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Arjay Associates Inc. v. Bush

Decided: December 7, 1989; As Corrected December 8, 1989.

ARJAY ASSOCIATES, INC., INTEC SALES COMPANY, INC., JOHNSON PLASTICS EQUIPMENT, PINNACLE SALES COMPANY, FREE ENERGY, PRO PLASTICS EQUIPMENT, INC., SUNBELT PLASTICS EQUIPMENT, INC., BOSTON PLASTICS MACHINERY CO., AND AQUA POLY EQUIPMENT COMPANY, PLAINTIFFS-APPELLANTS,
v.
GEORGE BUSH, PRESIDENT, AND THE UNITED STATES OF AMERICA, DEFENDANTS-APPELLEES, TOSHIBA MACHINE COMPANY, AND TOSHIBA MACHINE CO. AMERICA, DEFENDANTS



Appeal from: U.S. Court of International Trade, Judge Musgrave.

Markey, Chief Judge, Newman and Archer, Circuit Judges.

Markey

Arjay Associates, Inc., Intec Sales Company, Inc., Johnson Plastics Equipment, Pinnacle Sales Company, Free Energy, Pro Plastics Equipment, Inc., Sunbelt Plastics Equipment, Inc., Boston Plastics Machinery Co., and Aqua Poly Equipment Company (collectively appellants) appeal from an order and judgment of the Court of International Trade, Arjay Assoc., Inc. v. Reagan, 13 C.I.T. 155, 707 F. Supp. 1346 (Ct. Int'l Trade 1989), dismissing the complaint because appellants lacked standing. We affirm.

BACKGROUND

Introduction

Toshiba Machine Company (TMC) and Kongsberg (a Norwegian corporation -- not a party here) sold technologically advanced milling machines and computer equipment to the Soviet Union in violation of export controls promulgated by the Coordination Committee on Multilateral Export Controls (COCOM).*fn1 The Soviet Union purportedly used the machines to develop submarine propellers that make detection more difficult.

Appellants say they are "manufacturer representatives", selling in the United States products manufactured by TMC and imported by Toshiba Machine Company of America (TMCA).*fn2

On August 23, 1988, Congress enacted the Omnibus Trade and Competitiveness Act of 1988, Pub.L. No. 100-418, 102 Stat. 1107 (OTCA) to ensure that foreign companies comply with COCOM controls.*fn3 Section 2443(a) of the OTCA, entitled "Mandatory Sanctions Against Toshiba and Kongsberg", provides, in pertinent part, that:

The President shall impose, for a period of three years--

(2) a prohibition on the importation into the United States of all products produced by Toshiba Machine Company . . . .

On December 27, 1988, the President issued Executive Order 12661 delegating implementation of the import ban on TMC products to the Secretary of the Treasury. On January 31, 1989, the Department of Treasury issued implementing regulations. 12 C.F.R. § 12.142(a); 54 Fed.Reg. 4780-82.*fn4

Proceedings in the Court of International Trade

On November 8, 1988, appellants had filed a complaint alleging that section 2443 of OTCA violated the Constitution's provisions respecting bills of attainder, U.S. Const. art. 1, § 9, cl. 3, and deprivation of liberty or property without due process of law. U.S. Const. amend. V. The court dismissed the complaint on February 21, 1989, holding that appellants lacked standing. The court stated that appellants are not attainted and are not within the zone of interest of the bill of attainder clause, that they could not ...


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