Slip Op. 19-142

UNITED STATES COURT OF INTERNATIONAL TRADE 

Before: Claire R. Kelly, Gary S. 

Katzmann, and Jane A. Restani, 

Judges 

Court No. 19-00009 

OPINION AND ORDER 

[Denying Defendants’ motion to dismiss Plaintiff’s amended complaint for failure to state 

a claim for which relief may be granted. Judge Katzmann files a separate concurrence.] 

 Dated: November 15, 2019 

Matthew Nosher Nolan and Russell A. Semmel, Arent Fox LLP, of Washington, DC, 

argued for plaintiff. With them on the brief were Nancy A. Noonan, Diana Dimitriuc Quaia, 

and Aman Kakar. 

Tara K. Hogan, Assistant Director, Commercial Litigation Branch, Civil Division, U.S. 

Department of Justice, of Washington, DC, and Stephen C. Tosini, Senior Trial Counsel, 

Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, 

DC, argued for defendants. With them on the brief were Joseph H. Hunt, Assistant 

Attorney General, Jeanne E. Davidson, Director, and Joshua E. Kurland, Trial Attorney. 

Kelly, Judge: Transpacific Steel LLC (“Transpacific” or “Plaintiff”) seeks a refund 

of the difference between the 50 percent tariff imposed on certain steel products (“steel 

articles”) from the Republic of Turkey (“Turkey”), pursuant to Presidential Proclamation 

9772, issued on August 10, 2018, and the 25 percent tariff imposed on steel articles from 

certain other countries. See Proclamation 9705 of March 8, 2018, 83 Fed. Reg. 11,625 

(Mar. 15, 2018) (“Proclamation 9705”); Proclamation 9772 of August 10, 2018, 83 Fed. 

TRANSPACIFIC STEEL LLC, 

Plaintiff, 

v. 

UNITED STATES ET AL., 

Defendants. 
Court No. 19-00009 Page 2 

Reg. 40,429 (Aug. 15, 2018) (“Proclamation 9772”); Am. Compl. ¶¶ 2, 4, Prayer for Relief, 

Apr. 2, 2019, ECF No. 19 (“Am. Compl.”).1 Plaintiff contends relief is warranted because 

Proclamation 9772 lacks a nexus to national security as statutorily required, fails to follow 

mandated procedures within the statute, arbitrarily distinguishes importers of steel 

products from Turkey and importers of steel products from all other countries in violation 

of equal protection under the Fifth Amendment, and violates Fifth Amendment Due 

Process guarantees. Am. Compl. ¶¶ 3, 70; see also Pl.’s [Transpacific] Resp. Opp’n 

Defs.’ Mot. Dismiss, May 29, 2019, ECF No. 24 (“Pl.’s Resp. Br.”). Defendants move to 

dismiss Plaintiff’s Amended Complaint pursuant U.S. Court of International Trade 

(“USCIT”) Rule 12(b)(6) for failure to state a claim for which relief may be granted. Defs.’ 

Mot. Dismiss for Failure State Cl., Apr. 3, 2019, ECF No. 20 (“Defs.’ Br.”). Defendants’ 

motion to dismiss is denied. Based upon the facts alleged, Plaintiff’s arguments that the 

President failed to follow the procedure set forth in the statute and, further, that singling 

out importers from Turkey violated the equal protection guarantees under the U.S. 

Constitution, support its claim for a refund and defeat Defendants’ motion to dismiss. See 

Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009); see also USCIT R. 12(b)(6). 

 

1

 Plaintiff previously also sought declaratory and injunctive relief from the implementation of 

Proclamation 9772. However, on May 21, 2019, the additional tariffs imposed by Proclamation 

9772 on Turkey were lifted. See Pl.’s Resp. Br. at 1; see also Defs.’ Reply Supp. Mot. Dismiss at 

2 n.1, July 10, 2019, ECF No. 27 (“Defs.’ Reply Br.”) (citing Proclamation 9886 of May 16, 2019, 

84 Fed. Reg. 23,421, 23,421 (May 21, 2019)). The parties agree that the case is not moot, 

because Plaintiff still seeks a refund. See Pl.’s Resp. Br. at 1; Defs.’ Reply Br. at 2 n.1. 
Court No. 19-00009 Page 3 

BACKGROUND 

Section 232 of the Trade Expansion Act of 1962, as amended 19 U.S.C. § 1862 

(2012),2 (“section 232”) delineates the particular circumstances of when and how the 

President may take action to address imports that threaten to impair the national security 

of the United States. The statute also sets forth the conduct and timing of the antecedent 

investigation into the potential national security threat. 

Specifically, section 232 authorizes the Secretary of Commerce to commence an 

investigation “to determine the effects on the national security of imports” of any article, 

and to consult with the Secretary of Defense and other officials. 19 U.S.C. § 1862(b). 

Within 270 days, the Secretary of Commerce must then report the investigation’s findings 

to the President. See 19 U.S.C. § 1862(b)(3)(A).3 In that report, the Secretary must 

advise the President if “such article is being imported into the United States in such 

quantities or under such circumstances as to threaten to impair the national security[.]” 

Id. Within 90 days after receiving the Secretary’s affirmative findings, the President must 

determine whether he or she concurs. 19 U.S.C. § 1862(c)(1)(A)(i). Should he or she 

 

2

 Further citations to the Tariff Expansion Act of 1962, as amended, are to the relevant provisions 

of the United States Code, 2012 edition. 

3

 The statute further provides for consultation during the investigation process. To this end, the 

Secretary of Commerce must “immediately provide notice to the Secretary of Defense” of the 

investigation’s commencement and, in the course of the investigation, “consult with the Secretary 

of Defense regarding the methodological and policy questions raised[.]” 19 U.S.C. 

§§ 1862(b)(1)(B), (b)(2)(A)(i). The Secretary of Commerce must also “(ii) seek information and 

advice from, and consult with, appropriate officers of the United States, and (iii) if it is appropriate 

and after reasonable notice, hold public hearings or otherwise afford interested parties an 

opportunity to present information and advice relevant to such investigation.” 19 U.S.C. § 

1862(b)(2)(A)(ii)–(iii). If requested by the Secretary of Commerce, the Secretary of Defense shall 

also provide the Secretary of Commerce “an assessment of the defense requirements of any 

article that is the subject of an investigation conducted under this section.” 19 U.S.C. 

§ 1862(b)(2)(B). 
Court No. 19-00009 Page 4 

concur, the statute empowers the President to act to end that threat to national security. 

19 U.S.C. § 1862(c)(1)(A)(ii). In doing so, the President must “determine the nature and 

duration of the action” that in his or her judgment “must be taken to adjust the imports of 

the article and its derivatives so that such imports will not threaten to impair the national 

security.” Id. If, and once, the President decides to act, he or she must implement the 

action within 15 days. 19 U.S.C. § 1862(c)(1)(B). 

 On April 19, 2017, the Secretary of Commerce initiated an investigation to 

determine the effect of steel imports on national security. See Notice Request for Public 

Comments and Public Hearing on Section 232 National Security Investigation of Imports 

of Steel, 82 Fed. Reg. 19,205, 19,205 (Bureau Indus. & Sec. Apr. 26, 2017) (background). 

The Secretary issued his report and recommendation to the President on January 11, 

2018 (“Steel Report” or “January 11 Report”), within the time frame provided under 

section 232. See Am. Compl. at Ex. 4 (BUREAU OF INDUS. & SECURITY, U.S. DEP’T OF 

COMMERCE, THE EFFECT OF IMPORTS ON THE NATIONAL SECURITY (2018) (“STEEL REPORT”)). 

On March 8, 2018, within 90 days of receiving the report, the President issued 

Proclamation 9705 imposing a 25 percent tariff on imports of steel articles from all 

countries, including Turkey, effective March 23, 2018.4 See Am. Compl. at Ex. 1. 

 

4

 In addition to remedial action of adjusting imports through tariff increases, section 1862(c)(3)(A) 

also grants the President authority to negotiate trade agreements to reduce the number of 

imports. 19 U.S.C. § 1862(c)(3)(A). Stemming from the January 11 Report, the President 

pursued negotiations with certain countries to reach an agreement that “limits or restricts the 

importation into . . . the United States” of steel articles, and successfully reached agreement with 

certain countries within the statutorily prescribed 180-day period. See 19 U.S.C. § 1862(c)(3)(A). 

(footnote continued) 
Court No. 19-00009 Page 5 

On August 10, 2018, the President issued Proclamation 9772, which imposed a 

50 percent tariff on steel articles imported from Turkey as of August 13, 2018. See 

Proclamation 9772, 83 Fed. Reg. at 40,429. 

JURISDICTION AND STANDARD OF REVIEW 

This Court has jurisdiction under 28 U.S.C. § 1581(i)(2), (4) (2012). 

The court will dismiss a complaint for failure to state a claim if it fails to allege facts 

“plausibly suggesting (not merely consistent with)” a showing that entitles the party to 

relief. Bank of Guam v. United States, 578 F.3d 1318, 1326 (Fed. Cir. 2009) (quoting Bell 

Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)). “Factual allegations must be enough 

to raise a right to relief above the speculative level,” Twombly, 550 U.S. at 555, and 

“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 

statements, do not suffice.” Iqbal, 556 U.S. at 678 (citation omitted). In deciding a motion 

to dismiss, the court “must accept as true the complaint's undisputed factual allegations 

and should construe them in a light most favorable to the plaintiff.” Cambridge v. United 

States, 558 F.3d 1331, 1335 (Fed. Cir. 2009). 

 

The President adjusted action accordingly and published timely notice in the Federal Register, 

issuing three Presidential Proclamations that announced agreements on alternate measures or 

deferred imposition of the tariffs on certain countries pending negotiation. See Proclamation 9711 

of March 22, 2018, 83 Fed. Reg. 13,361, 13,361 (Mar. 28, 2018) (reporting ongoing negotiations 

with Canada, Mexico, the Commonwealth of Australia (“Australia”), the Argentine Republic 

(“Argentina”), the Republic of Korea (“South Korea”), the Federative Republic of Brazil (“Brazil”), 

and the European Union member countries and deferring the tariff on steel articles from those 

countries); Proclamation 9740 of April 30, 2018, 83 Fed. Reg. 20,683, 20,683–84 (May 7, 2018) 

(limiting the temporary exemption for Canada, Mexico, and European Union member countries 

until June 1, 2018 and announcing an agreement with South Korea on a range of alternative 

measures, including a quota); Proclamation 9759 of May 31, 2018, 83 Fed. Reg. 25,857, 25,857–

58 (June 5, 2018) (exempting from the steel tariffs Argentina, Australia, and Brazil, which had 

reached agreement with the United States on alternative measures). 
Court No. 19-00009 Page 6 

DISCUSSION

Plaintiff has stated a claim for which relief may be granted. Plaintiff’s factual 

allegations, which appear to be undisputed, support its claim to a refund of excess duties. 

Plaintiff alleges facts to demonstrate that, at the very least, the President issued 

Proclamation 9772 in violation of the equal protection component of the Fifth Amendment 

and without observing the statutorily required procedure under section 232. Either theory 

defeats Defendants’ motion to dismiss. 

Plaintiff’s arguments that Proclamation 9772 violates equal protection are sufficient 

to defeat Defendants’ motion to dismiss. “[A] classification neither involving fundamental 

rights nor proceeding along suspect lines . . . cannot run afoul of the Equal Protection 

Clause if there is a rational relationship between the disparity of treatment and some 

legitimate governmental purpose.”5 Armour v. City of Indianapolis, 566 U.S. 673, 680 

(2012) (quotation marks and citation omitted). Defendants do not have a high hurdle to 

clear to survive a rational basis challenge—Defendants merely need to articulate any set 

of facts that rationally justify a distinction in classification, irrespective of whether the 

President himself actually justified his action at the time it was taken. See Nordlinger v. 

Hahn, 505 U.S. 1, 15 (1992). Especially in the area of economic regulation, this standard 

is forgiving. See Armour v. City of Indianapolis, 566 U.S. at 680 (noting “where ‘ordinary 

commercial transactions’ are at issue, rational basis review requires deference to 

 

5

 Although the Fifth Amendment does not contain a formally recognized equal protection clause, 

the Supreme Court has recognized an implicit protection where there exists "discrimination that 

is so unjustifiable as to be violative of due process." Sessions v. Morales-Santana, 137 S. Ct. 

1678, 1686 n.1 (2017) (citing Weinberger v. Wiesenfeld, 420 U.S. 636, 638, n.2 (1975)). This 

implicit protection is treated "precisely the same as equal protection claims under the Fourteenth 

Amendment." Id. (citations and internal quotation marks omitted) (alteration in original). 
Court No. 19-00009 Page 7 

reasonable underlying legislative judgments”) (citations omitted); Minnesota v. Clover 

Leaf Creamery Co., 449 U.S. 456, 469 (1981) (sustaining legislation treating plastic and 

non-plastic milk containers differently). Given this standard, it is difficult to imagine 

Presidential action in connection with section 232 where one would be at a loss to conjure 

a rational justification; yet, the reality of this case proves otherwise. Defendants submit 

no set of facts that justify identifying importers of steel from Turkey as a class of one. 

In their motion to dismiss, Defendants point to a general need to increase the 

tariffs. See Defs.’ Br. at 17–18; Defs.’ Reply Br. at 17. A general need to increase tariffs, 

however, does not explain the singular imposition of a 50 percent tariff on Turkish steel 

articles. Defendants also attempt to distinguish imports from Turkey as a class by 

referring to “the relatively high import volumes” of steel from Turkey and the 14 antidumping and countervailing duty (“AD/CVD”) orders against its steel exports. Defs.’ 

Reply Supp. Mot. Dismiss at 17, July 10, 2019, ECF No. 27 (“Defs.’ Reply Br.”); see also 

Defs.’ Br. at 17–18, 25. However, the Steel Report identifies five countries with higher 

steel import volumes than Turkey.6 See STEEL REPORT at 28. Further, the 14 AD/CVD 

orders on Turkish steel products do not make Turkey remarkable but typical, compared, 

for example, to China’s 28 AD/CVD orders, India’s 15 AD/CVD orders, Japan’s 14 

AD/CVD orders, and Taiwan’s 13 AD/CVD orders. See STEEL REPORT at App. K. 

Defendants’ contention, that it is rational to “confront the national security threat from 

 

6

 The President entered into negotiations with four of those countries—Canada, South Korea, 

Brazil, and Mexico—and reached agreements on alternative measures, thereby exempting those 

countries’ steel exports. See Proclamation 9740, 83 Fed. Reg. at 20,683–84; Proclamation 9759, 

83 Fed. Reg. at 25,857–58. With respect to Russia, which exported nearly one million metric tons 

of steel more than Turkey to the United States in 2017, the 25 percent tariff remains in effect. See 

STEEL REPORT at 28. 
Court No. 19-00009 Page 8 

imports from all countries by specifically targeting countries” with high import volumes or 

numerous AD/CVD orders, does not explain what differentiates Turkey from other 

similarly situated countries—for the President to target alone. Defs.’ Reply Br. at 17–18; 

see Vill. of Willowbrook v. Olech, 528 U.S. 562, 565 (2000) (holding that plaintiff 

homeowner could assert an equal protection claim where village demanded a 33-foot 

easement, while requiring 15-foot easements from similarly situated property owners). At 

oral argument, when pressed on this question, counsel for Defendants offered other 

possible reasons but did not connect them to Turkey. Oral Arg. at 1:01:59–1:02:38 

(arguing it would be appropriate for the President to differentiate countries based on 

anticipated increased import volumes or currency devaluation). Whatever the President’s 

real motivation may be, it is not this court’s concern.7 See FCC v. Beach Commc’ns, Inc., 

508 U.S. 307, 315 (1993) (“[I]t is entirely irrelevant for constitutional purposes whether 

the conceived reason for the challenged distinction actually motivated the [decision 

maker].”).8 But we also cannot sustain a classification for which there is no offered—or 

even possible—rational justification tethered to the statute. See id. at 312–13. 

 

7

 Plaintiff points to the President’s comment on social media: “I have just authorized a doubling of 

Tariffs on Steel and Aluminum with respect to Turkey as their currency, the Turkish Lira, slides 

rapidly downward against our very strong Dollar! Aluminum will now be 20% and Steel 50%. Our 

relations with Turkey are not good at this time!” See Pl.’s Resp. Br. at 35; Am. Compl. at Ex. 10. 

The President’s views of the United States’ relationship with Turkey do not weigh in our analysis. 

8

 Although Plaintiff and Defendants agree that the rational basis test applies, see Defs.’ Br. at 23 

and Pl.’s Resp. Br. at 30, the parties do not agree on the content of the rationality standard. 

Plaintiff asserts that the standard of rationality must have “some footing in the realities of the 

subject addressed by the legislation.” Pl.’s Resp. Br at 30 (quoting Heller v. Doe, 509 U.S. 312, 

321 (1993)). Defendant contends that a less searching standard applies, arguing that the 

(footnote continued) 
Court No. 19-00009 Page 9 

Plaintiff also alleges facts that demonstrate that the President issued Proclamation 

9772 in violation of the procedure set forth by Congress. The statute’s clear and 

unambiguous steps—of investigation, consultation, report, consideration, and action—

require timely action from the Secretary of Commerce and the President. However, the 

President did not issue Proclamation 9772 following this procedural path. The Secretary 

of Commerce submitted his report to the President on January 11, 2018, which launched 

a 90-day period for the President to act. The President acted on March 8, 2018 by 

imposing a 25 percent tariff on steel articles through Proclamation 9705. See 19 U.S.C. 

§ 1862(c)(1)(B). However, the President issued Proclamation 9772 on August 13, 2018, 

far beyond the 90 days permitted to decide to act and the further 15 days allowed for 

implementation, to impose a 50 percent tariff on steel articles from Turkey. See id. The 

Secretary’s January 11 Report, which serves as the foundation for Proclamation 9705, 

does not serve as the foundation for Proclamation 9772. 

The attempt to justify Proclamation 9772 as a continuation or modification of 

Proclamation 9705 fails. See Defs.’ Br. at 20–23. Defendants contend that the President 

retains power to modify any action taken under section 232, without conducting a new 

investigation or following the procedures set forth in the statute. See id.; see also Defs.’ 

Reply Br. at 7–12, 15. Likewise, the President seems to have envisioned the Secretary 

 

rationality standard may be satisfied by any “reasonably conceivable state of facts,” and that such 

facts may be based on “rational speculation unsupported by evidence or empirical data.” Defs.’ 

Reply Br. at 18 (quoting Briggs v. Merit Sys. Prot. Bd., 331 F.3d 1307, 1318 (Fed. Cir. 2003) 

(internal citations omitted)) (citing Nordlinger v. Hahn, 505 U.S. 1, 15 (1993)). For purposes of 

this motion, it is not necessary to resolve this issue. Assuming Defendants’ less searching 

standard applies, Defendants have not proffered any facts, even those based on “rational 

speculation,” that support the President’s decision to increase tariffs on Turkish steel only. 
Court No. 19-00009 Page 10 

of Commerce’s January 11 Report as empowering him to take ongoing action. The 

President in Proclamation 9705 states “[t]he Secretary shall continue to monitor imports 

of steel articles and shall, from time to time, . . . review the status of such imports with 

respect to the national security. The Secretary shall inform the President of any . . . need 

for further action by the President.” Proclamation 9705, 83 Fed. Reg. at 11,628 ¶ (5)(b). 

In Proclamation 9772, the President invokes Proclamation 9705 stating, “I also directed 

the Secretary to monitor imports of steel articles and inform me of any circumstances that 

in the Secretary’s opinion might indicate the need for further action under section 232 with 

respect to such imports.” Proclamation 9772, 83 Fed. Reg. at 40,429 ¶ 3.9 The 

President’s expansive view of his power under section 232 is mistaken, and at odds with 

the language of the statute, its legislative history, and its purpose. 

Section 232 requires that the President not merely address a threat to national 

security; he must do all, that in his judgment, will eliminate it. See 19 U.S.C. 

§§ 1862(c)(1)(A), (c)(3)(A) (instructing the President to take action “so that such imports 

will not threaten to impair the national security”).10 Although the statute grants the 

President great discretion in deciding what action to take, it cabins the President’s power 

 

9

 The Proclamation continues: “The Secretary has informed me that while capacity utilization in 

the domestic steel industry has improved, it is still below the target capacity utilization level the 

Secretary recommended in his report. Although imports of steel articles have declined since the 

imposition of the tariff, I am advised that they are still several percentage points greater than the 

level of imports that would allow domestic capacity utilization to reach the target level.” 

Proclamation 9772, 83 Fed. Reg. at 40,429 ¶ 4. 

10 Presidential Proclamation 9705 seems to envision an approach that “addresses” a threat rather 

than removing it. “Under current circumstances, this tariff is necessary and appropriate to address 

the threat that imports of steel articles pose to the national security.” Proclamation 9705, 83 Fed. 

Reg. at 11,626 ¶ 8. 
Court No. 19-00009 Page 11 

both substantively, by requiring the action to eliminate threats to national security caused 

by imports, and procedurally, by setting the time in which to act.11 

In 1988, Congress added specific time limits to section 232, which preclude 

Defendants’ arguments. See Omnibus Trade and Competitiveness Act of 1988, Pub. L. 

No. 100–418, Title I, §§ 1501(a), (b)(1), 102 Stat. 1107, 1257–60 (1988) (codified as 

amended at 19 U.S.C. § 1862). Those amendments now impose a 90-day limit for the 

President to act against imports that threaten the national security.12 They also fix a 15-

day deadline for the President to implement any action. Id. at 1258; see also H.R. REP.

NO. 100-576 at 711 (1988).13 The legislative history clarifies that Congress wanted the 

President to do all that he thought necessary as soon as possible. See Trade Reform 

Legislation: Hearings Before the Subcomm. on Trade of the H. Comm. on Ways & Means, 

99th Cong., 2d Sess. 1282 (1986) (statement of Hon. Barbara B. Kennelly, former 

 

11 Although, as Defendants note, courts cannot review “the President’s actions to determine 

whether the facts support the remedy selected by the President in his exercise of the discretion 

afforded to him under the statute[,]” see Defs.’ Reply Br. at 6, that discretion extends only to his 

concurrence that a threat exists and his selection of remedial action. See also Am. Inst. for Int’l 

Steel v. United States, 43 CIT __, __, 376 F. Supp. 3d 1335, 1344–45 (Mar. 25, 2019). (“[J]udicial 

review would allow neither an inquiry into the President’s motives nor a review of his fact-finding.”). 

Indeed, should the Secretary of Commerce not find a threat to impair national security, the 

President has no basis to disagree and no authority to take action. See 19 U.S.C. § 1862(c)(1)(A). 

12 The amendments also shortened the time limit for investigations by the Secretary of Commerce 

from one year to 270 days. See 102 Stat. at 1258; see also H.R. REP. NO. 100-576, at 709–10 

(1988). 

13 Defendants argue that Presidents “frequently used Section 232 (and its predecessor in prior 

acts) to modify the means of accomplishing the necessary adjustment of imports without first 

receiving additional investigations and reports from the Secretary of Commerce (or predecessor 

advisor).” Defs.’ Br. at 20. All instances cited by Defendants occurred before the 1988 

amendments, which impose a 90-day deadline for action and a 15-day deadline for 

implementation of action. Though Defendants concede that these deadlines reflect Congress’s 

desire that the President act “without undue delay[,]” Defs.’ Br. at 22, they fail to confront the 

necessary implication of the 90- and 15-day deadlines. If the President has the power to continue 

to act, to modify his actions, beyond these deadlines, then these deadlines are meaningless. 
Court No. 19-00009 Page 12 

Member, H. Comm. On Ways & Means) (discussing the need to set a deadline by which 

the President should act); Comprehensive Trade Legislation: Hearings Before the 

Subcomm. on Trade of the H. Comm. on Ways & Means, 100th Cong., 1st Sess. 466–67 

(1987) (statement of Phillip A. O’Reilly, Chairman and CEO of Houdaille Industries, Inc., 

accompanied by James H. Mack, Public Affairs Director) (discussing delays in section 

232 implementation); H.R. REP. NO. 99-581, pt. 1, at 135 (1986) (“The Committee believes 

that if the national security is being affected or threatened, this should be determined and 

acted upon as quickly as possible.”); H.R. REP. NO. 100-40, pt. 1, at 175 (1987) (“The 

Committee believes that if the national security is being affected or threatened, this should 

be determined and acted upon as quickly as possible.”). 

Defendants also argue requiring the procedures of 19 U.S.C. § 1862(b)–(c) in 

support of Proclamation 9772 make no sense, because, by implication, these procedures 

would then have to be followed “any time a tariff is reduced or an exception is made for a 

particular product.” Defs.’ Br. at 23. However, the statute specifically grants the President 

power to “determine the . . . duration of the action[,]” a power to end any action. 19 U.S.C. 

§ 1862(c)(1)(A)(ii). Likewise, Defendants’ arguments that each exception from the steel 

tariffs for a particular product would require a new set of procedures are meritless, when 

Proclamation 9705 authorized the Secretary of Commerce to establish the overall 

process to exempt particular products, under certain conditions. See Defs.’ Br. at 23; 

Defs.’ Reply Br. at 15–16; see also Proclamation 9705, 83 Fed. Reg. at 11,629 ¶ (3). 

The procedural safeguards in section 232 do not merely roadmap action; they are 

constraints on power. The Supreme Court has made clear that section 232 avoids 
Court No. 19-00009 Page 13 

running afoul of the non-delegation doctrine because it establishes “clear preconditions 

to Presidential action.” Fed. Energy Admin. v. Algonquin SNG, Inc., 426 U.S. 548, 559 

(1976). The time limits, in particular, compel the President to do all that he can do 

immediately, and tie presidential action to the investigative and consultative safeguards.14 

If the President could act beyond the prescribed time limits, the investigative and 

consultative provisions would become mere formalities detached from Presidential action. 

However, Congress affirmatively linked the investigative and consultative safeguards to 

Presidential action, and Congress strengthened that link when it imposed time limits on 

the President’s discretion to take action. Congress embedded these limits within its broad 

delegation of power to the President. As this court has recognized, “the broad guideposts 

of subsections (c) and (d) of section 232 bestow flexibility on the President and seem to 

invite the President to regulate commerce by way of means reserved for Congress, 

leaving very few tools beyond his reach.” Am. Inst. for Int’l Steel v. United States, 43 CIT 

___, ___, 376 F. Supp. 3d 1335, 1344 (2019) (“AIIS”). Further, it may be the case that 

judicial review will be unable to reach “a gray area where the President could invoke the 

statute to act in a manner constitutionally reserved for Congress but not objectively 

outside the President’s statutory authority.” Id. at 14. The broad discretion granted to the 

President and the limits on judicial review only reinforce the importance of the procedural 

safeguards Congress provided, and which the President appears to have ignored. 

 

14 In addition to the investigative and consultative steps required by the Secretary of Commerce, 

the statute only affords the President the power to act when the Secretary of Commerce’s report 

finds that imports of an article threaten national security. If the President concurs, he has only 

the power to do what he “deems necessary to adjust the imports of such article and its derivatives 

so that such imports will not threaten to impair the national security.” Algonquin, 426 U.S. at 559 

(citation and internal quotations omitted). 
Court No. 19-00009 Page 14 

Therefore, the Plaintiff has stated a claim for a refund because after the time 

periods set by Congress for Presidential action had passed, the President lacked power 

to take new action and issued Proclamation 9772 without the procedures as required by 

Congress.15 The court need not reach Plaintiff’s arguments that Proclamation 9772 is 

ultra vires or runs afoul of due process at this time. 

CONCLUSION 

 In support of its motion, Defendants have failed to show that Plaintiff’s complaint 

must be dismissed for failure to state a claim for a refund of duties on which relief can be 

granted. 

ORDERED Defendants’ motion to dismiss is denied, and it is further 

ORDERED, the parties shall confer and submit a joint status report as to the issues 

to be briefed and a proposed scheduling order by Monday, December 9, 2019. 

 /s/ Claire R. Kelly 

Claire R. Kelly, Judge 

 /s/ Jane A. Restani 

 Jane A. Restani, Judge 

Dated: November 15, 2019 

 New York, New York 

 

15 Where Congress envisioned ongoing action by the President it provided for it. In subsection 

(c)(3), Congress provided for continuing action where the President sought to negotiate an 

agreement under subsection (c)(1), granting the President an additional 180 days to act. 

Thereafter, if such an agreement were “ineffective in eliminating the threat to the national security” 

the President “shall take such other actions as the President deems necessary.” 19 U.S.C. § 

1862(c)(3). 
Court No. 19-00009 Page 15 

Katzmann, J., concurring. I agree with my colleagues that the instant litigation can 

continue in the face of the Government’s motion to dismiss the plaintiff’s complaint, 

although the ultimate outcome remains for determination after further proceedings. I write 

separately to note what is before the court in this case -- whether a statute has been 

violated -- and what is not -- whether that statute is constitutional. 

The question before us at this preliminary stage is this: Has the plaintiff, an 

American importer of Turkish goods containing steel articles subjected to tariffs imposed 

by Presidential Proclamation invoking Section 232 of the Trade Expansion Act of 1962, 

as amended in 18 U.S.C. § 1862 (“section 232”), countered the Government’s motion by 

alleging sufficient facts in its complaint that those tariffs have been imposed in violation 

of that statute, which provides that the President may impose tariffs on imports which 

“threaten to impair the national security”? 

Not before us now is the fundamental constitutional question: Does section 232, 

which provides power to the President in international trade without meaningful limitation, 

violate the Constitution’s separation of powers, as it is Congress that exclusively has the 

“power To lay and collect Taxes, Duties, Imposts and Excises” and “to regulate 

Commerce with foreign Nations”? U.S. Const. art. 1 § 8.1 That question was presented 

to this court earlier this year in American Institute for International Steel, Inc. v. United 

 

1

 Under the Constitution, “[t]he president has no similar grant of substantive authority over 

economic policy, international or domestic. Consequently, international trade policy differs 

substantially from other foreign affairs issues, such as war powers, where the president shares 

constitutional authority with Congress. Where international trade policy is concerned, the 

president’s authority is almost entirely statutory.” Timothy Meyer, Trade, Redistribution, and the 

Imperial Presidency, 44 Yale J. Int’l L. Online 16 (2018) (footnotes omitted), 

http://www.yjil.yale.edu/features-symposium-international-trade-in-the-trump-era/. See Am. Inst. 

for Int’l Steel, Inc. v. United States, 43 CIT __, 376 F. Supp. 3d 1335, 1352 n.8 (2019) (“AIIS”). 
Court No. 19-00009 Page 16 

States, 43 CIT __, 376 F. Supp. 3d 1335 (2019) (“AIIS”). There, this court unanimously 

concluded that it was bound by the Supreme Court decision in Federal Energy 

Administration v. Algonquin SNG, Inc., 426 U.S. 548 (1976), which, in different 

circumstances involving licensing fees, stated that section 232’s standards were “clearly 

sufficient” to confine presidential action consistent with the separation of powers.2 In a 

dubitante opinion in AIIS, 376 F. Supp. 3d at 1345–52, I respectfully suggested that 

section 232, lacking ascertainable standards, “provides virtually unbridled discretion to 

the President with respect to the power over trade that is reserved by the Constitution to 

Congress,” in violation of the separation of powers. Id. at 1352. “[T]he fullness of time” 

and “real recent actions” may provide an empirical basis to revisit assumptions and inform 

understanding of the statute. Id. 

I submit that the case before us may well yield further evidence of the infirmity of 

the statute.3 To so note is not to diminish, in other arrangements not involving 

constitutional authority lodged exclusively in Congress, the dependence of Congress on 

executive officials to implement its programs. See Gundy v. United States, 139 S. Ct. 

2116, 2147 (2019); AIIS, 376 F. Supp. 3d at 1352. Nor is it to diminish the flexibility 

 

2

 The Court cautioned “that the imposition of a license fee is authorized by § 232(b) in no way 

compels the further conclusion that any action the President might take, as long as it has even a 

remote impact on imports, is also so authorized.” Algonquin, 426 U.S. at 571 (emphasis in 

original). 

3

 The AIIS plaintiffs filed an appeal in the United States Court of Appeals for the Federal Circuit, 

appeal docketed, No. 19-1727 (Fed. Cir. Mar. 25, 2019) and also sought direct review by the 

Supreme Court. 379 F. Supp. 3d 1335, cert. denied, 139 S. Ct. 2748 (2019). The Supreme Court 

denied the petition for direct review (without addressing the appeal filed before the United States 

Court of Appeals for the Federal Circuit or potential appeals therefrom). Id. The AIIS appeal is 

now before the Federal Circuit. 379 F. Supp. 3d 1335, appeal docketed, No. 19-1727 (Fed. Cir. 

Mar. 25, 2019). 
Court No. 19-00009 Page 17 

allowed the President in the conduct of foreign affairs, see United States v. Curtiss-Wright 

Export Corp., 299 U.S. 304 (1936), or, for example, the authority of the executive to 

impose sanctions on foreign entities which endanger American interests. See, e.g., U.S. 

Dep’t of Treasury, Financial Sanctions: United States Statutes, 

https://www.treasury.gov/resource-center/sanctions/Pages/statutes-links.aspx (last 

visited Nov. 12, 2019) (listing a selection of sanctions statutes as identified by the U.S. 

Department of Treasury, Office of Foreign Asset Control). 

In the end, as the case before us is framed, we proceed assuming the 

constitutionality of the statute. The statute’s investigative and consultative steps, within 

prescribed time limits, are not advisory and, as my colleagues have set forth, cannot be 

ignored without consequence. Based on the facts alleged in the complaint, the violation 

of procedure and the absence of a rationale to justify differential treatment, warrant the 

conclusion at this preliminary stage that the Government has failed to show that plaintiff’s 

complaint must be dismissed for failure to state a claim for a refund of duties on which 

relief can be granted. 

 /s/ Gary S. Katzmann 

 Gary S. Katzmann, Judge