GPX Int'l Tire Corp. v. United States

• Decision Date: 13 March 2015
• Docket Number: 2014–1248.,Nos. 2014–1188,s. 2014–1188
• Citation: 780 F.3d 1136
• Parties: GPX INTERNATIONAL TIRE CORPORATION, Hebei Starbright Tire Co., Ltd., Tianjin United Tire & Rubber International Co., Ltd., Plaintiffs–Appellants Ministry of Commerce, People's Republic of China, Plaintiff v. UNITED STATES, Defendant–Appellee. Bridgestone Americas, Inc., Bridgestone Americas Tire Operations, LLC, Defendants Titan Tire Corporation, United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL–CIO–CLC, Defendants–Appellees.
• Court: U.S. Court of Appeals — Federal Circuit

780 F.3d 1136

GPX INTERNATIONAL TIRE CORPORATION, Hebei Starbright Tire Co., Ltd., Tianjin United Tire & Rubber International Co., Ltd., Plaintiffs–Appellants

Ministry of Commerce, People's Republic of China, Plaintiff

v.UNITED STATES, Defendant–Appellee.

Bridgestone Americas, Inc., Bridgestone Americas Tire Operations, LLC, Defendants

Titan Tire Corporation, United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL–CIO–CLC, Defendants–Appellees.

Nos. 2014–1188

2014–1248.

United States Court of Appeals, Federal Circuit.

March 13, 2015.

James P. Durling, Curtis, Mallet–Prevost, Colt & Mosle LLP, Washington, DC, argued for plaintiffs-appellants GPX International Tire Corporation, Hebei Starbright Tire Co., Ltd. Also represented by Daniel L. Porter, Christopher Dunn, Matthew Paul McCullough, Ross Bidlingmaier, William H. Barringer.

Mark B. Lehnardt, Lehnardt & Lehnardt, LLC, Liberty, MO, for plaintiff-appellant Tianjin United Tire & Rubber International Co., Ltd.

Alexander V. Sverdlov, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington DC, argued for defendant-appellee United States. Also represented by Stuart F. Delery, Jeanne E. Davidson, Franklin E. White, Jr. ; John D. McInerney, Daniel Joseph Calhoun, Devin S. Sikes, Office of the Chief Counsel for Trade Enforcement & Compliance, United States Department of Commerce, Washington, DC.

Elizabeth Drake, Stewart and Stewart, Washington, DC, argued for defendants-appellees Titan Tire Corporation, United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL–CIO–CLC. Also represented by Terence Patrick Stewart, Patrick John McDonough.

Before DYK, O'MALLEY, and TARANTO, Circuit Judges.

Opinion

Opinion for the court filed by Circuit Judge DYK.

Concurring opinion filed by Circuit Judge O'MALLEY.

DYK, Circuit Judge.

GPX International Tire Corp. and Hebei Starbright Tire Co., Ltd. (collectively, “GPX”) appeal a Court of International Trade (“Trade Court”) decision upholding the Department of Commerce's (“Commerce”) imposition of both antidumping and countervailing duties. Commerce acted pursuant to a 2012 law that overruled this court's decision in GPX International Tire Corp. v. United States, 666 F.3d 732 (Fed.Cir.2011) (“GPX I ”), reh'g granted, 678 F.3d 1308 (Fed.Cir.2012) (“GPX II ”), and permitted Commerce to impose countervailing duties with respect to non-market economy (“NME”) countries retroactively to proceedings initiated on or after November 20, 2006. Because the new law does not violate the Ex Post Facto Clause of Article I, Section 9 of the U.S. Constitution or the Due Process Clause of the Fifth Amendment to the U.S. Constitution, we affirm.

Background

Much of the background relevant to this case is recounted in this court's prior decisions in GPX I and Guangdong Wireking Housewares & Hardware Co. v. United States, 745 F.3d 1194 (Fed.Cir.2014) (“Wireking ”).

Under the Tariff Act of 1930, as amended, Commerce may impose two types of duties on imports that injure domestic industries: (1) antidumping duties on goods “sold in the United States at less than ... fair value,” 19 U.S.C. § 1673 ; and (2) countervailing duties on goods that receive a “countervailable subsidy” from a foreign government, id. § 1671(a).

For goods imported from market economy countries, Commerce may impose both antidumping and countervailing duties. Until recently, Commerce maintained that it could not impose countervailing duties on imports from NME countries—focusing on Soviet bloc countries—because of the difficulty in calculating countervailing subsidies in those countries. See GPX I, 666 F.3d at 735. This longstanding Commerce position was upheld by this court in Georgetown Steel Corp. v. United States, 801 F.2d 1308, 1314–18 (Fed.Cir.1986), as not being contrary to the statute. Thereafter, Congress ratified Commerce's prior position by amending and reenacting the countervailing duty statute in 1988 and 1994. See GPX I, 666 F.3d at 738–39.

Beginning on November 20, 2006, however, Commerce indicated that it was considering taking a new position by applying countervailing duties to imports from China, a NME country. See Notice of Initiation of Countervailing Duty Investigations: Coated Free Sheet Paper from the People's Republic of China, Indonesia, and the Republic of Korea, 71 Fed.Reg. 68,546, 68,549 (Dep't of Commerce Nov. 27, 2006) (“Given the complex legal and policy issues involved, and on the basis of the Department's discretion as affirmed in Georgetown Steel, the Department intends during the course of this investigation to determine whether the countervailing duty law should now be applied to imports from [China].”). And on March 29, 2007, Commerce issued a memorandum stating that “the Department's policy that gave rise to the Georgetown Steel litigation does not prevent us from concluding that the [Chinese] Government has bestowed a countervailable subsidy upon a Chinese producer.” Countervailing Duty Investigation of Coated Free Sheet Paper from the People's Republic of China—Whether the Analytical Elements of the Georgetown Steel Opinion Are Applicable to China's Present–Day Economy (Mar. 29, 2007), available at http://ia.ita.doc.gov/download/nme-sep-rates/prc-cfsp/china-cfs-georgetownapplicability.pdf (“Georgetown Steel Memo”).

In this case, on June 18, 2007, following the Georgetown Steel Memo, several domestic tire manufacturers petitioned Commerce to impose both antidumping and countervailing duties on certain Chinese tires. See Certain New Pneumatic Off–the–Road Tires from the People's Republic of China: Initiation of Countervailing Duty Investigation, 72 Fed.Reg. 44,122 (Dep't of Commerce Aug. 7, 2007). On July 15, 2008, Commerce issued its final countervailing duty determination. Certain New Pneumatic Off–the–Road Tires from the People's Republic of China: Final Affirmative Countervailing Duty Determination and Final Negative Determination of Critical Circumstances, 73 Fed.Reg. 40,480 (Dep't of Commerce July 15, 2008).

On September 9, 2008, GPX challenged Commerce's countervailing duty determination at the Trade Court, which ultimately remanded to Commerce with instructions to forgo imposition of countervailing duties because “it is too difficult for Commerce to determine ... whether and to what degree double counting is occurring.” GPX Int'l Tire Corp. v. United States, 715 F.Supp.2d 1337, 1346 (Ct. Int'l Trade 2010).

On appeal, we affirmed the Trade Court's holding that countervailing duties could not be applied to imports from NME countries, concluding that Congress had ratified Commerce's prior position. See GPX I, 666 F.3d at 745. Specifically, we found that “when amending and reenacting countervailing duty law in 1988 and 1994, Congress legislatively ratified earlier consistent administrative and judicial interpretations that government payments cannot be characterized as ‘subsidies' in a non-market economy context, and thus that countervailing duty law does not apply to NME countries.” Id. at 734.

On March 13, 2012, less than three months after the release of our decision in GPX I , Congress enacted new legislation overruling that decision. See An Act to Apply the Countervailing Duty Provisions of the Tariff Act of 1930 to Nonmarket Economy Countries, and for other Purposes, Pub.L. No. 112–99, 126 Stat. 265 (2012) (codified at 19 U.S.C. §§ 1671, 1677f–1 ) (the “new law”). The new law authorizes the imposition of countervailing duties on NME countries both prospectively and retrospectively, applying to “all proceedings initiated ... on or after November 20, 2006.” 126 Stat. at 265 § 1(a); see also Wireking, 745 F.3d at 1197 & n. 1. When antidumping and countervailing duties imposed on the same goods double count for the same unfair trade advantage, the new law adjusts for double counting prospectively to proceedings initiated after March 13, 2012, but not retrospectively. Wireking, 745 F.3d at 1197–98.

We granted rehearing of GPX I and in a supplemental opinion we recognized that “Congress clearly sought to overrule our decision in GPX [I ].” GPX II, 678 F.3d at 1311. We remanded the case to the Trade Court “for a determination of the constitutionality of the new legislation....” Id. at 1313. On remand, the Trade Court rejected challenges to the new law under, inter alia, the Ex Post Facto Clause and the Due Process Clause of the U.S. Constitution. GPX Int'l Tire Corp. v. United States, 893 F.Supp.2d 1296, 1334 (Ct. Int'l Trade 2013). GPX appeals the Trade Court's determinations under the Ex Post Facto Clause and Due Process Clause.

We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(5). We review questions of constitutional or statutory interpretation de novo. Ashley Furniture Indus., Inc. v. United States, 734 F.3d 1306, 1309 (Fed.Cir.2013) (citations omitted).

Discussion

I

While this appeal was pending, we decided Wireking, holding that the new law, while retroactive, was not punitive and did not violate the Ex Post Facto Clause. 745 F.3d at 1207. In Wireking, we examined the new law under the Supreme Court's framework for determining whether a civil law is punitive as articulated in Smith v. Doe I, 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003). See Wireking, 745 F.3d at 1202–03 (citing Smith, 538 U.S. at 92, 123 S.Ct. 1140). We found that the new law was remedial, rather than punitive, and therefore did not violate the Ex Post Facto Clause. See id. at 1204–07. GPX acknowledges that “Wireking found the [new law] to be non-punitive, and not subject to the Ex Post Facto Clause,” Reply Br. 23, but continues to argue that “[p]articularly with regard to these Appellants, the long period of retroactivity makes the retroactive duties especially punitive and thus unconstitutional” under the Ex Post Facto Clause. Reply Br. 29.

Contrary to GPX's contentions, the holding in Wireking was not fact-specific,...