United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 21, 1997 Decided November 14, 1997
No. 97-1036
American Coalition for Competitive Trade,
Petitioner
v.
William J. Clinton and
United States of America,
Respondents
Government of Canada,
Intervenor
Complaint and Petition for Declaratory Judgment
Donald R. Dinan argued the cause and filed the briefs for
petitioner.
Douglas Letter, Attorney, United States Department of
Justice, argued the cause for respondents, with whom Frank
W. Hunger, Assistant Attorney General, Mary Lou Leary,
United States Attorney, Stephen W. Preston and Anne M.
Lobell, Attorneys, United States Department of Justice, were
on the brief.
Homer E. Moyer, Jr. and Mark V. Holmes were on the
brief for intervenor Government of Canada.
Elliot J. Feldman and Stephen M. Truitt were on the brief
for amicus curiae Gouvernement du Quebec.
Robert E. Herzstein and Perry S. Bechky were on the brief
for amicus curiae Government of Mexico.
Rufus E. Jarman was on the brief for amicus curiae
Customs and International Trade Bar Association.
Before: Wald, Williams and Rogers, Circuit Judges.
Opinion for the Court filed by Circuit Judge Wald.
Wald, Circuit Judge: Petitioner, the American Coalition
for Competitive Trade ("ACCT"), has filed an original action
in this court to challenge the constitutionality of the bination-
al panel review provisions in the United States-Canada Free-
Trade Agreement Implementation Act of 1988, Pub. L. No.
100-449, 102 Stat. 1851, and the North American Free Trade
Agreement Implementation Act, Pub. L. No. 103-182, 107
Stat. 2057 (1993) ("NAFTA Act"), which implement the North
American Free Trade Agreement with Canada and Mexico,
Dec. 17, 1992, Can.-Mex.-U.S., 32 I.L.M. 605 (1993)
("NAFTA").
We conclude that petitioner does not meet the constitution-
al requirements for standing and does not satisfy the jurisdic-
tional requirements of the NAFTA Act, requirements whose
constitutionality we uphold. Accordingly, we dismiss this
case.
I. Background
Any private party that falls within the definition of an
"interested party" may bring an administrative claim to the
International Trade Administration of the Department of
Commerce charging that an importer to the United States is
"dumping" his goods at below-market prices in order to harm
his American competitors, or is unfairly benefitting from
subsidies from his nation of origin. Once an interested party
has made such a charge, the Department of Commerce
determines whether dumping has occurred or whether an
exporting nation has provided a subsidy. See 19 U.S.C.
ss 1671b(b), 1673b(b) (1994). If the Commerce Department
finds dumping or a subsidy, the United States International
Trade Commission then determines whether the importer's
behavior has actually injured or threatened to injure a U.S.
industry. See 19 U.S.C. ss 1671b(a), 1673b(a) (1994). The
statutes define "interested party" broadly to include, inter
alia, "a manufacturer, producer, or wholesaler in the United
States of a domestic like product"; "a certified union or
recognized union or group of workers which is representative
of an industry engaged in the manufacture, production, or
wholesale in the United States of a domestic like product";
and "a trade or business association a majority of whose
members manufacture, produce, or wholesale a domestic like
product in the United States." 19 U.S.C. s 1677(9)(C)-(E)
(1994).1
The NAFTA Act creates a special procedure for reviewing
such administrative determinations when they concern goods
imported from Canada or Mexico. Under this scheme, any
"interested party" that appeared in the administrative pro-
ceedings before the Commerce Department or the Interna-
tional Trade Commission may request a binational panel to
review the decisions those domestic agencies made. See 19
U.S.C.A. s 1516a(g)(8), 1516a(f)(3) (Supp. 1997). Panel mem-
bers are selected by the United States and the other nation
involved, with the United States Trade Representative ap-
pointing this country's panel candidates. See 19 U.S.C.A.
s 3432(a)(1)(D)-(E) (Supp. 1997); NAFTA Annex 1901.2, 32
I.L.M. at 687. These panels apply the substantive law of the
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1 "The term 'domestic like product' means a product which is like,
or in the absence of like, most similar in characteristics and uses
with, the [imported] article subject to [the antidumping and coun-
tervailing duty laws]." 19 U.S.C. s 1677(10) (1994).
importing country. See NAFTA Art. 1904(2), 32 I.L.M. at
683. Their decisions are binding and domestic judicial review
of panel determinations is prohibited. See 19 U.S.C.A.
s 1516a(g)(2) (Supp. 1997). While either of the governments
involved may request a binational "extraordinary challenge
committee" to review a panel decision, private parties cannot
initiate such a process. See, e.g., 19 U.S.C.A.
s 1516a(a)(5)(C)(ii) (Supp. 1997); NAFTA Art. 1904.13, 32
I.L.M. at 683; NAFTA Annex 1904.13, 32 I.L.M. at 688. The
binational panels, however, are only empowered to uphold the
final determinations of domestic agencies or to remand cases
to these agencies for further action consistent with the panel's
decision. They do not consider the constitutionality of the
binational panel review system under United States law. See
NAFTA Art. 1904.8, 32 I.L.M. at 683.
Instead, Congress has granted this court exclusive original
jurisdiction to review all constitutional challenges to the bina-
tional panel review provisions. See 19 U.S.C.A.
s 1516a(g)(4)(A) (Supp. 1997). Under the NAFTA Act, 19
U.S.C.A. s 1516a(g)(4)(C) (Supp. 1997), "an interested party"
that participated in a binational review panel proceeding may
commence such a constitutional challenge "within 30 days
after the date of publication in the Federal Register of notice
that binational panel review has been completed."
ACCT, "a non-profit organization established for the pur-
pose of protecting American jobs and workers from unfair
trade practices," Petitioner's Brief at 5, contends that the
binational panel review system infringes on the sovereignty of
the United States and violates several constitutional provi-
sions, including the Appointments Clause, Article III, and the
Due Process Clause. ACCT also challenges the constitution-
ality of section 1516a(g)(4)(C)'s exhaustion requirement, and
does not claim to meet the provision's criteria. Specifically,
ACCT does not allege that it or any ACCT members have
participated in any binational panel review proceeding whose
completion was published within thirty days of ACCT's filing
of this action.
According to the affidavit of
William J. Gill, ACCT's president, "members of the Coalition
work in industries which have suffered material injury as
determined by the U.S. International Trade Commission in
antidumping and countervailing duty cases concerning im-
ports from Canada and Mexico. Certain of these cases have
been appealed to the binational panels where the decision of
the United States government was overturned by the bina-
tional panel causing significant numbers of our members [to
lose] their jobs, i.e., the Softwood Lumber cases." Affidavit
of William J. Gill, Petitioner's Reply Brief App. at 1-2 (inter-
nal citations omitted) ("Gill Affidavit"). The "Softwood Lum-
ber cases" is an apparent reference to a 1994 suit by the
Coalition for Fair Lumber Imports. The Coalition for Fair Lumber Im-
ports had participated in a binational panel proceeding as an
interested party and, having lost in that proceeding, brought
suit in this court to challenge the constitutionality of the
binational panel review system. The parties settled this suit,
however, before the court issued any decision on the merits.
See Coalition for Fair Lumber Imports v. United States, No.
94-1627 (D.C. Cir. filed Sept. 14, 1994, withdrawn by volun-
tary motion to dismiss Jan. 5, 1995). ACCT states that it
has no evidence that any of its members have ever
participated in a binational panel proceeding.
II. Analysis
A.Standing
As the party that seeks to invoke this court's jurisdiction,
ACCT is required to "clearly ... allege facts" demonstrating
its standing under Article III. United States v. Hays, 115
S. Ct. 2431, 2435 (1995) (quoting Warth v. Seldin, 422 U.S.
490, 518 (1975)). ACCT has not established the causation
necessary to meet the requirements of constitutional stand-
ing.
Article III standing contains three "irreducible" elements.
First, the petitioner must have suffered an injury that "is (a)
concrete and particularized, and (b) actual or imminent, not
conjectural or hypothetical. Second, there must be a causal
connection between the injury and the conduct complained
of--the injury has to be fairly traceable to the challenged
action of the defendant, and not the result of the independent
action of some third party not before the court. Third, it
must be likely, as opposed to merely speculative, that the
injury will be redressed by a favorable decision." Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (citations
and internal quotation and alteration marks omitted). For an
association to have standing to sue on behalf of its members,
its members must " 'otherwise have standing to sue in their
own right.' " Pennell v. City of San Jose, 485 U.S. 1, 7 (1988)
(quoting Hunt v. Washington Apple Advertising Comm'n,
432 U.S. 333, 343 (1977)); see also Int'l Union, United
Automobile, Aerospace and Agricultural Implement Workers
v. Brock, 477 U.S. 274, 282 (1986); Hunt, 432 U.S. at 343
("[A]n association has standing to bring suit on behalf of its
members when: (a) its members would otherwise have stand-
ing to sue in their own right; (b) the interests it seeks to
protect are germane to the organization's purpose; and (c)
neither the claim asserted nor the relief requested requires
the participation of individual members in the lawsuit.").
Petitioner has totally failed to establish the requisite causal
connection between its alleged injury and the binational panel
system.2 ACCT does not contend that its standing stems
from participation in any binational panel proceeding. In-
deed, it concedes that it has no evidence that any of its
members has ever participated in a binational panel proceed-
ing. Instead,
ACCT recites the importance of enforcing federal laws
against dumping and import subsidies and reviews statistical
evidence about the adverse consequences that NAFTA has
allegedly had on income equality and exporting in the United
States. But
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2 This failure obviates the need for us to address ACCT's claims
under the other two prongs of the test for Article III standing.
ACCT never identifies any specific instances in which a
binational panel decision--or even the general binational pan-
el scheme--harmed an ACCT member.
In the only affidavit attached to petitioner's filing, ACCT
President William J. Gill does little more to explain why
ACCT's alleged injury is causally connected to the binational
panel system. Gill alleges, for instance, that "[m]any of
[ACCT's] members have lost their jobs as a result of NAFTA
as certified by the U.S. Department of Labor and are cur-
rently receiving NAFTA adjustment assistance from the fed-
eral government." Gill Affidavit at 1. However, Gill fails to
allege any connection between an ACCT member and a
binational panel proceeding rather than NAFTA in general.
This is simply not enough. With work or with time, ACCT
may be able to locate a member who has constitutional
standing to challenge the binational panel review system.
But it has not yet successfully borne that burden. See Hays,
115 S. Ct. at 2435.
B.The NAFTA Act's Jurisdictional Requirements
ACCT also fails to satisfy the statutory requirements for
challenging the constitutionality of the binational panel sys-
tem. The NAFTA Act grants this court exclusive original
jurisdiction over constitutional attacks on the binational pan-
els. See 19 U.S.C.A. s 1516a(g)(4)(A) (Supp. 1997); see also
National Council for Industrial Defense, Inc. v. United
States, 827 F. Supp. 794, 797-800 (D.D.C. 1993) (holding that
section 1516a(g)(4)(A) grants the D.C. Circuit exclusive juris-
diction over all constitutional challenges to the binational
panels). It further provides, in 19 U.S.C.A. s 1516a(g)(4)(C)
(Supp. 1997), that only "an interested party" who participated
in a binational panel proceeding may commence a constitu-
tional challenge to the binational panel scheme and requires
these interested parties to file a constitutional action in this
court "within 30 days after the date of publication in the
Federal Register of notice that binational panel review has
been completed."
ACCT does not assert that it satisfies section
1516a(g)(4)(C)'s exhaustion requirement. In addition, it con-
cedes that at least some of its members fall within the
definition of "an interested party"; in an appropriate case,
they could pursue the administrative steps needed to acquire
statutory standing to challenge the constitutionality of the
binational panels. (As noted above, the NAFTA Act defines
"interested party" broadly. See 19 U.S.C. s 1677(9)(C)-(E)
(1994).) ACCT, however, assumes that it already has Article
III standing to challenge the constitutionality of the bination-
al panels and contends that section 1516a(g)(4)(C) is unconsti-
tutional because it imposes an exhaustion requirement that
does not allow everyone with Article III standing to sue.3
ACCT mischaracterizes the nature of the issue before us.4
Article III sets the maximum boundaries of permissible
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3 ACCT may also be objecting to the fact that Congress has
imposed a ripeness requirement in providing that no constitutional
claims may be raised against the binational panel system until one
of the binational panels has issued a final judgment. See 19
U.S.C.A. s 1516a(g)(4)(C) (Supp. 1997). Such a claim, however, is
meritless. The ripeness requirement in section 1516a(g)(4)(C) is
entirely reasonable and quite common. It ensures that constitu-
tional challenges to the binational panels are sufficiently concrete to
allow for meaningful review and prevents this court from issuing
advisory opinions in violation of Article III. See e.g., Abbott Lab. v.
Gardner, 387 U.S. 136, 148-49 (1967) (noting basic rationale of
ripeness doctrine); Committee For Effective Cellular Rules v. FCC,
53 F.3d 1309, 1316 (D.C. Cir. 1995) (holding that agency action must
be final before review is available).
4 In addition, ACCT's concession that it does not meet the
requirements of section 1516a(g)(4)(C) renders its decision to bring
suit in this court, rather than a United States district court,
inexplicable. Section 1516a(g)(4)(C) is the only source of this
court's original jurisdiction over constitutional challenges to the
binational panel system. Even if that statute should be found
standing, but does not preclude Congress from creating addi-
tional statutory exhaustion requirements. To be sure, a
statute that totally precluded judicial review for constitutional
claims would clearly raise serious due process concerns. See
Webster v. Doe, 486 U.S. 592, 603 (1988); Bowen v. Michigan
Academy of Family Physicians, 476 U.S. 667, 681 n.12
(1986); Johnson v. Robison, 415 U.S. 361, 366-67 (1974);
Bartlett v. Bowen, 816 F.2d 695, 703 (D.C. Cir. 1987). Along
the same lines, there may well be limits as to how severely
Congress can restrict the route to judicial review of constitu-
tional challenges when it keeps that route partially open.
This, however, is not such a case. Section 1516a(g)(4)(C)
merely establishes reasonable requirements that ensure that
plaintiffs have a concrete stake in the proceedings and have
exhausted their administrative remedies before they may
challenge the constitutionality of the binational panel review
system.
Indeed, section 1516a(g)(4)(C)'s exhaustion requirement is
so typical that striking it down as unconstitutional could
render a substantial portion of the United States Code open
to constitutional attack. Many agency adjudication schemes
require petitioners to exhaust their administrative remedies
before bringing their constitutional claims to Article III
courts. For instance, in Cronin v. FAA, 73 F.3d 1126 (D.C.
Cir. 1996), petitioner challenged the constitutionality of Fed-
eral Aviation Administration regulations establishing the pro-
cedures under which air carriers test their employees for
alcohol and drug use. See id. at 1133. This court, however,
refused to consider Mr. Cronin's constitutional challenge be-
cause the governing administrative statute, 49 U.S.C.
s 46110(d) (1994),5 precluded judicial review of any claims
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unconstitutional, ACCT has no other ground for bringing its action
in the court of appeals. See 28 U.S.C. s 1331 (1994) ("The district
courts shall have original jurisdiction of all civil actions arising
under the Constitution, laws, or treaties of the United States.").
5 The statute provides that a reviewing "court may consider an
objection to an order of the [DOT] Secretary or [the FAA] Adminis-
trator only if the objection was made in the proceeding conducted
petitioner had failed to raise in his objections to the regula-
tions during administrative rulemaking. See Cronin, 72 F.3d
at 1133 & n.7. Similarly, in Steadman v. Governor, U.S.
Soldiers' & Airmen's Home, 918 F.2d 963 (D.C. Cir. 1990),
this court held that the Federal Service Labor-
Management Relations Act required former federal employ-
ees who alleged that their discharge violated their due pro-
cess and statutory rights to first seek statutory relief before
the Federal Labor Relations Authority before pursuing their
constitutional claim in United States District Court. See id.
at 965; see also Wallace v. Lynn, 507 F.2d 1186, 1189-90
(D.C. Cir. 1974) (requiring plaintiff to exhaust administrative
remedies before seeking relief in district court on constitu-
tional ground).6
ACCT's attempt to distinguish its challenge to section
1516a(g)(4)(C) from an attack on all statutes that first channel
petitioners with constitutional objections into agency adjudi-
cation is unconvincing. ACCT argues that Congress enacted
section 1516a(g)(4)(C) because it was gravely concerned about
the constitutionality of the binational panel review system and
accordingly decided to insulate this scheme from constitution-
al review. But, even if such an argument were persuasive,
ACCT has presented absolutely no evidence to support its
interpretation of legislative motivation. To the contrary, the
statutory scheme itself, which vests original jurisdiction over
constitutional challenges in this appellate court, illustrates
Congress' desire to expedite judicial review of the binational
panel scheme, while limiting the petitioner class to people
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by the Secretary or Administrator or if there was a reasonable
ground for not making the objection in the proceeding." Id.
6 To be sure, administrative agencies (particularly binational
ones) cannot resolve constitutional issues. Instead, the premise of
administrative exhaustion requirements for petitioners with consti-
tutional claims is that agencies may be able to otherwise address
petitioners' objections, allowing the courts to avoid unnecessary
constitutional decisions. See, e.g., Wallace, 507 F.2d at 1189-90;
Nat'l Treasury Employees Union v. FLRA, 986 F.2d 537, 540 (D.C.
Cir. 1993); Meredith Corp. v. FCC, 809 F.2d 863, 872 (D.C. Cir.
1987).
who have exhausted their administrative remedies and clearly
have constitutional standing. See 19 U.S.C.A.
s 1516a(g)(4)(A) (Supp. 1997). The legislative history only
confirms this view. See H.R. Rep. No. 100-816, pt. 1, at 33
(1988) ("The expedited process ensures that if there is any
challenge to the constitutionality of the binational panel re-
view system, any resulting uncertainty about implementation
of these provisions of the Agreement will be resolved quick-
ly."); H.R. Rep. No. 100-816, pt. 4, at 23 (1988) ("Constitution-
al challenges can only be commenced after an exhaustion of
the binational panel review process. The approach was se-
lected to avoid any potential problems with standing. Sec-
ond, an exhaustion requirement may eliminate the basis for a
constitutional challenge. For example, a party who fears that
the panel process may result in the denial of due process will
hopefully have a different view after the process is over.").
In sum, ACCT has not met the requirements of section
1516a(g)(4)(C), and has provided no ground on which to rule
that this provision is unconstitutional.
III. Conclusion
ACCT has failed to satisfy Article III's standing require-
ments for challenging the constitutionality of the binational
panel review system. It also concededly fails to meet the
NAFTA Act's statutory exhaustion requirements, require-
ments that we find constitutional. For the foregoing reasons,
we therefore dismiss petitioner's claim.
So ordered.