 United States Court of Appeals for the Federal Circuit

                                         05-1384


                               GILDA INDUSTRIES, INC.,

                                                        Plaintiff-Appellant,

                                            v.


                                   UNITED STATES,

                                                        Defendant-Appellee.



      Peter S. Herrick, of Miami, Florida, argued for plaintiff-appellant.

       David S. Silverbrand, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, argued for defendant-
appellee. With him on the brief were Peter D. Keisler, Assistant Attorney General;
David M. Cohen, Director; and Jeanne E. Davidson, Deputy Director. Of counsel was
William Busis, Attorney, Office of General Counsel, Executive Office of The President,
Office of the United States Trade Representative.

Appealed from: United States Court of International Trade

Judge Judith M. Barzilay
 United States Court of Appeals for the Federal Circuit


                                        05-1384


                              GILDA INDUSTRIES, INC.,

                                                 Plaintiff-Appellant,

                                            v.

                                   UNITED STATES,

                                                 Defendant-Appellee.

                           ___________________________

                           DECIDED: May 1, 2006
                           ___________________________



Before NEWMAN, BRYSON, and PROST, Circuit Judges

BRYSON, Circuit Judge.

      Gilda Industries, Inc., appeals from a decision of the Court of International Trade

dismissing Gilda’s complaint for failure to state a claim upon which relief could be

granted. Gilda Indus., Inc. v. United States, 353 F. Supp. 2d 1364 (Ct. Int’l Trade 2004).

We affirm in part, vacate in part, and remand.

                                            I

                                            A

      In December 1985 the European Community prohibited imports of the meat of

animals that had been treated with hormones.           The United States attempted to

negotiate a change in the EC’s policy. When those efforts failed, the United States
invoked formal dispute settlement proceedings before the World Trade Organization

challenging the EC’s ban on hormone-treated meat. In 1997 a WTO panel issued a

report concluding that the EC’s ban was contrary to its WTO obligations because the

ban was not based on scientific evidence.       The WTO’s Dispute Settlement Body

subsequently adopted the panel’s report. Nevertheless, the EC did not implement the

panel’s recommendations. As a result, in 1999 the United States requested suspension

of the duty concessions that WTO countries are obligated to grant to one another. The

EC objected, and the matter was referred for arbitration. On July 12, 1999, the WTO

arbitrator determined that the United States had suffered impairment as a result of the

EC’s ban and therefore authorized the United States to increase its duties on EC

products.

      Pursuant to section 301 of the Trade Act of 1974, the United States Trade

Representative has authority to take certain retaliatory measures when this country’s

trade rights are violated by another country. In particular, 19 U.S.C. § 2416 authorizes

the Trade Representative to create “retaliation lists,” which subject certain products of

the target countries to increased duties. On March 25, 1999, the Trade Representative

published notice of his intention to implement retaliatory measures against the EC

pursuant to the WTO dispute settlement agreement.             Implementation of WTO

Recommendations Concerning EC—Measures Concerning Meat and Meat Products

(Hormones), 64 Fed. Reg. 14,486 (Mar. 25, 1999). After a notice and comment period

for the proposed retaliatory measures, the Trade Representative adopted a retaliation

list and subjected all the products on the list to a 100 percent ad valorem duty. Among




05-1384                                    2
the listed products were those falling under HTSUS subheading 9903.02.35, which

encompasses “[r]usks, toasted bread and similar products.”

       Shortly after the Trade Representative issued the retaliation list, Congress

enacted the Trade and Development Act of 2000, Pub. L. No. 106-200, 114 Stat. 251.

Section 407 of that Act amended 19 U.S.C. § 2416 to require the Trade Representative

to modify retaliation lists periodically after their implementation.

                                              B

       Gilda imports toasted breads from Spain.             Although toasted breads were

included on the proposed retaliation list, Gilda did not submit any comments during the

notice and comment period.        In 2002 and 2003, three of Gilda’s entries that were

classified under subheading 9903.02.35 were subjected to the 100 percent retaliatory

duty. Gilda filed protests with the Customs Service contesting the classification of the

entries and the imposition of the retaliatory duty, but Customs denied the protests. In

April 2003 Gilda filed a complaint with the Court of International Trade requesting

reliquidation of its entries, refund of the duties it had paid as a result of the inclusion of

its imports on the retaliation list, and removal of those products from the list. The court

granted the government’s motion to dismiss the complaint for failure to state a claim

upon which relief could be granted. Gilda appeals.1




       1
             The court also denied Gilda’s motion for class certification. Although Gilda
has challenged that ruling on appeal, we uphold the court’s ruling that Gilda failed to
satisfy the requirements of Rules 23(a) and (b) of the Rules of the Court of International
Trade.


05-1384                                        3
                                            II

      As a preliminary matter, the government contends that the Court of International

Trade invoked the wrong jurisdictional provision in this case. Although the government

agrees that the court had subject matter jurisdiction in this case, the government argues

that the court had jurisdiction under 28 U.S.C. § 1581(a) and not under 28 U.S.C.

§ 1581(i). Under section 1581(a), the government argues, the court had no authority to

consider the impact of the retaliation list on future entries, because review under section

1581(a) is limited to the three entries for which Gilda filed protests that were denied by

Customs.

      Gilda’s complaint facially fits within section 1581(i)(2) because it arises out of a

law providing for duties “on the importation of merchandise for reasons other than the

raising of revenue” (i.e., the duty at issue was imposed as a retaliatory measure,

designed to encourage foreign nations to comply with the WTO settlement agreement

rather than to raise revenue). As the government correctly notes, however, section

1581(i) “supplies jurisdiction only for instances when no other subsection of [section

1581] is or could have been available, unless the other subsection provided no more

than a manifestly inadequate remedy.” Consol. Bearings Co. v. United States, 348 F.3d

997, 1002 (Fed. Cir. 2003) (internal quotation marks omitted).          In this case, the

government argues, section 1581(i) is unavailable because adequate review of Gilda’s

claims could be obtained pursuant to section 1581(a). We reject the government’s

argument.

       Section 1581(a) confers jurisdiction on the Court of International Trade in “any

civil action commenced to contest the denial of a protest” under the Tariff Act of 1930.




05-1384                                     4
The Tariff Act lists seven “decisions of the Customs Service” as to which a protest may

be filed. 19 U.S.C. § 1514(a). The principle underlying the limited availability of review

under 28 U.S.C. § 1581(i) is that a party should not be allowed to circumvent the protest

requirement—and thereby Customs’ administrative review—simply by asserting

jurisdiction under section 1581(i) and proceeding immediately to court without

exhausting administrative remedies through the protest mechanism. However, the fact

that Gilda was eligible to file protests, and in fact filed protests regarding the duties

collected under the retaliation list, does not bar it from proceeding under section 1581(i)

instead of section 1581(a). See, e.g., United States v. U.S. Shoe Corp., 523 U.S. 360,

363, 365 (1998) (although petitioner filed a protest, jurisdiction was available under

section 1581(i)). Moreover, although the government assigns critical significance to the

fact that Gilda has failed to show “irreparable harm to an industry and a substantial

impact on the national economy,” U.S. Cane Sugar Refiners’ Ass’n v. Block, 683 F.2d

399, 402 n.5 (CCPA 1982), that is but one of the circumstances in which section

1581(a) might provide a manifestly inadequate remedy. See, e.g., Am. Ass’n of Exps. &

Imps. v. United States, 751 F.2d 1239, 1245 (Fed. Cir. 1985) (“The objective of the

addition of § 1581(i) was to make it clear that . . . prospective importers challenging

Customs Service regulations imposing import restrictions need not attempt to import

merchandise, file a protest and then contest the administrative denial of the protest in

the CIT under § 1581(a).”).

       There is no reason to require exhaustion of Customs’ administrative procedures

when a party challenges a decision in which Customs played no part and over which

Customs has no control. In U.S. Shoe Corp., for example, the Court held that the




05-1384                                     5
petitioner’s challenge to the Harbor Maintenance Tax could be brought under section

1581(i) because Customs “protests are not pivotal” when “Customs performs no active

role, [but] merely passively collects HMT payments.” 523 U.S. at 365. Similarly, in

Mitsubishi Electronics America, Inc. v. United States, 44 F.3d 973, 976-77 (Fed. Cir.

1994), this court held that a challenge to an antidumping duty arises under section

1581(i) because “[t]he actions that [Mitsubishi] challenges . . . are not Customs

decisions.” Because Commerce, not Customs, calculates antidumping duties, the court

explained, “Customs has a merely ministerial role in liquidating antidumping duties.” Id.

at 977.

       As in U.S. Shoe and Mitsubishi, Gilda does not challenge any decision by

Customs. The duty to which Gilda objects was imposed pursuant to a decision of the

Trade Representative. Because Customs has no authority to overturn or disregard the

Trade Representative’s decision, Customs would have no authority to grant relief in a

protest action challenging the imposition of the duty. Moreover, Gilda seeks more than

mere review of particular duties imposed on products previously imported; Gilda’s

complaint seeks termination of the retaliation list or removal of its imports from the list.

That portion of Gilda’s complaint is beyond the scope of issues that could be protested

under 19 U.S.C. § 1514(a). Therefore, limiting the court’s review to the scope of the

protests that Customs denied, which is what the government seeks to do by urging 28

U.S.C. § 1581(a) as the only proper jurisdictional basis, would provide an inadequate

remedy in light of the relief sought in Gilda’s complaint. Consequently, we agree with

the Court of International Trade that Gilda’s complaint invoked section 1581(i)

jurisdiction.




05-1384                                      6
                                             III

       Gilda contends that the Trade Representative has ignored certain provisions of

19 U.S.C. §§ 2416-17, and that if the Trade Representative had followed those

provisions, toasted breads would not be subject to the retaliatory duty. In addition to

urging that toasted breads should not be subject to the retaliatory duty, Gilda also

asserts that it is entitled to a refund of the duties it paid on three entries as to which

retaliatory duties were assessed.

                                             A

       Gilda’s first argument is that retaliation lists may include only products of the

industries that are affected by the foreign nations’ noncompliance with the relevant

WTO dispute settlement agreement (so-called “reciprocal goods”). Gilda argues that

the Trade Representative was not authorized to include toasted breads on the hormone

beef retaliation list because it was the domestic beef industry that was affected by the

European Community’s ban on beef imports, and toasted breads were therefore not

“reciprocal goods.”

       Gilda misreads the statute. Although section 2416(b)(2)(F) requires the Trade

Representative to include reciprocal goods on a retaliation list, nothing in the text of the

statute or its legislative history suggests that nonreciprocal goods may not be included

in addition to reciprocal goods.      In fact, the legislative history of the Trade and

Development Act of 2000, Pub. L. No. 106-200, § 407, 114 Stat. 251, 293-94, which

added the reciprocal goods provision, suggests that Congress was particularly

concerned that foreign nations might thwart the intended effect of a retaliation list by

subsidizing products that were included on the list. Thus, Congress envisioned that the




05-1384                                      7
Trade Representative would alter the retaliation list frequently, including additional

products as a means of increasing pressure on the noncomplying nations. See, e.g.,

145 Cong. Rec. 25,083 (1999) (“The Carousel bill requires the U.S. Trade

Representative to rotate and revise the retaliation list so that countries violating WTO

Dispute Settlements cannot merely subsidize the affected industries to recover from

retaliation penalties.”); 145 Cong. Rec. 26,934 (1999) (noting that under the proposed

amendment, the Trade Representative would “seek other products to target and at tariff

levels that will impose the kind of pain that will cause the European Union to see

compliance as the remedy”). Thus, it is clear that Congress did not intend to prohibit

the Trade Representative from including nonreciprocal goods on the retaliation list.

                                              B

       Gilda next argues that pursuant to 19 U.S.C. § 2417(c) the hormone beef

retaliation list expired by force of law in July 2003, four years after its inception. Section

2417(c)(1) provides that actions taken under section 2411 (e.g., implementation of a

retaliation list) terminate after four years unless a representative of the domestic

industry “which benefits from” the action submits a written request for continuation of the

action. Although Gilda acknowledges that representatives of the domestic beef industry

submitted written requests for continuation of the retaliation list, Gilda argues that the

domestic beef industry is not an industry “which benefits from” the retaliation list. Gilda

contends that the domestic beef industry cannot be said to be a beneficiary of the

retaliation list unless and until the EC responds to the retaliatory measure by complying

with the WTO settlement agreement.




05-1384                                       8
       That view of the statute makes no sense. The domestic beef industry “benefits

from” the retaliation list because the list exerts pressure on foreign nations to comply

with the WTO settlement agreement. Therefore, the domestic beef industry’s request

for continuation of the retaliation list is exactly the sort of request contemplated in

section 2417(c)(1).     Under Gilda’s view, a domestic industry could never request

continuation of a retaliation list, because the industry would not be said to “benefit from”

the list until the list had served its ultimate purpose, at which time there would be no

reason to keep the list in effect.

       Gilda also argues that the Trade Representative failed to comply with 19 U.S.C.

§ 2417(c)(3). That statute requires the Trade Representative, after receiving a request

for continuation of a retaliation list, to conduct a review of the effectiveness of the list

and of its effects on the national economy. The Court of International Trade noted that

counsel for the Trade Representative stated during oral argument that the required

review had begun. Although the trial court’s opinion referred only to that statement of

counsel, the court was presented with additional evidence showing that the Trade

Representative had begun the required review. In particular, the record contains copies

of emails showing progress on the initial stages of the review, and spreadsheets of data

that were compiled for purposes of the review.

       Gilda does not appear to contest the government’s basic point that the review

has begun. Rather, Gilda argues that the Trade Representative has not conducted a

hearing on the effectiveness of the retaliation list and that the Trade Representative has

not yet completed his review. The government, however, is not required to establish

either of those facts to show that the Trade Representative has complied with the




05-1384                                      9
statute. All that the statute requires is that the Trade Representative “conduct a review.”

The statute does not specify a particular method or timeline for completing the review,

and we see no suggestion—in the record or in Gilda’s arguments to this court—that the

Trade Representative has unreasonably delayed the review.             Moreover, the statute

does not provide, as Gilda argues, that the Trade Representative’s failure to conduct

the required review necessarily results in the termination of the retaliation list. Thus, we

see no error in the court’s conclusion that Gilda could prove no set of facts that would

entitle it to relief under section 2417(c)(3).

                                                 C

       Gilda next argues that the Trade Representative failed to comply with the

“carousel provision” of section 2416. Because of that failure, Gilda contends that its

imports should be removed from the retaliation list and that it should be refunded the

duties it has paid on those imports.

       The carousel provision states that the “Trade Representative shall, 120 days

after the date the retaliation list or other section 2411(a) action is first taken, and every

180 days thereafter, review the list or action taken and revise, in whole or in part, the list

or action to affect other goods of the subject country or countries.”             19 U.S.C.

§ 2416(b)(2)(C). It is undisputed that the Trade Representative has not revised the

hormone beef retaliation list since implementing it in July 1999.             The Court of

International Trade held that the Trade Representative had not violated the “review and

revise” requirement, however, because the court concluded that one of the statutory

exceptions to that requirement applies in this case. That exception provides that the

Trade Representative is not required to revise the retaliation list if he “determines that




05-1384                                          10
implementation of a recommendation made pursuant to a dispute settlement proceeding

. . . is imminent.” 19 U.S.C. § 2416(b)(2)(B)(ii)(I).2 Additionally, the court concluded that

even if the Trade Representative failed to comply with the carousel provision, that would

not entitle Gilda to have its imports removed from the retaliation list or to a refund of

retaliatory duties. To the extent that the court dismissed Gilda’s claim based on the

conclusion that those remedies were not available, the court appears to have assumed

that those were the only plausible remedies.

       For the reasons detailed below, we believe the applicability of the statutory

exception in this case requires consideration of evidence and findings of fact. The

record is insufficient to support the court’s conclusion that the statutory exception

applies in this case as a matter of law. The court thus erred by dismissing Gilda’s

complaint for failure to state a claim upon which relief can be granted, and we therefore

remand for further consideration of the statutory exception issue.

                                             1

       As a preliminary matter, in order to have standing to object to the Trade

Representative’s failure to review and revise the retaliation list, Gilda was required to

prove that it met Article III standing requirements.      Gilda’s claim is that the Trade

Representative’s failure to comply with the carousel provision caused Gilda’s imports to

remain on the retaliation list, thereby subjecting Gilda to retaliatory duties.        Gilda

satisfies Article III standing to bring that claim because Gilda “has suffered some actual



       2
              The other statutory exception provides that the retaliation list need not be
revised if “the Trade Representative together with the petitioner involved in the initial
investigation . . . agree that it is unnecessary to revise the retaliation list.” 19 U.S.C.
§ 2416(b)(2)(B)(ii)(II). The government does not assert that that exception is applicable
in this case.


05-1384                                      11
. . . injury” that “fairly can be traced to the challenged action” and “is likely to be

redressed by a favorable decision.” Valley Forge Christian Coll. v. Ams. United for

Separation of Church & State, Inc., 454 U.S. 464, 472 (1982). Although review and

revision of the list would not necessarily have led to the removal of Gilda’s imported

products from the list, the failure to conduct review and revision of the list injured Gilda

by depriving it of at least an opportunity to have those products removed. Cf. FEC v.

Akins, 524 U.S. 11, 25 (1998) (the fact that the FEC could “still have decided in the

exercise of its discretion not to require AIPAC to produce the information . . . does not

destroy Article III ‘causation,’ for we cannot know that the FEC would have exercised its

prosecutorial discretion in this way”). That is a sufficient injury to be cognizable under

the test for Article III standing.

       In addition to Article III standing requirements, courts applying the judicial review

standards of the Administrative Procedure Act, 5 U.S.C. § 702, determine whether the

plaintiff has standing to seek review under that statute based on “whether the interest

sought to be protected by the complainant is arguably within the zone of interests to be

protected or regulated by the statute or constitutional guarantee in question.” Ass’n of

Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 153 (1970); see also Nat’l

Credit Union Admin. v. First Nat’l Bank & Trust Co., 522 U.S. 479, 488-96 (1998); Air

Courier Conference of Am. v. Am. Postal Workers Union, AFL-CIO, 498 U.S. 517, 523-

31 (1991). In this case, it is an open question whether Gilda’s interests are “arguably

within the zone of interests to be protected” by the carousel provision for purposes of

review under 28 U.S.C. § 2631(i), which incorporates the judicial review standard of the

Administrative Procedure Act for actions brought under 28 U.S.C. § 1581(i). On the one




05-1384                                     12
hand, the injury Gilda complains of is precisely the “pain” Congress intended to inflict

through the carousel provision. Senator DeWine made that point clearly in the course

of the Senate debate on the Trade and Development Act of 2000:

       What is a nation to do if its current list of imports subject to retaliatory
       tariffs is not working to move the offender such as the E.U. into
       compliance? The solution, I believe, is to seek other products to target
       and at tariff levels that will impose the kind of pain that will cause the
       European Union to see compliance as the remedy. . . . That is what this
       amendment is about.

145 Cong. Rec. 26,933-34 (1999). Thus, Gilda’s suit may be viewed as seeking relief

that is contrary to, and would frustrate, the objectives of the statute. See Clarke v. Sec.

Indus. Ass’n, 479 U.S. 388, 397 n.12 (1987) (the zone of interests test “seeks to

exclude those plaintiffs whose suits are more likely to frustrate than to further statutory

objectives”). On the other hand, we have questioned whether importers who otherwise

meet the requirements of 28 U.S.C. § 2631 to bring a suit challenging Customs’ denial

of a protest should be required to show that their interests fall within some additional

zone of interests. Florsheim Shoe Co. v. United States, 744 F.2d 787, 790 (Fed. Cir.

1984) (“We find it difficult to accept the Government’s overriding premise as to the need

for a proper protester also to be within some external ‘zone of interests’ . . . .”).

       In the end, we do not need to reach or decide the question whether Gilda

satisfies the standing requirements of the Administrative Procedure Act, because the

government did not contend in its brief that Gilda’s complaint should be barred by the

zone of interests test. The government has thus waived that argument. See Duty Free

Int’l, Inc. v. United States, 88 F.3d 1046, 1048 (Fed. Cir. 1996) (concluding that the

zone of interests test is not jurisdictional, and therefore that the government waived that




05-1384                                       13
argument by failing to raise it). We therefore proceed to the merits of Gilda’s arguments

regarding the carousel provision.

                                              2

       As noted above, the government does not dispute Gilda’s claim that the Trade

Representative has never “reviewed and revised” the hormone retaliation list, as

generally required by 19 U.S.C. § 2416(b)(2)(C). Rather, the government argues that

19 U.S.C. § 2416(b)(2)(B)(ii)(I)—a statutory exception from the “review and revise”

requirement of the carousel provision—applies in this case because the Trade

Representative has determined that resolution of the hormone beef dispute is imminent.

The Court of International Trade accepted that argument and dismissed Gilda’s

complaint for failure to state a claim.

       The problem with that disposition is that if the Trade Representative has never

made the required determination, the Trade Representative’s inaction is not excused by

the statutory exception. Thus, before concluding that the statutory exception applies,

the court must determine, as a factual matter, whether the Trade Representative has

actually determined that resolution of the hormone beef dispute is imminent.                In

particular, the court must consider evidence submitted by the parties bearing on that

question.

       At this stage of the litigation, the evidence of record falls short of establishing that

the Trade Representative has determined that resolution of the hormone beef dispute is

imminent.    For instance, in response to the government’s motion to dismiss, Gilda

submitted a copy of an email sent by an official at the Office of the Trade

Representative, which indicates that as of May 2004 the Office of the Trade




05-1384                                      14
Representative was considering whether to extend the retaliation list to cover countries

that had recently joined the European Union.       That email suggests that the Trade

Representative foresaw a continuing need for the retaliation list. Additionally, Gilda has

proffered a press release issued by the Office of the Trade Representative in May 2000.

That document refers to the two exceptions to the carousel provision and notes that “[a]t

this time, neither of these exceptions appears to apply.” Press Release, Office of the

United States Trade Representative, USTR Announces Procedures for Modifying

Measures in EC Beef and Bananas Cases (May 26, 2000).

      In concluding that the statutory exception applies in this case, the Court of

International Trade pointed to a statement by the government’s counsel at oral

argument, in which counsel stated that “in this case because the USTR believes that a

solution with the European Communities is imminent it has not implemented the

Carousel provision.” That single statement by counsel, however, is not sufficient to

support the court’s conclusion that the Trade Representative has actually “determine[d]

that implementation of a recommendation made pursuant to a dispute settlement

proceeding described in clause (i) by the country is imminent,” which is what the

statutory exception requires. See In re Budge Mfg. Co., 857 F.2d 773, 776 (Fed. Cir.

1988) (attorney statements are “no evidence”); see also Johnston v. IVAC Corp., 885

F.2d 1574, 1581 (Fed. Cir. 1989) (attorney argument is no substitute for evidence).

      On appeal, the government points to a March 2005 report by the Office of the

Trade Representative.    See Office of the Trade Representative, 2005 Trade Policy

Agenda and 2004 Annual Report (Mar. 2005). The government argues that that report

indicates that the Trade Representative believed that resolution of the hormone dispute




05-1384                                    15
was imminent and that the statutory exception was therefore applicable.3 The report,

however, merely mentions that the EC “sought consultations under the WTO . . .

claiming that the EC had brought its hormone ban into compliance with the EC’s WTO

obligations.”   The report does not express any view as to whether the Trade

Representative believes that the EC is complying with the WTO settlement agreement,

and the report does not allude to any “imminent resolution” of the dispute or mention the

statutory exception. Thus, the government has not pointed to any evidence from which

we could conclude that the Trade Representative has determined that resolution of the

hormone dispute is imminent. In the absence of such evidence—and, more importantly,

in the absence of any finding of fact on this question by the Court of International

Trade—we cannot affirm the court’s conclusion that the Trade Representative’s inaction

is excused by the statutory exception.

       With respect to the Trade Representative’s decision not to revise the retaliation

list, the government also argues that the Trade Representative’s actions or inactions are

unreviewable.    That is because, in the government’s view, Congress delegated

unfettered discretion to the Trade Representative under the carousel provision and, in

any event, there is no final agency action to review.        We agree that the Trade

Representative’s determinations under the carousel provision are entitled to substantial

deference. But that does not preclude review of whether the Trade Representative has




       3
           The pages of that report cited by the government in its brief, pages 235-36,
have nothing to do with the hormone dispute or retaliation list. We presume that the
government intended to cite page 258, the only page of the document on which we find
any relevant discussion of the hormone dispute.


05-1384                                    16
actually made a determination required by the statute, or whether, instead, the Trade

Representative has wholly ignored the statute’s commands.

       The carousel provision states that the Trade Representative “shall” review and

revise the retaliation list every 180 days. Statutory instructions using the term “shall”

are ordinarily treated as mandatory. See, e.g., Lexecon Inc. v. Milberg Weiss Bershad

Hynes & Lerach, 523 U.S. 26, 35 (1998) (noting that the use of the term “shall” in a

statute “normally creates an obligation impervious to . . . discretion”); Escoe v. Zerbst,

295 U.S. 490, 493 (1935) (noting that the term “shall” in a statute is ordinarily “the

language of command”). Nothing in the Trade Act of 2000 suggests otherwise. In fact,

the legislative history of the Act suggests that Congress meant to require revision of the

list, to ensure the list continued to exert maximum pressure on noncomplying nations.

See, e.g., H.R. Rep. No. 106-606, at 119 (2000) (the purpose of the amendment is to

“require the United States Trade Representative (USTR) to make periodic revisions of

retaliation lists 120 days from the date the retaliation list is made and every 180 days

thereafter”).

       While we express no opinion as to whether resolution of the hormone beef

dispute is imminent—nor any opinion as to which goods should be included on the

retaliation list—we see no basis in the record for concluding as a matter of law that the

statutory exception is applicable.   Thus, the Court of International Trade erred by

holding the exception applicable on the government’s motion to dismiss. We therefore

remand for the court to further consider whether the Trade Representative has actually

determined that resolution of the hormone dispute is imminent.              If the Trade

Representative demonstrates that the statutory exception applies, then, for the reasons




05-1384                                    17
discussed below, there is no remedy available to Gilda in this suit. However, if the court

finds that the Trade Representative has not determined that resolution of the hormone

dispute is imminent, then the court should consider whether it is appropriate to direct the

Trade Representative to review and revise the retaliation list.

                                             3

       Although the Trade Representative has not demonstrated compliance with the

carousel provision, that does not entitle Gilda to all of the remedies it seeks. Any right

to remedial action is limited by the scope of the statutory violation Gilda can prove.

Gilda argues that if the Trade Representative failed to comply with the carousel

provision, we should fashion a remedy that would put Gilda in the position it would be in

if its imports had been removed from the retaliation list pursuant to some hypothetical

revision that should have occurred in the past. That remedy, Gilda contends, would

include removing Gilda’s imports from the current retaliation list and refunding any

retaliatory duties that Gilda has paid since that hypothetical revision.

       The problem with that argument is that we cannot speculate as to whether the

Trade Representative would have removed toasted breads from the retaliation list if the

Trade Representative had revised the list pursuant to the carousel provision. That is

because the Trade Representative has discretion under the carousel provision to review

and revise the list “in whole or in part” so as to “affect other goods.”        19 U.S.C.

§ 2416(b)(2)(C). In light of that broad discretionary authority, Gilda had no grounds on

which to insist that toasted breads be removed from the list as part of the regular

process. That is particularly so in light of the deference accorded by the court to the

Executive Branch’s exercise of discretion in the area of trade negotiations. See, e.g.,




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Am. Ass’n of Exps. & Imps. v. United States, 751 F.2d 1239, 1247 (Fed. Cir. 1985);

Maple Leaf Fish Co. v. United States, 762 F.2d 86, 89 (Fed. Cir. 1985). Under these

circumstances, it would be improper for us to hold that toasted breads should have

been removed from the retaliation list pursuant to the carousel provision at some point

in the past. For that reason, Gilda is not entitled to a refund of duties paid or removal of

its imported products from the retaliation list, no matter whether the Trade

Representative has complied with the carousel provision.

       In sum, the Trade Representative had the authority to include toasted breads on

the original retaliation list, and there is no provision in the statute that required the Trade

Representative to terminate the list or remove toasted breads from the list. Therefore,

there is no legal basis on which we could compel the Trade Representative to remove

Gilda’s imports from the retaliation list, and no grounds on which we could hold that

Gilda was improperly required to pay retaliatory duties. On remand, the only statutory

violation that Gilda might be able to prove is the Trade Representative’s failure to

comply with the carousel provision. The only remedy that could be appropriate for that

violation would be to direct the Trade Representative to take the action required by the

carousel provision—i.e., to review and revise the retaliation list. On remand, if the court

finds that the statutory exception does not apply in this case, then the court should

consider whether that remedy is appropriate.

                                              IV

       Gilda next argues that the carousel provision gave it the right to notice and an

opportunity to comment on the retaliation list every 180 days. We disagree. The Trade

Representative satisfied the statute’s procedural requirements by providing notice and




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an opportunity to comment at the time the retaliation list was implemented. If the Trade

Representative finds it necessary to revise the retaliation list, the statute instructs him to

“consult with the petitioner, if any, involved in the initial investigation.” The statute does

not require the Trade Representative to provide notice or an opportunity for comment to

all interested parties at that point. Moreover, in the event that the Trade Representative

finds it unnecessary to revise the retaliation list, the statute does not demand recurring

notice and comment periods every 180 days.

       Nor is Gilda entitled to any greater rights under the Due Process Clause of the

Fifth Amendment.      It has long been settled that executive actions involving foreign

trade, such as the imposition of tariffs, do not constitute the taking of property without

due process of law, see Legal Tender Cases (Knox v. Lee), 79 U.S. (12 Wall.) 457, 551

(1870); Paradissiotis v. United States, 304 F.3d 1271, 1274-75 (Fed. Cir. 2002), and

that “[n]o one has a legal right to the maintenance of an existing rate or duty,”

Norwegian Nitrogen Prods. Co. v. United States, 288 U.S. 294, 318 (1933). Thus, the

retention of Gilda’s imports on the retaliation list did not deprive Gilda of a property

interest as to which it was entitled to additional procedural protections as a matter of

constitutional due process.

                                              V

       Finally, Gilda argues that the Trade Representative has violated the

recommendation made by the WTO’s Dispute Settlement Body because that

recommendation authorized the United States to suspend trade concessions for an

amount up to $116.8 million per year. See Implementation of WTO Recommendations

Concerning EC-Measures Concerning Meat and Meat Products (Hormones), 64 Fed.




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Reg. 40,638, 40,639 (July 27, 1999).       According to Gilda, Customs has collected

retaliation duties in excess of that amount. Thus, in Gilda’s view, Gilda is entitled to a

refund corresponding to that excess amount. Gilda’s original complaint did not make

that allegation, and the Court of International Trade, without comment, denied Gilda’s

motion to amend its complaint with the allegation.

      On appeal, Gilda does not address the court’s denial of Gilda’s motion to amend

its complaint, but instead focuses on the substance of the excess duties argument.

However, no matter whether the court should have allowed Gilda to amend its

complaint, the substance of Gilda’s excess duty argument is without merit, and

therefore Gilda was not prejudiced by the court’s order. As we have noted, “WTO

decisions are ‘not binding on the United States, much less this court.’” Corus Staal BV

v. Dep’t of Commerce, 395 F.3d 1343, 1348 (Fed. Cir. 2005) (quoting Timken Co. v.

United States, 354 F.3d 1334, 1344 (Fed. Cir. 2004)).             Moreover, 19 U.S.C.

§ 3512(c)(1)(B) provides that no person other than the United States “may challenge, in

any action brought under any provision of law, any action or inaction by any department,

agency, or other instrumentality of the United States . . . on the ground that such action

or inaction is inconsistent with [the Uruguay Round Agreements].” The Uruguay Round

Agreements encompass all agreements that might be implicated by the WTO Dispute

Settlement Body’s recommendation, see generally 19 U.S.C. §§ 3501(7), 3511(d), so

Gilda may not challenge the retaliation list’s implementation on the ground that it

violates the WTO’s recommendation.

      Each party shall bear its own costs for this appeal.

            AFFIRMED IN PART, VACATED IN PART, AND REMANDED.




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