Tampa Bay Fisheries, Inc. v. United States

Slip Op. 12-37
UNITED STATES COURT OF INTERNATIONAL TRADE

TAMPA BAY FISHERIES, INC. and
SINGLETON FISHERIES, INC.,

Plaintiffs,
Before: Gregory W. Carman, Judge
Timothy C. Stanceu, Judge
v.
Leo M. Gordon, Judge
UNITED STATES OF AMERICA,UNITED
Court No. 08-00404
STATES CUSTOMS AND BORDER
PROTECTION, DAVID V. AGUILAR,
(ACTING COMMISSIONER, UNITED
STATES CUSTOMS AND BORDER
PROTECTION), UNITED STATES
INTERNATIONAL TRADE
COMMISSION, AND DEANNA TANNER
OKUN (CHAIRMAN, UNITED STATES
INTERNATIONAL TRADE
COMMISSION),

Defendants.

OPINION

[Dismissing certain claims as untimely; dismissing certain claims for lack of standing;
and dismissing the remaining claims for failure to state a claim upon which relief can be
granted; dismissing the action.]

Dated: March 20, 2012

John J. Kenkel, J. Kevin Horgan, deKieffer & Horgan of Washington, DC for Plaintiffs
Tampa Bay Fisheries, Inc. and Singleton Fisheries, Inc.

Jessica R. Toplin, Trial Attorney, Commercial Litigation Branch, Civil Division,
U.S. Department of Justice, of Washington, DC, for Defendants United States and U.S.
Customs and Border Protection. With her on the briefs were Tony West, Assistant
Attorney General, Jeanne E. Davidson, Director, Franklin E. White, Jr., Assistant
Director, and Courtney S. McNamara and David S. Silverbrand, Trial Attorneys. Of
Counsel on the briefs were Andrew G. Jones and Joseph Barbato, Office of Assistant
Chief Counsel for U.S. Customs and Border Protection of Washington, DC.
Court No. 08-00404 Page 2

James M. Lyons, General Counsel, Neal J. Reynolds, Assistant General Counsel
for Litigation, and Patrick V. Gallagher, Jr., Attorney Advisor, Office of General Counsel,
U.S. International Trade Commission, of Washington, DC for Defendant U.S.
International Trade Commission.

Gordon, Judge: This case arose from the actions of two agencies, the U.S.

International Trade Commission (the “ITC” or the “Commission”) and U.S. Customs and

Border Protection (“Customs”), that denied Plaintiffs, Tampa Bay Fisheries, Inc.

(“Tampa Bay”) and Singleton Fisheries, Inc. (“Singleton”), certain monetary benefits

under the Continued Dumping and Subsidy Offset Act of 2000 (“CDSOA” or “Byrd

Amendment”), 19 U.S.C. § 1675c (2000), repealed by Deficit Reduction Act of 2005,

Pub. L. 109-171, § 7601(a), 120 Stat. 4, 154 (Feb. 8, 2006; effective Oct. 1, 2007). The

ITC did not include either Plaintiff on a list of parties potentially eligible for “affected

domestic producer” (“ADP”) status, which would have qualified Tampa Bay and

Singleton for distributions of antidumping duties collected under antidumping duty

orders on imports of certain frozen shrimp from Brazil, Thailand, India, People’s

Republic of China, Socialist Republic of Vietnam, and Ecuador. 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. 5,143, 5,143-45 (Feb. 1,

2005); . . . from Thailand, id. at 5,145-47; . . . from India, id. at 5,147-49; . . . from

People’s Republic of China, id. at 5,149-52; . . . from Vietnam, id. at 5,152-56; . . . from

Equador, id. at 5,156-58 (“Frozen Warmwater Shrimp Antidumping Duty Orders”).

Because Plaintiffs were not on the ITC’s list of potential ADPs, Customs made no

CDSOA distributions to Tampa Bay or Singleton.

Court No. 08-00404 Page 3

Plaintiffs claim that Defendants’ actions are inconsistent with the CDSOA, not

supported by substantial evidence, and otherwise not in accordance with law. Plaintiffs

also bring facial and as-applied constitutional challenges to the CDSOA under the First

Amendment and the equal protection and due process guarantees of the Fifth

Amendment.

Before the court are motions under USCIT Rule 12(b)(5) to dismiss for failure to

state a claim upon which relief can be granted, filed by the ITC (Def. U.S. Int’l Trade

Comm’n’s Mot. to Dismiss for Failure to State a Claim upon which Relief can be

Granted, ECF No. 39 (“ITC’s Mot.”)) and Customs (Def. U.S. Customs & Border

Protection’s Mem. in Supp. of the Mot. to Dismiss for Failure to State a Claim, ECF No.

41 (“Customs’ Mot.”)). The court has jurisdiction pursuant to 28 U.S.C. § 1581(i) (2006).

See Furniture Brands Int’l, Inc. v. United States, 35 CIT __, __, 807 F. Supp. 2d 1301,

1307-10 (2011). For the reasons set forth below, we conclude that certain of Plaintiffs’

claims must be dismissed as untimely, certain claims must be dismissed for failure to

state a claim upon which relief can be granted, and certain claims must be dismissed for

lack of standing. Therefore, the motions to dismiss will be granted and this action

dismissed.

I. Background

Following a 2003 petition filed by Ad Hoc Shrimp Trade Action Committee,

Veraggi Shrimp Corporation, and Indian Ridge Shrimp Co., the U.S. Department of

Commerce (“Commerce”) initiated an antidumping investigation of certain frozen and

canned warmwater shrimp from Brazil, Ecuador, India, the People’s Republic of China,

the Socialist Republic of Vietnam, and Thailand. Notice of Initiation of Antidumping

Court No. 08-00404 Page 4

Duty Investigations: Certain Frozen and Canned Warmwater Shrimp From Brazil,

Ecuador, India, Thailand, the People’s Republic of China and the Socialist Republic of

Vietnam, 69 Fed. Reg. 3,876 (Jan. 27, 2004); First Am. Compl. (“Am. Compl.”) ¶¶ 23-

24, ECF No. 36. Contemporaneously, the ITC conducted an injury investigation.

Certain Frozen and Canned Warmwater Shrimp and Prawns From Brazil, China,

Ecuador, India, Thailand, and Vietnam; Institution of Antidumping Investigations and

Scheduling of Prelim. Phase Investigations, 69 Fed. Reg. 1,301 (Jan. 8, 2004); Am.

Compl. ¶ 23. During its injury investigation, the ITC sent questionnaires to the domestic

industry that ask domestic producers to, inter alia, identify their position regarding the

petition by checking one of three boxes indicating either support, opposition, or no

position. Each Plaintiff filed responses but did not check the box indicating support for

the petition on the questionnaire, and they explain that they may not have checked any

of the three boxes. Pls.’ Mem. in Opp’n to the Mot. of the U.S. Int’l Trade Comm’n to

Dismiss for Failure to State a Claim at 3, ECF No. 44 (“Pls.’ Opp’n”).

Following an affirmative injury determination on frozen shrimp by the ITC in

January 2005, Commerce published its amended final determinations of sales at less

than fair value and issued the antidumping duty orders covering the subject

merchandise. Certain Frozen or Canned Warmwater Shrimp and Prawns From Brazil,

China, Ecuador, India, Thailand, and Vietnam, 70 Fed. Reg. 3,943 (Jan. 27, 2005) (ITC

final inj. determ.); Frozen Warmwater Shrimp Antidumping Duty Orders; Am. Compl.

¶¶ 27-28. Commerce since has revoked the antidumping duty order against Ecuador;

however, the order remains in effect for the other countries. Implementation of the

Findings of the WTO Panel in United States Antidumping Measure on Shrimp from

Court No. 08-00404 Page 5

Ecuador: Notice of Determination Under section 129 of the Uruguay Round Agreements

Act and Revocation of the Antidumping Duty Order on Frozen Warmwater Shrimp from

Ecuador, 71 Fed. Reg. 48,257 (Aug. 23, 2007); Am. Compl. ¶ 28.

Plaintiffs brought this action on November 14, 2008, contesting the denial of

CDSOA distributions to each Plaintiff for Fiscal Years 2006-2008. Compl., ECF No. 5.

Shortly thereafter, the court stayed this action pending a final resolution of other

litigation raising the same or similar issues. Order (Dec. 29, 2008), ECF No. 15 (action

stayed “until final resolution of Pat Huval Restaurant & Oyster Bar, Inc. v. United States,

Consol. Ct. No. 06-0290, that is, when all appeals have been exhausted.”).

Following the decision of the U.S. Court of Appeals for the Federal Circuit (“Court

of Appeals”) in SKF USA Inc. v. United States, 556 F.3d 1337 (2009) (“SKF”), cert.

denied, 130 S. Ct. 3273 (2010),1 which addressed questions also present in this action,

the court issued an order directing Plaintiffs to show cause why this action should not be

dismissed. Order to Show Cause, Jan. 3, 2011, ECF No. 19. After receiving Plaintiffs’

response, the court lifted the stay on this action for all purposes. Order Lifting Stay,

Feb. 9, 2011, ECF No. 22. On March 18, 2011, Plaintiffs filed their Amended

Complaint.2 Am. Compl. Defendants filed motions to dismiss for failure to state a claim

1
SKF reversed the decision of the Court of International Trade in SKF USA Inc. v.
United States, 30 CIT 1433, 451 F. Supp. 2d 1355 (2006), which held the CDSOA
requirement that limited affected domestic producer status to interested parties in
support of the petition unconstitutional on Fifth Amendment equal protection grounds.
2
The filing of the amendment as a matter of course was untimely under Rule 15(a).
USCIT R. 15(a) (A[A] party may amend its pleading once as a matter of course within:
(A) 21 days after serving it, or (B) if the pleading is one to which a responsive pleading
is required, 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is
earlier.@). (footnote continued)

Court No. 08-00404 Page 6

upon which relief can be granted on May 2, 2011 (ITC’s Mot.) and May 3, 2011

(Customs’ Mot.).

II. Standard of Review

In deciding a USCIT Rule 12(b)(5) motion to dismiss for failure to state a claim

upon which relief can be granted, the court assumes all factual allegations to be true

and draws all reasonable inferences in plaintiff’s favor. Cedars-Sinai Med. Ctr. v.

Watkins, 11 F.3d 1573, 1583-84 & n.13 (Fed. Cir. 1993).

A plaintiff’s factual allegations must be “enough to raise a right to relief above the

speculative level on the assumption that all the allegations in the complaint are true

(even if doubtful in fact).” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “To

survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted

as true, to ‘state a claim of relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S.

Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570). The basis of the court’s

determination is limited to the facts stated on the face of the complaint, documents

appended to the complaint, and documents incorporated in the complaint by reference.

See Asahi Seiko Co. v. United States, 33 CIT ___, ___, (2009), 2009 WL 3824745, at 4

(quoting Allen v. WestPoint-Pepperell, Inc., 945 F.2d 40, 44 (2d Cir. 1991)).

The amendments would not have been untimely under Rule 15(a) as in effect prior to
January 1, 2011, which rule allowed a party to amend its pleading once as a matter of
course before being served with a responsive pleading. Because the other parties to
this action have addressed in their Rule 12(b)(5) motions the complaint in amended
form, the court exercises its discretion under USCIT Rule 89 to accept Plaintiffs= First
Amended Complaint. USCIT R. 89 (AThese rules and any amendments take effect at
the time specified by the court. They govern . . . proceedings after that date in a case
then pending unless: (A) the court specifies otherwise . . . .@).

Court No. 08-00404 Page 7

III. Discussion

In 2000, Congress amended the Tariff Act of 1930 to add section 754, the

CDSOA, which provides distributions of assessed antidumping and countervailing

duties to ADPs on a fiscal year basis. 19 U.S.C. § 1675c(d)(1).3 To be an ADP, a party

must meet several criteria, including the requirement that it have been a petitioner, or

interested party in support of a petition, with respect to which an antidumping duty or

countervailing duty order was entered. Id. § 1675c(b)(1). The CDSOA directed the ITC

to forward to Customs, within 60 days of the issuance of an antidumping or

countervailing duty order, lists of persons potentially eligible for ADP status, i.e.,

“petitioners and persons with respect to each order and finding and a list of persons that

indicate support of the petition by letter or through questionnaire response.” Id.

§ 1675c(d)(1). In identifying the parties to be placed on the ITC’s list, the ITC must

consult with Commerce if either no injury determination was required or if the ITC’s

records “do not permit an identification of those in support of a petition.” Id. Customs

then publishes the lists of potential ADPs in the Federal Register annually, prior to each

distribution. Id. § 1675c(d)(2). Customs distributes assessed duties to parties on the

3
Congress repealed the CDSOA in 2006, but the repealing legislation provided that
“[a]ll duties on entries of goods made and filed before October 1, 2007, that would [but
for the legislation repealing the CDSOA], be distributed under [the CDSOA] . . . shall be
distributed as if [the CDSOA] . . . had not been repealed . . . .” Deficit Reduction Act of
2005, Pub. L. No. 109-171, § 7601(b), 120 Stat. 4, 154 (2006). In 2010 Congress
further limited CDSOA distributions by prohibiting payments with respect to entries of
goods that as of December 8, 2010 were “(1) unliquidated; and (2)(A) not in litigation; or
(B) not under an order of liquidation from the Department of Commerce.” Claims
Resolution Act of 2010, Pub. L. No. 111-291, § 822, 124 Stat. 3064, 3163 (2010).

Court No. 08-00404 Page 8

list of potential ADPs that certify that they meet the remaining eligibility criteria. Id.

§ 1675c(d)(2).

The ITC compiled lists of potential ADPs with respect to the antidumping duty

orders on frozen shrimp, which lists it provided to Customs. Am. Compl. ¶ 34. Customs

published the lists of potential ADPs for Fiscal Year 2006 on June 1, 2006, id., for Fiscal

Year 2007 on May 29, 2007, id. & 35, and for Fiscal Year 2008 on May 30, 2008, id.

& 36. Neither Plaintiff appeared on any of these lists. Id. && 34-36. Nevertheless,

each Plaintiff certified to Customs its eligibility for CDSOA distributions for each of the

fiscal years. Id. & 37. Citing Plaintiffs= absence from the list of potential ADPs, Customs

denied each Plaintiff’s Fiscal Year 2006 certifications on November 17, 2006, stating

that funds would be distributed to each Plaintiff “but for the fact that its name does not

appear on the ITC list of eligible affected domestic producers and there is pending

litigation to determine who is eligible.” Id. & 39. Customs later denied each Plaintiff

distributions for the 2007 and 2008 Fiscal Years, stating each year that it was not

distributing funds to Plaintiffs because “Tampa Bay and Singleton were not on the ITC’s

list of eligible affected producers.” Id. ¶¶ 40-41. Tampa Bay and Singleton also filed

letters with the ITC in November 2008 requesting placement on the list of potential

ADPs. Id. ¶ 38. The ITC did not respond to these requests.

Plaintiffs challenge the validity and constitutionality of the Commission’s and

Customs’ application of the CDSOA to Tampa Bay and Singleton. In Count 1 of the

First Amended Complaint, Plaintiffs claim that the ITC’s determinations not to include

Tampa Bay and Singleton on the list of potential ADPs were inconsistent with the

Court No. 08-00404 Page 9

CDSOA, not supported by substantial evidence, and otherwise not in accordance with

law. Am. Compl. ¶ 43. In Count 2, Plaintiffs challenge on First Amendment grounds the

requirement in the CDSOA that, to qualify as ADPs, domestic producers who were not

petitioners must have expressed support for a petition (“petition support requirement”),

both facially and as applied to Tampa Bay and Singleton. Id. ¶¶ 45-46. In Count 3,

Plaintiffs challenge the petition support requirement, both facially and as applied to

Tampa Bay and Singleton, on Fifth Amendment equal protection grounds. Id. ¶¶ 48-49.

In Count 4, Plaintiffs challenge the petition support requirement as impermissibly

retroactive in violation of the Fifth Amendment due process guarantee because

Defendants based eligibility for ADP status, and thus eligibility for disbursements, on

past conduct. Id. ¶ 51.

Finally, in Count 5, Plaintiffs claim that they satisfied the petition support

requirement by paying $22,000 to the petitioners, prior to the filing of the petition, to

assist the petitioners with legal fees necessary for preparing the petition for filing and for

participating in the antidumping duty investigation. Am. Compl. ¶ 53. Plaintiffs claim

that the payment of these monies “is vastly more demonstrative of support of the

petition than the mere checking of a box in a questionnaire issued by the U.S.

International Trade Commission.” Id.

A. Plaintiffs’ Statutory Challenges to the Actions of
the Two Agencies Must be Dismissed

In Counts 1 and 5 in the Amended Complaint, Plaintiffs raise claims challenging

on statutory grounds the actions of the ITC and Customs by which they were denied

CDSOA distributions for Fiscal Years 2006 through 2008. Tampa Bay and Singleton

Court No. 08-00404 Page 10

challenge the ITC’s excluding them from the list of potential ADPs, and they also

challenge Customs’ denying them those distributions. Am. Compl. ¶¶ 42-43 (Count 1);

¶¶ 52-53 (Count 5).

1. Plaintiffs are Untimely in Contesting Their Exclusion
from the ITC’s List of Potential Affected
Domestic Producers for Fiscal Year 2006

We conclude that the claims challenging the ITC’s exclusion of each Plaintiff from

the list of potential ADPs for Fiscal Year 2006, as stated in Counts 1 and 5 of the

Amended Complaint, are untimely.4 These claims accrued on June 1, 2006, more than

two years prior to the commencement of this action on November 14, 2008. See

28 U.S.C. § 2636(i) (2006) (Claims under 28 U.S.C. § 1581(i) are “barred unless

commenced in accordance with the rules of the court within two years after the cause of

action first accrues.”); Compl. ¶ 16. We conclude, further, that Plaintiffs’ claim

challenging Customs’ denial to Plaintiffs of CDSOA distributions for Fiscal Year 2006 is

not barred by the statute of limitations.

Plaintiffs’ statutory claims arose under the Administrative Procedure Act (“APA”),

5 U.S.C. § 706 (2006). See 28 U.S.C. § 2640(e) (2006) (stating that, when exercising

jurisdiction pursuant to 28 U.S.C. § 1581(i), “the Court of International Trade shall

review the matter as provided in section 706 of title 5.”). APA claims can be filed upon

notice of a final agency determination that adversely affects a plaintiff. 5 U.S.C.

§§ 702, 704. On June 1, 2006, Plaintiffs were placed on notice of Customs’ final

4
The court addresses the statute of limitations even though neither Defendant raised
the issue of timeliness. The two-year limit on claims brought under 28 U.S.C. § 2636(i)
is jurisdictional. Pat Huval Restaurant & Oyster Bar, Inc. v. U.S. Int’l Trade Comm’n,
36 CIT ___, Slip Op. 12-27 at 14-15 (Mar. 1, 2012). 

Court No. 08-00404 Page 11

determination when Customs published notice of intent to make CDSOA distributions

for Fiscal Year 2006, which included the list of potential ADPs prepared by the ITC.

Distribution of Continued Dumping and Subsidy Offset to Affected Domestic Producers,

71 Fed. Reg. 31,336 (June 1, 2006) (“Fiscal Year 2006 Notice of Intent”). On that date,

Plaintiffs were placed on notice that a Fiscal Year 2006 CDSOA distribution would be

made for the antidumping duty order on frozen shrimp. Each Plaintiff also was placed

on notice, by its exclusion from the list prepared by the ITC of potential ADPs, of the

ITC’s final determination that it was ineligible to receive that distribution. Am. Compl.

¶ 34; 19 U.S.C. § 1675c(d)(2) (requiring Customs to base the published list of ADPs

potentially eligible for the distribution “on the list obtained from the Commission . . . .”).

Plaintiffs thus could have challenged the ITC’s exclusion of them from the list, i.e., the

application to them of the petition support requirement, as of June 1, 2006. See SKF,

556 F.3d at 1348-49 (stating that claims accrue when an action can be commenced).

Having first accrued on that date, each Plaintiff’s cause of action challenging the ITC’s

denial of potential ADP status for Fiscal Year 2006 on statutory grounds is time-barred.

Each Plaintiff’s statutory claim against Customs for denial of Fiscal Year 2006

benefits is not barred by the statute of limitations because those claims accrued on

November 17, 2006, less than two years prior to Plaintiffs’ commencement of this action

on November 14, 2008. On November 17, 2006, Customs responded to Plaintiffs’

certifications of eligibility for Fiscal Year 2006 CDSOA distributions, stating that funds

would be distributed to each Plaintiff “but for the fact that its name does not appear on

the ITC list of eligible affected domestic producers and there is pending litigation to

determine who [is] eligible.” Am. Compl. ¶ 39. This notice constitutes a final decision

Court No. 08-00404 Page 12

by Customs subject to challenge under the APA in that it notified Plaintiffs of Customs’

declining to provide them a CDSOA distribution. Because the claims against Customs

for Fiscal Year 2006, and the other statutory claims in this action, are timely, we reach

the merits and, for the reasons discussed below, dismiss for failure to state a claim on

which relief can be granted.

2. Count 1 Fails to State Facts Sufficient to Qualify
Either Plaintiff for Distributions under the CDSOA

In Count 1, each Plaintiff challenges as unlawful under the CDSOA the ITC’s

determination not to place it on the list of potential ADPs and the failure of Customs to

provide it distributions. Id. ¶¶ 42-43. Plaintiffs claim that both of these agency actions

“were inconsistent with the CDSOA, were not supported by substantial evidence, and

were otherwise not in accordance with law.” Id. ¶ 43.

Plaintiffs state that the ITC “has never included Tampa Bay et al. in its list of

eligible ADPs.” Id. ¶ 30. However, we do not find within the complaint alleged facts that

would have qualified either Plaintiff for inclusion on the ITC’s list. According to the

CDSOA, the ITC is to prepare “a list of petitioners and persons with respect to each

order and finding and a list of persons that indicate support of the petition by letter or

through questionnaire response.” 19 U.S.C. § 1675c(d)(1). In the Amended Complaint,

Plaintiffs identify the petitioners on the relevant frozen shrimp antidumping duty orders

as parties other than themselves. Am. Compl. ¶ 24. Therefore, neither Plaintiff qualifies

for inclusion as “petitioners and persons with respect to each order . . . .” 19 U.S.C.

§ 1675c(d); see id. § 1675c(b)(1)(A) (including within the definition of an ADP “a

petitioner . . . with respect to which an antidumping duty order . . has been entered”).

Court No. 08-00404 Page 13

The Amended Complaint also fails to allege facts by which either Tampa Bay or

Singleton otherwise could qualify as a potential ADP with respect to the orders on

frozen shrimp: missing is an allegation that Plaintiffs are “persons who indicate support

of the petition by letter or through questionnaire response.” Id. § 1675c(d)(1).

In summary, the Amended Complaint fails to allege facts from which we could

find that the ITC erred in omitting Tampa Bay or Singleton from any list prepared under

§ 1675c(d)(1). For this reason, we must also dismiss the statutory claims Plaintiffs bring

against Customs. We do not find within the Amended Complaint facts by which we

could conclude that Customs lawfully could have made distributions to either Plaintiff.

See id. § 1675c(d)(2) (requiring Customs to base its “list of affected domestic producers

potentially eligible for the distribution . . . on the list obtained from the Commission

under paragraph (1)”). We conclude, therefore, that the remaining claims in Count 1

must be dismissed for failure to state a claim on which relief can be granted.

3. Count 5 Does Not State Facts Allowing the Court
to Conclude that Either Plaintiff Satisfied
the Petition Support Requirement

Count 5 states that “Plaintiffs argue that they supported the petition.” Am.

Compl. ¶ 53. Count 5 alleges that Plaintiffs, “at the request of the purported petitioners,

paid said petitioners $22,000 prior to the filing of the petition, to assist them in paying

their attorneys to prepare the petition and participate in the ensuing antidumping

investigation.” Id. To qualify as an ADP, a party must “indicate support for a petition by

letter or through questionnaire response.” 19 U.S.C. § 1675c(d)(1). A domestic

producer who, for whatever purpose, pays money to parties who intend in the future to

file an antidumping duty petition does not thereby satisfy this requirement. At the time

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the alleged payments were made, no petition existed, and the party who allegedly

received the payments was not yet a petitioner nor petitioners’ counsel. Moreover,

Plaintiffs do not allege that what they characterize as support for a petition was

expressed to the Government. Plaintiffs argue in Count 5 that “[a]ctual payment of

money is vastly more demonstrative of support of the petition than the mere checking of

a box in a questionnaire issued by the U.S. International Trade Commission.” Am.

Compl. ¶ 53. This argument is unavailing. Plaintiffs’ allegations regarding the $22,000

payment establish no more than that Plaintiffs lent their “support” to parties who

intended in the future to become petitioners. That is not the same as indicating support

for a petition in the manner the statute requires, i.e., by letter or through questionnaire

response.

In support of Count 5 (and the related Count 1, as well), Plaintiffs contend that

the ITC is not limited to the record of the original investigation or the data found in

responses to domestic industry questionnaires, in determining whether a domestic

interested party supported a petition. Pls.’ Opp’n at 8. Plaintiffs maintain that the ITC is

required to consult with Commerce on the identification of the parties that should be

included on the list of potential ADPs, arguing that the CDSOA requires, under certain

circumstances, that “the Commission shall consult with the administering authority to

determine the identity of the petitioner and those domestic parties who have entered

appearances during administrative reviews conducted by the administering authority

under section 1675 of this title.” Id. (citing 19 U.S.C. § 1675c(d)(1)). This argument

fails because this consultation requirement only applies in certain circumstances not

present here: “In those cases in which a determination of injury was not required or the

Court No. 08-00404 Page 15

Commission’s records do not permit an identification of those in support of a

petition . . . . ” 19 U.S.C. § 1675c(d)(1). An injury determination was required here.

See id. § 1673d(c)(3). Moreover, each Plaintiff admits that in completing the ITC’s

questionnaire it did not express support for the petition, an admission that refutes any

contention that the Commission’s records did not permit an identification of those that

supported the petition by letter or questionnaire response.

Plaintiffs also cite the legislative history of the CDSOA, arguing that the

Commission’s interpretation of the statute frustrates Congress’ intent to “reward

companies like Tampa Bay that do invest and create jobs in a troubled United States

industry that has been injured by dumped imports.” Pls.’ Opp’n at 9 (citing Pub. L. 106-

387, § 1(a) [Title X, § 1002], Oct. 28, 2000, 114 Stat. 1549, 1549A–72). Plaintiffs’

reliance on the legislative history is also unavailing. Where, as here, the plain meaning

of a statute is clear, we need not speculate further on legislative intent. The CDSOA

directs the Commission to provide to Customs “a list of persons that indicate support of

the petition by letter or through questionnaire response.” 19 U.S.C. § 1675c(d)(1)

(emphasis added). Plaintiffs concede that they did not expressly indicate support of the

petition in their questionnaire response during the ITC’s investigation, and they have not

alleged that they supported the petition through letter. See Am. Compl. ¶ 53; see also

Pls.’ Show Cause Brief at 2, ECF No. 20. We conclude, therefore, that the remaining

claims in Count 5 must be dismissed for failure to state a claim on which relief can be

granted.

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B. Plaintiffs’ Constitutional Challenges Must be Dismissed
In Counts 2 and 3, Plaintiffs bring facial and as-applied challenges to the petition

support requirement of the CDSOA under the First Amendment and Fifth Amendment

equal protection guarantee. Am. Compl. ¶¶ 45-49. In Count 4, Plaintiffs challenge the

petition support requirement as impermissibly retroactive under the Fifth Amendment

due process guarantee. Id. ¶ 51. We conclude that the claims pertaining to Fiscal Year

2006 must be dismissed as time barred and that, as to the later Fiscal Years, the First

Amendment and equal protection claims must be dismissed as foreclosed by binding

precedent. The retroactivity claims must be dismissed for lack of standing.

1. Plaintiffs’ Claims Challenging the Petition Support Requirement
with Respect to the Fiscal Year 2006 Distribution
Are Time Barred

Plaintiffs’ constitutional challenges to the petition support requirement with

respect to the Fiscal Year 2006 distribution accrued on June 1, 2006, the date Customs

published the notice of intent setting forth the list of potential ADPs for the frozen shrimp

antidumping duty order. Am Compl. & 34; Fiscal Year 2006 Notice of Intent, 71 Fed.

Reg. at 31,336. The ITC’s omission of Plaintiffs from these lists constituted a final

determination that neither Plaintiff had met the petition support requirement. 19 U.S.C.

§ 1675c(d)(1) (describing “a list of petitioners and persons with respect to each order

and finding and a list of persons that indicate support of the petition by letter or through

questionnaire response.”). Because Plaintiffs did not commence this action until

November 14, 2008, more than two years after accrual, these claims are time barred.

No constitutional claims accrued on November 17, 2006 as a result of the letter

from Customs informing Plaintiffs that funds would be distributed to each Plaintiff “but

Court No. 08-00404 Page 17

for the fact that its name does not appear on the ITC list of eligible affected domestic

producers and there is pending litigation to determine who is eligible.” Am. Compl.

& 39. As discussed above, Plaintiffs’ Fiscal Year 2006 statutory claims against

Customs accrued on November 17, 2006, the date of Customs’ letter. None of

Plaintiffs’ constitutional claims challenging the petition support requirement could have

accrued on that date, however, because Customs did not apply the petition support

requirement to Plaintiffs and had no authority to do so. 19 U.S.C. § 1675c(d)(2) (“the

list of affected domestic producers potentially eligible for the distribution based on the

list obtained from the Commission . . . .”).

2. Plaintiffs’ First Amendment and Equal Protection Facial Challenges
to the Petition Support Requirement
are Foreclosed by Binding Precedent

In Count 2, Plaintiffs claim that the petition support requirement of the CDSOA

violates the First Amendment on its face because it compels speech. Am. Compl. ¶ 45.

Plaintiffs further claim that the CDSOA engages in impermissible viewpoint

discrimination by conditioning receipt of a government benefit on a private speaker’s

expressing a specific viewpoint, i.e., expression of support for an antidumping petition,

and is therefore an unconstitutional restriction on speech. Id. ¶ 46.

In Count 3, Plaintiffs raise a facial challenge to the CDSOA, claiming that the

petition support requirement violates the equal protection guarantee of the Fifth

Amendment. Id. ¶¶ 48-49. Plaintiffs claim that the CDSOA creates a classification

infringing on Tampa Bay’s and Singleton’s fundamental right to free speech that is not

narrowly tailored to a compelling government objective. Id. ¶ 48. They also contend

Court No. 08-00404 Page 18

that the CDSOA impermissibly discriminates between Plaintiffs and other domestic

producers who expressed support for the petition. Id. ¶ 49.

The Court of Appeals rejected analogous claims challenging the petition support

requirement in SKF, in which it upheld the petition support requirement under the First

Amendment and under the Fifth Amendment’s equal protection guarantee. SKF, 556

F.3d at 1360 (stating that the “Byrd Amendment is within the constitutional power of

Congress to enact, furthers the government’s substantial interest in enforcing the trade

laws, and is not overly broad.”); id. at 1360 n.38 (“For the same reason, the Byrd

Amendment does not fail the equal protection review applicable to statutes that

disadvantage protected speech.”); id. at 1360 (“Because it serves a substantial

government interest, the Byrd Amendment is also clearly not violative of equal

protection under the rational basis standard.”). Plaintiffs’ facial constitutional challenges

to the CDSOA, therefore, are foreclosed by the holding in SKF, and these challenges

must be dismissed for failure to state a claim on which relief can be granted.

Plaintiffs argue that SKF is no longer good law because the decision of the Court

of Appeals in SKF to uphold the petition support requirement using an intermediate level

of scrutiny, the “Central Hudson” test, was implicitly overturned by a recent decision of

the U.S. Supreme Court, Snyder v. Phelps, 131 S. Ct. 1207 (2011). Pls.’ Opp’n at 15

(citing Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557,

564 (1980)). Plaintiffs construe Snyder to hold that all speech on matters of public

concern Ais entitled to maximum First Amendment protection@ and view responses to the

ITC’s questionnaires as speech on a matter of public concern. Id. Snyder does not

support a conclusion that SKF incorrectly applied only an intermediate level of First

Court No. 08-00404 Page 19

Amendment scrutiny. Snyder set aside as contrary to the First Amendment a jury

verdict imposing substantial state law tort liability on persons who picketed at a military

funeral. Snyder, 131 S. Ct. at 1213-14, 20. The case does not hold that all speech

addressing matters of public concern, such as a position taken in antidumping litigation,

must receive a level of judicial scrutiny higher than that applied in SKF. See Standard

Furniture Mfg. Co. v. United States, 36 CIT __, __, Slip Op. 12-21 at 16-17 (2012)

(finding that Snyder did not compel a First Amendment analysis differing from that which

was applied in SKF).

3. Plaintiffs’ Remaining First Amendment As-Applied Challenges
Must be Dismissed

In Count 2, Plaintiffs also assert an as-applied constitutional challenge under the

First Amendment, claiming specifically that the CDSOA discriminates against those,

such as Tampa Bay and Singleton, who did not express a specific viewpoint (support for

the antidumping petition), and is, therefore, an unconstitutional restriction on speech.

Am. Compl. ¶ 45-46. Plaintiffs argue that the holding in SKF that the petition support

requirement did not violate the First Amendment is confined to situations in which

parties actively opposed the petition and that SKF held that the ITC may consider only a

party=s actions, and not a party=s expressed viewpoints, in determining whether a party

supported the petition. Pls.= Opp=n at 13-14. They argue that the ITC=s application of

the CDSOA therefore violated the First Amendment to the extent the ITC based its

determination that Plaintiffs did not qualify as potential ADPs on Plaintiffs= failing to

indicate support of the petition by letter or questionnaire response. Id. at 14-15.

Court No. 08-00404 Page 20

Plaintiffs= argument misinterprets SKF, which does not hold that the CDSOA would

violate the First Amendment if applied to deny CDSOA benefits based solely on a

party’s failing to indicate support for the petition by letter or questionnaire response.

SKF holds the opposite. The Court of Appeals determined that the appropriate First

Amendment legal standard was the standard applying to regulation of commercial

speech. It then concluded that the CDSOA, although requiring a non-petitioner, such as

SKF, to express support for the petition in order to acquire ADP status, met that

standard. SKF, 556 F.3d at 1354-55. The Court of Appeals did state, as Plaintiffs

highlight, that A[t]he language of the Byrd Amendment is easily susceptible to a

construction that rewards actions (litigation support) rather than the expression of

particular views@ and that Aa limiting construction of the statute is necessary to cabin its

scope so that it does not reward a mere abstract expression of support.@ Id. at 1353;

Pls.= Opp=n at 14. However, those statements were in the context of discussing

statutory language as an alternative to previous discussion in the opinion on

congressional purpose. They were part of the analysis by which the Court of Appeals

subjected the CDSOA to First Amendment standards for the regulation of commercial

speech. They do not signify a holding that the First Amendment prohibits a government

agency implementing the CDSOA from conditioning ADP status on the expression of

support for a petition. See Furniture Brands, 35 CIT at __, 807 F. Supp. 2d at 1311-12

(rejecting the argument that SKF modified the meaning of the petition support

requirement).

Plaintiffs also argue that, on these facts, Defendants applied the petition support

requirement in a way that was overly broad, thereby violating the First Amendment

Court No. 08-00404 Page 21

according to the test applied by the Court of Appeals in SKF, the Central Hudson test.

Pls.= Opp=n at 12-13 (citing SKF, 556 F.3d at 1357). Positing SKF to hold that Adomestic

producers who are not petitioners but nevertheless respond to Commission

questionnaires have done enough to be regarded as supporting the petition,@ Plaintiffs

argue that denying them CDSOA distributions served no governmental interest. Id.

at 13. This argument is misguided. The Court of Appeals concluded in SKF that the

CDSOA’s providing benefits only to those who supported the petition, and not those

who opposed or took no position on the petition, served a substantial governmental

interest, directly advanced that interest, and was not more extensive than necessary in

advancing that interest. SKF, 556 F.3d at 1355-59.

For the aforementioned reasons, Plaintiffs’ as-applied First Amendment

challenges are foreclosed by the holding in SKF. Plaintiffs have failed to allege any

unique facts that would distinguish these claims from the binding precedent established

by that holding, and, therefore, Tampa Bay and Singleton’s First Amendment as-applied

challenges must be dismissed.

4. Plaintiffs’ Remaining Fifth Amendment Equal Protection
As-Applied Challenges Must Be Dismissed

In Count 3, Plaintiffs claim that the CDSOA impermissibly discriminates between

Plaintiffs and other domestic producers who expressed support for the underlying

antidumping petition in that the petition support requirement, as applied to Tampa Bay

and Singleton, was not rationally related to a legitimate governmental purpose and

thereby contravened the equal protection guarantee of the Fifth Amendment. Am.

Compl. ¶ 49. See also Pls.’ Opp’n at 15.

Court No. 08-00404 Page 22

Plaintiffs have alleged no facts that distinguish their equal protection claims from

the equal protection claim addressed, and rejected, in SKF. The Court of Appeals held

that the petition support requirement of the CDSOA does not abridge the equal

protection guarantee, holding that the petition support requirement is rationally related

to the Government’s legitimate purpose of rewarding parties who promote the

Government’s policy against dumping. SKF, 556 F.3d at 1360. SKF reasoned that it

was “rational for Congress to conclude that those who did not support the petition

should not be rewarded.” Id. at 1359. For these reasons, relief cannot be granted on

Plaintiffs’ as-applied equal protection claims, which must be dismissed.

5. Plaintiffs’ Retroactivity Claims Must Be Dismissed for Lack of Standing

Plaintiffs claim in Count 4 that the petition support requirement is impermissibly

retroactive in violation of the Fifth Amendment due process guarantee because

Defendants based eligibility for ADP status, and thus eligibility for disbursements, on

past conduct. Am. Compl. ¶ 51.

Each Plaintiff completed its response to the ITC questionnaire, in which it did not

express support for the petition on frozen and canned shrimp, after the 2000 enactment

of the CDSOA. They lack standing to bring their due process retroactivity claims

because the CDSOA was not applied retroactively to either of them. See Ashley

Furniture Indus., Inc. v. United States, 36 CIT __, __, Slip Op. 12-14 at 28 (2012).

Plaintiffs have conceded dismissal of the claims stated in Count 4. Pls.’ Opp’n at 17.

We will dismiss these claims according to USCIT Rule 12(b)(1).

Court No. 08-00404 Page 23

IV. Conclusion

Plaintiffs’ statutory claims against the ITC seeking CDSOA benefits for Fiscal

Year 2006, as stated in Counts 1 and 5 of the Amended Complaint, must be dismissed

as untimely. The remaining claims in Counts 1 and 5 must be dismissed because

Plaintiffs fail to state facts sufficient to qualify either Plaintiff for distributions under the

CDSOA. Plaintiffs’ constitutional claims for Fiscal Year 2006 also must be dismissed as

untimely. Plaintiffs’ First Amendment and equal protection claims for distributions in the

later fiscal years are foreclosed by binding precedent, and Plaintiffs’ retroactivity claims

must be dismissed for lack of standing. Plaintiffs already have availed themselves of

the opportunity to amend their complaint and have not indicated that they desire to seek

leave to amend their complaint further. Therefore, we conclude that it is appropriate to

enter judgment dismissing this action.

/s/ Leo M. Gordon
Judge Leo M. Gordon

Dated: March 20, 2012
New York, New York

 ERRATA

Tampa Bay Fisheries, Inc. and Singleton Fisheries, Inc. v. U.S., Court No. 08-00404,
Slip Op. 12-37, dated March 20, 2012.

Page 6: In the last line of the main text, replace “quoting” with “citing”.

April 23, 2012