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May 25, 1993

UNITED STATES OF AMERICA, et al., Defendants.

The opinion of the court was delivered by: JOYCE C. LAMBERTH

 This case comes before the court on defendants' motion to dismiss. The court heard oral argument on defendants' motion on March 26, 1993, and received supplemental briefs on the issues thereafter. The court grants defendants' motion because it concludes that it lacks subject matter jurisdiction over plaintiffs' claims.


 Plaintiff National Council for Industrial Defense is a nonprofit organization that fosters "the strengthening of those endangered American production facilities and work forces which contribute to the industrial capacity of the United States. Complaint P 1. Plaintiff American Engineering Association is a non-profit organization that works to "enhance the status of the status of the American engineering profession and related occupations and to support activities for the employment of Americans in the engineering profession." Complaint P 2.

 Plaintiffs bring this action to challenge the constitutionality of the binational panel provisions in the United States-Canada Free-Trade Agreement ("Agreement"). Chapter 19 of the Agreement provides that independent binational panels, rather than the national courts of the importing country, shall review either country's final administrative antidumping and countervailing duty determinations concerning products of the other country. The binational panel provisions of the Agreement provide that once a final antidumping or countervailing duty determination has been made, either party to that determination has 30 days to request the review of that decision by a binational panel. The panel is to apply the standard of review that a court of the importing country otherwise would apply in such a case, and the panel's decision is binding on the parties to the dispute. The Agreement also provides that a panel decision cannot be subject to subsequent judicial review.

 Congress implemented these and other provisions of the Free Trade Agreement through the appropriately named Free-Trade Agreement Implementation Act of 1988. Title IV of the Act implemented the binational panel provisions through amendments to 19 U.S.C. § 1516a. Congress also included in Title IV a provision not called for by the Free-Trade Agreement. With surprising foresight, Congress provided for the possibility that a court might hold the binational panel review system unconstitutional. Congress legislated that

in such event, the President is authorized on behalf of the United States to accept, as a whole the decision of a binational panel or extraordinary challenge committee remanding the determination to the administering authority or the Commission within the period specified by the panel or committee . . . and no court of the United States shall have power or jurisdiction to review such action . . . ." 19 U.S.C. § 1516a(g)(7)(B).

 Upon passage of the Act, President Reagan signed Executive Order 12662, which states that should any court so rule, he accepts, as a whole, all decisions of the binational panel. 54 Fed. Reg. 785-86. The Executive Order provides for a contingency that has not and may never take place, i.e., a holding by a court that the provision of the Act implementing the panel provisions are unconstitutional.

 Plaintiffs challenge the constitutionality of the federal statute that implements the binational panel provisions, because plaintiffs contend that the binational panels violate various provisions of Articles I-III of the Constitution as well as the Fifth Amendment. Complaint PP 15-26. Plaintiffs also challenge the constitutionality of Executive Order 12662. Complaint PP 27-28.

 Defendants filed this motion to dismiss to challenge both this court's jurisdiction over plaintiffs' claims as well as plaintiffs' standing. The court concludes that it does not have jurisdiction over plaintiffs' claims and grants defendants' motion to dismiss.


 Defendants challenge this court's jurisdiction based on a provision in the Free-Trade Agreement's implementing legislation. That provision reads:

An action for declaratory judgment or injunctive relief, or both, regarding a determination on the grounds that any provision of, or amendment made by, the United States-Canada Free-Trade Implementation Agreement Act of 1988 implementing the binational panel dispute settlement system under chapter 19 of the Agreement violates the Constitution may be brought in the United States Court of Appeals for the District of Columbia Circuit. Any action brought under this subparagraph shall be heard and determined by a 3-judge court in accordance with section 2284 of Title 28.

 19 U.S.C. § 1516 (a)(g)(4)(A). Defendants contend that this provision places exclusive jurisdiction over plaintiffs' claims, all of which are constitutional challenges, with the Court ...

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