Primesource Building Products, Inc. v. United States

Case: 21-2066 Document: 86 Page: 1 Filed: 02/07/2023

United States Court of Appeals
for the Federal Circuit
______________________

PRIMESOURCE BUILDING PRODUCTS, INC.,
Plaintiff-Appellee

v.

UNITED STATES, JOSEPH R. BIDEN, JR.,
PRESIDENT OF THE UNITED STATES, GINA M.
RAIMONDO, SECRETARY OF COMMERCE,
CHRISTOPHER MAGNUS, COMMISSIONER OF
U.S. CUSTOMS AND BORDER PROTECTION,
UNITED STATES CUSTOMS AND BORDER
PROTECTION, DEPARTMENT OF COMMERCE,
Defendants-Appellants

______________________

2021-2066
______________________

Appeal from the United States Court of International
Trade in No. 1:20-cv-00032-TCS-JCG-MMB, Senior Judge
Timothy C. Stanceu, Judge Jennifer Choe-Groves, Judge
M. Miller Baker

---------------------------------------------------

OMAN FASTENERS, LLC, HUTTIG BUILDING
PRODUCTS, INC., HUTTIG, INC.,
Plaintiffs-Appellees

v.
Case: 21-2066 Document: 86 Page: 2 Filed: 02/07/2023

2 PRIMESOURCE BUILDING PRODUCTS, INC. v. US

UNITED STATES, JOSEPH R. BIDEN, JR.,
PRESIDENT OF THE UNITED STATES, UNITED
STATES CUSTOMS AND BORDER PROTECTION,
CHRISTOPHER MAGNUS, COMMISSIONER OF
U.S. CUSTOMS AND BORDER PROTECTION,
DEPARTMENT OF COMMERCE, GINA M.
RAIMONDO, SECRETARY OF COMMERCE,
Defendants-Appellants
______________________

2021-2252
______________________

Appeal from the United States Court of International
Trade in Nos. 1:20-cv-00037-TCS-JCG-MMB, 1:20-cv-
00045-TCS-JCG-MMB, Senior Judge Timothy C. Stanceu,
Judge Jennifer Choe-Groves, Judge M. Miller Baker.
______________________

Decided: February 7, 2023
______________________

JEFFREY S. GRIMSON, Mowry & Grimson, PLLC, Wash-
ington, DC, argued for plaintiff-appellee PrimeSource
Building Products, Inc. Also represented by BRYAN
PATRICK CENKO, JILL CRAMER, KRISTIN HEIM MOWRY,
SARAH WYSS.

ANDREW CARIDAS, Perkins Coie, LLP, Washington, DC,
argued for plaintiffs-appellees Oman Fasteners, LLC, Hut-
tig Building Products, Inc., Huttig, Inc. Also represented
by MICHAEL PAUL HOUSE; KARL J. WORSHAM, Phoenix, AZ.

MEEN GEU OH, Commercial Litigation Branch, Civil Di-
vision, United States Department of Justice, Washington,
DC, argued for defendants-appellants. Also represented by
KYLE SHANE BECKRICH, BRIAN M. BOYNTON, TARA K.
HOGAN, PATRICIA M. MCCARTHY.
Case: 21-2066 Document: 86 Page: 3 Filed: 02/07/2023

PRIMESOURCE BUILDING PRODUCTS, INC. v. US 3

ADAM H. GORDON, The Bristol Group PLLC, Washing-
ton, DC, for amicus curiae The American Steel Nail Coali-
tion. Also represented by LAUREN FRAID, JENNIFER
MICHELE SMITH.
______________________

Before TARANTO, CHEN, and STOLL, Circuit Judges.
TARANTO, Circuit Judge.
In 2018, pursuant to § 232 of the Trade Expansion Act
of 1962, Pub. L. No. 87-794, 76 Stat. 872, 877, codified as
amended at 19 U.S.C. § 1862, the Secretary of Commerce
reported to the President that steel imports threatened na-
tional security by contributing to unsustainably low levels
of use of domestic steel-producing capacity, and the Presi-
dent, agreeing with the Secretary’s finding, issued Procla-
mation 9705 to adopt a plan of action to address that
threat, starting with imposition of higher tariffs on steel
imports from certain countries but providing for monitor-
ing and future adjustments if needed. In 2020, the Presi-
dent issued Proclamation 9980, which, based on the
required monitoring, raised tariffs on imports of steel de-
rivatives such as nails and fasteners. That proclamation
was challenged in two cases (before us here) filed in the
Court of International Trade (Trade Court)—one by
PrimeSource Building Products, Inc.; the other by Oman
Fasteners, LLC, Huttig Building Products, Inc., and Hut-
tig, Inc. (collectively, Oman Fasteners)—against the
United States, the President, and two federal agencies and
their heads (collectively, the government). The Trade
Court held Proclamation 9980 to be unauthorized by § 232
because the new derivatives tariffs were imposed after the
passing of certain deadlines for presidential action set forth
in § 232. See PrimeSource Building Products, Inc. v.
United States, 497 F. Supp. 3d 1333 (Ct. Int’l Trade 2021);
PrimeSource Building Products, Inc. v. United States, 505
F. Supp. 3d 1352 (Ct. Int’l Trade 2021); Oman Fasteners,
Case: 21-2066 Document: 86 Page: 4 Filed: 02/07/2023

4 PRIMESOURCE BUILDING PRODUCTS, INC. v. US

LLC v. United States, 520 F. Supp. 3d 1332 (Ct. Int’l Trade
2021).
The government appeals. After the Trade Court issued
its decisions on the merits, we decided Transpacific Steel
LLC v. United States, 4 F.4th 1306 (Fed. Cir. 2021), cert.
denied, 142 S. Ct. 1414 (2022), which led the Trade Court
to issue stays of its judgments in the two cases. In Trans-
pacific, we upheld a presidential proclamation that in-
creased tariffs on steel beyond Proclamation 9705’s rate,
concluding that when the President, within the § 232 time
limits at issue, adopts a plan of action that contemplates
future contingency-dependent modifications, those time
limits do not preclude the President from later adding to
the initial import impositions in order to carry out the plan
to help achieve the originally stated national-security ob-
jective where the underlying findings and objective have
not grown stale. We now uphold Proclamation 9980. That
proclamation’s new imposition reaches imports of steel de-
rivatives, which are within § 232’s authorization of presi-
dential action based on the Secretary’s finding about
imports of steel, and there is no staleness or other persua-
sive reason for overriding the President’s judgment that in-
cluding derivatives helps achieve the specific, original
national-security objective. We therefore reverse the judg-
ments of the Trade Court.
I
A
Section 232 “empowers and directs the President to act
to alleviate threats to national security from imports.” Id.
at 1311. For the President to act, the Secretary of Com-
merce must, under § 232(b), first investigate the effects on
national security of imports of an article and submit to the
President within 270 days a report detailing the Secre-
tary’s findings about such effects. 19 U.S.C.
§ 1862(b)(1)(A)–(3)(A). The report must contain the Secre-
tary’s recommendations for action or inaction with respect
Case: 21-2066 Document: 86 Page: 5 Filed: 02/07/2023

PRIMESOURCE BUILDING PRODUCTS, INC. v. US 5

to imports of that article. Id. § 1862(b)(3)(A). If the Secre-
tary finds that imports of the article “threaten to impair
the national security, the Secretary shall so advise the
President in [the] report.” Id. Under § 232(c), within 90
days of receiving the Secretary’s report, the President must
determine whether to concur in that finding. Id.
§ 1862(c)(1)(A)(i). If the President concurs in that finding,
then within the same 90 days “the President shall” also
“determine the nature and duration of the action that, in
the judgment of 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 security.” Id.
§ 1862(c)(1)(A) (emphasis added). If the President deter-
mines to take action with respect to the import of the arti-
cle and its derivatives, “the President shall implement that
action” within 15 days of the foregoing determinations, id.
§ 1862(c)(1)(B), that is, within 105 days of the Secretary’s
report.
B
In 2017, the Secretary began investigating steel im-
ports and concluded that they posed a threat to national
security. J.A. 232–35. On January 11, 2018, the Secretary
reported to the President that the imports were “weaken-
ing our internal economy” and harming “the [domestic]
steel industry,” the continued vitality of which “is essential
for national security applications.” Id. The Secretary rec-
ommended that the President “take immediate action by
adjusting the level of these imports through quotas or tar-
iffs” with the goal of “reducing import penetration rates to
approximately 21 percent,” so that “U.S. industry would be
able to operate at 80 percent of their capacity utilization.”
J.A. 236, 288. The 80 percent rate, the Secretary found,
was the minimum “necessary to sustain adequate profita-
bility and continued capital investment, research and de-
velopment, and workforce enhancement in the steel sector”
and to thereby “enable U.S. steel mills to increase opera-
tions significantly in the short-term and improve the
Case: 21-2066 Document: 86 Page: 6 Filed: 02/07/2023

6 PRIMESOURCE BUILDING PRODUCTS, INC. v. US

financial viability of the industry over the long-term.” J.A.
234, 289.
On March 8, 2018, the President announced his con-
currence and remedial plan. Proclamation 9705: Adjusting
Imports of Steel into the United States, 83 Fed. Reg. 11,625
(Mar. 8, 2018). He concurred that “steel articles are being
imported into the United States in such quantities and un-
der such circumstances as to threaten to impair the na-
tional security.” Id. ¶ 5, 83 Fed. Reg. at 11,626. He
imposed a 25 percent tariff on imports of various steel ar-
ticles (e.g., flat-rolled products, bars and rods, tubes, pipes,
and ingots) from many countries. Id. ¶ 8, clause 2, Annex,
83 Fed. Reg. at 11,626–29; see PrimeSource, 497 F. Supp.
3d at 1337–38 n.2. The President deemed this an “im-
portant first step in ensuring the economic viability of our
domestic steel industry.” Proclamation 9705 ¶ 11, 83 Fed.
Reg. at 11,626; id. clause 2, 83 Fed. Reg. at 11,627. He
retained the option to “remove or modify” the impositions
if the United States and other countries were to come up
with suitable alternatives for remedying the security
threat. Id. ¶ 9, 83 Fed. Reg. at 11,626. More generally, the
President directed the Secretary to “continue to monitor
imports of steel articles,” “review the status of such imports
with respect to the national security,” and “inform the
President of any circumstances that in the Secretary’s
opinion might indicate the need for further action by the
President under section 232.” Id. clause 5(b), 83 Fed. Reg.
at 11,628.
In light of, e.g., negotiations between the United States
government and some foreign governments, the President
issued a variety of follow-up proclamations to make
changes in the impositions of Proclamation 9705, including
the August 2018 Proclamation 9772 that was challenged
(and upheld by this court) in Transpacific. 4 F.4th at 1314–
16. The Secretary monitored relevant imports, as required,
and in January 2020, the President issued a new procla-
mation—now covering derivatives of the earlier-covered
Case: 21-2066 Document: 86 Page: 7 Filed: 02/07/2023

PRIMESOURCE BUILDING PRODUCTS, INC. v. US 7

steel articles—based on information supplied by the Secre-
tary. Proclamation 9980: Adjusting Imports of Derivative
Aluminum Articles and Derivative Steel Articles into the
United States, 85 Fed. Reg. 5281 (Jan. 24, 2020). 1
The President recited that the Secretary had informed
him that “domestic steel producers’ capacity utilization
ha[d] not stabilized for an extended period of time at or
above the 80 percent capacity utilization level” that was
the objective of Proclamation 9705. Id. ¶ 5, 85 Fed. Reg. at
5281. The Secretary stated that “imports of certain deriv-
atives of steel articles have significantly increased since
the imposition of the tariffs,” and “[t]he net effect of the in-
crease of imports of these derivatives has been to erode the
customer base for U.S. producers of . . . steel and under-
mine the purpose of the proclamations adjusting imports of
. . . steel articles to remove the threatened impairment of
the national security.” Id. ¶ 5, 85 Fed. Reg. at 5282. The
Secretary characterized this increase in imports of steel de-
rivatives as “circumvent[ing] the duties on . . . steel articles
imposed in . . . Proclamation 9705” and “threaten[ing] to
undermine the actions taken to address the risk to the na-
tional security of the United States found in . . . Proclama-
tion 9705.” Id. ¶ 8, 85 Fed. Reg. at 5282. The Secretary
“assessed that reducing imports of the derivative articles”
at issue “would reduce circumvention and facilitate the ad-
justment of imports that . . . Proclamation 9705, as
amended, made to increase domestic capacity utilization to
address the threatened impairment of the national security
of the United States.” Id. Accepting the foregoing deter-
minations by the Secretary, the President in Proclamation
9980 extended the 25 percent tariff to certain steel deriva-
tives, including nails, staples, and tacks. Id. clause 1,

1 The new proclamation covered derivatives of alu-
minum as well as steel articles, but only the steel aspects
of the proclamation are at issue before us.
Case: 21-2066 Document: 86 Page: 8 Filed: 02/07/2023

8 PRIMESOURCE BUILDING PRODUCTS, INC. v. US

Annex II, 85 Fed. Reg. at 5283, 5290–92; see PrimeSource,
497 F. Supp. 3d at 1338–39 n.3. He “concluded that it [was]
necessary and appropriate” to extend the tariffs to the spec-
ified steel derivatives “to address circumvention . . . and to
remove the threatened impairment of the national secu-
rity.” Proclamation 9980 ¶ 9, 85 Fed. Reg. at 5283.
C
PrimeSource and Oman Fasteners, which import steel
nails and fasteners covered by Proclamation 9980, brought
suit in the Trade Court to challenge the proclamation. As
relevant now, they contended that the proclamation’s ex-
tension of the increased tariff to derivatives was contrary
to § 232 because it occurred in January 2020, more than
105 days after the President received the Secretary’s re-
port. The Trade Court agreed.
The Trade Court in the PrimeSource case concluded
that the 90-day and 15-day limits found in § 232(c) apply
to the President’s imposition of increased burdens on im-
ports under the provision, including modifications of an
earlier plan of action that had been timely adopted. 497 F.
Supp. 3d at 1343–59. The court held that, insofar as the
January 2020 Proclamation 9980 relied on the Secretary’s
January 2018 report on steel articles to satisfy the § 232(b)
prerequisite to presidential action, it was untimely under
§ 232(c). Id. When the government stipulated that it was
relying solely on that report to satisfy the § 232(b) prereq-
uisite, the Trade Court held Proclamation 9980 invalid and
entered final judgment against the government.
PrimeSource, 505 F. Supp. 3d at 1353–58. The Trade Court
reached the same result in the Oman Fasteners case. 520
F. Supp. 3d at 1335–39.
In both cases, the government timely appealed and also
moved for at least a partial stay of the judgment pending
appeal. The Trade Court granted stays, reflecting the gov-
ernment’s newly enhanced chance of success on the merits
in light of the intervening decision of this court in
Case: 21-2066 Document: 86 Page: 9 Filed: 02/07/2023

PRIMESOURCE BUILDING PRODUCTS, INC. v. US 9

Transpacific. See PrimeSource Building Products, Inc. v.
United States, 535 F. Supp. 3d 1327, 1329–36 (Ct. Int’l
Trade 2021); Oman Fasteners, LLC v. United States, 542 F.
Supp. 3d 1399, 1403–09 (Ct. Int’l Trade 2021). The Trade
Court did, however, note two distinctions of these cases
from Transpacific—these cases involve an extension to de-
rivatives of a tariff initially imposed on the articles whose
importation was found to threaten national security, not
(as in Transpacific) an increase in rate of the initial tariff
on the same articles; and the time from Secretary report to
challenged proclamation is much larger than in Transpa-
cific (two years versus seven months). See PrimeSource,
535 F. Supp. 3d at 1332–33; Oman Fasteners, 542 F. Supp.
3d at 1403–05. We have jurisdiction over the Trade Court’s
final judgments under 28 U.S.C. § 1295(a)(5). 2
II
On appeal, the government maintains that the Trade
Court’s decisions are incorrect in light of Transpacific. Ap-
pellees defend the Trade Court’s decisions, asserting that
factual differences render Transpacific inapplicable and
that the government’s reading of § 232 would run afoul of
the delegation doctrine.

2 In Transpacific, we flagged the question of whether
the claims against the President, as a defendant, must be
dismissed. 4 F.4th at 1318 n.5; accord PrimeSource, 497 F.
Supp. 3d at 1361–62, 1365–70 (Baker, J., concurring in
part and dissenting in part). That question arises here as
well. Based on our recent precedent, we hold that the
claims against the President must be dismissed, but given
the presence of the other defendants, we have jurisdiction
to review the Trade Court’s decisions on the merits. See
USP Holdings, Inc. v. United States, 36 F.4th 1359, 1366
(Fed. Cir. 2022).
Case: 21-2066 Document: 86 Page: 10 Filed: 02/07/2023

10 PRIMESOURCE BUILDING PRODUCTS, INC. v. US

We review the Trade Court’s interpretation of the stat-
ute de novo. GPX International Tire Corp. v. United States,
780 F.3d 1136, 1140 (Fed. Cir. 2015). To the extent rele-
vant here, we may review an allegation that the President
acted in violation of the Constitution. USP Holdings, 36
F.4th at 1365. For an asserted statutory violation, review
is also available, but it is limited: “For a court to interpose,
there has to be a clear misconstruction of the governing
statute, a significant procedural violation, or action outside
delegated authority.” Maple Leaf Fish Co. v. United States,
762 F.2d 86, 89 (Fed. Cir. 1985). This court has repeatedly
relied on the Maple Leaf formulation to indicate the “lim-
ited” scope of review of non-constitutional challenges to
presidential action. USP Holdings, 36 F.4th at 1365–66 &
n.3 (discussing “limited” scope, quoting Maple Leaf, and
also quoting formulations approving review of whether
“the President clearly misconstrued his statutory author-
ity” and “whether the President has violated an explicit
statutory mandate” (cleaned up)); Silfab Solar, Inc. v.
United States, 892 F.3d 1340, 1346 (Fed. Cir. 2018).
A
In Transpacific, we addressed whether § 232(c)(1) “per-
mits the President to announce a continuing course of ac-
tion 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.” 4 F.4th at 1318–19. We
concluded that the President may do so, explaining:
[T]he best reading of the statutory text of § 1862,
understood in context and in light of the evident
purpose of the statute and the history of predeces-
sor enactments and their implementation, is that
the authority of the President includes authority to
adopt and carry out a plan of action that allows ad-
justments of specific measures, including by
Case: 21-2066 Document: 86 Page: 11 Filed: 02/07/2023

PRIMESOURCE BUILDING PRODUCTS, INC. v. US 11

increasing import restrictions, in carrying out the
plan over time.
Id. at 1319. And we upheld application of that authority to
an increase in impositions that could have been adopted
initially under § 232(c) where the President had initially
announced a plan of action and later found that an increase
would help solve the specific capacity-utilization problem
that was the basis for the finding that imports threatened
national security. Id. at 1310, 1332–33.
Proclamation 9980 comes within the interpretation of
§ 232 we adopted in Transpacific. The initial proclamation
(Proclamation 9705) is the same here as in Transpacific.
As described above, that proclamation rested on the Secre-
tary’s finding that imports of steel articles were threaten-
ing national security by impairing achievement of an 80
percent capacity utilization level found important for do-
mestic steel makers to sustain their operations to meet na-
tional-security needs. J.A. 232–36, 288–89; see
Proclamation 9705 ¶¶ 2, 4–5, 83 Fed. Reg. at 11,625–26.
Proclamation 9705 announced a continuing plan of action
aimed at achieving that goal, with monitoring and notice of
possible changes in the future. Id. ¶¶ 9, 11, clauses 2, 5(b),
83 Fed. Reg. at 11,626–28 (stating that the President “may
remove or modify the restriction on steel articles imports,”
characterizing “the tariff imposed by this proclamation [a]s
an important first step in ensuring the economic viability
of our domestic steel industry,” and directing the Secretary
to “continue to monitor imports of steel articles” and to “in-
form the President of any circumstances that in the Secre-
tary’s opinion might indicate the need for further action by
the President under section 232”). Later, the Secretary in-
formed the President that a significant increase had oc-
curred in imports of steel derivatives, which in simple
economic terms constituted a circumvention of the protec-
tions initially adopted to enhance and stabilize domestic
steel-making capacity utilization, undermining the effec-
tiveness of the President’s previous tariffs. Proclamation
Case: 21-2066 Document: 86 Page: 12 Filed: 02/07/2023

12 PRIMESOURCE BUILDING PRODUCTS, INC. v. US

9980 ¶¶ 5, 8, 85 Fed. Reg. at 5281–82. In response, the
President extended Proclamation 9705’s tariffs to various
steel derivative products to address the circumvention
threatening the capacity-utilization objective. Id. ¶ 9,
clause 1, Annex II, 85 Fed. Reg. at 5283, 5290–92.
Thus, the President, having “announce[d] a continuing
course of action within the statutory time period” (Procla-
mation 9705), “modif[ied] the initial implementing steps
. . . by adding impositions on imports” (extending the tariffs
to derivatives in Proclamation 9980) “in line with the an-
nounced plan of action” (Proclamation 9705’s directive to
the Secretary to monitor imports and inform the President
of any relevant changes) “to achieve the stated implemen-
tation objective” (long-term stabilization of the capacity
utilization rate at or above 80 percent). Transpacific, 4
F.4th at 1318–19. An imposition on imports of derivatives
of the articles that were the subject of the Secretary’s
threat finding is expressly authorized as an available rem-
edy by § 232(c). In acting to close a loophole exploited by
steel-derivatives importers, the President was making a
“contingency-dependent choice[] that [is] a commonplace
feature of plans of action,” id. at 1321, adding use of a tool
that he could have used in the initial set of measures and
later found important to address a specific form of circum-
vention Congress recognized when it authorized coverage
of derivatives of the articles whose imports the Secretary
found to threaten national security. See Oral Arg. at
25:03–26:20 (agreeing that the mechanism linking Procla-
mation 9980 to Proclamation 9705—foreign steel produc-
ers, facing raised tariffs on direct imports, sold steel to
foreign derivatives makers not (yet) subject to raised tar-
iffs, impairing market opportunities of domestic steel mak-
ers—“is not complicated”).
B
The attempts by PrimeSource and Oman Fasteners to
distinguish Transpacific to reach a different result here are
Case: 21-2066 Document: 86 Page: 13 Filed: 02/07/2023

PRIMESOURCE BUILDING PRODUCTS, INC. v. US 13

unpersuasive. First, the fact that the Secretary’s 2018 re-
port and Proclamation 9705 did not address the effect of
imports of derivatives is immaterial. The President may
take action against derivative products regardless of
whether the Secretary has investigated and reported on
such derivatives. See 19 U.S.C. § 1862(b) (stating that the
Secretary’s investigation and report focus on an “article”);
id. § 1862(c)(1)(A)(ii) (empowering the President to then
adjust imports of both “the article and its derivatives”).
There is no textual basis for reading § 232 as empowering
the President to do so only at the initial plan-adoption
stage, not at later, modification stages. And what we rec-
ognized in Transpacific as serving the “evident purpose” of
§ 232—permitting the President to act under an an-
nounced plan to adjust initial measures over time to reach
the initially adopted objective, 4 F.4th at 1323—applies not
only to an increase in tariff rates on the same entries but
equally to an extension to derivatives of measures initially
imposed only on the underlying articles.
Second, the greater gap in time between the Secre-
tary’s finding and the challenged proclamation (here,
nearly two years; in Transpacific, seven months) does not
render Transpacific inapplicable. There is no textual basis
for a specific time limit on adjustments under a timely
adopted plan. Indeed, impositions under § 232 have on nu-
merous occasions been modified many years after they
were first adopted. Id. at 1326–29.
As we noted in Transpacific, a different question might
be presented where the underlying finding or objective has
become substantively stale; here, as in Transpacific, we
have no occasion to address that issue, because “there is no
genuine concern about staleness.” Id. at 1332. Proclama-
tion 9980 was issued in pursuit of the same goal first artic-
ulated in Proclamation 9705 (extended stabilization at 80
percent of domestic capacity utilization) and in response to
the “current information” provided to the President by the
Secretary under the “requirements for monitoring the
Case: 21-2066 Document: 86 Page: 14 Filed: 02/07/2023

14 PRIMESOURCE BUILDING PRODUCTS, INC. v. US

import reductions” that were “put in place” by Proclama-
tion 9705. Id. at 1332 n.10. And insofar as appellees fault
the President for imposing tariffs on some derivatives but
not others, and the government for declining to put into the
record the updated data the Secretary conveyed to the
President, see PrimeSource Br. 31–32; Oman Fasteners Br.
38 & n.15, the criticism is meritless. The information at
issue is not part of a legally required and legally conse-
quential decision of the Secretary, cf. USP Holdings, 36
F.4th at 1366–67, and so we may not second-guess the facts
found and measures taken by the President to support his
adjustment, see Florsheim Shoe Co. v. United States, 744
F.2d 787, 795 (Fed. Cir. 1984) (citing United States v.
George S. Bush & Co., 310 U.S. 371, 379–80 (1940)); Chang
v. United States, 859 F.2d 893, 896 n.3 (Fed. Cir. 1988);
Oral Arg. at 13:45–16:00 (acknowledging that there is no
review of the President’s pertinent factual and remedial-
appropriateness determinations).
C
Reading § 232 to permit the President to modify an in-
itial plan of action to include derivatives, as he did here,
does not render it an unconstitutional delegation. The Su-
preme Court has already rejected a delegation-doctrine
challenge to § 232 (in an earlier form), holding that the
“clear preconditions to Presidential action” established by
§ 232, e.g., a finding by the Secretary regarding the exist-
ence of a national-security threat, and consideration by the
President of “a series of specific factors,” make that author-
ity “far from unbounded.” Federal Energy Administration
v. Algonquin SNG, Inc., 426 U.S. 548, 558–60 (1976) (cita-
tions omitted). The same is true today, as those “clear pre-
conditions” remain in effect, id., and the President must
still consider the statutory factors and act only upon receipt
of a report from the Secretary, even if the President pos-
sesses the modification authority at issue here, see 19
U.S.C. § 1862(b)–(d). Moreover, if § 232 “easily fulfill[ed]
th[e] [intelligible principle] test” in 1976, Algonquin, 426
Case: 21-2066 Document: 86 Page: 15 Filed: 02/07/2023

PRIMESOURCE BUILDING PRODUCTS, INC. v. US 15

U.S. at 559, it also does so now, given that the 1988 amend-
ments, in adding the present deadlines, further defined the
congressional delegation of authority to the President. We
have rejected the contention that Algonquin does not re-
quire rejection of a delegation-doctrine challenge to § 232
in its current form. Transpacific, 4 F.4th at 1332–33 (citing
American Institute for International Steel, Inc. v. United
States, 806 F. App’x 982, 983–91 (Fed. Cir. 2020), cert. de-
nied, 141 S. Ct. 133 (2020)); see also USP Holdings, 36
F.4th at 1365. We see no basis for concluding otherwise
here.
III
In sum, § 232’s deadlines did not prevent the President
from modifying his initial timely adopted plan of action by
issuing Proclamation 9980, and that conclusion does not
render § 232 unconstitutional under the delegation doc-
trine. Because there are no more facts for the Trade Court
to find on remand if Transpacific controls, as appellees
agreed, Oral Arg. at 23:20–25, we reverse the judgments of
the Trade Court and remand the cases for entry of judg-
ment against PrimeSource and Oman Fasteners, including
dismissal of the claims against the President.
The parties shall bear their own costs.
REVERSED AND REMANDED