Slip Op. 12- 27
UNITED STATES COURT OF INTERNATIONAL TRADE
PAT HUVAL RESTAURANT & OYSTER
BAR, INC., et al.
Plaintiffs,
v. Before: Gregory W. Carman, Judge
Timothy C. Stanceu, Judge
UNITED STATES INTERNATIONAL Leo M. Gordon, Judge
TRADE COMMISSION, et al.,
Consol. Court No. 06-00290
Defendants,
and
THE TIMKEN COMPANY and MPB
CORPORATION,
Defendant Intervenors.
OPINION
[Dismissing the consolidated action for failure to state a claim upon which relief can be
granted and for lack of subject matter jurisdiction]
Dated: March 1, 2012
Jacques Pierre Soileau, Soileau & Soileau of Breaux Bridge, LA, for Plaintiffs Pat
Huval Restaurant & Oyster Bar, Inc., Aqua Farms Crawfish, Inc., Catfish Wholesale,
Inc., Charles Bernard (d/b/a/ Charles’ Crawfish Pad), Andre Leger (d/b/a/ Chez
Francois), Jim Fruge (d/b/a/ Acadiana Fisherman’s Co op), J. Bernard Seafood
Processing, Inc., and Frank Melancon (d/b/a French’s Enterprises Seafood Peeling
Plant).
Herbert Carl Shelley, Alice Alexandra Kipel, Laura Rose Ardito, and Michael Thomas
Gershberg, Steptoe & Johnson, LLP of Washington, DC, for Plaintiff SKF USA, Inc.
Consol. Court No. 06-00290 Page 2
John Marshall Gurley, and Nancy Aileen Noonan, Arent Fox, LLP, of Washington,
DC, for Plaintiff Koyo Corporation of U.S.A.
David S. Silverbrand, Courtney S. McNamara, Michael J. Dierberg, and Todd M.
Hughes, Trial Attorneys, Commercial Litigation Branch, Civil Division, United States
Department of Justice, of Washington, DC, for Defendant United States Customs and
Border Protection. 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.
Patrick V. Gallagher, Jr., Attorney Advisor, Office of the 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, Terence P. Stewart, Amy S. Dwyer, and Patrick J. McDonough,
Stewart and Stewart, of Washington, DC, for Defendant Intervenors.
CARMAN , JUDGE: This action has been consolidated from six cases brought by a group of
eight domestic producers of processed crawfish tail meat (collectively, the “Pat Huval
Plaintiffs”),1 Koyo Corporation of U.S.A. (“Koyo”),2 and SKF USA, Inc. (“SKF”),3
challenging the constitutionality of the Continued Dumping and Subsidy Offset Act of
2000 (“CDSOA” or “Byrd Amendment”), and the administration of the statute by
1
Second Supp. and Am. Compl., Ct. No. 06 00290, Nov. 8, 2006, ECF No. 72
(“Compl. 1“).
2
Compl., Ct. No. 06 00324, Sept. 25, 2006, ECF No. 4 (“Compl. 2“); Compl., Ct.
No. 08 00340, Sept. 30, 2008, ECF No. 2 (“Compl. 5“); Compl., Ct. No. 10 00001,
Jan. 7, 2010, ECF No. 2 (“Compl. 6“).
3
Compl., Ct. No. 06 00328, Sept. 29, 2006, ECF No. 4 (“Compl. 3“); Compl., Ct.
No. 07 00035, Feb. 5, 2007, ECF No. 4 (“Compl. 4“)
Consol. Court No. 06-00290 Page 3
Defendants.4 These cases were consolidated by order of the Court under Consol. Ct.
No. 06 00290. (Order (Feb. 23, 2007), ECF No. 91; Order (Mar. 16, 2011), ECF No. 207.)
Plaintiffs claim that they unlawfully were denied affected domestic producer (“ADP”)
status, which would have qualified them to receive distributions under the CDSOA.
The case is now before the Court on dispositive motions. Defendants United
States Customs and Border Protection (“CBP”) and the United States International
Trade Commission (“ITC”) each move to dismiss Plaintiff’s complaint for failure to state
a claim upon which relief can be granted pursuant to USCIT Rule 12(b)(5), and for
judgment on the pleadings under USCIT Rule 12(c). (Def. U.S. Customs and Border
Prot.’s Mot. to Dismiss for Failure to State a Claim upon Which Relief Can Be Granted
and for J. on the Pleadings (“CBP Mot.”), May 6, 2011, ECF No. 219); (Def. U.S. Int’l
Trade Comm’n’s Mot. to Dismiss for Failure To State a Claim and For J. on the
Pleadings (“ITC Mot.”), May 2, 2011, ECF No. 215). Defendant Intervenors Timken US
Corp. and MPB Corp. (collectively, “Timken”) move for judgment on the pleadings
pursuant to USCIT Rule 12(c) with respect to the complaints filed by SKF and Koyo.
(Timken’s Mot. for J. on the Pleadings with Respect to SKF’s and Koyo’s Compl.’s
(“Timken Mot.”), May 2, 2011, ECF No. 217.) For the reasons set forth below, Plaintiffs’
4
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. 06-00290 Page 4
consolidated action will be dismissed under USCIT Rule 12(b)(5) for failure to state a
claim upon which relief can be granted, and under USCIT Rule 12(b)(1) on timeliness
and mootness grounds.
BACKGROUND
Certain background information is provided in our earlier opinion in this case,
Pat Huval Restaurant & Oyster Bar, Inc. v. United States, 32 CIT ___, 547 F. Supp. 2d
1352 (2008), and is supplemented herein.
The Pat Huval Plaintiffs5 are domestic producers of crawfish tail meat who
seek to obtain status as affected domestic producers and receive CDSOA disbursements
from duties collected on an antidumping duty order on crawfish from China. (Compl. 1
at 10.) The Pat Huval Plaintiffs have not received CDSOA distributions because “they
did not indicate ‘support’ of the original 1996 crawfish antidumping petition.”
(Compl. 1 ¶ 22.)
Plaintiff Koyo is a U.S. producer of tapered roller bearings and ball bearings.
(See, e.g., Compl. 2 ¶ 1.) Koyo seeks through this litigation to obtain status as an
affected domestic producer and receive CDSOA disbursements for Fiscal Years
5
The “Pat Huval Plaintiffs” are Pat Huval Restaurant & Oyster Bar, Inc., Aqua
Farms Crawfish, Inc., Catfish Wholesale, Inc., Charles Bernard (d/b/a/ Charles’ Crawfish
Pad), Andre Leger (d/b/a Chez Francois), Jim Fruge (d/b/a Acadiana Fisherman’s
Co op), J. Bernard Seafood Processing, Inc., and Frank Melancon (d/b/a French’s
Enterprises Seafood Peeling Plant). (Compl. 1 ¶¶ 3 10.)
Consol. Court No. 06-00290 Page 5
2006 2009 from duties collected on 13 antidumping duty orders on tapered roller and
ball bearings. (Compl. 2 ¶ 20; Compl. 5 ¶ 19; Compl. 6 ¶¶ 19 21.) Koyo states that it
did not support any of the petitions that culminated in the issuance of those 13 orders.
(See, e.g., Compl. 2 ¶¶ 16, 28 (“Koyo USA did not support the underlying antidumping
duty investigations for the subject bearings orders”; see also Compl. 5 ¶¶ 15, 29;
Compl. 6 ¶¶ 15, 30.) The ITC did not include Koyo on a list that it sent to Customs of
producers potentially eligible for ADP status “for any of the fiscal years . . . since the
promulgation of the CDSOA.” (Compl. 2 ¶ 17; see also Compl. 5 ¶ 16; Compl. 6 ¶ 16.)
Plaintiff SKF is a U.S. manufacturer of antifriction bearings, including ball
bearings. (See, e.g., Compl. 3 ¶ 1.) SKF also seeks to obtain status as an ADP and
receive CDSOA disbursements for Fiscal Years 2004 and 2006 from duties collected on
various antidumping duty orders on antifriction bearings. (Compl. 3 Prayer for Relief;
Compl. 4 Prayer for Relief.) SKF alleges that it was considered “part of the domestic
industry for [antifriction bearings]” but does not allege that it supported the petitions
that culminated in the issuance of the relevant antidumping duty orders. (See Compl. 3
¶ 26; Compl. 4 ¶ 37.) Because of its failure to support the petitions, SKF “has been
denied status as an ‘affected domestic producer’ and, consequently, has been deemed
ineligible to receive disbursements under the CDSOA.” (Compl. 3 ¶ 38; Compl. 4 ¶ 52.)
Consol. Court No. 06-00290 Page 6
In 2008, acting on motions to dismiss pursuant to USCIT Rules 12(b)(1) and
12(b)(5), we limited the relief Plaintiffs could obtain for their facial constitutional
challenges, and limited which agency actions the Pat Huval Plaintiffs would be
permitted to challenge in their Administrative Procedure Act (APA) claim.6 Pat Huval,
547 F. Supp. 2d at 1365.
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, under 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).
6
Specifically, we held that “Plaintiffs’ claims bringing facial constitutional
challenges to the Byrd Amendment are dismissed to the extent that they seek relief for
Byrd distributions that occurred prior to the two year periods ending with
commencement of their respective suits,” and that “Count Two of the Crawfish
Producers’ complaint is dismissed insofar as the Crawfish Producers challenge agency
actions that occurred prior to February 27, 2004.” Pat Huval, 547 F. Supp. 2d at 1365.
Consol. Court No. 06-00290 Page 7
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.7 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 with potential 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 directed the ITC
7
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; and (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. 06-00290 Page 8
to forward to CBP 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 CBP 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, Inc. v. U.S. Customs and Border Protection
(“SKF USA II”), upheld the CDSOA against constitutional challenges brought on First
Amendment and equal protection grounds. SKF USA, Inc. v. U.S. Customs and Border
Protection, 556 F.3d 1337, 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.”).8
8
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. 06-00290 Page 9
I. Claims Asserted in This Consolidated Action
A. Claims Common To All Plaintiffs
All Plaintiffs Koyo, SKF, and the Pat Huval Plaintiffs challenge the
constitutionality of Defendants’ application of the CDSOA on three grounds. First, they
challenge the “in support of the petition” requirement of the CDSOA (“petition support
requirement”), as it was applied to each of them, on First Amendment grounds.9
(Compl. 1 ¶¶ 38 39, Compl. 2 ¶¶ 53 56, Compl. 3 ¶¶ 44 46, Compl. 4 ¶¶ 58 60,
Compl. 5 ¶¶ 59 62, Compl. 6 ¶¶ 58 61.) Second, all Plaintiffs challenge the petition
support requirement, as applied, on Fifth Amendment equal protection grounds.
(Compl 1 ¶¶ 35 37, Compl. 2 ¶¶ 61 64, Compl. 3 ¶¶ 47 50, Compl. 4 ¶¶ 61 64,
Compl. 5 ¶¶ 67 70, Compl. 6 ¶¶ 66 69.) Third, all Plaintiffs claim that the petition
support requirement violates the Fifth Amendment due process guarantee in basing
their eligibility for disbursements on past conduct, i.e., support for a petition. (Compl. 1
¶¶ 29 30, Compl. 2 ¶¶ 69 71, Compl. 3 ¶¶ 51 53, Compl. 4 ¶¶ 65 67, Compl. 5
¶¶ 75 77, Compl. 6 ¶¶ 74 76.)
9
Plaintiffs SKF and Koyo both claim that the CDSOA violated not only their First
Amendment right to free speech, but also their right to petition the government for
redress of grievances. “Although the right to petition and the right to free speech are
separate guarantees, they are related and generally subject to the same constitutional
analysis.” Wayte v. United States, 470 U.S. 598, 611 n.11 (1985) (citing NAACP v.
Claiborne Hardware Co., 458 U.S. 886, 911 915 (1982)). Because SKF and Koyo do not
allege that the CDSOA burdened the right to free speech in a different manner than the
right to petition, the Court will view these claims as essentially the same. See id.
Consol. Court No. 06-00290 Page 10
B. Claims Exclusive to the Pat Huval Plaintiffs
The Pat Huval Plaintiffs bring three claims distinguishable from those brought
by SKF or Koyo. First, the Pat Huval Plaintiffs claim that the CDSOA conferred upon
them a vested property interest, of which they have been unreasonably deprived
without notice or hearing, in violation of the due process clause of the Fifth
Amendment. (Compl. 1 ¶¶ 27 28.) Second, the Pat Huval Plaintiffs claim that the
actions of the ITC and CBP to adjudicate a right bestowed in 2000 based on a
proceeding that took place in 1996 were arbitrary, capricious and an abuse of discretion
in violation of the APA. (Id. ¶¶ 31 34.) Last, the Pat Huval Plaintiffs claim that the
CDSOA is an unconstitutional Bill of Attainder in violation of the Fifth Amendment
because it retroactively penalized certain domestic producers for free speech actions
taken prior to enactment. (Id. ¶¶ 40 42.)
C. Claims Exclusive to Koyo
Koyo brings claims distinguishable from those brought by the other Plaintiffs
in this consolidated action. First, Koyo claims that the CDSOA is facially violative of the
First Amendment guarantees of freedom of speech and belief and the ability of the
citizenry to petition the government for a redress of grievances, and also is facially
overbroad because it compels speech.10 (Compl. 2 ¶¶ 57 60, Compl. 5 ¶¶ 63 66,
10
Although SKF USA II did not precisely consider whether the CDSOA was
facially overbroad because it compels speech, the reasoning by which the Court of
Consol. Court No. 06-00290 Page 11
Compl. 6 ¶¶ 62 65.) Second, Koyo claims that the CDSOA is facially violative of the
equal protection guarantees of the Constitution because it creates a classification
implicating Koyo’s fundamental speech rights, and because it impermissibly
discriminates between similarly situated domestic producers. (Compl. 2 ¶¶ 65 68,
Compl. 5 ¶¶ 71 74, Compl. 6 ¶¶ 70 73.)11
Koyo has also filed a motion for leave to amend its complaint to assert a claim
that Defendant Intervenors have been unjustly enriched by virtue of receiving CDSOA
distributions belonging, in part, to Koyo. (Mot. for Leave to Amend Compl. and Mem.
in Support, April 11, 2008, ECF No. 146.)
D. Claims Exclusive to SKF
SKF brings one unique claim in this consolidated action. In the wake of SKF
USA Inc. v. United States, 31 CIT 1163, 502 F. Supp. 2d 1325 (2007), the ITC informed
SKF that “a decision by this Court as to SKF USA’s status as an ‘affected domestic
producer’ for one fiscal year’s disbursements will not be applied to any year but that
one fiscal year.” (Compl. 4 ¶¶ 69 70.) SKF challenges this agency determination,
Appeals rejected SKF’s First Amendment claim applies with equal force to dispose of
this claim.
11
In its Complaints, Koyo also asserts that because the CDSOA is
unconstitutional, it is void ab initio, and that the violating provisions are severable from
the CDSOA as a whole. Although it styles these assertions as “Count 6” and “Count 7”,
they are rather relief sought and the Court so construes them.
Consol. Court No. 06-00290 Page 12
ostensibly, though not explicitly, via the Administrative Procedure Act. SKF claims that
in taking this position, the ITC has injured SKF by forcing it to “file an action each year
in order to obtain the relief granted by the Court resulting from the Court’s decision
that the CDSOA, as applied to SKF[,] is unconstitutional.” (Id. ¶ 71.) SKF claims that
“[o]nce determined to be unconstitutional[] as to SKF USA in one case, the CDSOA is
equally unconstitutional in all cases affecting SKF USA” and that the ITC’s “refusal thus
violates the Constitutional rights granted to SKF USA through the First Amendment,
the equal protection guarantees of the U.S. Constitution and the due process guarantees
of the U.S. Constitution.” (Id. ¶¶ 71 72.)
II. Statute of Limitations
Timken argues that three sets of claims in this consolidated action are barred
by the two year statute of limitations in 28 U.S.C. § 2636(i) and should be dismissed on
jurisdictional grounds. First, Timken argues that the action SKF commenced on
September 29, 2006 (Compl. 3; prior to consolidation, Court No. 06 00328) to obtain a
CDSOA distribution for Fiscal Year 2004 (“SKF’s 2004 Challenge”) is untimely. (Timken
Mot. 25 29.) Second, Timken argues that the action Koyo commenced on September 30,
2008 (Compl. 5; prior to consolidation, Court No. 08 00340), is untimely to the extent
Koyo seeks to obtain a CDSOA distribution for Fiscal Year 2006 (“Koyo’s 2006
Challenge”). (Id. at 29 30.) Last, Timken argues that all of Koyo’s claims asserting
Consol. Court No. 06-00290 Page 13
facial challenges to the constitutionality of the CDSOA are barred by the two year
statute of limitations. (Id. at 30.) The Court determines that only two sets of
claims SKF’s 2004 Challenge and Koyo’s 2006 Challenge are barred by the two year
statute of limitations.
In SKF USA II, the Court of Appeals applied the principle that a cause of action
accrues when all events necessary to fix the alleged liability of the defendant have
occurred. SKF USA II, 556 F.3d at 1348 49 &1348 n.15 (citations omitted). The Court of
Appeals concluded in SKF USA II that “the earliest SKF’s claim could have accrued was
when Customs published its notice of intent to distribute duties under the Byrd
Amendment for fiscal year 2005 and invited potentially eligible producers to file
certifications requesting a share of the distributions.” Id. at 1349.
In the present case, the claims challenging the constitutionality of the CDSOA
brought in SKF’s 2004 Challenge and Koyo’s 2006 Challenge are time barred because
they were not brought within two years of the dates on which those claims accrued. See
28 U.S.C. § 2636(i). The 2004 notice of intent to distribute was published on June 2, 2004.
Distribution of Continued Dumping and Subsidy Offsets to Affected Domestic
Producers, 69 Fed. Reg. 31,162 (June 2, 2004). SKF did not file its lawsuit challenging
this distribution until more than two years later, on September 29, 2006. (Compl. 3.)
The 2006 notice of intent to distribute was published on June 1, 2006. Distribution of
Consol. Court No. 06-00290 Page 14
Continued Dumping and Subsidy Offset to Affected Domestic Producers, 71 Fed. Reg.
31,336 (June 1, 2006). Koyo did not file its lawsuit challenging this distribution until
more than two years later, on September 30, 2008. (Compl. 5.) The petition support
requirement was applied to each plaintiff by the respective ITC decision to exclude it
from the list of potential ADPs, not by any subsequent action by CBP, which does not
have discretion to add potential ADPs to the Commission’s list based on CBP’s own
determination of petition support. See 19 U.S.C. § 1675c(d)(2) (providing that the notice
of intention to distribute is to include “the list of affected domestic producers
potentially eligible for the distribution based on the list obtained from the Commission .
. . .”). The publication of the notices of intent to distribute placed each plaintiff on notice
that Customs would make a distribution for the relevant fiscal year and that the plaintiff
would not be participating in that distribution. Each plaintiff could have challenged the
ITC decision to exclude it from the list of potential ADPs for the relevant fiscal year as
soon as that list was made public in CBP’s notice. We conclude, therefore, that SKF’s
2004 Challenge and Koyo’s 2006 Challenge first accrued on the respective dates of
publication of the two notices.
Further, we conclude that the statute of limitations in 28 U.S.C. § 2636(i) is
jurisdictional. See SKF USA II, 556 F. 3d at 1348 (assuming without deciding that the
statute is jurisdictional under the test set forth in John R. Sand & Gravel Co. v. United
Consol. Court No. 06-00290 Page 15
States, 552 U.S. 130 (2008)). Accordingly, the claims comprising SKF’s 2004 Challenge
and Koyo’s 2006 Challenge are not properly before us, and we dismiss these claims for
lack of jurisdiction according to USCIT Rule 12(b)(1).
Finally, we reject Defendant Intervenors’ argument that Koyo’s remaining
facial challenges are barred by the two year statute of limitations because these
challenges were not brought within two years of enactment. In dicta in SKF USA II, the
Court of Appeals opined that “SKF could have filed a facial challenge to the Byrd
Amendment immediately after its enactment,” 556 F.3d at 1348, but the Court of
Appeals did not state that causes of action challenging the Byrd Amendment could not
accrue after the date of enactment. The Court of Appeals reached a holding as to the
earliest date on which a particular cause of action at issue in that case could have
accrued, i.e., the date of publication of the notice of intent to distribute.12 The date on
12
Our earlier opinion in Pat Huval Restaurant & Oyster Bar, Inc. v. United States,
32 CIT __, 547 F. Supp. 2d 1352, 1360 (2008), reached a different conclusion than did the
Court of Appeals in SKF USA II as to the earliest date on which a cause of action
challenging the Byrd Amendment could accrue. The Court of Appeals reasoned that a
claim may accrue for a particular fiscal year once it is known that “Byrd Amendment
distributions would be available” for that year, id. at 1348 49, rather than once a plaintiff
suffered the annual “injury caused by the payments made to their direct domestic
competitors,” as we reasoned in Pat Huval, 32 CIT at __, 547 F. Supp. 2d at 1347.
Having entered no judgment on the claims that we did not dismiss following our earlier
opinion, we consider the statute of limitations questions anew based on the relevant
guidance in SKF USA II. We reject SKF’s argument that our having previously decided
that the claims remaining in this action were not time barred and Defendant
Intervenors’ failing to move for reconsideration of that decision within 30 days make it
inappropriate for us to reconsider whether the claims pertaining to fiscal year 2004 were
Consol. Court No. 06-00290 Page 16
which a cause of action of a domestic party bringing a constitutional challenge to the
Byrd Amendment accrues must be determined according to the specific facts giving rise
to that claim. On the particular facts pertinent here, Koyo’s facial claims accrued on the
date of public notice of a final ITC determination that Koyo had been determined to be
ineligible for a distribution related to the particular fiscal year in question.
III. Plaintiffs’ Facial and As Applied Challenges Under the First Amendment
and the Equal Protection Clause Are Foreclosed by Binding Precedent
A. Koyo’s Facial Challenges
The survival of Koyo’s facial claims, however, is short lived. Koyo’s claims
facially challenging the constitutionality of the CDSOA’s petition support requirement
under the First Amendment (See, e.g., Compl. 2 ¶¶ 57 60) and the equal protection
doctrine of the Fifth Amendment (Id. ¶¶ 65 68) are precluded by the holding in SKF
USA II. In SKF USA II, the Court of Appeals held that the CDSOA did not violate
constitutional First Amendment or equal protection principles as applied to SKF in that
case. 556 F.3d at 1360. That ruling forecloses any possibility that the statute is facially
unconstitutional on the First Amendment and equal protection grounds asserted by
timely filed. SKF’s Resp. 28 29. SKF is correct that reconsideration under Rule 59(a) is
not available in this case because motions pursuant to Rule 59(a) must be “filed not later
than 30 days after the entry of the judgment or order,” USCIT Rule 59(b), which was not
the case here, SKF’s Resp. 28 29. But the inapplicability of Rule 59(a) does not exhaust
the court’s power to reconsider its non final decisions. Instead, the Court may
reconsider its prior decision pursuant to its general authority, which is recognized by
USCIT Rule 54, to reconsider a non final order prior to entering final judgment.
Consol. Court No. 06-00290 Page 17
SKF in SKF USA II. Koyo’s claims to the same effect therefore must be dismissed
pursuant to USCIT Rule 12(b)(5) for failure to state a claim upon which relief can be
granted.
B. SKF’s As-Applied Challenges
Timken argues that SKF’s as applied First Amendment and equal protection
challenges to the CDSOA are barred either by res judicata (claim preclusion) or
collateral estoppel (issue preclusion). (Timken Mot. 4 16.) “Under res judicata, a final
judgment on the merits bars further claims by parties or their privies based on the same
cause of action.” Brown v. Felsen, 442 U.S. 127, 131 (1979) (internal quotation omitted).
“Under the doctrine of collateral estoppel, or issue preclusion, a litigant who has
litigated an issue in a full and fair proceeding is estopped from relitigating the same
issue in a subsequent proceeding.” Sahaviriya Steel Indus. Pub. Co. v. United States,
34 CIT __, __, 714 F. Supp. 2d 1263, 1273 (2010) (citing Thomas v. Gen. Servs. Admin.,
794 F.2d 661, 664 (Fed. Cir. 1986)). The principle of issue preclusion is applicable here.
SKF litigated its First Amendment as applied and equal protection challenges
before the Court of Appeals in SKF USA II and received a final judgment on the merits
of those claims in that case. (SKF did not litigate and receive a final judgment on the
merits of its due process retroactivity claim, which we address elsewhere in this
opinion.) The Court holds that SKF is barred from relitigating the First Amendment as
Consol. Court No. 06-00290 Page 18
applied and equal protection issues in the present case, notwithstanding that SKF is
pursuing a different cause of action in seeking CDSOA distributions for a different fiscal
year than that involved in SKF USA II.
SKF argues in response that its as applied First Amendment and equal
protection claims should not be barred by collateral estoppel. (Pl. SKF USA Inc.’s Opp.
to Def.’s and Def. Ints.’ Mots. To Dismiss and for J. on the Pleadings 20 21 (“SKF’s
Opp.”), June 24, 2011, ECF No. 223.) SKF argues that collateral estoppel should not
apply in light of the Supreme Court’s decision in Sorrell v. IMS Health Inc., 131 S. Ct.
2653 (2011), which it believes satisfies an “exception to the preclusion doctrines for new
claims brought after ‘momentus changes in important, fundamental constitutional
rights.’” (SKF’s Opp. 20 21) (quoting Roche Palo Alto v. Apotex, Inc., 531 F.3d 1372,
1380 81 (Fed. Cir. 2008) (internal quotation omitted)). Sorrell is not an appropriate basis
for invoking the exception to issue preclusion, as the Supreme Court’s holding in the
case does not undermine the validity of SKF USA II or the Central Hudson test on
which the Court of Appeals relied in analyzing the petition support requirement. As
we determined recently in ruling on another as applied First Amendment challenge to
the CDSOA, Sorrell did not implicitly overturn SKF USA II or change the requisite level
of scrutiny appropriate for the CDSOA. See Furniture Brands, 35 CIT at __, 807
F. Supp. 2d at 1313 15. Sorrell and SKF analyze dissimilar statutes, which vary
Consol. Court No. 06-00290 Page 19
considerably in how they affect expression as well as in purpose. Id. As the Court of
Appeals concluded in SKF USA II, the CDSOA does not have as a stated purpose, or
even an implied purpose, the intentional suppression of expression, SKF USA II, 556
F.3d at 1351 52, whereas the Vermont statute the Supreme Court struck down in Sorrell
was intended to suppress expression, specifically the use in marketing of identifying
information related to prescription drugs, see Sorrell, 131 S. Ct. at 2660. Because Sorrell
does not require us to review the CDSOA according to a First Amendment analysis
differing from that applied by the Court of Appeals in SKF USA II, it does not represent
a “momentus change[] in important, fundamental constitutional rights” warranting an
exception to the issue preclusion doctrine. See Roche Palo Alto, 531 F.3d at 1380 81.
C. Koyo’s & the Pat Huval Plaintiffs’ As-Applied Challenges
Koyo and the Pat Huval Plaintiffs fail to plead facts allowing the Court to
conclude that their as applied First Amendment and equal protection challenges to the
CDSOA are distinguishable from claims brought, and rejected, in SKF USA II. The
Complaints contain no assertions that the CDSOA was applied to the Pat Huval
Plaintiffs or Koyo in a different manner than the statute was applied to other parties
who did not support a petition. Neither Koyo nor the Pat Huval Plaintiffs have claimed
that they supported any of the antidumping duty petitions at issue in this consolidated
case. See generally, supra, at 4 5. The facts as pled place Koyo and the Pat Huval
Consol. Court No. 06-00290 Page 20
Plaintiffs on the same footing as other potential claimants who did not support the
petition, such as SKF 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.”).
Koyo unsuccessfully attempts to distinguish its as applied First Amendment
and equal protection claims from those resolved in SKF USA II. (Pl. Koyo Corp. of
U.S.A.’s Opp. to Defs.’ and Def. Intervenors’ Mots. to Dismiss and for J. on the
Pleadings (“Koyo Opp.”) 10 11, June 24, 2011, ECF No. 224.) While Koyo seeks
distributions for different fiscal years and from different antidumping duty orders than
SKF sought in SKF USA II, these factual distinctions have no bearing on the
applicability of the holding of that case. Neither SKF nor Koyo expressed support for a
petition, and thus neither qualified to become an ADP. Consequently, Koyo’s and the
Pat Huval Plaintiffs’ as applied First Amendment and equal protection challenges are
also 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.
III. The Petition Support Requirement Does Not Violate Due Process
A. Retroactivity
All Plaintiffs claim that the CDSOA is impermissibly retroactive, in violation of
the due process guarantee of the Fifth Amendment, because it bases their eligibility for
Consol. Court No. 06-00290 Page 21
disbursements on past conduct, i.e., support for a petition. In New Hampshire Ball
Bearing v. United States, 36 CIT __, __ __, Slip Op. 12 2, at 8 14 (Jan. 3, 2012), we
considered a claim essentially identical to Plaintiffs’ retroactivity claims. We
determined then 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.” Id. at 14. We reasoned that “[i]t was not
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.” Id. at 13 (quoting Pension Benefit Guaranty Corp. v.
R.A. Gray & Co., 467 U.S. 717, 730 31 (1984)). We conclude, therefore, that Congress did
not violate Plaintiffs’ Fifth Amendment due process rights in basing potential eligibility
for CDSOA disbursements on a decision on whether to support the petition that
Plaintiffs made prior to the enactment of the CDSOA. Accordingly, we will dismiss
these claims in Plaintiffs’ Complaints for failure to state a claim upon which relief can be
granted.
B. Procedural Due Process
The Pat Huval Plaintiffs claim that they were deprived of a vested property
interest without notice or hearing in violation of the due process guarantee. (Compl. 1
Consol. Court No. 06-00290 Page 22
¶¶ 27 28.) Having failed to satisfy the petition support requirement of the CDSOA,
however, the Pat Huval Plaintiffs never obtained a right to receive distributions under
the statute. Therefore, they lack the property interest on which they have based their
procedural due process claim. “The first inquiry in every due process challenge is
whether the plaintiff has been deprived of a protected interest in ‘property’ or ‘liberty.’”
American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 59 (1999) (citations omitted). In
the absence of such a property interest, there can have been no violation of procedural
due process. This claim has no merit because the Pat Huval Plaintiffs, having failed to
support the relevant antidumping duty petition, have no cognizable property interest in
CDSOA distributions. (See Compl. 1 ¶ 22.) Accordingly, the Pat Huval Plaintiff’s
procedural due process claim is dismissed for failure to state a claim upon which relief
can be granted.
C. Bill of Attainder
The Pat Huval Plaintiffs alone assert a claim that the CDSOA constitutes a Bill
of Attainder in violation of their Fifth Amendment rights, arguing that the statute
retroactively penalizes certain domestic producers for past actions. (Compl. 1
¶¶ 40 42.) The Supreme Court has stated that
[a] bill of attainder is a legislative act which inflicts punishment without a
judicial trial. . . . [L]egislative acts, no matter what their form, that apply
either to named individuals or to easily ascertainable members of a group in
Consol. Court No. 06-00290 Page 23
such a way as to inflict punishment on them without a judicial trial are bills
of attainder prohibited by the Constitution.
United States v. Lovett, 328 U. S. 303, 315 316 (1946) (internal quotation marks omitted)
(emphasis added). On its face, the CDSOA does not contain any provision that “inflicts
punishment” on those who did not support a petition. Moreover, as the Court of
Appeals concluded in SKF USA II, the purpose of the CDSOA is not to punish a
particular class of persons; instead, the Court of Appeals concluded that a purpose of
the CDSOA was to reward with monetary benefits those entities who supported
government enforcement of the antidumping law by bringing or supporting an
antidumping petition. SKF USA II, 556 F.3d at 1351 52. The Court of Appeals
concluded that this goal is rationally related to a substantial government interest,
namely, enforcement of the trade laws, and reasoned that it is not unfair to deny
benefits to non supporters of antidumping petitions. Id. at 1359 60. Because the
CDSOA is not a bill of attainder, the Pat Huval Plaintiffs’ claim to that effect adds
nothing beyond their claim that the CDSOA is impermissibly retroactive in violation of
the due process guarantee of the Fifth Amendment, a claim we rejected supra.
Therefore, we will dismiss the Bill of Attainder claim as one on which no relief can be
granted.
Consol. Court No. 06-00290 Page 24
IV. SKF’s and the Pat Huval Plaintiffs’ APA Claims Are Without Merit
A. The Pat Huval Plaintiffs’ APA Claim
The Pat Huval Plaintiffs claim that the actions of the ITC, which refused to
include the Pat Huval Plaintiffs on the list of affected domestic producers, and of CBP,
which refused to pay CDSOA distributions to the Pat Huval Plaintiffs, must be set aside
as unlawful under the APA. (Compl. 1 ¶¶ 31 34.) The Pat Huval Plaintiffs claim that
Defendants arbitrarily and capriciously “adjudicate[d] a right bestowed by Congress in
the year 2000 based on a proceeding that took place in the year 1996,” and also that
Defendants made unspecified decisions “regarding Byrd Amendment eligibility” that
were “based on wholly arbitrary and capricious standards.” (Id. ¶ 33.)
When the ITC based its determination about the Pat Huval Plaintiffs’ eligibility
to become ADPs on the Pat Huval Plaintiffs’ failure to express support for the relevant
antidumping petition in 1996, it did not act arbitrarily or capriciously. To the contrary,
in the case of orders in place at the time the CDSOA was enacted, the CDSOA required
the ITC to base its eligibility determination retroactively on the basis of petition support.
19 U.S.C. § 1675c(b)(1)(A) (an ADP must have been “a petitioner or interested party in
support of the petition with respect to which an antidumping duty order . . . has been
entered.”), (d)(1) (“The Commission shall forward to [CBP] . . . in the case of orders or
findings in effect on January 1, 1999 or thereafter . . . a list of persons that indicate
Consol. Court No. 06-00290 Page 25
support of the petition by letter or through questionnaire response.”). Additionally,
the Pat Huval Plaintiffs’ Complaint alleges no facts from which we could conclude that
the ITC and CBP made decisions regarding eligibility for CDSOA distributions in an
arbitrary or capricious manner. As to this claim, the Complaint does 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 the absence of any factual allegation from which
we otherwise could conclude that either agency’s actions were violative of the APA, we
conclude that the Pat Huval Plaintiffs’ APA claim must be dismissed.
B. SKF’s APA Claim
The Court construes the claim brought by SKF challenging the ITC’s “position
that a decision by this Court as to SKF USA’s status as an ‘affected domestic producer’
for one fiscal year’s disbursements will not be applied to any year but that one fiscal
year,” as a challenge to agency action under the Administrative Procedure Act.
(Compl. 4 ¶ 70; see 5 U.S.C. §§ 702, 704 (authorizing persons aggrieved by certain types
of final agency action to seek judicial review thereof).) The Constitution permits a
federal court to exercise jurisdiction only over a live case or controversy. U.S. Const.
art. III, § 2. In order to satisfy the case or controversy requirement, “a litigant must
have suffered some actual injury that can be redressed by a favorable judicial decision.”
Consol. Court No. 06-00290 Page 26
Iron Arrow Honor Society v. Heckler, 464 U.S. 67, 70 (1983). If “the issue[] presented
[is] no longer ‘live’ or the parties lack a legally cognizable interest in the outcome,” the
case is moot. PPG Industries, Inc. v. United States, 11 CIT 303, 306, 660 F. Supp. 965, 968
(1987) (quoting Powell v. McCormack, 395 U.S. 486, 496 (1969)). SKF brought this claim
subsequent to having obtained a successful judgment in SKF USA I, but prior to the
reversal of that decision in SKF USA II. Because SKF no longer has a decision from this,
or any, court that it is entitled to status as an affected domestic producer, it cannot claim
injury by virtue of the ITC’s “position,” and therefore this claim is now moot.
Consequently, SKF’s APA claim must be dismissed on mootness grounds pursuant to
USCIT Rule 12(b)(1).
V. SKF and Koyo’s Joint Motion for Preliminary Injunction
Plaintiffs SKF and Koyo move for a “preliminary injunction” under which
Defendants would be enjoined from disbursing CDSOA funds for fiscal years 2006
through 2010 from the antidumping duty orders covering ball bearings and tapered
roller bearings during the pendency of this litigation, including all appeals, petitions for
further judicial review, and remands. (Pls.’ Joint Mot. for a Prelim. Inj. (Jan. 6, 2012),
ECF No. 235.) A preliminary injunction normally dissolves upon the entry of judgment.
See Univ. of Texas v. Camenisch, 451 U.S. 390, 395 (1981) (stating that the purpose of a
preliminary injunction is to preserve the status quo until the merits of the action are
Consol. Court No. 06-00290 Page 27
ultimately determined); 11A Charles Alan Wright & Arthur R. Miller, Federal Practice
and Procedure, § 2947 (2d ed. 2010) (a principal purpose of preliminary injunctive relief
is “to preserve the court’s power to render a meaningful decision after a trial on the
merits.”). Because we are bringing the entire case to a conclusion at this time, the
question of a preliminary injunction to prevent irreparable harm during the pendency
of the case before us is now moot.
The injunction sought would extend past the entry of judgment in this case;
consequently, it is, in this respect, akin to “permanent” equitable relief. Our conclusion
as to the disposition of the injunction motion, however, is no different. We have
concluded for the reasons discussed above that no remedy, either at law or in equity, is
available on the claims properly before us, i.e., those not dismissed under USCIT Rule
12(b)(1) for lack of jurisdiction. Moreover, the injunction sought would prejudice
Defendant Intervenors, who would experience further delay in obtaining withheld
distributions, and it would not serve the public interest, which is furthered by a lawful
and orderly administration of the CDSOA. Even when we presume, for the purpose of
deciding the motion, that SKF and Koyo would be irreparably harmed by the pending
distribution of withheld funds, we still conclude that SKF and Koyo do not qualify for a
permanent injunction. See Ebay Inc. v. Mercexchange, L.L.C., 547 U.S. 388, 391 (2006)
(requiring for a permanent injunction that a plaintiff have suffered an irreparable injury,
Consol. Court No. 06-00290 Page 28
that the remedies available at law be inadequate to compensate for that injury, that
considering the balance of hardships between the parties, a remedy in equity be
warranted, and that the public interest would not be disserved by a permanent
injunction). Therefore, we will deny SKF’s and Koyo’s motion for an injunction.
VI. Koyo’s Motion for Leave to Amend Its Complaint Is Denied for Futility
Koyo has moved to amend the complaint to add a claim against Defendant
Intervenors for unjust enrichment. (Proposed Am. Compl. ¶ 81, ECF No. 145.) We must
deny this motion. Amending the complaint would be futile because the proposed new
claim would be outside the Court’s subject matter jurisdiction under 28 U.S.C. § 1581(i),
which is limited to civil actions against “the United States, its agencies, or its officers.”
The proposed claim, which is a direct claim by Koyo against Defendant Intervenors,
does not fall within the Court’s limited jurisdiction over counterclaims, cross claims, or
third party actions. See 28 U.S.C. § 1583. Nor may we exercise jurisdiction over this
proposed claim by invoking supplemental jurisdiction as granted by Congress to the
district courts, 28 U.S.C. § 1367, or common law pendant or ancillary jurisdiction. See
Sioux Honey Assoc. v. Hartford Fire Insurance Co., No. 2011 1040, 2012 WL 379626, at
*6 *9 (Fed. Cir. Feb. 7, 2012).
CONCLUSION
For the foregoing reasons, Koyo’s motion for leave to amend its Complaint
Consol. Court No. 06-00290 Page 29
will be denied; Koyo and SKF’s joint motion for injunctive relief will be denied; Koyo’s
claims with respect to the fiscal year 2006 CDSOA distribution and SKF’s claims with
respect to the fiscal year 2004 CDSOA distribution are barred by the statute of
limitations in 28 U.S.C. § 2636(i) and will be dismissed pursuant to USCIT Rule 12(b)(1);
SKF’s APA claim will be dismissed as moot pursuant to USCIT Rule 12(b)(1); and all
other claims will be dismissed for failure to state a claim upon which relief may be
granted pursuant to USCIT Rule 12(b)(5). We conclude, further, that no valid purpose
would be served by allowing any plaintiff a further opportunity to seek leave to amend
a complaint and, accordingly, that there is no reason to prolong this action.
Consequently, this action will be dismissed. Judgment will be entered accordingly.
/s/ Gregory W. Carman
Gregory W. Carman, Judge
Dated: March 1, 2012
New York, New York