Pat Huval Restaurant & Oyster Bar, Inc. v. U.S.

Decision Date03 March 2008
Docket NumberSlip Op. 08-26. Court No. 06-00290.
Citation547 F.Supp.2d 1352
PartiesPAT HUVAL RESTAURANT & OYSTER BAR, INC., Jim Fruge d/b/a Fisherman's Cove, Catfish Wholesale, Inc., Frank Melancon d/b/a French's Enterprises Seafood Peeling Plant, Aqua Farms Crawfish, Inc., Andre Leger d/b/a Chez Francois, Charles Bernard d/b/a Charles' Crawfish Pad, and J. Bernard Seafood Processing, Inc., Plaintiffs, v. UNITED STATES of America, United States International Trade Commission, Daniel R. Pearson (Chairman, United States International Trade Commission), United States Customs & Border Protection, and W. Ralph Basham (Commissioner, United States Customs & Border Protection), Defendants.
CourtU.S. Court of International Trade

Soileau Law Office (Jacques P. Soileau and Walter Glenn Soileau) for Plaintiffs: Pat Huval Restaurant & Oyster Bar, Inc.; Jim Fruge d/b/a Fisherman's Cove; Catfish Wholesale, Inc; Frank Melancon d/b/a French's Enterprises Seafood Peeling Plant; Aqua Farms Crawfish, Inc.; Andre Leger d/b/a Chez Francois; Charles Bernard d/b/a Charles' Crawfish Pad; and J. Bernard Seafood Processing, Inc.

Arent Fox Kintner Plotkin & Kahn, PLLC (John M. Gurley and Nancy A. Noonan), Washington, DC, for Plaintiff, Koyo Corporation of U.S.A.

Steptoe & Johnson, LLP (Herbert C. Shelley, Alice A. Kipel, and Susan R. Gihring), Washington, DC, for Plaintiff, SKF USA Inc.

Jeffrey S. Bucholtz, Acting Assistant Attorney General; Jeanne E. Davidson, Director, Commercial Litigation Branch, Civil Division, United States Department of Justice (David S. Silverbrand and Todd M. Hughes) for Defendants, United States Customs & Border Protection and W. Ralph Basham.

James M. Lyons, General Counsel, Neal J. Reynolds, Assistant General Counsel, Office of the General Counsel (Patrick V. Gallagher, Jr., Karen V. Driscoll, and Andrea C. Casson) for Defendants, United States International Trade Commission and Daniel R. Pearson.

Stewart and Stewart (Geert M. DePrest, Terence P. Stewart, and Amy S. Dwyer), Washington, DC, for Defendants-Intervenor, MPB Corporation and Timken U.S. Corporation.

Before: Gregory W. Carman, Timothy C. Stanceu, Leo M. Gordon, JJ.

OPINION & ORDER

PER CURIAM.

Plaintiffs1 assert various claims, including constitutional claims, arising out of the Continued Dumping and Subsidies Offset Act of 2000 ("CDSOA"), commonly known as the "Byrd Amendment." Defendants, United States International Trade Commission and Daniel R. Pearson (collectively, the "ITC") and United States Customs and Border Protection and W. Ralph Basham (collectively, "Customs"), and Defendants-Intervenor, MPB Corporation and Timken U.S. Corporation (collectively, "Timken"),2 move pursuant to USCIT Rs 12(b)(1) and 12(b)(5) to dismiss Plaintiffs' claims on various grounds. For the reasons that follow, the Court grants in part, and denies in part, the USCIT R. 12(b)(1) motions of the ITC and Timken, and denies the USCIT R. 12(b)(5) motions of Customs, the ITC, and Timken.

STATUTORY BACKGROUND

In 2000, Congress enacted the Byrd Amendment. See Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Appropriations Act of 2001, Pub.L. No. 106-387, §§ 1001-03, 19 U.S.C. § 1675c (2000) (repealed 2006). Under the Byrd Amendment, Customs distributes on an annual basis antidumping and countervailing duties collected from foreign producers to certain members of the competing domestic industry as reimbursement for specified qualifying expenditures. Under the "support requirement" of the Byrd Amendment, eligibility for Byrd distributions is limited to "affected domestic producer[s]" ("ADPs"), who are defined as petitioners or those who supported a petition that led to an antidumping or countervailing duty order. Id. at § 1675c(b)(1).

The Byrd Amendment is implemented as follows: for every antidumping or countervailing duty order in effect, the ITC must compile and forward to Customs a list of parties who satisfy the support requirement ("ADP list"). Id. at § 1675c(d)(1); cf. Cathedral Candle Co. v. U.S. Int'l Trade Comm'n, 400 F.3d 1352, 1367 (Fed.Cir.2005) (affirming the ITC's decision not to include on ADP lists those parties that had indicated support for the petition under pledge of confidentiality). Customs annually publishes the ADP lists in the Federal Register, along with a notice of intent to distribute antidumping and countervailing duties that were collected in that fiscal year. 19 U.S.C. § 1675c(d)(2). In the notice of intent to distribute, Customs informs ADPs of a requirement to submit within 60 days certifications indicating that the party is eligible—and desires —to receive a Byrd distribution, and "enumerat[ing] the qualifying expenditures" for which the ADP is seeking reimbursement. 19 C.F.R. § 159.63(a) (2007). After reviewing the certifications, Customs distributes the funds on a pro rata basis to eligible ADPs. Customs is to make these distributions "not later than 60 days after the first day of [the following] fiscal year." 19 U.S.C. § 1675c(c).

FACTUAL BACKGROUND

All Plaintiffs are domestic producers of a product for which an antidumping duty order is in place.3 Because the antidumping duty orders on the relevant products, crawfish tail meat and bearings, predate passage of the Byrd Amendment, the ITC was required to forward to Customs the ADP lists for those orders within 60 days after passage of the statute, see 19 U.S.C. § 1675c(d)(1), which the ITC did on December 29, 2000. (Koplan Letter to Customs at 1, ITC Admin. R. for Pat Huval, Doc. 1.) Plaintiffs were excluded from the ADP lists because they did not satisfy the support requirement, i.e., they were neither petitioners in the respective antidumping investigations nor parties who publicly expressed support for the petitions.

Customs published the ADP lists for the first time on August 3, 2001, in the notice of intent to distribute funds collected for fiscal year 2001. Distribution of Continued Dumping and Subsidy Offset to Affected Domestic Producers, 66 Fed.Reg. 40,782, 40,788, 40,796 (U.S. Customs Service Aug. 3, 2001) ("2001 Notice of Intent to Distribute"). Subsequently, Customs received certifications from, and distributed the fiscal year 2001 funds to, certain members of the domestic crawfish tail meat and bearings industries who were eligible ADPs. Customs has repeated this process every year since 2001.4

Most of the Plaintiffs, at points between 2001 and 2006, requested that the ITC add them to the ADP lists for their respective antidumping duty orders.5 In addition, several Plaintiffs filed certifications with Customs in attempts to receive distributions for various years.6 The ITC denied Plaintiffs' requests to be added to the ADP lists.7 Customs, in turn, excluded Plaintiffs from Byrd distributions. Subsequent to these denials, the Crawfish Producers, SKF, and Koyo each filed suit in this Court challenging the constitutionality and application of the Byrd Amendment's support requirement.8

JURISDICTION

This Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1581(i)(2) and (4) (2000) in that Plaintiffs' claims arise out of a law providing for administration and enforcement of the antidumping statute, which is a law "providing for ... tariffs, duties, fees, or other taxes on the importation of merchandise for reasons other than the raising of revenue." Id. at § 1581(i)(2).

STANDARD OF REVIEW

In deciding a USCIT R. 12(b)(1) motion that does not challenge the factual basis for the complainant's allegations, and when deciding a USCIT R. 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 the plaintiff's favor. Cedars-Sinai Med. Ctr. v. Watkins, 11 F.3d 1573, 1583-84 & n. 13 (Fed.Cir.1993); Henke v. United States, 60 F.3d 795, 797 (Fed.Cir.1995) (subject matter jurisdiction); Gould, Inc. v. United States, 935 F.2d 1271, 1274 (Fed.Cir.1991) (failure to state a claim). Dismissal for failure to state a claim upon which relief can be granted is proper if the plaintiff's factual allegations are not "enough to raise the 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 All. Corp. v. Twombly, 550 U.S. ___, ___, 127 S.Ct. 1955, 1965, 167 L.Ed.2d 929 (2007) (citations omitted).

DISCUSSION

Two recent decisions of this Court holding the Byrd Amendment's support requirement unconstitutional provide the background to this action. See SKF USA Inc. v. United States, 30 CIT ___, ___, 451 F.Supp.2d 1355, 1366 (2006), appeal docketed, No.2008-1008 (Fed.Cir. Oct. 3, 2007), ("SKF I") (holding the support requirement of the Byrd Amendment unconstitutional on equal protection grounds); PS Chez Sidney. L.L.C. v. U.S. Int'l Trade Comm'n, 30 CIT ___, ___, 442 F.Supp.2d 1329, 1358-59 (2006) (holding the support requirement unconstitutional on first Amendment grounds). As in SKF I and PS Chez Sidney, the restrictions governing who qualifies as an ADP are at the center of this action. Plaintiffs allege that limiting ADP status to those who satisfy the support requirement is unlawful on various grounds.

First, all Plaintiffs claim that the Byrd Amendment violates First Amendment guarantees of free speech and the right to petition the government for redress of grievances because it conditions Byrd distributions on the expression of a specific viewpoint, thereby constituting viewpoint discrimination and resulting in compelled speech. (Pls.' Second Supp'l & Amended Compl. ("Crawfish Producers' Compl.") ¶¶ 38-39; SKF's Compl. ¶¶ 44-46; Koyo's Compl. ¶¶ 53-56.) Second, all Plaintiffs claim that the Byrd Amendment violates the Equal Protection Clause of the Fifth and Fourteenth Amendments because it impairs Plaintiffs' right to fair treatment in the exercise of a constitutionally protected right and because it...

To continue reading

Request your trial
7 cases
  • Totes-Isotoner Corp. v. U.S.
    • United States
    • U.S. Court of International Trade
    • 4 Noviembre 2008
    ...challenge of import assessments mandated by the Beef Promotion and Research Act); Pat Huval Rest. & Oyster Bar, Inc. v. United States, ___ CIT ___, 547 F.Supp.2d 1352, 1362-63 (2008) (per curiam) (constitutional challenge to "Byrd Amendment" allowed under 1581(i)). This follows from the rec......
  • Pat Huval Rest. & Oyster Bar, Inc. v. United States Int'l Trade Comm'n
    • United States
    • U.S. Court of International Trade
    • 1 Marzo 2012
    ...Certain background information is provided in our earlier opinion in this case, Pat Huval Restaurant & Oyster Bar, Inc. v. United States, 32 CIT 232, 547 F.Supp.2d 1352 (2008), and is supplemented herein. The Pat Huval Plaintiffs 5 are domestic producers of crawfish tail meat who seek to ob......
  • Ocean Duke Corp.. v. United States
    • United States
    • U.S. Court of International Trade
    • 18 Julio 2011
    ...v. Hazeltine Research, Inc., 401 U.S. 321, 338, 91 S.Ct. 795, 28 L.Ed.2d 77 (1971); accord Pat Huval Rest. & Oyster Bar, Inc. v. United States, 32 CIT ––––, ––––, 547 F.Supp.2d 1352, 1360 (2008). For the doctrine to apply, “the plaintiff's claim must be inherently susceptible to being broke......
  • Int'l Custom Prods., Inc. v. United States
    • United States
    • U.S. Court of International Trade
    • 4 Septiembre 2013
    ...challenge of import assessments mandated by the Beef Promotion and Research Act) and Pat Huval Rest. & Oyster Bar, Inc. v. United States, 32 CIT 232, 243, 547 F.Supp.2d 1352, 1362–63 (2008) (constitutional challenge allowed under 1581(i))). In Count 9, Plaintiff brings a constitutional chal......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT