Slip Op. 12- 28
UNITED STATES COURT OF INTERNATIONAL TRADE
NSK CORPORATION,
Plaintiff,
. v. Before: Gregory W. Carman, Judge
Timothy C. Stanceu, Judge
UNITED STATES and Leo M. Gordon, Judge
UNITED STATES INTERNATIONAL
TRADE COMMISSION, Consol. Court No. 07-00223
Defendants,
and
TIMKEN US CORPORATION and
MPB CORPORATION,
Defendant-Intervenors.
OPINION
[Dismissing the consolidated action in part for lack of subject matter jurisdiction and in
part for failure to state a claim upon which relief can be granted]
Dated: March 6, 2012
Robert A. Lipstein and Alexander H. Schaefer, Crowell & Moring, LLP, of
Washington, DC, for Plaintiff.
David S. Silverbrand and Courtney S. McNamara, Trial Attorneys, Commercial
Litigation Branch, Civil Division, United States Department of Justice, of Washington,
DC, for Defendant United States. With them on the briefs were Tony West, Assistant
Attorney General, Jeanne E. Davidson, Director, Franklin E. White, Jr., Assistant Director,
and Andrew G. Jones, Office of Assistant Chief Counsel, United States Customs and
Border Protection, of counsel.
Consol. Court No. 07-00223 Page 2
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. With him on the briefs were James M. Lyons, General Counsel, and
Neal J. Reynolds, Assistant General Counsel for Litigation.
Geert De Prest, Stewart and Stewart, of Washington, DC, for Defendant-
Intervenors. With him on the briefs were Terence P. Stewart, Amy S. Dwyer, and Patrick J.
McDonough.
CARMAN , JUDGE: Plaintiff brought two cases1 challenging the constitutionality of the
Continued Dumping and Subsidy Offset Act of 2000 (“CDSOA” or “Byrd
Amendment”).2 These cases were consolidated by order of the court under Consol. Ct.
No. 07-00223. (Order, Consol. Ct. No. 07-00223, Jan. 25, 2012, ECF No. 83.) Plaintiff
claims that it unlawfully was denied affected domestic producer (“ADP”) status, which
would have qualified it to receive distributions for fiscal years 2005-2007 under the
CDSOA. The consolidated case is now before the Court on dispositive motions.
Defendant United States moves to dismiss each complaint pursuant to USCIT
Rule 12(b)(5) for failure to state a claim upon which relief can be granted. (Def.’s Mot. to
Dismiss for Failure To State a Claim Upon Which Relief Can Be Granted, Ct. No.
07-00223, May 3, 2011, ECF No. 65 and Ct. No. 07-00281, May 2, 2007, ECF No. 47 (“U.S.
1
First Amended Compl., Ct. No. 07-00223, July 13, 2007, ECF No. 5 (“Compl. 1”)
and Compl., Ct. No. 07-00281, July 30, 2007, ECF No. 4 (“Compl. 2”).
2
Pub. L. No. 106-387, §§ 1001-1003, 114 Stat. 1549, 1549A-72-75 (codified at
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).
Consol. Court No. 07-00223 Page 3
Mot.”).) The United States International Trade Commission (“ITC”) moves for judgment
on the pleadings pursuant to USCIT Rule 12(c). (Def. U.S. Int’l Trade Comm’n’s Mot. for
J. on the Pleadings, Ct. No. 07-00223, May 2, 2011, ECF No. 62 and Ct. No. 07-00281,
May 2, 2011, ECF No. 46 (“ITC Mot.”).) Defendant-Intervenors Timken US Corp. and
MPB Corp. (collectively, “Timken”) also move for judgment on the pleadings pursuant
to USCIT Rule 12(c). (Def.-Intervenors’ Mem. in Supp. of Their Mot. for J. on the
Pleadings with Respect to NSK’s Compls., Ct. No. 07-00223, May 2, 2011, ECF No. 64
and Ct. No. 07-00281, May 2, 2011, ECF No. 48 (“Timken Mot.”).)
Defendant United States also filed a motion to dismiss for lack of ripeness as
part of its response to a subsequently-withdrawn application by Plaintiff. (Def. U.S.
Customs & Border Prot.’s Mot. to Dismiss & Resp. in Opp’n to Pl.’s App. for Writ of
Mandamus 9-12, Court No. 07-00223, Aug. 22, 2007, ECF No. 31 (“U.S.’s Ripeness
Mot.”).) The government never withdrew this motion, to which Plaintiff responded.
(Pl. NSK Corp.’s Resp. to Mots. to Dismiss 5-7, Court No. 07-00223, Apr. 15, 2011, ECF
No. 61.)
For the reasons set forth below, Plaintiff’s claims related to fiscal year 2005
distributions will be dismissed for lack of jurisdiction, Plaintiff’s other claims will be
dismissed for failure to state a claim upon which relief can be granted, the government’s
Consol. Court No. 07-00223 Page 4
motion to dismiss for lack of ripeness will be denied, and the consolidated action will be
dismissed.
BACKGROUND
Plaintiff NSK Corp. (“NSK”) is a domestic producer of ball bearings that
participated in a 1988 investigation conducted by the ITC that culminated in the
issuance of antidumping duty orders on ball bearings and spherical plain bearings from
Germany, France, Italy, Japan, Romania, Singapore, Sweden and the United Kingdom.
(See Compl. 1 ¶¶ 1, 13–14, 16.) During those proceedings, NSK responded to the ITC’s
questionnaires. (Compl. 1 ¶ 14, Compl. 2 ¶ 5.) NSK declined to indicate to the ITC that it
supported the antidumping petition. (Compl. 2 ¶ 20.) The ITC has never included NSK
on a published list of ADPs. (Compl. 1 ¶ 22-24, Compl. 2 ¶ 13.)
Plaintiff brought these cases in 2007 to challenge the government’s refusal to
add it to the list of entities potentially eligible for distributions for fiscal years
2005–2007. (Compl. 1, Prayer For Relief; Compl. 2, Prayer For Relief.) Shortly after
NSK’s cases were filed, the court stayed the actions pending final resolution of other
litigation raising the same or similar issues.3 Following the decision of the Court of
Appeals for the Federal Circuit in SKF USA Inc. v. U.S. Customs and Border Protection,
3
The Court’s order stayed the action until final resolution of Pat Huval
Restaurant & Oyster Bar, Inc. v. United States, Consol. Ct. No. 06-0290. (See Order,
Ct. No. 07-00223, Aug. 31, 2007, ECF No. 37.)
Consol. Court No. 07-00223 Page 5
556 F.3d 1337 (Fed. Cir. 2009) (“SKF USA II”), this Court ordered Plaintiff to show cause
why its cases should not be dismissed. (Order, Ct. No. 07-00223, Jan. 3, 2011, ECF No.
42; Order, Ct. No. 07-00281, Jan. 3, 2011, ECF No. 24.) After Plaintiff responded to the
Court’s order, the Court lifted the stay in both of Plaintiff’s cases for all purposes.
(Order, Ct. No. 07-00223, Feb. 9, 2011, ECF No. 45; Order, Ct. No. 07-00281, Feb. 9, 2011,
ECF No. 27.)4 The motions now before us were filed thereafter.
JURISDICTION
The Court exercises subject matter jurisdiction over this action pursuant to
section 201 of the Customs Courts Act of 1980, 28 U.S.C. § 1581(i)(4), which grants the
Court of International Trade exclusive jurisdiction of any civil action commenced
against the United States that arises out of any law providing for administration and
enforcement with respect to, inter alia, the matters referred to in § 1581(i)(2), which are
“tariffs, duties, fees, or other taxes on the importation of merchandise for reasons other
than the raising of revenue.” The CDSOA, out of which this action arises, is such a law.
See Furniture Brands Int’l, Inc. v. United States, 35 CIT __, __-__, 807 F. Supp. 2d 1301,
1307-10 (2011).
4
Customs has made no CDSOA distributions affecting this case and has
indicated that it will not do so until March 9, 2012 at the earliest. (See Ashley Furniture
Industries, Inc. v. United States, 36 CIT ___, ___, Slip Op. 12-14, at 3 n.3 (Jan. 31, 2012).)
Consol. Court No. 07-00223 Page 6
DISCUSSION
The CDSOA amended the Tariff Act of 1930 to provide for an annual
distribution (a “continuing dumping and subsidy offset”) of duties assessed pursuant to
an antidumping duty or countervailing duty order to affected domestic producers as
reimbursements for qualifying expenditures.5 19 U.S.C. § 1675c(a)-(d). ADP status is
limited to petitioners, and interested parties in support of petitions, with respect to
which antidumping duty and countervailing duty orders are entered, and who remain
in operation. Id. § 1675c(b)(1). The CDSOA directed the ITC to forward to Customs,
within sixty days after an antidumping or countervailing duty order is issued, 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). The CDSOA also provided
for distributions of antidumping and countervailing duties assessed pursuant to
existing antidumping duty and countervailing duty orders and for this purpose
5
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).
Consol. Court No. 07-00223 Page 7
directed the ITC to forward to Customs a list identifying potential ADPs “within
60 days after the effective date of this section in the case of orders or findings in effect
on January 1, 1999 or thereafter . . . .” Id. The CDSOA directed Customs to publish in
the Federal Register, prior to each distribution, lists of ADPs potentially eligible for
distributions based on the lists obtained from the ITC, id. § 1675c(d)(2), and to distribute
annually all funds, including accrued interest, from antidumping and countervailing
duties received in the preceding fiscal year. Id. § 1675c(d)(3), (e).
The Court of Appeals, in SKF USA II, upheld the CDSOA against
constitutional challenges brought on First Amendment and equal protection grounds.
556 F.3d at 1360 (“[T]he 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. We hold that the Byrd Amendment is valid under the
First Amendment.”); id. (“Because it serves a substantial government interest, the Byrd
Amendment is also clearly not violative of equal protection under the rational basis
standard.”).6
Plaintiff challenges the constitutionality of the CDSOA on three grounds. In
Count One of its complaints, Plaintiff challenges the “in support of the petition”
6
SKF USA II 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) (“SKF USA I”),
which held the petition support requirement of the CDSOA unconstitutional on Fifth
Amendment equal protection grounds.
Consol. Court No. 07-00223 Page 8
requirement of the CDSOA (“petition support requirement”) on Fifth Amendment
equal protection grounds. (Compl. 1, ¶¶ 26–29; Compl. 2, ¶¶ 32–35.) In Count Two of
its complaints, Plaintiff challenges the petition support requirement on First
Amendment grounds. (Compl. 1, ¶¶ 30–33; Compl. 2, ¶¶ 36–39.) In Count Three of its
complaints, Plaintiff claims that the petition support requirement violates the Fifth
Amendment due process guarantee by basing NSK’s eligibility for disbursements on
past conduct, i.e., support for a petition. (Compl. 1, ¶¶ 34–37; Compl. 2, ¶¶ 40–43.)
In ruling on motions to dismiss made under USCIT Rule 12(b)(5), we dismiss
complaints that do not “contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In ruling on motions
to dismiss under USCIT Rule 12(b)(1), we must dismiss all claims over which we
determine that the Court lacks jurisdiction. See USCIT R. 12(h)(3). For the reasons set
forth below, we conclude that the Court has no jurisdiction over Plaintiff’s claims
pertaining to fiscal year 2005 distributions, and that each of Plaintiff’s other claims fails
to state a claim upon which relief can be granted. The Court will therefore dismiss this
consolidated action.
Consol. Court No. 07-00223 Page 9
I. Plaintiff’s Claim for Fiscal Year 2005 CDSOA Distributions Is Barred by the
Statute of Limitations
Timken moves to dismiss NSK’s claims to the extent that these claims pertain
to fiscal year 2005,7 on statute of limitations grounds. (Timken Mot. 10-13; see also First
Am. Answer ¶ 28, Court No. 07-00281, Mar. 4, 2011, ECF No. 43 (“Further, avers that
NSK’s action commenced on July 30, 2007, for fiscal year 2005 distributions is barred by
the two-year statute of limitations in 28 U.S.C. § 2636(i).”) Timken asserts, without
explaining why, that the statute of limitations in § 2636(i) is jurisdictional, and argues
that NSK’s claims regarding fiscal year 2005 distributions accrued upon Customs’
publication on June 1, 2005 of a notice of intent to distribute funds for the 2005 fiscal
year. (Timken Mot. 11-13.) Because NSK filed suit on July 30, 2007—more than two
years later—Timken argues that the Court should dismiss the fiscal year 2005 portion of
NSK’s claims for lack of jurisdiction. (Id. at 13; see also Def.-Int.’s Reply to NSK Corp.’s
Opp. to Def.-Int.’s Mot. for J. on the Pleadings 12-14, Ct. No. 07-00223, July 18, 2011, ECF
No. 75.) NSK, in response, cites our decision in Pat Huval Restaurant & Oyster Bar, Inc.
v. United States, 32 CIT ___, ___, 547 F. Supp. 1352, 1362 (2008) for the proposition that
the statute of limitations for a CDSOA case like this one is triggered “when distribution
payments [are] made.” (Pl. NSK Corp.’s Resp. to Mots. to Dismiss and Mots. for J. on
7
These claims make up a part of the relief sought with respect to Counts 1-3 of
Compl. 2. (See Compl. 2, Prayer for Relief ¶¶ 3-5.)
Consol. Court No. 07-00223 Page 10
the Pleadings 13, Ct. No. 07-00223, June 27, 2011, ECF No. 71 (“Pl.’s Resp.”).) Since fiscal
year 2005 distributions were “announced on November 29, 2005,” NSK claims that its
July 30, 2007 complaint fell within the two year limitations period. (Id.) For the reasons
given below, we determine that NSK’s claims regarding fiscal year 2005 distributions
are barred by the two-year statute of limitations and will dismiss those portions of
NSK’s claims for lack of jurisdiction pursuant to USCIT Rule 12(b)(1).
First, according to John R. Sand & Gravel Co. v. United States, 552 U.S. 130
(2008), SKF USA II, 556 F.3d at 1348, and 28 U.S.C. § 2636(i), we conclude that § 2636(i)
constitutes a limitation on the government’s waiver of sovereign immunity and that the
statute of limitations is therefore jurisdictional. See Pat Huval Restaurant & Oyster Bar,
Inc. v. United States, 36 CIT ___, ___, Slip Op. 12-27, at 14-15 (Mar. 1, 2012).
Second, we determine that NSK’s claims regarding fiscal year 2005
distributions accrued upon the publication of notice of Customs’ intent to distribute
CDSOA funds for that fiscal year. See Distribution of Continued Dumping and Subsidy
Offset to Affected Domestic Producers, 70 Fed. Reg. 31,566 (June 1, 2005). We base this
determination on our reading of SKF USA II, where the Court of Appeals determined
that “[t]he earliest SKF’s claim [challenging the Fiscal Year 2005 distribution] could have
accrued was when Customs published its notice of intent to distribute duties under
[the] Byrd Amendment for fiscal year 2005,” on June 1, 2005. SKF USA II, 556 F.3d at
Consol. Court No. 07-00223 Page 11
1349; see also 36 CIT ___, Slip Op. 12-27 at 13-14. Just as did the plaintiff in SKF USA II,
NSK knew on this date that Byrd Distributions would be available for fiscal year 2005.
NSK also knew that it would not be participating in that distribution. Therefore, upon
publication of the June 1, 2005 notice, NSK had a “complete and present cause of
action.” See 556 F. 3d at 1348 (quotation omitted).8 NSK’s subsequent request in 2007 to
be added to the ITC list of potential ADPs only applied to fiscal year 2007 distributions
and could not have affected the date on which agency action regarding NSK’s claim for
fiscal year 2005 distributions became final and on which NSK’s cause of action for fiscal
year 2005 distributions accrued. (See Compl. 1 ¶ 22.)
Therefore, we must dismiss the portions of the claims in NSK’s second
complaint that relate to fiscal year 2005 distributions for lack of jurisdiction, since that
complaint was not filed until July 30, 2007, nearly two months after the end of the two
year limitations period that commenced on June 1, 2005. 28 U.S.C. § 2636(i);
USCIT R. 12(b)(1).
II. Plaintiff’s Equal Protection and First Amendment Challenges to the CDSOA
Are Foreclosed by Binding Precedent
Plaintiff fails to plead facts allowing the Court to conclude that its equal
protection and First Amendment challenges to the CDSOA are distinguishable from
8
In Pat Huval Restaurant & Oyster Bar, Inc. v. United States, 547 F. Supp. 2d at
1361–62, focusing on the date of injury, we concluded that “a new cause of action
accrued every time payments were made pursuant to that statutory scheme.”
Consol. Court No. 07-00223 Page 12
claims brought, and rejected, in SKF USA II. The complaints contain no assertions that
the CDSOA was applied to NSK in a different manner than the statute was applied to
other parties who did not support a petition. Plaintiff admits that “NSK did not
participate as a petitioner, or support the petition, as regards to [sic] the investigations
that led to the antidumping duty orders.” (Compl. 2 ¶ 20.) The facts as pled place NSK
on the same footing as other potential claimants who did not support the petition, such
as the plaintiff in SKF USA II. See 556 F.3d at 1343 (“Since it was a domestic producer,
SKF also responded to the ITC’s questionnaire, but stated that it opposed the
antidumping petition.”). Consequently, because Plaintiff does not allege that there was
anything unique about the way the CDSOA was applied to it, Plaintiff’s equal
protection and First Amendment challenges in Counts One and Two of its complaints
are foreclosed by the holding in SKF USA II and must be dismissed pursuant to USCIT
Rule 12(b)(5) for failure to state a claim upon which relief can be granted.
Plaintiff’s argument that the recent Supreme Court cases Snyder v. Phelps,
131 S. Ct. 1207 (2011), and Citizens United v. FEC, 130 S. Ct. 876 (2010), effectively
overturn SKF USA II is unpersuasive. (See Pl.’s Resp. 6-8.) While it is conceivable that
intervening Supreme Court precedent could effectively overturn a previous circuit
court decision, we are not convinced that such is the case here.
Consol. Court No. 07-00223 Page 13
In Snyder, the Supreme Court held that the First Amendment provided a valid
defense to certain tort liability, because the defendant’s speech, while “hurtful,” was
made in “a public place on a matter of public concern,” and was therefore “entitled to
‘special protection’ under the First Amendment.” Snyder, 131 S. Ct. at 1218–19. We
conclude that Snyder has no bearing on the constitutionality of the CDSOA. To
conclude otherwise is to ignore the Supreme Court’s disclaimer that
[o]ur holding today is narrow. We are required in First Amendment cases
to carefully review the record, and the reach of our opinion here is limited
by the particular facts before us. As we have noted, “the sensitivity and
significance of the interests presented in clashes between First Amendment
and [state law] rights counsel relying on limited principles that sweep no
more broadly than the appropriate context of the instant case.”
Snyder, 131 S. Ct. at 1220 (quoting Florida Star v. B.J.F., 491 U.S. 524, 533 (1989))
(bracket in original) (emphasis added). Because this case does not involve the First
Amendment as a defense to tort liability for inflammatory speech, nor a question
regarding the clash of First Amendment and state law rights, the Court finds Snyder
inapplicable.
Citizens United is similarly inapplicable. In that case, the Supreme Court
invalidated a law that imposed “an outright ban, backed by criminal sanctions” on
corporate spending on “electioneering communications,” which the Supreme Court
regarded as a ban on political speech. Citizens United, 130 S. Ct. at 897 (stating that the
prohibitions at issue were “classic examples of censorship.”). While “it might be
Consol. Court No. 07-00223 Page 14
maintained that political speech simply cannot be banned or restricted as a categorical
matter,” the Supreme Court noted that at a minimum,“[l]aws that burden political
speech are ‘subject to strict scrutiny,’” and evaluated the challenged law under that
framework. Id. at 898 (quoting FEC v. Wisconsin Right to Life, Inc., 551 U.S. 449, 464
(2007)). The statute in Citizens United thus contrasts sharply with the CDSOA, which
“does not prohibit particular speech.” SKF USA II, 556 F.3d at 1350. We find nothing in
Citizens United that impliedly overturns the holding of SKF USA II. As SKF USA II
itself noted, “[s]tatutes that are prohibitory in nature are rarely sustained, and cases
addressing the constitutionality of such statutes are of little assistance in determining
the constitutionality of the far more limited provisions of the Byrd Amendment.” Id.
(emphasis added). This Court agrees; Citizens United is of little assistance.
NSK also asserts that Sorrell v. IMS Health Inc., 131 S. Ct. 2653 (2011), requires
this Court to “review anew the level of scrutiny applied to the CDSOA’s petition
support requirement.” (Pl.’s Resp. at 8.) We recently considered and rejected a similar
argument that Sorrell required a different level of scrutiny than that imposed by SKF
USA II on the CDSOA petition support requirement. Furniture Brands, 807 F. Supp. 2d
at 1314-15. Noting that the statutes involved in Sorrell and SKF USA II differed in
nature, degree of effect on expression, and purpose, we opined in Furniture Brands that
“the CDSOA does not have as a stated purpose, or even an implied purpose, the
Consol. Court No. 07-00223 Page 15
intentional suppression of expression.” Id. at 1315. As we also discussed in our
Furniture Brands opinion, the Supreme Court in Sorrell concluded that the Vermont
statute at issue in that case could not survive under a particular First Amendment
analysis that was not at variance with the analysis that the Court of Appeals applied to
the CDSOA in SKF USA II and identified as the “well-established Central Hudson test.”
Id. (citing SKF USA II, 556 F.3d at 1355, in turn citing Central Hudson Gas & Electric v.
Public Serv. Comm’n of New York, 447 U.S. 557, 566 (1980)). We conclude here, as we
did in Furniture Brands, that Sorrell does not require us to subject the CDSOA to a new
First Amendment analysis departing from that applied by the Court of Appeals in SKF
USA II.
For the reasons we have discussed, we will dismiss Plaintiff’s equal protection
and First Amendment claims in Counts One and Two of its complaints for failure to
state a claim upon which relief can be granted.
III. Plaintiff’s Claims As to Fiscal Year 2007 Distributions Were Ripe upon
Publication of the Notice to Distribute
The government’s motion to dismiss Compl. 1 argues that NSK’s fiscal year
2007 claims were not ripe because Customs had yet to make a final determination as to
whether NSK would receive a distribution for fiscal year 2007, when NSK initiated its
actions in July 2007. (U.S.’s Ripeness Mot. at 9-11.) Contrary to the argument in the
government’s motion, we conclude that NSK’s claim for 2007 CDSOA distributions was
Consol. Court No. 07-00223 Page 16
ripe at the time NSK brought its actions. We construe NSK’s claim for fiscal year 2007 to
challenge, on constitutional grounds, the decision by the ITC to deny NSK status as a
potential ADP. After NSK requested, on March 12, 2007, that the ITC place it on the list
of ADPs for that fiscal year, it received a denial of its request from the ITC on May 18,
2007. (Compl. 1 ¶¶ 22-23.) That denial was confirmed in the list of ADPs included in the
notice of intent to distribute CDSOA funds for fiscal year 2007, as published by Customs
on May 29, 2007, which list did not include NSK. Compl. 1 ¶ 24 (citing Distribution of
Continued Dumping and Subsidy Offset to Affected Domestic Producers, 72 Fed. Reg.
29,582 (May 29, 2007)). NSK filed a certification with Customs even though it was not so
listed, Compl. 2 ¶ 15, but Customs, on the facts as pled by NSK, had no discretion to
add NSK to the list of potential ADPs.9 See 19 U.S.C. § 1675c(d)(2) (providing that the
“list of affected domestic producers potentially eligible for the distribution” is to be
“based on the list obtained from the Commission . . . .”). Therefore, we find no lack of
ripeness in NSK’s claim for fiscal year 2007 distributions.
9
We could take judicial notice that in the May 29, 2007 notice of intent to
distribute, Customs announced that “[c]laimants who are not on the USITC list but
believe they are nonetheless eligible for a CDSOA distribution under one or more
antidumping and/or countervailing duty cases must, as do all claimants that expressly
appear on the list, file their certification(s) within 60 days after this notice is published.”
Distribution of Continued Dumping and Subsidy Offset to Affected Domestic
Producers, 72 Fed. Reg. 29,582, 29,582 (May 29, 2007). However, our conclusion that
NSK is challenging the action of the ITC, not that of Customs, causes us to conclude that
this announcement does not affect a determination of ripeness.
Consol. Court No. 07-00223 Page 17
IV. The Petition Support Requirement Does Not Violate the Due Process
Guarantee Due to Retroactivity
In Count Three of each complaint, Plaintiff claims that the CDSOA is
impermissibly retroactive, in violation of the due process guarantee of the Fifth
Amendment, because it “determined eligibility for CDSOA offsets based on private
speech that occurred in the past” and because “the retroactive application of the
CDSOA is not supported by a legislative purpose.” (Compl. 1 ¶¶ 35-37; Compl. 2
¶¶ 41-43.) This claim is not clearly stated, but we construe it as challenging the statutory
provisions by which the CDSOA awards distributions based on orders already existing
as of enactment and conditions eligibility on expressions of support for a petition
occurring prior to enactment. See 19 U.S.C. § 1675c(d)(1). In New Hampshire Ball
Bearing v. United States, 36 CIT __, __-__, Slip Op. 12-2, at 8-14 (Jan. 3, 2012), we
recently considered a claim essentially identical to Plaintiff’s retroactivity claims and
concluded that “the retroactive reach of the petition support requirement in the CDSOA
is justified by a rational legislative purpose and therefore is not vulnerable to attack on
constitutional due process grounds.” 36 CIT at __, Slip Op. at 14. We reasoned that it
would “not [be] arbitrary or irrational for Congress to conclude that the legislative
purpose of rewarding domestic producers who supported antidumping petitions . . .
would be ‘more fully effectuated’ if the petition support requirement were applied both
prospectively and retroactively.” 36 CIT at __, Slip Op. at 13 (quoting Pension Benefit
Consol. Court No. 07-00223 Page 18
Guaranty Corp. v. R.A. Gray & Co., 467 U.S. 717, 730-31 (1984)). We conclude, therefore,
that Congress’ choice to base potential eligibility for CDSOA disbursements on a
decision of whether to support the petition made prior to the enactment of the CDSOA
did not violate NSK’s Fifth Amendment due process rights. Based on this conclusion,
the Court will dismiss the due process claims in Count Three of the complaints for
failure to state a claim upon which relief can be granted.
CONCLUSION
For the foregoing reasons, all claims in the complaints in this consolidated
action must be dismissed. Timken’s motion for judgment on the pleadings will be
granted as to claims for fiscal year 2005 funds, over which the Court determines that it
lacks jurisdiction because those claims are barred by the statute of limitations. Although
the government’s motion to dismiss on ripeness grounds will be denied, its motion to
dismiss for failure to state a claim upon which relief can be granted pursuant to USCIT
Rule 12(b)(5) will be granted and Plaintiff’s remaining claims will therefore be
dismissed. As Plaintiff’s claims will all be dismissed pursuant to other motions, the
ITC’s motions for judgment on the pleadings will be denied as moot. Plaintiff has not
shown, either in responding to the Court’s order to show cause or in opposing the
motions to dismiss, that there is a plausible basis for Plaintiff to seek leave to amend the
Consol. Court No. 07-00223 Page 19
complaints, and the Court sees no such basis. Therefore, the Court shall enter judgment
dismissing this action.
/s/Gregory W. Carman
Gregory W. Carman, Judge
Dated: March 6, 2012
New York, New York