1361 (Fed. Cir. 2006) (en banc) (explaining
that courts may consider whether “the President has vio-
lated an explicit statutory mandate”). 3
Although we conclude the President’s actions beyond
his statutory authority are reviewable, we must also con-
sider the appropriateness of bringing suit against the
3 But the scope of this review is limited. Silfab So-
lar, Inc. v. United States, 892 F.3d 1340, 1346 (Fed. Cir.
2018) (“[T]here are limited circumstances when a presiden-
tial action may be set aside if the President acts beyond his
statutory authority, but such relief is only rarely availa-
ble.”); Maple Leaf Fish Co. v. United States, 762 F.2d 86, 89
(Fed. Cir. 1985) (“For a court to interpose, there has to be
a clear misconstruction of the governing statute, a signifi-
cant procedural violation, or action outside delegated au-
thority.”).
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10 USP HOLDINGS, INC. v. US
President directly. The Trade Court held that the Presi-
dent himself could be named as a defendant in the com-
plaint because no relief was sought against him. As noted
in Judge Baker’s concurrence at the Trade Court, the Pres-
ident cannot be sued directly to challenge his threat deter-
mination under the statute. As we held in Corus, the
jurisdictional statute here, 28 U.S.C. § 1581(i), “does not
authorize proceedings directly against the President.” Co-
rus, 352 F.3d at 1359. The Trade Court should have dis-
missed the President. Nonetheless, we have jurisdiction to
consider challenges to the President’s actions in suits
against subordinate officials who are charged with imple-
menting the presidential directives, such as the Secretary
of Commerce and Customs. See Corus, 352 F.3d at
1359–60.
USP also alleges that the Secretary’s action violated
the statute. USP argues that the Secretary’s threat finding
constitutes a final agency action that is subject to review
under the APA. See 5 U.S.C. § 704. The Trade Court held
that the Secretary’s report was not a final, reviewable ac-
tion under the APA because the “imposition of tariffs,
which is the action that gave rise to the legal consequences
that Plaintiffs challenge, was an action taken by the Pres-
ident, and not by the Secretary,” such that the report did
not carry legal consequences itself. J.A. 23.
The Trade Court’s decision in this respect is incorrect.
We have held that “an agency recommendation is subject
to judicial review” if it constitutes a final agency action, i.e.,
“if ‘the action . . . mark[s] the consummation of the agency’s
decisionmaking process,’ and ‘the action [is] one by which
rights or obligations have been determined, or from which
legal consequences will flow.’” Corus, 352 F.3d at 1358(quoting Bennett v. Spear, 520 U.S. 154, 177–78 (1997)). In
reference to the first prong, the government does not ap-
pear to dispute that the Secretary’s threat determination
is the consummation of the agency’s decisionmaking pro-
cess.
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USP HOLDINGS, INC. v. US 11
As to the second (legal consequences) prong, we ad-
dressed in Corus a statute where “the President does not
have complete discretion under the statute” and his au-
thority to act under the statute only arose “if the Commis-
sion [made] ‘an affirmative finding regarding serious
injury.’” Corus, 352 F.3d at 1359 (quoting 19 U.S.C.
§ 2253(a)(1)(A)). Because the agency report with an affirm-
ative finding of a serious injury was a predicate to the Pres-
ident’s authority to act in that case, we concluded that
there were sufficient legal consequences for a reviewable,
final agency action. Id. That conclusion was driven in
large part by the Supreme Court’s decision in Bennett,
where the Court held that an opinion by the Fish and Wild-
life Service that had “powerful coercive effect,” “alter[ed]
the legal regime” and had “direct and appreciable legal con-
sequences.” 520 U.S. at 158–59, 169, 178.
Here, the Supreme Court held that an earlier version
of § 1862 “establishes clear preconditions to Presidential
action” that include the Secretary’s finding that imports
threaten to impair national security. Algonquin, 426 U.S.
at 549. And in the specific context of § 1862 as relevant
here, we have explained:
The statute indisputably incorporates a congres-
sional judgment that an affirmative finding of
threat by the Secretary is the predicate for presi-
dential action, while also incorporating a congres-
sional judgment that how to address the problem
identified in the finding is a matter for the Presi-
dent, whose choices about remedy are not con-
strained by the Secretary’s recommendations.
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12 USP HOLDINGS, INC. v. US
Transpacific, 4 F.4th at 1323 (emphasis added). This pre-
condition to presidential action brings this case within Co-
rus. 4
4 Judge Chen suggests that the decision in Corus is
inconsistent with Franklin and Dalton. There is no incon-
sistency. The Supreme Court itself in Bennett (where the
deciding authority could not act without a recommenda-
tion) explicitly distinguished Franklin and Dalton as rest-
ing on the advisory nature of the recommendations:
[T]he Biological Opinion and accompanying Inci-
dental Take Statement alter the legal regime to
which the action agency is subject, authorizing it to
take the endangered species if (but only if) it com-
plies with the prescribed conditions. In this crucial
respect the present case is different from the cases
upon which the Government relies, Franklin v.
Massachusetts, 505 U.S. 788 (1992), and Dalton v.
Specter, 511 U.S. 462 (1994). In the former case,
the agency action in question was the Secretary of
Commerce’s presentation to the President of a re-
port tabulating the results of the decennial census;
our holding that this did not constitute “final
agency action” was premised on the observation
that the report carried “no direct consequences”
and served “more like a tentative recommendation
than a final and binding determination.” 505 U.S.,
at 798. And in the latter case, the agency action in
question was submission to the President of base
closure recommendations by the Secretary of De-
fense and the Defense Base Closure and Realign-
ment Commission; our holding that this was not
“final agency action” followed from the fact that the
recommendations were in no way binding on the
President, who had absolute discretion to accept or
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USP HOLDINGS, INC. v. US 13
reject them. 511 U.S., at 469–471. Unlike the re-
ports in Franklin and Dalton, which were purely
advisory and in no way affected the legal rights of
the relevant actors, the Biological Opinion at issue
here has direct and appreciable legal consequences.
Bennett, 520 U.S. at 178. The Secretary’s finding here is
not merely advisory. As the Supreme Court held in Algon-
quin, the Secretary’s threat finding is a “clear precondi-
tion[] to Presidential action.” 426 U.S. at 559.
Nor is this a situation where the challenge is based on
procedural flaws in Commerce’s approach. The absence of
such procedural flaws was not a condition of presidential
action in Dalton:
The President’s authority to act is not contingent
on the Secretary’s and Commission’s fulfillment of
all the procedural requirements imposed upon
them by the 1990 Act. Nothing in [the relevant
statute] requires the President to determine
whether the Secretary or Commission committed
any procedural violations in making their recom-
mendations, nor does [the relevant statute] pro-
hibit the President from approving
recommendations that are procedurally flawed.
511 U.S. at 476. See Silfab Solar, 892 F.3d at 1347 (con-
firming that presidential action is not invalidated by pro-
cedural problems in a recommendation); Michael Simon
Design, Inc. v. United States, 609 F.3d 1335, 1341 (Fed. Cir.
2010) (same); see also Motions Sys., 437 F.3d at 1362(“[B]ecause the acts of the Trade Representative were not
final actions, the Court of International Trade also lacked
jurisdiction to review those acts. Instead, the Trade Repre-
sentative’s actions were analogous to those of the Secretary
in Franklin, a case in which the Secretary’s report was ‘like
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14 USP HOLDINGS, INC. v. US
The Trade Court’s effort to distinguish Corus—on the
ground that 19 U.S.C. § 2253(a)(1)(A) in Corus “does not
give the President the option to accept or reject the finding
of the Commission” but § 1862(c)(1)(A) (at issue here)
does—is not well taken. Universal Steel, 495 F. Supp. 3d
at 1345. That supposed distinction does not exist. Section
2253, like § 1862, gives the President the option to take no
action, as demonstrated by the requirement that the Pres-
ident send a report to Congress when he decides not to act.
See § 2253(b)(2). Thus, here as in Corus, the President is
not compelled to act upon the recommendation of the Sec-
retary, but an affirmative threat finding is a predicate to
the President’s authority to act under the statute. See
§ 1862(c)(1)(A); § 2253(b)(2); Corus, 352 F.3d at 1359. The
fact that the Secretary’s determination is not reviewable if
the President takes no action does not defeat review of the
Secretary’s determination when the President does act
based on the Secretary’s report finding a threat to national
security. 5
Other cases have acknowledged that a predicate af-
firmative agency finding of an injury or threat, as in Corus,
is reviewable. In Silfab Solar, we distinguished the
a tentative recommendation’ or ‘the ruling of a subordinate
official’ because it was the President who carried the re-
sponsibility of transmitting the final report to Congress.”).
5 As noted in Silfab Solar, review does not extend to
cover procedural violations in the Secretary’s determina-
tions. Silfab Solar, 892 F.3d at 1347 (noting that
“[n]othing in [the relevant statute] requires the President
to determine whether the Secretary or Commission com-
mitted any procedural violations in making their recom-
mendations, nor does [the relevant statute] prohibit the
President from approving recommendations that are pro-
cedurally flawed’’) (alterations in original) (quoting Dalton,
511 U.S. at 476).
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USP HOLDINGS, INC. v. US 15
International Trade Commission’s “affirmative finding re-
garding serious injury or the threat thereof,” which was a
“condition necessary for the President to take action” that
was reviewable under Corus, from a remedy recommenda-
tion that was not a predicate to the President’s authority
to act and was not reviewable. Silfab Solar, 892 F.3d at
1346.
The situation here, where the Secretary’s affirmative
finding of a national security threat is a predicate to presi-
dential authority, is distinguishable from the cases where
the relevant statute lacked this type of condition on presi-
dential action. See, e.g., Dalton, 511 U.S. at 465–66; Frank-
lin, 505 U.S. at 791–92. In the former, the agency action is
reviewable; in the latter, it is not.
We conclude that the Secretary’s threat determination
under § 1862 is a reviewable final action because it is a
predicate to the President’s delegated authority to act un-
der the statute.
II
USP argues that the threat determination by both
the President and the Secretary was contrary to the
clear language of § 1862. 6 USP argues the “threat”
must be “imminent” or “near at hand” and “likely to
happen soon.” Appellants’ Br. at 31, 35–36. In other
words, USP argues that the threat determination “in-
herently requires a serious risk near in time.” Reply
Br. at 11. USP relies on dictionary definitions to argue
that the ordinary meaning of the term “threat” encom-
passes a “sense of likely harm” that is impending and
6 In its brief, USP also argued at length regarding
the timing requirements imposed on the Secretary and
President in § 1862. However, at oral argument, USP’s
counsel admitted that the timing requirements were com-
plied with. Oral Arg. at 1:42–2:51.
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16 USP HOLDINGS, INC. v. US
does not include “improbable, slight or remote risk[s].”
Appellants’ Br. at 30–31 (citing Merriam-Webster
Online Dictionary, https://www.merriam-webster.com/
dictionary/threat; Collins Dictionary, https://www.col-
linsdictionary.com/dictionary/english/threaten).
Section 1862 imposes no imminence requirement. The
factors that the President and Secretary are directed to
consider in making their determinations do not mention
imminence but focus instead on long term health of and ad-
verse effects on the relevant domestic industry. § 1862(d).
The identification of such factors in § 1862 is inconsistent
with the notion that the threat must be imminent.
USP relies on Goss Graphics Systems, Inc. v. United
States, 216 F.3d 1357, 1362 (Fed. Cir. 2000), and Suramer-
ica de Aleaciones Laminadas, C.A. v. United States, 44 F.3d
978, 983 (Fed. Cir. 1994), both of which recognized an im-
minence requirement. Appellants’ Br. at 31. But those
cases involved a different statute, which specifically re-
quired that “the threat of material injury is real and that
actual injury is imminent.” Suramerica, 44 F.3d at 983
(quoting 19 U.S.C. § 1677(7)(F)(ii) (1993)); Goss, 216 F.3d
at 1362. That statute has no relevance here. If anything,
it shows that when Congress wanted to impose an immi-
nence requirement, it said so explicitly.
Because § 1862 provides no basis to impose an immi-
nence requirement, USP’s argument that the President’s
and the Secretary’s determinations violated the statute is
unsupported.
USP does not challenge the President’s determination
for any reason other than the alleged statutory violation. 7
7 The President’s actions “are not reviewable under
the APA” because “the President is not an ‘agency.’” Dal-
ton, 511 U.S. at 470; see Franklin, 505 U.S. at 796 (“We
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USP HOLDINGS, INC. v. US 17
Nor could it because § 1862 commits to the President the
discretion to “determine whether [he] concurs” with the
Secretary’s threat finding. § 1862(c)(1)(A)(i). Such deter-
minations committed to the President’s discretion are be-
yond our jurisdiction to review. See Dalton, 511 U.S. at
474; United States v. George S. Bush & Co., 310 U.S. 371,
379–80 (1940); Silfab Solar, 892 F.3d at 1349. Because
§ 1862(c) grants the President discretion, how he “chooses
to exercise the discretion Congress has granted him is not
a matter for our review.” Dalton, 511 U.S. at 476.
USP separately criticizes the Secretary’s threat deter-
mination as unsupported by substantial evidence. But the
Secretary’s threat determination is not reviewable under
the APA arbitrary and capricious standard. This is so be-
cause the standard governing the Secretary’s action is the
same as for the President’s action (i.e., the existence of a
“threat”), and the President’s action is only reviewable for
compliance with the statute. Under such circumstances,
the threat determinations of the President and the Secre-
tary are reviewed together as a single step using an identi-
cal test under the Supreme Court’s decision in Bush. As
explained in Bush, where the Court addressed the require-
ments of a statute similar to § 1862, “the action of the Com-
mission and the President is but one stage of the legislative
process.” 310 U.S. at 379. The Supreme Court in Bush
applied the same deference to both the Tariff Commission’s
report and the President’s determination. Id. at 380. We
must do so here as well. The Secretary’s threat
hold that the final action complained of is that of the Pres-
ident, and the President is not an agency within the mean-
ing of the Act. Accordingly, there is no final agency action
that may be reviewed under the APA standards.”); Motions
Sys. Corp., 437 F.3d at 1359 (“Motion Systems acknowl-
edges that it cannot challenge the President’s actions un-
der the APA because the President is not an ‘agency.’”).
Case: 21-1726 Document: 62 Page: 18 Filed: 06/09/2022
18 USP HOLDINGS, INC. v. US
determination is not subject to review except to determine
compliance with the statute.
III
USP alleges that the President failed to satisfy the “na-
ture and duration” requirement in § 1862(c)(1)(A) with
Proclamation 9705. Unlike the threat determination,
which included the Secretary’s predicate finding, the na-
ture and duration of the action is committed to the Presi-
dent, and the Secretary plays no part. § 1862(c). Thus, we
review only the President’s action. As discussed above, we
review the President’s action for compliance with the stat-
utory authority delegated to him by Congress.
The statute here grants the President discretion to “de-
termine the nature and duration of the action that, in the
judgment of the President, must be taken to adjust the im-
ports” to address imports that threaten national security.
§ 1862(c)(1)(A)(ii). 8 USP argues that the President’s action
failed to satisfy the requirements of § 1862(c)(1)(A) because
“Proclamation 9705 did not indicate any kind of time period
during which these import adjustments would last” and
failed to set an end date or other criteria. Appellants’ Br.
at 29. The statute includes no limits on the duration of the
action.
This court recently addressed the President’s authority
to act under § 1862(c) in Transpacific. There, following the
same investigation, report, and Proclamation 9705 for steel
8 USP suggests that the change in the statutory text
in 1988 from “take such action, and for such time” to “de-
termine the nature and duration of the action” indicates an
intention to restrict the President’s authority. Appellants’
Br. at 20–28; Appellees’ Br. at 30. In Transpacific, we held
that this change was “stylistic.” 4 F.4th at 1326, 1329
(quoting Jama v. Immigr. & Customs Enf’t, 543 U.S. 335,
343 n.3 (2005)).
Case: 21-1726 Document: 62 Page: 19 Filed: 06/09/2022
USP HOLDINGS, INC. v. US 19
imports at issue here, the President issued a later procla-
mation that doubled the tariff on steel imports from Tur-
key. Transpacific, 4 F.4th at 1309–10. Transpacific
challenged whether the timing requirements in
§ 1862(c)(1) “permit[] the President to announce a continu-
ing course of action within the statutory time period and
then modify the initial implementing steps in line with the
announced plan of action by adding impositions on imports
to achieve the stated implementation objective.” Id. at
1318–19. This court upheld the increased tariff on Turkish
steel and explained:
[W]e conclude that the best reading of the statutory
text of § 1862 . . . is that the authority of the Presi-
dent includes authority to adopt and carry out a
plan of action that allows adjustments of specific
measures, including by increasing import re-
strictions, in carrying out the plan over time.
Id. at 1319 (emphasis added). Thus, under Transpacific,
§ 1862(c)(1)(A) permits the President to adjust actions af-
ter taking the “first step” in a continuing course of action.
83 Fed. Reg. 11,625, ¶ 11.
Given our holding that the President has the “author-
ity to adopt and carry out a plan of action” and to adjust his
ongoing approach under § 1862(c), we see no reason why
the duration requirement in § 1862(c)(1)(A) must be fixed
by an end date or termination criteria. Transpacific,
4 F.4th at 1319. If the President has authority to under-
take a plan of action that includes adjusting tariffs over
time, then the President must also have authority to un-
dertake a plan of action that includes imposing a tariff in-
definitely and removing it at a later time once the
President determines that it is no longer necessary. Sec-
tion 1862 commits the determination of the “nature and
duration of the action” to the “judgment of the President.”
§ 1862(c)(1)(A)(ii). And Congress intended that authority
to be “continuing.” H.R. Rep. No. 84-745, at 7 (1955). The
Case: 21-1726 Document: 62 Page: 20 Filed: 06/09/2022
20 USP HOLDINGS, INC. v. US
statute does not limit the President’s authority to estab-
lishing a set term, and the proclamations here do not vio-
late the statute. The amendments to § 1862 in 1988
imposing strict time limits on the President’s action were
enacted in response to prior failures to act decisively and
in a timely manner and do not suggest that the President
lacks authority to revise his actions at a later time.
USP does not argue that the President’s action, if con-
sistent with the statute, is impermissible. Again, this is a
matter committed to the President’s discretion, and the
President’s exercise of his judgment to “determine the na-
ture and duration” of the action he believes necessary is
beyond the scope of our review. See Dalton, 511 U.S. at
474; Bush, 310 U.S. at 379–80; Transpacific, 4 F.4th at
1319; Silfab Solar, 892 F.3d at 1349.
CONCLUSION
We have authority to review the determinations by
both the President and the Secretary that steel imports
threaten national security and the determination by the
President to set a steel tariff for an indefinite duration. We
find no violations of the statute.
AFFIRMED
COSTS
No costs.
Case: 21-1726 Document: 62 Page: 21 Filed: 06/09/2022
United States Court of Appeals
for the Federal Circuit
______________________
USP HOLDINGS, INC., SUBSTITUTED FOR
UNIVERSAL STEEL PRODUCTS, INC., PSK STEEL
CORPORATION, DAYTON PARTS, LLC, BORUSAN
MANNESMANN PIPE U.S. INC., JORDAN
INTERNATIONAL COMPANY,
Plaintiffs-Appellants
v.
UNITED STATES, JOSEPH R. BIDEN, JR.,
PRESIDENT OF THE UNITED STATES, GINA M.
RAIMONDO, SECRETARY OF COMMERCE, TROY
MILLER, SENIOR OFFICIAL PERFORMING THE
DUTIES OF THE COMMISSIONER FOR U.S.
CUSTOMS AND BORDER PROTECTION,
Defendants-Appellees
______________________
2021-1726
______________________
Appeal from the United States Court of International
Trade in No. 1:19-cv-00209-GSK-MMB-LMG, Senior Judge
Leo M. Gordon, Judge Gary S. Katzmann, Judge M. Miller
Baker.
______________________
CHEN, Circuit Judge, additional views.
As to the question of whether the Commerce Secre-
tary’s threat determination under 19 U.S.C. § 1862 is a ju-
dicially reviewable final agency action, I agree with the
Case: 21-1726 Document: 62 Page: 22 Filed: 06/09/2022
2 USP HOLDINGS, INC. v. US
panel’s decision because the relevant facts are essentially
the same as facts in Corus Group. Corus Grp. PLC v. Int’l
Trade Comm’n, 352 F.3d 1351, 1359 (Fed. Cir. 2003). How-
ever, I write separately to express concern that Corus
Group is inconsistent with Supreme Court precedents on
the non-finality of a Secretary’s or Commission’s tentative
report and recommendation to the President.
The “core question” for determining finality is “whether
the agency has completed its decisionmaking process, and
whether the result of that process is one that will directly
affect the parties.” Dalton v. Specter, 511 U.S. 462, 470
(1994) (quoting Franklin v. Massachusetts, 505 U.S. 788,
797 (1992)). In both Franklin and Dalton, the Supreme
Court held that the Secretary’s or Commission’s report and
recommendations to the President did not constitute final
agency action, reviewable under the APA, because those
recommendations were not themselves binding actions
that directly affected the parties.
In Franklin, the Commerce Secretary’s decennial cen-
sus report had “no direct effect on reapportionment until
the President [took] affirmative steps to calculate and
transmit the apportionment to Congress.” 505 U.S. at 799.
The President was not bound by the data in the Secretary’s
report; rather, the decennial census was a “moving target”
subject to correction by the President. Id. at 797. The
Court observed that the report, therefore, “carrie[d] no di-
rect consequences for the reapportionment of Representa-
tives” and “serve[d] more like a tentative recommendation
than a final binding determination,” like a “ruling of a sub-
ordinate official.” Id. at 798 (internal quotation marks
omitted). The Court distinguished the situation from Ja-
pan Whaling Ass’n, where the Secretary’s certification “au-
tomatically triggered sanctions . . . regardless of any
discretionary action the President himself decided to take.”
Id. at 798–99 (citing 478 U.S. 221 (1996)). Under Franklin,
a Secretary’s report and recommendation to the President
is not reviewable final agency action if presidential action
Case: 21-1726 Document: 62 Page: 23 Filed: 06/09/2022
USP HOLDINGS, INC. v. US 3
is necessary to cause the ultimate entitlement or impact on
rights and where the President has discretion to revise the
Secretary’s findings.
In Dalton, the Supreme Court again found that recom-
mendations to the President were not reviewable final
agency action. With the Defense Base Closure and Rea-
lignment Act of 1990, Congress designed an elaborate se-
lection process for the fair and timely closure and
realignment of military bases. Dalton, 511 U.S. at 464.
The process involved the Defense Base Closure and Rea-
lignment Commission submitting a report that recom-
mended base closings and realignments. Id. at 465. The
President was required to either approve or disapprove the
Commission’s recommendations “in their entirety.” Id. If
the President disapproved, the Commission could prepare
a new report to submit to the President. Id. If the Presi-
dent again disapproved, no bases could be closed that year.
Id. In Dalton, the Commission had recommended closing
the Philadelphia Naval Shipyard and the President ap-
proved. Id. at 466. The Supreme Court held that the Com-
mission’s report was unreviewable because, as in Franklin,
the report carried “no direct consequences for base clos-
ings.” Id. at 469. The Court found “immaterial” the fact
that the President was constrained to either entirely ap-
proving or disapproving the Commission’s recommenda-
tion. Id. at 470–71. The Court emphasized: “Without the
President’s approval, no bases are closed under the Act”
and, furthermore, “the Act, in turn, does not by its terms
circumscribe the President’s discretion to approve or disap-
prove the Commission’s report.” Id. at 470. “[M]ore funda-
mentally,” with regard to the action that “will directly
affect the parties,” it is “the President, not the Commission,
[who] takes the final action that affects the military instal-
lations.” Id. (internal quotation marks omitted). Dalton,
in short, reaffirmed that a report or recommendation to the
President is not a final agency action if no direct
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4 USP HOLDINGS, INC. v. US
consequences occur without the President’s action and if
the President has discretion in whether to take action.
Setting aside Corus Group, our case would be a
straightforward application of Franklin and Dalton. Be-
fore any action “to adjust the imports of the article and its
derivatives” is taken, the President must concur with the
Secretary of Commerce’s finding that the imported article
threatens to impair the national security and determine
the appropriate duration or action. 19 U.S.C. §
1862(c)(1)(A). But the President can choose to disagree
with the Secretary’s findings and refuse to take action. Id.§ 1862(c)(1)(A)(i) (“whether the President concurs with the
finding of the Secretary”); id. § 1862(c)(1)(A)(ii) (“if the
President concurs”); id. § 1862(c)(2) (“the President shall
submit to the Congress a written statement of the reasons
why the President has . . . refused to take action”). In
which case, there are no direct consequences from the Sec-
retary’s report and recommendation regarding the im-
ported article and the imposition of tariffs. Further, even
when the President concurs and takes action, there are al-
most no limits to the President’s discretion except that the
President give consideration to certain factors—more dis-
cretion than the President had in Dalton. See Oral Arg.
17:30–17:49; 19 U.S.C. § 1862(d) (listing factors the Presi-
dent “shall . . . give consideration to”). Because the Secre-
tary’s report and recommendation by themselves carry no
direct consequences for or effect on any party, under Frank-
lin and Dalton, the report and recommendation should con-
stitute unreviewable, non-final agency action.
But in Corus Group, this court held that the Commis-
sion’s report and recommendation under a very similar
statute, 19 U.S.C. § 2253, was reviewable because “the
statute only gives the President authority to impose a duty
if the Commission makes ‘an affirmative finding regarding
serious injury.’” Corus Grp., 352 F.3d at 1359 (quoting 19
U.S.C. § 2253(a)(1)(A)). The court held that this “affirma-
tive finding” prerequisite to presidential action meant the
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USP HOLDINGS, INC. v. US 5
Commission’s report and recommendation had “direct and
appreciable legal consequences” and the President’s action
was nondiscretionary, thus making the Commission’s re-
port and recommendation reviewable. Id. at 1358–59. Be-
cause Corus Group held as such, and because the statute
in this case is identically structured, where the Commerce
Secretary must make an affirmative finding of a threat-
ened impairment to national security before the President
can act, I join the panel opinion. Nevertheless, by treating
one particular type of Secretary or Commission recommen-
dation report differently from all other Secretary or Com-
mission recommendation reports for purposes of
reviewability, I view Corus Group’s reasoning inconsistent
with the analysis in Dalton and Franklin. Dalton, in par-
ticular, demonstrates the fact that the President lacks the
authority to act (to close bases) absent prerequisite find-
ings and recommendation by a Secretary or Commission is
immaterial to determining whether the Secretary’s or
Commission’s findings and recommendation is a final ac-
tion. 511 U.S. at 470–71. The Supreme Court’s test of
whether the action “will directly affect the parties” does not
involve looking at whether the President’s authority to act
is affected. Id. at 469.
Nor does the Supreme Court’s Bennett decision, which
Corus Group relied on, suggest otherwise. Corus Grp., 352
F.3d at 1359 (“We conclude also that this case is controlled
by Bennett, rather than by Dalton and Franklin . . . .”). Un-
like Franklin and Dalton, Bennett did not involve an
agency making a tentative recommendation to the Presi-
dent but a determination of one agency’s entitlement by an-
other. In Bennett, the Fish and Wildlife Services (FWS)
issued a determination on another agency’s actions and
their impact on threatened and endangered species of ani-
mals. FWS’s determination created a legal burden and
specific liabilities that, thereby, determined the other
agency’s rights and obligations. Bennett v. Spear, 520 U.S.
154, 169–70 (1997) (explaining that once a biological
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6 USP HOLDINGS, INC. v. US
opinion issues, the agency subject to the opinion “bears the
burden of ‘articulating in its administrative record its rea-
sons for disagreeing with the conclusions of a biological
opinion’” and though free to disregard the biological opin-
ion, the agency “does so at its own peril” subject to substan-
tial civil and criminal penalties including imprisonment);
id. at 178 (finding the action is “one by which rights or ob-
ligations have been determined” because the “Biological
Opinion and accompanying Incidental Take Statement al-
ter the legal regime to which the action agency is subject,
authorizing it to take the endangered species if (but only if)
it complies with the prescribed conditions”). Accordingly,
the Supreme Court found that FWS’s determination was a
final agency action, specifically distinguishing it from the
reports and recommendations to the President in Franklin
and Dalton, which were “more like a tentative recommen-
dation than a final and binding determination.” Id. at 177–
78 (internal quotation marks omitted).
We have applied Franklin and Dalton, in other cases
involving tentative reports and recommendations to the
President, to find that the reports and recommendations
are non-final and thus unreviewable. In our en banc deci-
sion in Motions Systems, we held that the acts of the Trade
Representative under 19 U.S.C. § 2451, involving recom-
mendations on the prevention or remedy of market disrup-
tion, which the President had ultimate discretion over,
were not final actions. Motions Sys. Corp. v. Bush, 437 F.3d
1356, 1359, 1362 (Fed. Cir. 2006) (en banc). Similarly, in
Michael Simon Design, the International Trade Commis-
sion’s report and recommendations to the President re-
garding modifications to the Harmonized Tariff Schedule
of the United States (HTSUS) were non-final and unre-
viewable. Michael Simon Design, Inc. v. United States, 609
F.3d 1335, 1338–40 (Fed. Cir. 2010). Like in our case, the
report and recommendations were “purely advisory” and
did not “contain terms or conditions that circumscribe the
President’s authority to act,” “limit the President’s
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USP HOLDINGS, INC. v. US 7
potential responses,” nor “directly modify the HTSUS” and,
therefore, did not “directly impact legal rights or alter any
legal regime”—even if 19. U.S.C. § 3006 required the Pres-
ident to receive recommendations from the Commission be-
fore proclaiming any modification. Id. at 1336, 1339–40;
19 U.S.C. § 3006(a) (“The President may proclaim modifi-
cations, based on the recommendations by the Commission
. . . .”).
Accordingly, although I agree that this panel is bound
by Corus Group, I write to express concern that Corus
Group was, and our decision in this case is, incorrectly de-
cided under Supreme Court precedents Franklin and Dal-
ton.