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Edward Lozansky, et al v. Barack Hussein Obama

January 26, 2012

EDWARD LOZANSKY, ET AL., PLAINTIFFS,
v.
BARACK HUSSEIN OBAMA, PRESIDENT OF THE UNITED STATES, DEFENDANT.



The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge

MEMORANDUM OPINION

(January 26, 2012)

Plaintiffs Edward Lozansky and Anthony T. Salvia filed suit against the President of the United States, seeking a declaratory judgment and writ of mandamus forcing the President to remove the trade restrictions the Jackson-Vanik amendment purportedly places on trade with the Russian Federation. The President filed a [7] Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6). Defendant's motion contends this Court lacks jurisdiction over the Complaint because there is no waiver of sovereign immunity, the Plaintiffs lack standing, and the Plaintiffs have failed to satisfy the requirements for mandamus jurisdiction. The President further argues that the Plaintiffs have failed to state a claim upon which relief can be granted because the President acted properly under the Jackson-Vanik amendment.*fn1 The motion is now fully briefed.*fn2 For the reasons stated below, the Court finds the issue of standing is dispositive. Therefore Court does not reach the issues of sovereign immunity or the merits of the President's actions. The Court will address mandamus jurisdiction as a component of the issue of standing. Because Plaintiffs failed to show their purported injuries could be redressed by a favorable decision from this Court or fall within the zone of interests of the Jackson Vanik amendment, Plaintiffs lack standing to pursue the claims alleged in the Complaint and Defendant's Motion to Dismiss is GRANTED.

I. BACKGROUND

A. Statutory Framework

Title IV of the Trade Act of 1974, 19 U.S.C. § 2431 et seq., provides a mechanism by which the President can establish "nondiscriminatory" or "normal trade relations" with any country "the products of which were not eligible for the rates set forth in rate column numbered 1 of the Tariff Schedules of the United States on January 3, 1975." In other words, the Act continues to deny nondiscriminatory treatment to the products of countries who did not previously receive nondiscriminatory treatment, unless the country meets the requirements of section 402 of the Act. Section 402, known as the Jackson-Vanik amendment, provides in part To assure the continued dedication of the United States to fundamental human rights, and notwithstanding any other provision of law, on or after the January 3, 1975, products from any nonmarket economy country shall not be eligible to receive nondiscriminatory treatment (normal trade relations), such country shall not participate in any program of the Government of the United States which extends credits or credit guarantees or investment guarantees, directly or indirectly, and the President of the United States shall not conclude any commercial agreement with any such country, during the period beginning with the date on which the President determines that such country

(1) denies its citizens the right or opportunity to emigrate;

(2) imposes more than a nominal tax on emigration or on the visas or other documents required for emigration, for any purpose or cause whatsoever; or

(3) imposes more than a nominal tax, levy, fine, fee, or other charge on any citizen as a consequence of the desire of such citizen to emigrate to the country of his choice, and ending on the date on which the President determines that such country is no longer in violation of paragraph (1), (2), or (3). § 2432(a).*fn3 These requirements apply only to countries whose products were not eligible for rate column 1 as of January 3, 1975 ("covered countries"). § 2432(e).

The President may extend normal trade relations and the other benefits of section 402(a) to covered countries through two mechanisms outlined in sections 402(b) and 402(c). Section 402(b) provides that covered countries can obtain those benefits if the President first submits a report to Congress indicating that the country is not in violation of subsection (a). § 2432(b). The President must continue to submit semi-annual reports to Congress so long as the country continues to receive nondiscriminatory treatment. Id. As an alternative, under Section 402(c), the President can waive the emigration requirements of the Jackson-Vanik amendment if the President provides a report to Congress indicating the waiver "will substantially promote the objectives of this section," and that the country's practices "will henceforth lead substantially to the achievement of the objectives of this section." § 2432(c)(2)(A)-(B). The President can extend the waiver for successive 12 month periods. § 2432(d).

Once a covered country has received either a waiver or compliance determination under the amendment, the President can extend nondiscriminatory treatment, that is, normal trade relations, via a bilateral commercial agreement. See § 2434. The bilateral commercial agreement must meet certain criteria and must be approved by a joint resolution of Congress. § 2435. The agreement must be renewed at least every three years. § 2435(b)(1). However, Congress can overturn the compliance determination or waiver by the President by passing a joint resolution. Id. The statute does not otherwise speak to the President's authority to terminate the application the Jackson-Vanik amendment to a particular covered country. Defendant alleges, and Plaintiffs do not dispute, that in every case in which application of the amendment has been terminated, it has been effected by an act of Congress. See Def.'s Mot. at 8, n.6.

B. Trade Relations with the Russian Federation On January 3, 1975, the Soviet Union was not subject to rate column 1, and thus was subject to requirements of the Jackson-Vanik amendment. S. Rep. No. 93-1298, at 141-42, reprinted in 1974 U.S.C.C.A.N. 7186, 7338. Defendant alleges and Plaintiffs do not dispute that the practice of the President has been to treat the successor countries of the Soviet Union, including the Russian Federation, as subject to the requirements of Title IV, including the Jackson-Vanik amendment. Def.'s Mot. at 1, 7. On April 16, 1992, President George H. W. Bush issued an Executive Order under sections 402(c)(2) and (d) waiving the application of the amendment to the Russian Federation. Exec. Order 12802, 57 Fed. Reg. 14321 (April 16, 1992). The United States subsequently entered into a bilateral commercial agreement with the Russian Federation. Agreement on Trade Relations Between the United States and The Union of Soviet Socialist Republics, U.S.-U.S.S.R., June 1, 1990, State Dep't No. 92-168.*fn4 Although the agreement was initially signed with the Soviet Union, it was not brought into force until 1992 with the Russian Federation. See Id., 1992 WL 466079, at *10 (exchange of letters bringing agreement into force on June 17, 1992).

Two years later, President William Clinton determined the Russian Federation was in full compliance with the requirements of the Jackson-Vanik amendment under section 402(b). Presidential Determination No. 94-51, 59 Fed. Reg. 49783 (Sept. 21, 1994). Since 1994, the President (or his delegee) has submitted semi-annual reports to Congress as required by section 402(b), facing virtually no opposition from Congress. William H. Cooper, Cong. Research Serv., RS21123, Permanent Normal Trade Relations (PNTR) Status for Russia and U.S.-Russian Econ. Ties 2 (2010). Thus the Russian Federation has ...


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