The opinion of the court was delivered by: FLANNERY
This matter comes before the court on the defendant's motion to dismiss or, in the alternative, for summary judgment and on the plaintiff's cross-motion for summary judgment. The plaintiff National Association of Recycling Industries, Inc. (NARI), a trade association of approximately 1100 firms engaged in collecting, processing, and marketing recyclable metals, paper, textiles, and rubber, sues the Secretary of Commerce (Secretary) in connection with the latter's authority for administering section 7(c) of the Export Administration Act of 1979 (Act), 50 App. U.S.C. § 2406(c). NARI challenges the constitutionality of section 7(c), alleging that it denies NARI's members due process and equal protection under the fifth amendment.The Secretary moves for summary judgment or dismissal on the grounds that the plaintiff lacks standing to bring this suit and that in any event section 7(c) is constitutionally sound.
The court agrees with the defendant in both respects and will therefore grant the motion.
Section 7(c) provides in pertinent part:
Any entity... which is representative of an industry... which processes metallic materials capable of being recycled with respect to which an increase in domestic prices or a domestic shortage, either of which results from increased exports, has or may have a significant adverse effect on the national economy or any sector thereof, may transmit a written petition to the Secretary requesting the monitoring of exports, or the imposition of export controls, or both....
A dispute does not fall within the subject-matter jurisdiction of federal courts unless it qualifies as a "case" or "controversy" within the meaning of article III, and it cannot so qualify unless the plaintiff has suffered "injury in fact."
/ Schlesinger v. Reservists Committee to Stop the War, 94 S. Ct. 2925, 2931 (1974); Association of Data Processing Service Organizations, Inc. v. Camp, 90 S. Ct. 827, 829 (1970). Harm alleged by a plaintiff must be "specific," Laird v. Tatum, 92A S. Ct. 2318, 2326 (1972), and it must be "fairly traceable to the defendant's acts or omissions," Village of Arlington Heights v. Metro Housing Division, 97 S. Ct. 555, 561 (1977).
Here the harm on which the plaintiff relies consists primarily of market disruption that allegedly has resulted and will continue to result in the metallic recyclables industry from the petitioning process established by section 7(c). According to NARI, the problem is tied to the perceptions of foreign investors and their potential for responding chaotically to the petitioning process. Specifically, NARI is concerned about scare-buying and similar phenomena yielding drastic market fluctuations that adversely affect the industry. It says that such phenomena can occur, and indeed have occurred, in response to mere publicity regarding anticipated filings of petitions pursuant to section 7(c).
Additionally, NARI contends that the costs of attending and mounting an effective opposition at the hearings mandated by section 7(c) constitute injury in fact for purposes of standing. In April and May, 1980, for example, its counsel travelled to four separate locations--Washington, San Francisco, New Orleans, and Chicago--in connection with the first hearings held pursuant to section 7(c).
This court is not persuaded that NARI has satisfied the requirement of showing injury in fact. All its alleged injuries appear conjectural, to say the least. The mere possibility that the filing of a petition might stimulate foreign speculation leading to panic-induced market dislocations resulting in economic injury to NARI's members is too remote an injury to support jurisdiction; the chain of causation is too tenuous. NARI emphasizes that the market fluctuations in March and April of this year have already shown the chaos to which any qualifying entity can subject the recycling industry,
/ but it has failed to show more than a speculative relationship between the petition-and-hearing process and these export movements. By affidavit, Mr. Converse Hettinger, the Director of the Short Supply Division, Office of Export Administration, Department of Commerce, stated, "It is virtually impossible at this time to predict accurately the effect which the operation of this new petition procedure may have on the ferrous scrap market." P14. This court is simply not persuaded that Mr. Hettinger is wrong.
Similarly inadequate are the legal costs to NARI of representation at whatever hearings might be held pursuant to section 7(c). Attendance at such hearings is purely voluntary, and neither monitoring nor ...