Duche v. United States

Ekwall, Judge: The issues in this case have been before this court and the Court of Customs and Patent Appeals on numerous occasions. Plaintiff imported from China a quantity of dried egg yolk and dried egg albumen upon which duty was assessed at the rate of 27 cents per pound under the provisions of paragraph 713 of the Tariff Act of 1930, as modified by Presidential proclamation, T. D. 44997, issued under authority of section 336 of said tariff act. It is claimed on behalf of the plaintiff that said Presidential proclamation is illegal, null, and void, because, it is alleged, it is based upon a report of the Tariff Commission which; shows on its face that there was no legal compliance with the jurisdictional requirements of said section 336. This claim is based upon the following allegations as set forth in plaintiff’s brief: (a) There was no domestic article as defined in Section 336; (b) There was no commercial production from which costs of production, as defined in Section 336, could be ascertained; (c) No domestic costs of production as defined in Section 336 were obtained; (d) The domestic costs of production found by the Tariff Commission were estimated and not actual; (e) The Tariff Commission used an alternative basis for domestic costs when Section 336 definitely provides for only one method; (f) The action of the President was illegal beyond the law, and void because he assumed the non-delegated power to protect by tariff rates a non-existent domestic article and industry. Plaintiff specifically claims that the merchandise is properly dutiable. at 18 cents per pound under the same paragraph as originally enacted. The case has been submitted upon a stipulation that the record in the case of T. M. Duche & Sons, Inc. v. United States, 36 C. C. P. A. (Customs) 19, C. A. D. 391, may be incorporated. The record in the incorporated case consisted of the record in the case of T. M. Duche & Sons, Inc. v. United States, 13 Cust. Ct. 26, C. D. 863, which was not appealed, and which in turn included the record in the case of David L. Moss Co., Inc. v. United States, 26 C. C. P. A. (Customs) 381, C. A. D. 45. In the earlier Duche case, reported in 13 Cust. Ct., supra, this court overruled plaintiff’s claims under authority of United States v. George S. Bush & Co., Inc., 310 U. S. 371. In the later [63] Duche case, decided by our appellate court in 36 C. C. P. A., supra, the court upheld the majority opinion of this court reported in T. M. Duche & Sons, Inc. v. United States, 18 Cust. Ct. 25, C. D. 1040, and held that the case of United States v. George S. Bush & Co., Inc., supra, was controlling of the issue and that under that decision, this court and our appellate court may not review the facts which appear in the record of the hearing before the Tariff Commission, but the courts may examine judicially the factual record to determine whether there has been compliance with the jurisdictional and statutory requirements. The court further held that section 336, supra, does not necessarily presuppose the existence of a competitive industry in order to lend validity to the investigation by the Tariff Commission. In arriving at its conclusion, the court took occasion to quote from the reasoning of Justice Douglas in the Bush case, supra, as follows: The powers which Congress has entrusted to the President under the Act of 1930 do not essentially differ in kind from those which have been granted him under the tariff acts for well over a century. See Norwegian Nitrogen Products Co. v. United States, 288 U. S. 294, 308 et seq., for a review of the statutes. Since its creation in 1916 the Commission has acted as an adviser to the Congress or to the President. Under § 336 of the Act of 1930 the Commission serves the President in that role. It does not increase or decrease the rates of duty; it is but the expert body which investigates and submits the facts and its recommendations to the President. It is the judgment of the President on those facts which is determinative of whether or not the recommended rates will be promulgated. In substance and to a great extent in form (Norwegian Nitrogen Products Co. v. United States, supra) the action of the Commission and the President is but one stage of the legislative process. Hampton & Co. v. United States, 276 U. S. 394. “No one has a legal right to the maintenance of an existing rate or duty.” Norwegian Nitrogen Products Co. v. United States, supra, p. 318. And the judgment of the President that on the facts, adduced in pursuance of the procedure prescribed by Congress, a change of rate is necessary is no more subject to judicial review under this statutory scheme than if Congress itself had exercised that judgment. It has long been held that where' Congress has authorized a public officer to take some specified legislative action when in his judg'ment that action is necessary or appropriate to carry out the policy of Congress, the judgment of the officer as to the existence of the facts calling for that action is not subject to review. Martin v. Mott, 12 Wheat. 19; Monongahela Bridge Co. v. United States, 216 U. S. 177; Dakota Central Telephone Co. v. South Dakota, 250 U. S. 163; United States v. Chemical Foundation, Inc., 272 U. S. 1. As stated by Mr. Justice Story in Martin v. Mott, supra, pp. 31-32: “Whenever a statute gives a discretionary power to any person, to be exercised by him upon his own opinion of certain facts, it is a sound rule of construction, that the statute constitutes him the sole and exclusive judge of the existence of those facts.” For the judiciary to probe the reasoning which underlies this Proclamation would amount to a clear invasion of the legislative and executive domains. Under the Constitution it is exclusively for Congress, or those to whom it delegates authority, to determine what tariffs shall be imposed. * * * Counsel for the plaintiff in the brief filed makes the following statements as to tbe issue: [64] In asking the court to review again this question it should be made clear that plaintiff is not asking a review of the factual findings and conclusions of the Commission nor is he asking the court to “weigh the evidence” before the Commission nor to “substitute its opinion or discretion for that of the Commission” or the President. Instead, the protest is based upon the claim that there is no validity in the entire proceedings of the Commission and President; that the Commission has exceeded the power conferred upon it and its investigation and findings and the proclamation of the President based thereon are illegal because of failure to satisfy express jurisdictional requirements of the statute. The jurisdictional requirements of the statute above referred to were passed upon in the Duche case reported in 36 C. C. P. A., supra, insofar as the provisions of the Tariff Act of 1930 are concerned. The only new element injected into the case by the present proceedings is the applicability of the Administrative Procedure Act, 5 U. S. O. A. § 1001 et seg. Section 1009 of that act contains the following provisions: § 1009. Judicial review of agency action Except so far as (1) statutes preclude judicial review or (2) agency action is by law committed to agency discretion. Rights of review (a) Any person suffering legal wrong because of any agency action, or adversely affected or aggrieved by such action within the meaning of any relevant statute, shall be entitled to judicial review thereof. It is the opinion of the court and we so hold, that unless the Administrative Procedure Act, supra, is applicable, the issues here presented are stare decisis. Whether or not the rule of stare decisis shall be followed or departed from, is a question entirely within the discretion of the court when called upon to consider a question once decided. Hertz v. Woodman, 218 U. S. 205; 54 L. ed. 1001. The primary purpose of said act, as shown by the legislative history thereof (Plouse Report No. 1980, May 3, 1946, United States Code Congressional Service, 79th Congress, 2d Session, p. 1195 et seep), was to secure judicial review of administrative agencies. In discussing the substance of the bill which was enacted as the Administrative Procedure Act, the report states: What the bill does in substance may be summarized under four headings: 1. It provides that agencies must issue as rules certain specified information as to their organization and procedure, and also make available other materials of administrative law (sec. 3). 2. It states the essentials of the several forms of administrative proceedings (secs. 4, 5, and 6) and the general limitations on administrative powers (sec. 9). 3. It provides in more detail the requirements for administrative hearings and decisions in cases in which statutes require such hearings (sees. 7 and 8). 4. It sets forth a simplified statement of judicial review deisgned to afford a remedy for every legal wrong (sec. 10). It is noted that the act in question took effect in September 1946. The Presidential proclamation here involved is effective July 24, 1931, the instant entries were made during 1936, and liquidation was made [65] in 1937. The act expressly exempts Congress from its operation. It defines “agency” as follows: § 1001. Definitions As used in this chapter— Agency (a) “Agency” means each authority (whether or not within or subject to review by another agency) of the Government of the United States other than Congress, the courts, or the governments of the possessions, Territories, or the District of Columbia. Nothing in this chapter shall be construed to repeal delegations of authority as provided by law. * * * It is clear that this provision merely states the obvious, viz, that Congress, the courts, and the governments of the possessions are not federal “administrative” agencies, and that the act is not to impinge upon any branch of the Government except the executive. That the President, acting under the flexible tariff statute, cannot be regarded as an administrative agency, but is an agent of Congress, has been held by this court, the Court of Customs and Patent Appeals, and the United States Supreme Court. Hampton, Jr., & Co. v. United States, 276 U. S. 394, 411, affirming Same v. Same, 14 Ct. Cust. Appls. 350, T. D. 42030. There, the Court, speaking through Mr. Chief Justice Taft, used the following language: * * * What the President was required to do was merely in execution of the act of Congress. It was not the making of law. He was the mere agent of the law-making department to ascertain and declare the event upon which its expressed will was to take effect. See also the statement of Mr. Justice Cardozo in Norwegian Nitrogen Products Co. v. United States, 288 U. S. 294, at 305: * * * 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 permissible one, of the legislative process. Hampton & Co. v. United States, 276 U. S. 394; Buttfield v. Stranahan, supra; Field v. Clark, 143 U. S. 649. * * * In the light of these rulings the President and the Tariff Commission are excluded from the operation of the Administrative Procedure Act. Moreover, it has been held that the provision of said subsection (a) above, that any person suffering legal wrong because of any agency action shall be entitled to judicial review thereof and that every final agency action for which there is no other adequate remedy in any court shall be subject to judicial review, is merely declaratory of existing law of judicial review, and it neither confers jurisdiction on the district court above and beyond that which it already had, nor grants to aggrieved parties any rights they did not have under the National Labor Relations Act. Olin Industries v. National Labor Relations Board, 72 Fed. Supp. 225. We think this holding is equally applicable in the instant case, and that the subsection neither grants to this court jurisdiction above and beyond that which it already had, [66] nor grants to aggrieved parties any rights they did not have under the tariff act. In the case of Chicago & Southern Air Lines, Inc. v. Waterman Steamship Corp., 333 U. S. 103, the question for determination was whether the courts had jurisdiction of the action of the Civil Aeronautics Board denying the application of the steamship company for a certificate of convenience and necessity for an air route. The provisions of law there involved governing common carriers by air required that all applications for a certificate to engage in any overseas or foreign air transportation be transmitted to the President and all decisions thereon by the Civil Aeronautics Board be approved by him. The statute did not provide for any judicial review of action on such application, and the question for determination by the court was whether such action was impliedly exempted from such judicial review. The Supreme Court held that the orders of the Board are not mature and, therefore, are not susceptible of judicial review until they are made final by Presidential approval, and, further, that after such approval has been given, the final orders embody Presidential discretion as to political matters beyond the competence of the courts, to adjudicate. In the course of its decision, the Court said: This Court long has held that statutes which employ broad terms to confer power of judicial review are not always to be read literally. Where Congress has authorized review of “any order” or used other equally inclusive terms, courts have declined the opportunity to magnify their jurisdiction, by self-denying constructions which do not subject to judicial control orders which, from their nature, from the context of the Act, or from the relation of judicial power to the subject-matter, are inappropriate for review. Examples are set forth by Chief Justice Hughes in Federal Power Commission v. Edison Co., 304 U. S. 375, 384. Cf. Rochester Telephone Corp. v. United States, 307 U. S. 125, 130. We deem it unnecessary to review in detail all of the earlier decisions on the issues here presented; that has been done by this court and the Court of Customs and Patent Appeals and also the Supreme Court in the decisions above cited. We have given full and careful examination to the issues, having in mind that courts upon whom the public must rely for the establishment and maintenance of correct legal principles, should not hesitate, when convinced of error, to reverse their decisions and enunciate the principles which more complete information and more mature consideration lead them to conclude are correct and sound. However, we are unable to find in the instant case that the conclusions reached in the later Duche case, decided in 36 C. C. P. A., supra, were anything but correct and sound. We therefore hold that the issue is stare decisis, and overrule plaintiff’s protest. Judgment will be rendered accordingly.