Tampa Bay Fisheries, Inc. v. United States

NOTE: This disposition is nonprecedential.

United States Court of Appeals
for the Federal Circuit
______________________

TAMPA BAY FISHERIES, INC., SINGLETON
FISHERIES, INC.,
Plaintiffs-Appellants

v.

UNITED STATES, UNITED STATES CUSTOMS
AND BORDER PROTECTION, DAVID V. AGUILAR,
ACTING COMMISSIONER, UNITED STATES
CUSTOMS AND BORDER PROTECTION,
INTERNATIONAL TRADE COMMISSION, IRVING
A. WILLIAMSON, CHAIRMAN, U.S.
INTERNATIONAL TRADE COMMISSION,
Defendants-Appellees
______________________

2012-1419
______________________

Appeal from the United States Court of International
Trade in No. 08-CV-0404, Judge Leo M. Gordon.
______________________

Decided: April 29, 2015
______________________

JAMES KEVIN HORGAN, DeKieffer & Horgan, PLLC,
Washington, DC, argued for plaintiffs-appellants. Also
represented by JOHN J. KENKEL.
2 TAMPA BAY FISHERIES, INC. v. US

MARTIN M. TOMLINSON, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, argued for defendants-appellees
United States, United States Customs and Border Protec-
tion, David V. Aguilar, Acting Commissioner. Also repre-
sented by JESSICA R. TOPLIN, STUART F. DELERY, JEANNE
E. DAVIDSON, FRANKLIN E. WHITE, JR.; SUZANNA
HARTZELL-BAIRD, JESSICA MILLER, Office of Assistant
Chief Counsel, United States Customs & Border Protec-
tion.

PATRICK VINCENT GALLAGHER, JR., Office of the Gen-
eral Counsel, United States International Trade Commis-
sion, Washington, DC, argued for defendants-appellees
International Trade Commission, Irving A. Williamson,
Chairman. Also represented by DOMINIC L. BIANCHI,
ROBIN LYNN TURNER.
______________________

Before PROST, Chief Judge, BRYSON, and O’MALLEY,
Circuit Judges.
O’MALLEY, Circuit Judge.
Tampa Bay Fisheries, Inc. (“Tampa Bay”) and Single-
ton Fisheries, Inc. (“Singleton”) (collectively, “Appellants”)
appeal the final judgment of the United States Court of
International Trade (“Trade Court”) dismissing their
complaint for failure to state a claim. See Tampa Bay
Fisheries, Inc. v United States, 825 F. Supp. 2d 1331 (Ct.
Int’l Trade 2012). Because the Trade Court properly
determined that the parties failed to allege sufficient facts
upon which relief could be granted, we affirm.
BACKGROUND
Following a 2003 petition on behalf of the domestic
shrimp industry to the Department of Commerce (“Com-
merce”) regarding the importation of certain frozen and
canned warm water shrimp from Brazil, Ecuador, India,
TAMPA BAY FISHERIES, INC. v. US 3

China, Vietnam, and Thailand, Commerce instituted an
antidumping investigation. Contemporaneously, the
International Trade Commission (“Commission”) began to
examine whether these shrimp imports were threatening
the domestic shrimp industry. To determine if the domes-
tic industry was injured, the Commission sent question-
naires to the domestic industry, asking if they supported,
opposed, or took no position on the 2003 petition.
After its investigation, the Commission found that the
domestic industry was injured by the import of canned
frozen shrimp, and Commerce issued its antidumping
duty orders on these imports February 1, 2005. See
Certain Frozen or Canned Warmwater Shrimp and
Prawns from Brazil, China, Ecuador, Thailand, and
Vietnam, 70 Fed. Reg. 3943 (Jan. 27, 2005); Notice of
Amended Final Determination of Sales at Less Than Fair
Value and Antidumping Duty Order: Certain Frozen
Warmwater Shrimp from Brazil, 70 Fed. Reg. 5143 (Feb.
1, 2005); Notice of Amended Final Determination of Sales
at Less Than Fair Value and Antidumping Duty Order:
Certain Frozen Warmwater Shrimp from Thailand, 70
Fed. Reg. 5145 (Feb. 1, 2005); Notice of Amended Final
Determination of Sales at Less Than Fair Value and
Antidumping Duty Order: Certain Frozen Warmwater
Shrimp from India, 70 Fed. Reg. 5147 (Feb. 1, 2005);
Notice of Amended Final Determination of Sales at Less
Than Fair Value and Antidumping Duty Order: Certain
Frozen Warmwater Shrimp from the People’s Republic of
China, 70 Fed. Reg. 5149 (Feb. 1, 2005); Notice of Amend-
ed Final Determination of Sales at Less Than Fair Value
and Antidumping Duty Order: Certain Frozen Warm-
water Shrimp from the Socialist Republic of Vietnam, 70
Fed. Reg. 5152 (Feb. 1, 2005); Notice of Amended Final
Determination of Sales at Less Than Fair Value and
Antidumping Duty Order: Certain Frozen Warmwater
Shrimp from Ecuador, 70 Fed. Reg. 5156 (Feb. 1, 2005).
4 TAMPA BAY FISHERIES, INC. v. US

Under the statutory scheme at the time, any duties
collected by the United States Customs and Border Patrol
(“Customs”) under these dumping orders were distributed
to affected domestic producers. Continued Dumping and
Subsidy Offset Act (“CDSOA” or “the Byrd Amendment”),
19 U.S.C. § 1675c(a) (2000), repealed by Deficit Reduction
Act of 2005, Pub. L. No. 109-171, § 7601, 120 Stat. 4, 154
(Feb. 8, 2006; effective Oct. 1, 2007). To qualify as an
affected domestic producer, one had to demonstrate that
it “was a petitioner or interested party [who] supported . .
. the petition with respect to which an antidumping duty
order . . . ha[d] been enter[ed].” Id. § 1675c(b)(1)(A) (“the
support requirement”). Once a duty order issues, the
Commission forwards a list of affected domestic producers
to Customs, which will distribute all the funds from the
assessed duties collected in the prior fiscal year to those
affected parties who have certified that they are eligible
to receive a CDSOA distribution. Id. § 1675c(d)(1)–(3).
In connection with Commerce’s antidumping investi-
gation regarding shrimp imports, the Commission did not
list Tampa Bay or Singleton as an affected domestic
producer for the relevant years—2006, 2007, and 2008.
Tampa Bay and Singleton nevertheless filed certifications
with Customs, stating that they were entitled to CDSOA
distributions. But, because neither was listed as an
affected domestic producer, Customs refused to adminis-
ter any funds to either party. In November 2008, Tampa
Bay and Singleton requested that the Commission amend
the list of affected domestic producers to include both
parties in November 2008. Without any evidence that
either Tampa Bay or Singleton supported the petition
during the original investigations, the Commission denied
the request in December 2008.
Also during this time, on November 14, 2008, Tampa
Bay and Singleton filed suit against the Commission and
Customs, challenging the Commission’s failure to add
Tampa Bay and Singleton to the list of affected domestic
TAMPA BAY FISHERIES, INC. v. US 5

producers and Customs’ decision not to make a distribu-
tion to Tampa Bay or Singleton for fiscal years 2006,
2007, and 2008. While neither Tampa Bay nor Singleton
alleged that they expressed support for the 2003 petition
in their questionnaire responses or through a letter, they
asserted that they supported the petition in other ways.
They also argued that, if the Byrd Amendment is con-
strued to require a show of support via a particular form
of expression—i.e., checking a box on a questionnaire or
writing a letter—it is unconstitutional. Because these
issues were then being considered in other pending cases,
the Trade Court stayed the case pending the final resolu-
tion of the other litigation. Tampa Bay Fisheries, 825 F.
Supp. 2d at 1336. Following this court’s decision in SKF
USA Inc. v. United States Customs & Border Protection,
556 F.3d 1337 (Fed. Cir. 2009), which both construed the
Byrd Amendment to require both a show of support via a
questionnaire response or a letter and other affirmative
efforts to aid the investigation, and upheld the constitu-
tionality of the Byrd Amendment as so construed, the
Trade Court issued an order asking Tampa Bay and
Singleton to show cause why their case should not be
dismissed in light of SKF. Id. Upon review of their
response, the Trade Court lifted the stay, and, on March
18, 2011, Tampa Bay and Singleton filed an amended
complaint.
In their amended complaint, Tampa Bay and Single-
ton raised five separate claims. They alleged that: (1) the
agencies’ decisions were inconsistent with the CDSOA,
were not supported by substantial evidence, and were
otherwise not in accordance with law; (2) the support
requirement of the CDSOA violates the First Amendment
of the Constitution; (3) this same requirement also vio-
lates the Equal Protection Clause; (4) the support re-
quirement contravenes the Due Process Clause because it
is impermissibly retroactive; and (5) financial evidence of
support should be considered when determining whether
6 TAMPA BAY FISHERIES, INC. v. US

a party meets the support requirement of the CDSOA.
Again, neither Tampa Bay nor Singleton alleged that they
indicated support for the investigation in writing. Based
in part on this court’s ruling in SKF, the Commission and
Customs then moved to dismiss the amended complaint
for failure to state a claim.
Upon consideration, the Trade Court dismissed Tam-
pa Bay and Singleton’s entire complaint. With respect to
count one and count five, the Trade Court concluded that
both parties had failed to state facts that they qualified
for CDSOA distributions because there was no allegation
either party supported the petition via letter or question-
naire response, as required by law. Tampa Bay Fisheries,
825 F. Supp. 2d at 1340–42. Regarding Tampa Bay and
Singleton’s Equal Protection and First Amendment
claims, the Trade Court dismissed these claims, finding
that this court’s decision in SKF foreclosed their request-
ed relief. Id. at 1343–45. Lastly, the Trade Court con-
cluded that both parties lacked standing to raise a due
process retroactivity claim because Tampa Bay and
Singleton both completed their responses to the Commis-
sion’s questionnaires after the enactment of the CDSOA;
thus, there was no basis to find that the CDSOA was
applied retroactively to either party. Id. at 1345. 1
Appellants timely appealed the Trade Court’s decision
to this court. We have jurisdiction pursuant to 28 U.S.C.
§ 1295(a)(5).
DISCUSSION
Whether a party before the Trade Court has suffi-
ciently stated a claim for relief is a question of law we

1 Both Tampa Bay and Singleton conceded dismis-
sal of this count as well. See Tampa Bay Fisheries, 825 F.
Supp. 2d at 1345. Neither party disputes this finding on
appeal.
TAMPA BAY FISHERIES, INC. v. US 7

review de novo. Sioux Honey Ass’n v. Hartford Fire Ins.
Co., 672 F.3d 1041, 1049 (Fed. Cir. 2012) (citing Boyle v.
United States, 200 F.3d 1369, 1372 (Fed. Cir. 2000)).
Questions of statutory or constitutional interpretations
are also questions of law that are reviewed de novo. See
Ashley Furniture Indus., Inc. v. United States, 734 F.3d
1306, 1309 (Fed. Cir. 2013), cert. denied, 135 S. Ct. 72
(2014).
Under Court of International Trade Rule 8(a)(2), a
pleading must include “a short and plain statement of the
claim showing that the pleader is entitled to relief.”
Although this standard does not require “detailed factual
allegations,” it does require more than “a formulaic recita-
tion of the element of a cause of action.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007)). Thus, “[t]o survive a
motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.’” Id. (quoting Twombly, 550
U.S. at 570). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. (citing Twombly, 550 U.S.
at 556). “In deciding a motion to dismiss, the court must
accept well-pleaded factual allegations as true and must
draw all reasonable inferences in favor of the claimant.”
Kellogg Brown & Root Servs., Inc. v. United States, 728
F.3d 1348, 1365 (Fed. Cir. 2013).
In this case, Tampa Bay and Singleton’s statutory and
constitutional claims are foreclosed by this Court’s deci-
sions in SKF, PS Chez Sidney, LLC v. United States
International Trade Commission, 684 F.3d 1374 (Fed. Cir.
2012), and Ashley Furniture Industries, Inc. v. United
States, 734 F.3d 1306 (Fed. Cir. 2013). In SKF, we found
that the statute unambiguously required, among other
things, a show of support for the investigation via ques-
tionnaire response or a letter and that, in the absence of
8 TAMPA BAY FISHERIES, INC. v. US

such statements of support, other efforts which might
happen to assist an investigation were insufficient to
qualify an entity as an affected domestic producer under
the Act. 556 F.3d at 1352–53. We then found that this
type of support requirement did not violate the First
Amendment. Id. at 1360. Specifically, we concluded that
the purpose of the statute was to compensate those par-
ties who assisted with the government’s trade investiga-
tions because “the Byrd Amendment’s language providing
for payments to a ‘petitioner or interested party in sup-
port of the petition’ [] only permit[s] distributions to those
who actively supported the petition (i.e., a party that did
no more than submit a bare statement that it was a
supporter without answering questionnaires or otherwise
actively participating would not receive distributions).”
Id. at 1353 n.26. Thus, we decided that the support
requirement should be treated like commercial speech, as
is the case when the government commercially contracts
with a party for their assistance in a government func-
tion. Id. at 1355. Because the government has a substan-
tial interest in preventing dumping, the Byrd Amendment
directly advances this interest by rewarding parties who
assist in trade law enforcement, and the amendment was
not overly broad, we determined that the Byrd Amend-
ment did not run afoul of the First Amendment. Id. at
1355–60. Finally, we also rejected an Equal Protection
challenge in SKF, finding that “the Byrd Amendment
[was] rationally related to the government’s legitimate
purpose of rewarding parties who promote the govern-
ment’s policy against dumping.” Id. at 1360.
The court next considered the support requirement in
Chez Sidney. In that case, the government denied Chez
Sidney CDSOA distributions, even though Chez Sidney
had indicated support for the petition via its question-
naire responses during the initial investigation, because it
later indicated that it “took no position” on the ITC’s final
questionnaire. 684 F.3d at 1377. Because we had found
TAMPA BAY FISHERIES, INC. v. US 9

in SKF that the Byrd Amendment did not “reward or
penalize abstract expression by itself,” we concluded that,
where a “producer submit[s] two detailed responses,
check[ed] the ‘support’ box in its preliminary response but
check[ed] the ‘take no position’ box in its final response,”
such a producer is eligible for CDSOA distributions. Id.
at 1381.
Lastly, in Ashley Furniture, we reiterated our decision
in SKF. 734 F.3d at 1310. Specifically, we stated:
SKF resolved the facial First Amendment chal-
lenge presented in [the present] case[]. We are
bound to follow this precedent and are not free to
revisit the First Amendment arguments that were
before the SKF panel. To the extent that Appel-
lants argue that recent Supreme Court precedent
overruled our SKF holding, we do not agree. We
also reject the Appellants’ as-applied First
Amendment challenges because . . . the govern-
ment did not deny Byrd Amendment distributions
to Appellants solely on the basis of abstract ex-
pression.
Id. With respect to the Appellants then before us—Ashley
Furniture and Ethan Allen—we restated that “[i]t [was]
not enough . . . merely to supply the answers to the ques-
tionnaires;” to be an affected domestic producer one had
to indicate support by checking the box saying so. Id. at
1311. Because neither party had indicated support in this
fashion, even though both provided information to the
Commission upon request, we concluded that Ashley
Furniture and Ethan Allen could not qualify for CDSOA
distributions.
Here, both parties reraise arguments already ad-
dressed in SKF, Chez Sidney, and Ashley Furniture. As
we are bound by our prior precedent, we cannot revisit
Appellants’ First Amendment and Equal Protection
arguments in this case. Further, although Appellants
10 TAMPA BAY FISHERIES, INC. v. US

argue in their reply brief that this court’s First Amend-
ment analysis is flawed in light of the Supreme Court’s
recent decision in McCullen v. Coakley, 134 S. Ct. 2518
(2014), our case law is clear that any argument “not
raised in the opening brief [is] waived.” SmithKline
Beecham Corp. v. Apotex Corp., 439 F.3d 1312, 1319 (Fed.
Cir. 2006). Even if not waived, moreover, Appellants fail
to explain how McCullen, a case involving the regulation
of a traditional public forum—a sidewalk—that is subject
to strict scrutiny, impacts an analysis of speech this court
has found to be commercial speech. 134 S. Ct. at 2528; see
SKF, 556 F.3d at 1355 (“Rewarding parties under the
circumstances here is similar to commercially contracting
with them to assist in the performance of a government
function, in this particular context assisting in the en-
forcement of government policy in litigation. The well
established Central Hudson test seems appropriate.”
(citing Central Hudson, 447 U.S. 577, 566 (1980))). Ac-
cordingly, Appellants’ arguments are unpersuasive.
Additionally, Tampa Bay’s statutory claim that it
should be considered a petitioner simply because it sub-
mitted responses to the Commission’s questionnaires also
must be dismissed in light of this court’s prior decisions.
At oral argument, Tampa Bay conceded that it answered
“Oppose” in response to the Commission’s question
whether it supported, opposed, or took no position as to
the 2003 petition. Oral Arg. at 00:35–54, available at
http://oralarguments.cafc.uscourts.gov/default.aspx?fl=20
12-1419.mp3. As explained in SKF and Ashley Furniture,
a party that states it opposes the petition has not met the
support requirement and is not entitled to CDSOA distri-
butions, regardless of its submission of information in
response to the questionnaires. SKF, 556 F.3d at 1358
(“Congress could permissibly conclude that it is not re-
quired to reward an opposing party.”); Ashley Furniture,
734 F.3d at 1311 (explaining that a party who “indicate[d]
TAMPA BAY FISHERIES, INC. v. US 11

only opposition to the petition in questionnaires” cannot
be considered a petition supporter).
Similarly, Singleton’s claim that it was entitled to
CDSOA distributions because it supported the 2003
petition by offering financial support to petitioners is
unavailing. As we now have said repeatedly, in order to
be considered an affected domestic producer, one must
indicate support of a petition “by letter or through ques-
tionnaire response.” 19 U.S.C. § 1675c(d)(1); SKF, 556
F.3d at 1342; Ashley Furniture, 734 F.3d at 1311; see also
Giorgio Foods, Inc. v. United States, No. 13-1304, slip op.
at 11 (Fed. Cir. Apr. 24, 2014). Because Singleton made
no allegation in the amended complaint that it had indi-
cated support in the manner required by statute, the
Trade Court did not err when it dismissed the remainder
of Singleton’s claims. See Ashley Furniture, 734 F.3d at
1311 (“Appellants did not indicate support for the petition
in a questionnaire and did not actively oppose the peti-
tion. We hold that Appellants have not supported the
petition under the plain meaning of the Byrd Amend-
ment.”).
CONCLUSION
Because the Trade Court correctly determined that
Appellants failed to properly allege that they had sup-
ported the petition and that their statutory claims were
foreclosed by this court’s precedent, we affirm.
AFFIRMED