785 F.3d 595 (Fed. Cir. 2015), 2013-1304, Giorgio Foods, Inc. v. United States

Docket Nº:2013-1304
Citation:785 F.3d 595
Opinion Judge:Dyk, Circuit Judge.
Party Name:GIORGIO FOODS, INC., Plaintiff-Appellant v. UNITED STATES, Defendant-Appellee, UNITED STATES INTERNATIONAL TRADE COMMISSION, Defendant-Appellee, MONTEREY MUSHROOMS, INC., Defendant-Appellee, L.K. BOWMAN COMPANY, MUSHROOM CANNING COMPANY, Defendants
Attorney:MICHAEL TOD SHOR, Arnold & Porter LLP, Washington, DC, argued for plaintiff-appellant. Also represented by SARAH BRACKNEY ARNI. MARTIN M. TOMLINSON, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for defendant-appellee United States. Also...
Judge Panel:Before DYK, REYNA, and CHEN, Circuit Judges. OPINION filed by Circuit Judge DYK. Dissenting opinion filed by Circuit Judge REYNA. Reyna, Circuit Judge, dissenting.
Case Date:April 24, 2015
Court:United States Courts of Appeals, Court of Appeals for the Federal Circuit
 
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Page 595

785 F.3d 595 (Fed. Cir. 2015)

GIORGIO FOODS, INC., Plaintiff-Appellant

v.

UNITED STATES, Defendant-Appellee,

UNITED STATES INTERNATIONAL TRADE COMMISSION, Defendant-Appellee,

MONTEREY MUSHROOMS, INC., Defendant-Appellee,

L.K. BOWMAN COMPANY, MUSHROOM CANNING COMPANY, Defendants

2013-1304

United States Court of Appeals, Federal Circuit

April 24, 2015

Page 596

Appeal from the United States Court of International Trade in No. 03-CV-0286, Chief Judge Timothy C. Stanceu.

MICHAEL TOD SHOR, Arnold & Porter LLP, Washington, DC, argued for plaintiff-appellant. Also represented by SARAH BRACKNEY ARNI.

MARTIN M. TOMLINSON, 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.

PATRICK VINCENT GALLAGHER, JR., Office of the General Counsel, United States International Trade Commission, Washington, DC, argued for defendant-appellee United States International Trade Commission. Also represented by NEAL J. REYNOLDS, ROBIN LYNN TURNER, DOMINIC L. BIANCHI.

MICHAEL J. COURSEY, Kelley Drye & Warren, LLP, Washington, DC, argued for defendant-appellee Monterey Mushrooms, Inc. Also represented by ROBERT ALAN LUBERDA.

Before DYK, REYNA, and CHEN, Circuit Judges. OPINION filed by Circuit Judge DYK. Dissenting opinion filed by Circuit Judge REYNA.

OPINION

Page 597

Dyk, Circuit Judge.

Giorgio Foods, Inc. (" Giorgio" ) appeals a judgment of the Court of International Trade (" Trade Court" ) dismissing its claims for compensation under the Continued Dumping and Subsidy Offset Act (" the Byrd Amendment" ). Because Giorgio failed to indicate support for the antidumping petition as required by the Byrd Amendment, we affirm.

Background

We limit the description in the background section to the claims currently on appeal. On January 6, 1998, the Coalition for Fair Preserved Mushroom Trade (" the Coalition" ) filed an antidumping petition (" the petition" ) alleging that domestic producers of preserved mushrooms were being injured by imports of certain preserved mushrooms from Chile, China, Indonesia, and India (collectively, " the subject countries" ) that were being sold in the United States at less than fair value. See 19 U.S.C. § 1673. At the time of the petition, Giorgio was the largest domestic producer of preserved mushrooms, accounting for approximately one half of total United States production, but was neither a member of the Coalition nor a petitioner.

On January 16, 1998, the International Trade Commission (" ITC" ) initiated a material injury investigation concerning imports from the subject countries. See Certain Preserved Mushrooms From Chile, China, India, and Indonesia; Institution of Antidumping Investigations and Scheduling of Preliminary Phase Investigations, 63 Fed. Reg. 2693 (USITC Jan. 16, 1998). As part of that investigation, the ITC issued questionnaires to domestic producers of preserved mushrooms, including Giorgio. Giorgio filed its preliminary response on January 22, 1998.1 The second page of the ITC questionnaire asked, " Do you support or oppose the petition? Please explain" (the " support question" ). J.A. 152. It contained three checkboxes for responses: " Support," " Oppose," and " Take no position." Id. Giorgio's response to the support question did not check any of the boxes, but responded in narrative form as follows: " We take no position on Chile, China and Indonesia[.] We oppose the petition against India." Id.

In response to the petition, on February 2, 1998, the Department of Commerce (" Commerce" ) initiated an antidumping investigation, " determin[ing] that the petition [wa]s filed on behalf of the domestic industry." Initiation of Antidumping Investigations: Certain Preserved Mushrooms From Chile, India, Indonesia, and the People's Republic of China, 63 Fed. Reg. 5360, 5361 (Dep't of Commerce Feb. 2, 1998) (citing 19 U.S.C. § 1673a(b)(1)). A petition is only filed

on behalf of the industry, if--

(i) the domestic producers or workers who support the petition account for at least 25 percent of the total production of the domestic like product, and (ii) the domestic producers or workers who support the petition account for more than 50 percent of the production of the domestic like product produced by that portion of the industry Page 598

expressing support for or opposition to the petition.

19 U.S.C. § 1673a(c)(4)(A)(i)-(ii). Commerce noted that " supporters of the petition account[ed] for over 50 percent of production of the domestic producers who ha[d] expressed an opinion even if Giorgio's position [was] not disregard[ed]," i.e., even if Giorgio were included in the category of domestic producers not supporting the petition. 63 Fed. Reg. at 5362.

On October 22, 1998, and December 31, 1998, Commerce published final determinations in the four preserved mushroom antidumping investigations, finding that dumping had occurred with respect to each of the subject countries.2 Between December 1998 and February 1999, the ITC determined that the domestic mushroom industry was materially injured by the import of mushrooms from the subject countries,3 and Commerce issued corresponding antidumping orders.4 Pursuant to these antidumping orders, the U.S. Customs and Border Patrol (" Customs" ) collected final antidumping duties for imports from the subject countries. See, e.g., Distribution of Continued Dumping and Subsidy Offset to Affected Domestic Producers, 66 Fed. Reg. 40,782 (Customs Aug. 3, 2001).

For entries filed between October 1, 2000, and October 1, 2007, the Byrd Amendment required that Customs collect final duties under antidumping duty orders for distribution to " affected domestic producers." 19 U.S.C. § 1675c(a) (2000).5 To qualify as an affected domestic producer under the Byrd Amendment, an entity was required to demonstrate that it " was a petitioner or interested party in support of the petition with respect to which an antidumping duty order . . . has been entered." Id. § 1675c(b)(1)(A) (hereinafter, " the support requirement" ). The Byrd Amendment directed the ITC to provide Customs with a list of affected domestic producers, which includes " a list of petitioners" and " a list of persons that indicate support of the petition by letter or through questionnaire response." Id. § 1675c(d)(1). Those entities would receive Byrd Amendment distributions.

Page 599

On October 2, 2001, Giorgio requested that the ITC place it on the list of affected domestic producers.6 The ITC denied Giorgio's request on the basis that " Giorgio's questionnaire responses in the original investigations do not indicate support for the petition . . . ." J.A. 244. Because Giorgio was not on the ITC list, Customs denied Giorgio's claims for Byrd Amendment distributions.

Giorgio brought suit in the Trade Court on May 23, 2003, challenging the ITC's refusal to include it on the list of affected domestic producers for the preserved mushroom antidumping orders and alleging that the ITC's refusal to include it on the list violated the First Amendment. The case was stayed pending this court's decisions in SKF USA, Inc. v. United States Customs & Border Protection, 556 F.3d 1337 (Fed. Cir. 2009), and PS Chez Sidney, L.L.C. v. United States International Trade Commission, 684 F.3d 1374 (Fed. Cir. 2012).

Thereafter, in SKF, we upheld the Byrd Amendment against a facial First Amendment challenge. 556 F.3d at 1349, 1360. We employed a saving construction to the Byrd Amendment to avoid constitutional questions by construing it to provide " distributions to those who actively supported the petition (i.e., a party that did no more than submit a bare statement that it was a supporter without answering questionnaires or otherwise actively participating would not receive distributions)." Id. at 1353 n.26. Under this construction, the court found the support requirement constitutional under the standards governing commercial speech because it directly advanced the government's substantial interest in preventing dumping by rewarding parties who assist in trade law enforcement. Id. at 1354-55. We analogized the Byrd Amendment to qui tam actions and attorney's fee-shifting statutes. Id. at 1359.

On June 7, 2011, following our decision in SKF, Giorgio moved to file a second amended complaint, seeking to add a statutory claim that the ITC had violated the Byrd Amendment by relying solely on Giorgio's response to the support question in determining whether to include Giorgio on the list of affected domestic producers. According to the second amended complaint, Giorgio " agreed [with the petitioners] to provide support for [the antidumping petition] without publicly identifying itself as a petitioner." J.A. 73. Instead, the complaint alleged that Giorgio supported petitioners' efforts in other ways, including responding to the ITC questionnaire, contributing to petitioners' legal fees, providing confidential commercial information to petitioners, and accompanying ITC investigators and petitioners' counsel on a site visit of Giorgio's facilities. Giorgio continued to assert an as-applied First Amendment challenge, alleging that denial of payments under the circumstances violated the First Amendment.

On November 17, 2011, the Trade Court denied Giorgio's motion to add its statutory claim as futile because it failed to state a claim in light of SKF. Giorgio Foods, Inc. v. United States, 804 F.Supp.2d 1315, 1321-22 (Ct. Int'l Trade 2011). And on March 6, 2013, the Trade Court granted motions to dismiss all of Giorgio's claims. Giorgio Foods, Inc. v. United States, 898 F.Supp.2d 1370, 1382 (Ct. Int'l Trade 2013). If

Page 600

Giorgio lost this case, its share of Byrd Amendment distributions would go to other domestic producers. Giorgio appeals the denial of its motion for leave to amend...

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