Ps Chez Sidney v. U.S. Intern. Trade Com'n.

Citation502 F.Supp.2d 1318
Decision Date26 July 2007
Docket NumberSlip Op. 07-115.,Court No. 02-00635.
PartiesPS CHEZ SIDNEY, L.L.C., Plaintiff, v. UNITED STATES INTERNATIONAL TRADE COMMISSION, and United States Customs Service, Defendants, and Crawfish Processors Alliance, et al., Defendant-Intervenors.
CourtU.S. Court of International Trade

Wolff Ardis, P.C. (William E. Brown) for Plaintiff PS Chez Sidney, L.L.C.

Peter D. Keisler, Assistant Attorney General; David M. Cohen, Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice (David S. Silverbrand and Paul D. Kovac); Office of the General Counsel, United States International Trade Commission (David A.J. Goldfine, Michael Diehl and Neal J. Reynolds); and (Charles Steuart and Ellen C. Daly), United States Customs and Border Protection; for Defendant United States International Trade Commission and United States Customs and Border Protection.

Adduci, Mastriani & Schaumberg, LLP (Will Ernest Leonard and John Charles Steinberger) for Defendant-Intervenors Crawfish Processors Alliance, Louisiana Department of Agriculture and Forestry, and Bob Odom, Commissioner.

Arnold & Porter, Washington, DC (Michael T. Shor and Claire E. Reade) for Giorgio Foods, Inc., appearing amicus curiae in support of Plaintiff.

Sonnenschein Nath & Rosenthal, New York City (Michael A. Bamberger, Howard H. Weller, and Stephen L. Gibson) for INA USA Corporation, appearing amicus curiae in support of Plaintiff.

Collier Shannon Scott, PLLC, Washington, DC (David A. Hartquist) Special Counsel to the Committee to Support U.S. Trade Laws; Stewart and Stewart (Terence P. Stewart); and Douglas W. Kmiec, for The Committee to Support U.S. Trade Laws, appearing amicus curiae in support of Defendant.

OPINION

WALLACH, Judge.

I INTRODUCTION

Defendant United States moves for reconsideration of this court's decision in PS Chez Sidney L.L.C. v. United States Int'l Trade Comm'n, 442 F.Supp.2d 1329 (CIT 2006), which granted Plaintiff's First Amendment claims and denied Plaintiff's other claims in its Motion for Summary Judgment, and granted Defendant's Motion for Summary Judgment on all claims except for Plaintiff's First Amendment claims.1 Plaintiff does not oppose this Motion.

Defendant requests that the court vacate its certification on the issues of severability of the statute and damages and set a briefing schedule upon these issues. The court denies Defendant's request for rebriefing. The issues have already been briefed by the parties. The court will not vacate its prior decision, but this opinion will amend it to resolve the issues of severability and damages. The court finds severability and remands to the agency concerning damages.

II BACKGROUND

In Chez Sidney, this court held the support requirement of the Continued Dumping and Subsidy Offset Act ("CDSOA" or "Byrd Amendment")2 unconstitutional as violative of the First Amendment right to free speech. Chez Sidney, 442 F.Supp.2d at 1333. No provision for severability or remedies was made because the court certified these issues for appeal to the Court of Appeals for the Federal Circuit pursuant to USCIT R. 54(b). Familiarity with this court's prior opinion is presumed.

III STANDARD OF REVIEW

USCIT R. 59(a)(2) permits a rehearing for any of the reasons for which rehearings have been granted in suits in equity in United States courts. In deciding whether to grant or deny a motion for rehearing, the court may use its discretion. Xerox Corp. v. United States, 20 CIT 823, 823 (1996). The purpose of a rehearing is not to relitigate the merits of the case. Intercargo Insurance Co. v. United States, 20 CIT 951, 952, 936 F.Supp. 1049 (1996). A court will grant a rehearing only in limited circumstances, including: 1) an error or irregularity; 2) a serious evidentiary flaw; 3) the absence of new evidence which even a diligent party could not have discovered in time; or 4) an accident, unpredictable surprise or unavoidable mistake which impaired a party's ability to adequately present its case. Kerr-McGee Chem. Corp. v. United States, 14 CIT 582, 583 (1990) (quoting United States v. Gold Mountain Coffee, Ltd., 8 CIT 336, 336-37, 601 F.Supp. 212 (1984)).

IV DISCUSSION
A Defendant's Arguments in its Motion for Reconsideration

Rule 54(b) states that when numerous claims for relief are presented, the court may direct final judgment on fewer than all of the claims only "upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment." USCIT R. 54(b) (emphasis added), Defendant argues that the requirements of Rule 54(b) have not been met. Defendant's Rule 59 Motion for Rehearing ("Defendant's Motion") at 2. Defendant cites Liberty Mutual Ins. Co. v. Wetzel, 424 U.S. 737, 742, 96 S.Ct. 1202, 47 L.Ed.2d 435 (1976) and W.L. Gore & Assocs., Inc. v. Int'l Med. Prosthetics Research Assocs., Inc., 975 F.2d 858, 862 (Fed.Cir.1992), for the proposition that "[a] mere `recital' of the phrases required by the rule does not suffice to render a partial judgment appealable." Defendant's Motion at 3. Defendant further argues that because Plaintiff's claim has not been fully decided and there is no reason to hold that there is "no just cause for delay," the Federal Circuit lacks jurisdiction to review an appeal. Id. at 4.

Defendant also argues that Chez Sidney is not a final judgment with respect to Plaintiff's constitutional claim, and therefore Rule 54(b) does not apply. Id. Chez Sidney, Defendant argues, leaves unresolved Plaintiff's request for a declaratory judgment, an injunction, and damages in the amount of the distribution it would have been entitled to if it were determined to be an affected domestic producer. Id. at 6-7.

Alternatively, Defendant argues that even if Chez Sidney was a final judgment, there has been no finding that there is "ho just cause for delay." Id. at 7.

Plaintiff requests that if the court grants Defendant's Motion, it issue a supplemental opinion resolving the issues of severability and damages. Plaintiff PS Chez Sidney, L.L.C.'s Reply Brief to Defendant's Rule 59 Motion for Rehearing ("Plaintiffs Response") at 2. Plaintiff adds that these issues have already been briefed. Id.

The Defendant's. Motion for Rehearing is well taken. The court erred in its issuance of a 54(b) certification to permit a speedy appeal. Accordingly, it considers the issues of severability and damages in the following analysis.

B Severability

Plaintiff argued in its original First Amendment Brief that the "expression of support" eligibility requirements in 1675c(b)(1)(A) and 1675c(d)(1)3 are severable from the statute without altering the statute's overriding purpose to aid injured members of domestic industry.4 Brief on First Amendment Issue by Plaintiff PS Chez Sidney, L.L.C. ("Plaintiff's 1st Am. Brief") at 21. Plaintiff proposes severing from the "affected domestic producer" definition in § 1675c(b)(1)(A) the line reading "was a petitioner or interested party in support of the petition." Id. at 22; see 19 U.S.C. § 1675c(b)(1)(A). From the subsection describing the eligible beneficiaries for the affected domestic producers list in § 1675c(d)(1), Plaintiff suggests deleting "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.; see 19 U.S.C. § 1675c(d)(1).

Defendant United States Customs and Border Protection ("Customs") argues that the support provision of the CDSOA is severable, resulting in a narrowing of the eligible class of affected domestic producers to only the petitioners. Defendant's, United States Customs Service, Supplemental Brief in Support of the Constitutionality of the Continued. Dumping and Subsidies Offset Act ("Defendant's 1st Am. Response") at 44. Defendant nonetheless says that the CDSOA would still fulfill Congressional intent to remedy the ill effects of dumping. Id.

Moreover, the overall goals of restoring free trade and remedying the ill-effects of foreign dumping and subsidization would still be met should severance occur.

Id. The court, Defendant continues, is prohibited from enlarging the scope of the beneficiary class in severing the provision from the statute. Id. at 45 (citing Office of Pers. Mgmt. v. Richmond, 496 U.S. 414, 424-25, 110 S.Ct. 2465, 110 L.Ed.2d 387 (1990) (finding that money cannot be removed from the Treasury absent Congressional allocation)). Defendant further argues that the beneficiary class after severance can only become smaller. Id. From the "affected domestic producer" definition in 19 U.S.C. § 1675c(1)(A), Defendant proposes deleting "interested party in support of the petition." Id. at 44. From the subsection concerning the list of affected domestic producers, Defendant suggests deleting "list of persons that indicate support of the petition by letter or through questionnaire response." Id.; see 19 U.S.C. § 1675c(d)(1).

When faced with an unconstitutional provision, "the presumption is in favor of severability." Regan v. Time, Inc., 468 U.S. 641, 653, 104 S.Ct. 3262, 82 L.Ed.2d 487 (1984). The general test for determining whether severability is permissible is two-pronged: 1) if the legislature would have enacted the remaining provisions without the unconstitutional portion and 2) if the remaining provisions can function independently, consistent with legislative intent. Alaska Airlines, Inc., 480 U.S. at 684-85, 107 S.Ct. 1476. "Whenever an act of Congress contains unobjectionable provisions separable from those found to be unconstitutional, it is the duty of this court to so declare, and to maintain the act in so far as it is valid." Regan, 468 U.S. at 652, 104 S.Ct. 3262 (quoting El Paso & Ne. Ry. Co. v. Gutierrez, 215 U.S. 87, 96, 30 S.Ct. 21, 54 L.Ed. 106 (1909)). Consequently, "[u]nless it is evident that the Legislature would not have enacted those provisions which are within its power,...

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4 cases
  • Ps Chez Sidney v. U.S. Intern. Trade Com'n, Slip Op. 08-69. Court No. 02-00635.
    • United States
    • U.S. Court of International Trade
    • June 17, 2008
    ...the court held that it was appropriate to sever the unconstitutional support requirement. PS Chez Sidney, L.L.C. v. United States, 502 F.Supp.2d 1318, 1323-24 (CIT 2007) ("PS Chez Sidney II"); accord SKF, 451 F.Supp.2d at After striking this requirement, the court found that "all `affected ......
  • PS Chez Sidney, L.L.C. v. U.S. Int'l Trade Comm'n
    • United States
    • U.S. Court of Appeals — Federal Circuit
    • July 13, 2012
    ...2007, the Court of International Trade addressed the issues of severability and damages. PS Chez Sidney, L.L.C. v. U.S. Int'l Trade Comm'n (Chez II), 502 F.Supp.2d 1318, 1320 (Ct. Int'l Trade 2007). It determined that the unconstitutional sections of the Byrd Amendment were severable, id. a......
  • Ps Chez Sidney v. U.S. Intern. Trade Com'n, Slip Op. 08-13. No. 02-00635.
    • United States
    • U.S. Court of International Trade
    • January 24, 2008
    ...27, 2007 ("Commission's Remand Determination"), filed pursuant to this court's decision and Order in PS Chez Sidney, L.L.C. v. United States, 502 F.Supp.2d 1318 (CIT 2007); the court having reviewed the Commission's Remand Determination and all pleadings and papers on file herein, and good ......
  • Ps Chez Sindey, L.L.C. v. United States International Trade Co., Slip Op. 08-20.
    • United States
    • U.S. Court of International Trade
    • February 7, 2008
    ...of PS Chez Sidney, L.L.C. ("Remand Decision"), filed pursuant to this court's decision and Order in PS Chez Sidney, L.L.C. v. United States, 502 F.Supp.2d 1318 (CIT 2007), the court's Judgment Order of January 24, 2008, Slip Op. 08-13, is WITHDRAWN pending final determination of the above-e......

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