Michael Simon Design, Inc. v. United States

United States Court of Appeals
for the Federal Circuit
__________________________

MICHAEL SIMON DESIGN, INC., TRU 8, INC.
(DOING BUSINESS AS ARRIVISTE), AND TARGET
STORES, A DIVISION OF TARGET CORPORATION,
Plaintiffs-Appellants,

v.
UNITED STATES,
Defendant-Appellee.
__________________________

2009-1571
__________________________

Appeal from the United States Court of International
Trade in consolidated case no. 09-00016, Judge Judith M.
Barzilay.
___________________________

Decided: June 18, 2010
___________________________

ALAN GOGGINS, Barnes, Richardson & Colburn, of
New York, New York, argued for plaintiffs-appellants.
With him on the brief was ERIC W. LANDER.

MIKKI COTTET, Senior Trial Attorney, International
Trade Field Office, United States Department of Justice,
of Washington, DC, argued for defendant-appellee. With
her on the brief were TONY WEST, Assistant Attorney
MICHAEL SIMON DESIGN v. US 2

General, JEANNE E. DAVIDSON, Director, and PATRICIA M.
MCCARTHY, Assistant Director. Of counsel on the brief
were JAMES M. LYONS, ANDREA C. CASSON, and KARK S.
VON SHRILTZ, Office of the General Counsel, United
States International Trade Commission of Washington,
DC; and YELENA SLEPAK, Office of the Assistant Chief
Counsel, United States Customs and Border Protection,
Department of Homeland Security, of New York, New
York.

__________________________

Before BRYSON, GAJARSA, and MOORE, Circuit Judges.
BRYSON, Circuit Judge.

The appellants, three importers of foreign-made
goods, filed actions in the Court of International Trade
challenging certain modifications to the U.S. tariff sched-
ule made by Presidential proclamation. The Court of
International Trade denied the appellants’ request for
judicial review of the modifications. We affirm.

I

The Harmonized Tariff Schedule of the United States
(“HTSUS”) is the United States’ implementation of the
1983 International Convention on the Harmonized Com-
modity Description and Coding System (“the Conven-
tion”), which created a single international system of
nomenclature to classify goods for customs purposes. As
periodic changes are made to the international harmo-
nized tariff system, the HTSUS is correspondingly modi-
fied pursuant to a statutory scheme established by the
Omnibus Trade and Competitiveness Act of 1988. Under
that system, the President may modify the HTSUS by
proclamation, based on recommendations made by the
3 MICHAEL SIMON DESIGN v. US

International Trade Commission. Specifically, 19 U.S.C.
§ 3006(a) provides as follows:

The President may proclaim modifications, based
on the recommendations by the Commission un-
der section 3005 of this title, to the Harmonized
Tariff Schedule if the President determines that
the modifications—

(1) are in conformity with United States
obligations under the Convention; and

(2) do not run counter to the national eco-
nomic interest of the United States.

The Commission assists the President by keeping the
HTSUS under “continuous review” and by recommending
to the President such changes as the Commission consid-
ers “necessary or appropriate” to comport with the United
States’ obligations under the Convention. 19 U.S.C. §
3005(a). In formulating its recommendations, the Com-
mission institutes a formal investigation, solicits the
views of interested federal agencies and the public, and
ultimately issues a final report to the President. Id.
§ 3005(b), (c). As a general matter, the Commission may
not recommend a modification to the HTSUS unless the
change is consistent with the international harmonized
system under the Convention, is “consistent with sound
nomenclature principles,” and “ensures substantial rate
neutrality.” Id. § 3005(d)(1)(A)-(C). However, the Com-
mission may recommend a rate change if the proposed
change is “consequent to, or necessitated by, nomencla-
ture modifications that are recommended under [section
3005].” Id. § 3005(d)(2).
MICHAEL SIMON DESIGN v. US 4

In June 2004, the World Customs Organization pro-
posed several amendments to the international harmo-
nized system, including changes to Chapter 95, which
covers “[t]oys, games and sports equipment; parts and
accessories thereof.” Of particular relevance here, the
addition of Note 1(v) to Chapter 95 excluded apparel and
other similar “articles having a utilitarian function” from
duty-free classification under Chapter 95. In September
2004, the Commission instituted Investigation No. 1205-6
and invited public comment on its recommended corre-
sponding amendments to the HTSUS.

Although the appellants did not submit any comments
to the Commission in conjunction with Investigation No.
1205-6, two entities provided commentary regarding Note
1(v) to Chapter 95. Those comments argued that Note
1(v) conflicted with recent decisions of this court holding
that certain utilitarian articles are entitled to duty-free
classification as “festive articles.” In response, the Com-
mission proposed the creation of two subheadings to
maintain substantial rate neutrality for two categories of
festive articles: (1) “utilitarian articles of a kind used in
the home in the performance of specific religious or cul-
tural ritual celebrations for religious or cultural holidays”
and (2) “utilitarian articles in the form of a three-
dimensional representation of a symbol or motif clearly
associated with a specific holiday in the United States.”
Those duty-free carve-outs did not encompass festive
apparel of the type imported by the appellants.

In April 2006, the Commission issued its final report
to the President. Among its recommendations, the report
included the addition of Note 1(v) and the subheadings for
festive articles. Following the required 60-day legislative
“lay-over period,” the President issued Proclamation 8097
adopting all of the Commission’s recommended modifica-
5 MICHAEL SIMON DESIGN v. US

tions to the HTSUS. Proclamation No. 8097, 72 Fed. Reg.
453 (Jan. 4, 2007). Those modifications became effective
on February 3, 2007.

The appellants filed separate but substantially identi-
cal complaints in the Court of International Trade chal-
lenging the modifications to the HTSUS. Invoking the
Administrative Procedure Act (“APA”), the appellants
alleged that they had been “adversely affected or ag-
grieved by the ITC’s decision to implement” the 2007
HTSUS modifications, and that the modifications were
implemented in violation of law. They asserted that the
trial court had jurisdiction to entertain the action pursu-
ant to 28 U.S.C. § 1581(i) and that it should order that
“the ITC’s amendments to HTSUS Chapter 95 Note 1(v)
and subheading 9817.95.05 are not in accordance with
law as they violated 19 U.S.C. § 3005.”

The court consolidated the cases and then dismissed
the consolidated action. The court noted that when a
party invokes the general-review provisions of the APA,
and no other statute provides a cause of action, the con-
tested agency action must be “final” in order to be subject
to judicial review. The final action in this case, the court
concluded, was the President’s proclamation adopting the
proposed HTSUS modifications, not the Commission’s
recommendation. The court explained that under 19
U.S.C. § 3005 the Commission plays only an advisory role
by preparing recommendations that the President is free
under 19 U.S.C. § 3006 to accept or reject. Because the
Commission’s actions are not final, the court held, they
are not subject to APA review. The court also held that
the President’s proclamation was unreviewable under the
APA, because the President is not an “agency,” and thus
his actions do not constitute “agency action” within the
meaning of the APA. Moreover, the court noted that
MICHAEL SIMON DESIGN v. US 6

because the President acts at his “complete discretion” in
deciding whether to adopt the Commission’s recom-
mended modifications under 19 U.S.C. § 3006, and be-
cause the Commission’s recommendations “carry no direct
consequences,” the court lacked authority to review the
lawfulness of the agency’s recommendations to the Presi-
dent. Following the order of dismissal, the appellants
took this appeal.

II

The appellants argue that the Court of International
Trade erred by dismissing their actions. Although their
January 2009 complaints do not mention the President,
and instead challenge only what the appellants character-
ize as “the ITC’s decision to implement” the 2007 HTSUS
modifications, the appellants’ contentions on appeal focus
on the President’s role under 19 U.S.C. § 3006(a). The
appellants primarily challenge the trial court’s conclusion
that section 3006(a) gives the President “complete discre-
tion” to accept or reject the Commission’s proposed modi-
fications to the HTSUS. To the contrary, the appellants
argue, when the Commission’s recommended modifica-
tions violate the requirement in section 3005 to ensure
substantial rate neutrality, the President has no discre-
tion to modify the HTSUS on the basis of such “unlawful”
recommendations. The Commission’s recommendations,
according to the appellants, subjected certain “festive”
articles to import duties in contravention of previous
court decisions according those articles duty-free status.
Because the Commission’s recommendations violated
section 3005, the appellants argue, the President was not
free to adopt those proposed amendments by proclama-
tion.
7 MICHAEL SIMON DESIGN v. US

The APA, which the appellants invoked as the basis
for their claim, authorizes suit by a party who is “ad-
versely affected or aggrieved by agency action within the
meaning of a relevant statute.” 5 U.S.C. § 702. When, as
here, agency action is not “made reviewable by statute,”
the agency action in question must be “final” in order to
be subject to judicial review under the APA. Id. § 704;
Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 61-62
(2004). Because the acts that the appellants complain of
are either non-final or not agency actions, and because
judicial review is precluded even outside the APA frame-
work due to the discretionary nature of the President’s
authority under section 3006(a), we affirm the trial
court’s dismissal of the appellants’ actions.

A

To the extent the appellants challenge the Commis-
sion’s act of recommending modifications to the HTSUS,
judicial review is unavailable because the Commission’s
actions are not “final” for purposes of the APA. See Dal-
ton v. Specter, 511 U.S. 462, 469-70 (1994); Franklin v.
Massachusetts, 505 U.S. 788, 798 (1992). In Dalton, the
plaintiffs sought to prevent the closing of the Philadelphia
Naval Shipyard by challenging recommendations pre-
sented to the President by the Secretary of Defense and
an eight-member Commission under the Defense Base
Closure and Realignment Act of 1990. The Supreme
Court observed that, because the President’s approval
was required to close the bases under the 1990 Act, the
recommendations of the Secretary and the Commission
carried “no direct consequences” for base closings and
served “more like a tentative recommendation than a
final and binding determination.” Dalton, 511 U.S. at
469-70, quoting Franklin, 505 U.S. at 798. For that
reason, the Court held that the reports were not “final” for
MICHAEL SIMON DESIGN v. US 8

APA purposes and therefore were not subject to judicial
review. Dalton, 511 U.S. at 469-70; see also Franklin, 505
U.S. at 798-99 (census report, prepared by the Secretary
of Commerce to advise the President in apportioning
congressional seats, did not constitute “final” agency
action subject to APA review because the President re-
viewed and revised the report, made final apportionment
calculations, and then transmitted the report to Con-
gress).

Similarly, under the Omnibus Trade and Competi-
tiveness Act of 1988, it is the President’s proclamation—
not the Commission’s recommendations—that effects the
amendments to the HTSUS. Under 19 U.S.C. § 3006(a),
the President reviews the Commission’s proposed modifi-
cations, assesses their conformity with the Convention
and their impact on the nation’s economic interests, and
determines whether to adopt them. The Commission’s
actions, like those of the Secretary and the Base Closing
Commission in Dalton, serve as non-final recommenda-
tions that do not directly affect tariffs or bind importers.
As a result, they are not judicially reviewable under the
APA.

The appellants contend that the Commission’s rec-
ommendations are “final” under the Supreme Court’s
decision in Bennett v. Spear, 520 U.S. 154 (1997), because
the proposed modifications have the legal effect of over-
turning this court’s precedents regarding classification of
festive articles. That argument, however, misconstrues
Bennett and ignores the critical role of the President in
effecting modifications to the HTSUS.

In Bennett, the issue was whether the APA authorized
a district court to review a Biological Opinion of the Fish
and Wildlife Service advising the Bureau of Reclamation
9 MICHAEL SIMON DESIGN v. US

about how a proposed action would affect endangered
species or habitats. Because the Bureau was authorized
to take action only if it complied with the terms and
conditions of the Biological Opinion, the Opinion “al-
ter[ed] the legal regime to which the [Bureau] [wa]s
subject.” Id. at 178. The Court therefore held that the
Biological Opinion was “final” and reviewable under the
APA, explaining that: “Unlike the reports in Franklin and
Dalton, which were purely advisory and in no way af-
fected the legal rights of the relevant actors, the Biologi-
cal Opinion at issue here has direct and appreciable legal
consequences.” Id.

In this case, the Commission’s recommendations did
not alter the legal regime to which the decisionmaker was
subject, nor did they have any binding legal effect on the
relevant actors. Unlike the Biological Opinion in Bennett,
the Commission’s report under 19 U.S.C. § 3005 is purely
advisory. It does not contain terms or conditions that
circumscribe the President’s authority to act; it does not
limit the President’s potential responses; and it does not
directly modify the HTSUS. Under 19 U.S.C. § 3006(a),
the President is not bound in any respect by the Commis-
sion’s recommendations, so those recommendations have
no legal impact on the President’s exercise of discretion.
Because the President’s discretionary action is required to
effect modifications to the HTSUS under section 3006, the
Commission’s report cannot directly impact legal rights or
alter any legal regime in the sense described in Bennett.
Therefore, we hold that the Commission’s recommenda-
tions under section 3005 are not “final” and consequently
are not subject to judicial review under the APA.
MICHAEL SIMON DESIGN v. US 10

B

To the extent the appellants challenge the President’s
act of proclaiming modifications to the HTSUS, judicial
review of that act is also unavailable. As the Supreme
Court has held, “the President’s actions [are] not review-
able under the APA, because the President is not an
‘agency’ within the meaning of the APA.” Dalton, 511
U.S. at 469-70; see also Franklin, 505 U.S. at 801 (“As the
APA does not expressly allow review of the President’s
actions, we must presume that his actions are not subject
to its requirements.”). The appellants do not contend that
the President qualifies as an “agency” for purposes of APA
review; in fact, they appear to concede that APA review of
the President’s actions is barred in the present case. The
appellants argue, however, that judicial review is appro-
priate outside the APA because the President’s actions in
adopting the 2007 HTSUS modifications exceeded his
statutorily defined authority. 1 We disagree.

1
To the extent that the appellants suggest that 28
U.S.C. § 1581(i) creates a cause of action independent of
the APA, this court has rejected that argument. See
Norcal/Crosetti Foods, Inc. v. United States, 963 F.2d
356, 359 (Fed. Cir. 1992) (“Subsection 1581(i) is a ‘catch-
all’ provision, allowing the trial court to take jurisdiction
over designated causes of action founded on other provi-
sions of law.”); Nat’l Corn Growers Ass’n v. Baker, 840
F.2d 1547, 1557 (Fed. Cir. 1988); see also H.R. No. 96-
1235, at 47 (1980), as reprinted in 1980 U.S.C.C.A.N.
3729, 3759 (“Subsection (i) is . . . not [intended] to create
any new causes of action not founded on other provisions
of law.”). The appellants rely on cases holding that sec-
tion 1581(i) gives the Court of International Trade juris-
diction over particular statutory and constitutional
claims. In each of those cases, however, the plaintiff
plainly had a cause of action; the only question was
whether section 1581(i) authorized the action to be
11 MICHAEL SIMON DESIGN v. US

The Supreme Court in Dalton assumed, for the sake
of argument, that “some claims that the President has
violated a statutory mandate are judicially reviewable
outside the framework of the APA.” 511 U.S. at 474. As
the Court in Dalton further explained, however, “long-
standing authority holds that such review is not available
when the statute in question commits the decision to the
discretion of the President.” Id. In the present case, the
decision whether to accept or reject the Commission’s
recommended HTSUS modifications is committed to the
discretion of the President under 19 U.S.C. § 3006(a).
The language of section 3006 does not implicitly or explic-
itly limit the President’s discretion in a way that would
render the President’s actions in this case judicially
reviewable for exceeding his authority.

In Dalton, the statute at issue required the President,
within two weeks of receiving a report from the Base
Closure Commission, to decide whether to approve the
Commission’s recommendations in their entirety. If the
President approved the recommendations, he was to
submit a report to Congress reflecting his decision; if the
President disapproved, the recommendations were to be
returned to the Commission for revision. 511 U.S. at 465.
Because the 1990 Act did not limit the President’s discre-
tion to approve or disapprove the recommendations, the
Supreme Court held that the President’s decision was not
subject to judicial review. Id. at 476.

The appellants contend that the present case is dis-
tinguishable from Dalton because the statute at issue in
Dalton did not limit the President’s discretion in any way.

brought in the Court of International Trade and without
going through the protest procedure that is a prerequisite
for judicial review under 28 U.S.C. § 1581(a).
MICHAEL SIMON DESIGN v. US 12

In contrast, the appellants assert, the language of section
3006 providing that “[t]he President may proclaim modifi-
cations, based on the recommendations by the Commis-
sion under section 3005 of this title” limits the President’s
discretion. Their argument is that the President is free to
act only if the Commission’s recommendations are made
“under” section 3005, and that the term “under” must be
interpreted to mean “in accordance with.” Therefore, they
argue, the President has no discretion to implement a
Commission recommendation if the recommendation does
not comply with section 3005, such as by violating the
“substantial rate neutrality” requirement of 19 U.S.C.
§ 3005(d)(1)(C).

That argument reads far too much into the word “un-
der.” A recommendation does not cease to be made “un-
der” section 3005 simply because the recommendation is
assertedly contrary to the substantive requirements of
that provision. Congress frequently provides for review of
a decision made “under” a statute; in such cases, it would
be nonsensical to say that the jurisdiction of the review-
ing body is limited to instances in which the underlying
decision construes and applies the statute correctly. See,
e.g., 28 U.S.C. § 1295(6), (7), (8) (authorizing this court to
review decisions of the International Trade Commission
made “under section 337 of the Tariff Act of 1930”; find-
ings of the Secretary of Commerce “under U.S. note 6 to
subchapter X of chapter 98” of the HTSUS; and appeals
“under section 71 of the Plant Variety Protection Act”).

Moreover, the appellants’ argument fails under Dal-
ton, which rejected the Third Circuit’s view that the
President’s authority to close bases was contingent on the
Secretary’s and the Commission’s compliance with vari-
ous statutory procedures. Dalton, 511 U.S. at 476. The
statutory provision that defined the President’s duties in
13 MICHAEL SIMON DESIGN v. US

Dalton directed the President to approve or disapprove
the Commission’s recommendations, which were made
“under” another provision of the statute. See Pub. L. No.
101-510, § 2903(e), 104 Stat. 1485, 1812 (1990). Notwith-
standing that language, the Supreme Court concluded
that “[n]othing in § 2903(e) requires the President to
determine whether the Secretary or Commission commit-
ted any procedural violations in making their recommen-
dations, nor does § 2903(e) prohibit the President from
approving recommendations that are procedurally
flawed.” 511 U.S. at 476. As such, the statute’s delinea-
tion of the agency’s duties in preparing recommendations
did not limit the President’s discretion to approve or
disapprove the recommendations. Id.

The appellants’ argument in this case similarly “con-
flate[s] the duties of the . . . Commission with the author-
ity of the President,” in contravention of Dalton. 511 U.S.
at 476. As was true of the statute in Dalton, nothing in
19 U.S.C. § 3006(a) makes the President’s authority to act
contingent on the Commission’s compliance with section
3005’s substantial rate neutrality requirement. Nor does
section 3006 require the President to review or reject
recommendations for non-compliance with section 3005.
We therefore reject the appellants’ restrictive interpreta-
tion of section 3006, as well as their argument that the
President exceeded his statutory authority. 2

2 The appellants insist that their interpretation of
the interplay between 19 U.S.C. §§ 3005 and 3006 must
be correct because those statutory provisions are rendered
“meaningless” if they do not allow for judicial review.
However, a statute that provides for executive action that
is not subject to judicial review is not “meaningless” or
constitutionally invalid, as the appellants seem to sug-
gest. Despite the “strong presumption that Congress
intends judicial review of administrative action,” see
MICHAEL SIMON DESIGN v. US 14

We also reject the appellants’ distinction of Dalton on
the basis of narrow factual differences, such as the fact
that the 1990 Act in Dalton provided that in the event of
Presidential disapproval, the Base Closure Commission
would be required to revise its report. The Supreme
Court attached no significance to that fact or to the re-
quirement in the 1990 Act that the President either
approve or disapprove the agency’s recommendations in
their entirety, holding that even under those circum-
stances the President’s discretion was sufficiently broad
to foreclose judicial review. See 511 U.S. at 465, 476.
Under section 3006(a), the President’s authority is not
constrained in any way by the Commission’s recommen-
dations. The statement in section 3006 that the President
“may proclaim modifications, based on the recommenda-
tions by the Commission under section 3005 of this title,
to the Harmonized Tariff Schedule” therefore does not
restrict the President’s discretion or render the Presi-
dent’s actions judicially reviewable.

The only language in section 3006 that limits the
President’s discretion to proclaim HTSUS modifications is
the requirement that the President “determine[] that the
modifications — (1) are in conformity with United States
obligations under the Convention; and (2) do not run

Bowen v. Mich. Acad. of Family Physicians, 476 U.S. 667,
670 (1986), Congress has chosen to foreclose judicial
review in various instances, see, e.g., Salmon Spawning &
Recovery Alliance v. U.S. Customs & Border Prot., 550
F.3d 1121, 1129 (Fed. Cir. 2008). The APA specifically
recognizes that there is no judicial review in instances in
which Congress has precluded judicial review or in which
“agency action is committed to agency discretion by law.”
5 U.S.C. § 701(a). As noted by Dalton, Supreme Court
precedent has “fully recognized that the consequence of
[certain determinations as to Presidential discretion] [i]s
to foreclose judicial review.” 511 U.S. at 475.
15 MICHAEL SIMON DESIGN v. US

counter to the national economic interest of the United
States.” 19 U.S.C. § 3006(a). In Motions Systems Corp. v.
Bush, 437 F.3d 1356, 1361 (Fed. Cir. 2006) (en banc), this
court held that similar language, which “limited to some
degree the President’s discretion,” was insufficient to
permit judicial review where there was no suggestion that
the President violated those express statutory limits. In
that case, Section 421 of the Trade Act of 1974 required
the President to order import relief for market disruption
due to importation of products from China unless the
President determined that import relief was “not in the
national economic interest” or “would cause serious harm
to [] national security.” Because there was “no colorable
claim” that those explicit statutory requirements were
violated, we held that the President’s action was “suffi-
ciently discretionary to preclude judicial review.” 437
F.3d at 1361-62.

In this case, as in Motions Systems, the appellants do
not claim that the President failed to fulfill his statutory
mandate under section 3006 to determine whether the
Commission’s proposed modifications conformed with the
Convention and did not run counter to the national eco-
nomic interest. Rather, the appellants argue that it was
improper for the President to adopt modifications that
were not rate neutral. As we concluded above, section
3006(a) does not make rate neutrality a condition of the
President’s decision. Therefore, any claim that the Presi-
dential proclamation does not produce rate neutrality is
not subject to judicial review. Moreover, as in Motions
Systems, the express restrictions in section 3006 on
Presidential authority are self-limiting, as it is solely for
the President to decide whether to modify the HTSUS in
light of the nation’s Convention obligations and economic
interests. See 437 F.3d at 1360.
MICHAEL SIMON DESIGN v. US 16

The appellants argue that our decision in Corus
Group PLC v. International Trade Commission, 352 F.3d
1351 (Fed. Cir. 2003), removes the present claims from
the realm of Presidential discretion under Dalton and
Motions Systems. Corus, however, is inapplicable here.
Corus concerned the President’s authority to impose
duties on foreign imports pursuant to the “escape clause”
provision of the Trade Act of 1974. Under the express
terms of that statute, if the Commission’s report “con-
tain[s] an affirmative finding regarding serious injury, or
the threat thereof, to a domestic industry, the President
shall take all appropriate and feasible action” to make a
corrective adjustment. Corus, 352 F.3d at 1353-54; 19
U.S.C. § 2253(a)(1)(A). The appellant in Corus argued
that the Commission’s determination was negative, not
affirmative, thus precluding Presidential action. As to
the issue of judicial review, we held that because “[t]he
statute only gives the President authority to impose a
duty if the Commission makes ‘an affirmative finding
regarding serious injury,’” the Commission’s report, like
the Biological Opinion in Bennett v. Spear, had “direct
and appreciable legal consequences” that rendered it
reviewable by the courts. 352 F.3d at 1359. Thus, in
Corus the President’s authority to act turned on the
presence or absence of a necessary and independent
factual predicate: an affirmative injury finding by the
Commission.

Here, by contrast, the statute contains no language
that expressly mandates substantial rate neutrality as a
prerequisite to the President’s authority to proclaim
HTSUS modifications. Nor does the statute require any
independent predicate to Presidential action. The Presi-
dent’s authority under section 3006 turns solely on his
assessment of whether the Commission’s recommenda-
tions are in conformity with the United States’ obligations
17 MICHAEL SIMON DESIGN v. US

under the Convention and do not run counter to the
nation’s economic interests. 19 U.S.C. § 3006(a)(1)-(2).
Because those determinations are committed to the
President’s discretion, and because the President’s com-
pliance with paragraphs 1 and 2 of section 3006(a) is not
at issue here, the President’s exercise of his discretion is
not subject to judicial review.

Citing Youngstown Sheet & Tube Co. v. Sawyer, 343
U.S. 579 (1952), the appellants contend that judicial
review is available because the President has “defie[d] a
Congressional mandate” and has thereby “run afoul of the
Separation of Powers Doctrine.” This case and Youngs-
town Sheet & Tube, however, are antipodes. Youngstown
Sheet & Tube involved an action against the Secretary of
Commerce alleging that his action in seizing the petition-
ers’ steel mills was unauthorized by statute and constitu-
tionally impermissible. This case, by contrast, involves
an express legislative grant of discretionary authority to
the President and does not implicate any constitutional
right of the appellants. Youngstown Sheet & Tube there-
fore provides no support for a right to judicial review in
this case.

Although the appellants invoke Justice Jackson’s con-
curring opinion in Youngstown Sheet & Tube, we think
that another of Justice Jackson’s opinions, his opinion for
the Court in Chicago & Southern Air Lines, Inc, v.
Waterman Steamship Co., 333 U.S. 103 (1948), is more
instructive. That case raised the question whether an
agency recommendation that was subject to Presidential
approval contemplated judicial review at some point in
the process. By statute, the Civil Aeronautics Board was
charged with granting or denying an application for
permission to engage in foreign air transportation, but
the Board’s order was subject to Presidential review and
MICHAEL SIMON DESIGN v. US 18

approval. Noting Congress’s authority to “delegate very
large grants of its power over foreign commerce to the
President,” id. at 109, the Supreme Court held that the
statutory scheme did not contemplate judicial review of
such an order, either before or after the President’s deci-
sion. As the Court put it, “before Presidential approval it
is not a final determination . . . and after Presidential
approval the whole order . . . derives its vitality from the
exercise of unreviewable Presidential discretion.” Id. at
113.

An even closer precedent is United States v. George S.
Bush & Co., 310 U.S. 371 (1940). In that case, the Su-
preme Court held that Congress’s delegation of power to
the President to modify tariff rates pursuant to a recom-
mendation of the Tariff Commission had the effect of
barring judicial review, notwithstanding a claim that the
Commission’s recommendation was legally flawed. The
dispute in George S. Bush arose after the Tariff Commis-
sion recommended an increase in the duty on certain
imported products. By statute, the President was given
the authority to approve the Commission’s recommenda-
tions by proclamation if in his judgment the recom-
mended changes were necessary to equalize differences in
the cost of production for the domestic and imported
products. After the President issued such a proclamation,
the Court of Customs and Patent Appeals held the proc-
lamation unlawful based on the court’s conclusion that
the Commission’s recommendation was contrary to the
substantive requirements of the governing statute. 310
U.S. at 376-78. The Supreme Court reversed, holding
that the Tariff Act “does not permit judicial examination
of the judgment of the President that the rates of duty
recommended by the Commission are necessary to equal-
ize the differences in the domestic and foreign rates of
production.” Id. at 379. The Court observed that the
19 MICHAEL SIMON DESIGN v. US

Tariff Commission, like its successor the International
Trade Commission, served the President

as an adviser. . . . It does not increase or decrease
the rates of duty; it is but the expert body which
investigates and submits its facts and its recom-
mendations to the President. It is the judgment of
the President on those facts which is determina-
tive of whether or not the recommended rates will
be promulgated. In substance and to a great ex-
tent in form the action of the Commission and the
President is but one stage in the legislative proc-
ess. . . . And the judgment of the President that
on the facts, adduced in pursuance of the proce-
dure prescribed by Congress, a change of rate is
necessary is no more subject to judicial review
under this statutory scheme than if Congress it-
self had exercised that judgment.

Id. at 379-80 (citations omitted); see also Norwegian
Nitrogen Prods. Co. v. United States, 288 U.S. 294, 305
(1933) (“What is done by the Tariff Commission and the
President in changing the tariff rates to conform to new
conditions is in substance a delegation, though a permis-
sible one, of the legislative process.”).

The parallelism between the “recommendation and
proclamation” process in the George S. Bush case and in
this one is striking. In George S. Bush, the Supreme
Court held that the President’s exercise of discretion was
not subject to judicial review predicated on a claim of
legal error in the Tariff Commission’s recommendation,
while in this case the trial court held that the President’s
exercise of discretion was not subject to judicial review
based on a claim of legal error in the underlying recom-
mendation of the International Trade Commission. The
MICHAEL SIMON DESIGN v. US 20

similarity between the two cases further confirms that the
trial court correctly held that the Presidential proclama-
tion at issue in this case was not reviewable based on the
appellants’ claim that the Commission’s recommendation
was legally flawed.

AFFIRMED