Giorgio Foods, Inc. v. United States
| Decision Date | 06 March 2013 |
| Docket Number | Slip Op. 13–29.,Court No. 03–00286. |
| Citation | 898 F.Supp.2d 1370 |
| Parties | GIORGIO FOODS, INC., Plaintiff, v. UNITED STATES and United States International Trade Commission, Defendants, and L.K. Bowman Company, Monterey Mushrooms, Inc., and The Mushroom Company, Defendant-intervenors. |
| Court | U.S. Court of International Trade |
OPINION TEXT STARTS HERE
Michael T. Shor and Sarah Brackney Arni, Arnold & Porter LLP, of Washington, DC, for plaintiff.
Courtney S. McNamara, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington DC, for defendant United States. With her on the brief were Stuart F. Delery, Principal Deputy Assistant Attorney General, Jeanne E. Davidson, Director, and Franklin E. White, Jr., Assistant Director.
Neal J. Reynolds, Assistant General Counsel for Litigation, and 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.
Valerie A. Slater, Akin, Gump, Strauss, Hauer & Feld, LLP, of Washington, DC, for defendant-intervenors L.K. Bowman Company and The Mushroom Company. With her on the brief were W. Randolph Teslik and Troy D. Cahill.
Michael J. Coursey and R. Alan Luberda, Kelley Drye & Warren, LLP, of Washington, DC, for defendant-intervenor Monterey Mushrooms, Inc.
This case arose from decisions of two agencies, the U.S. International Trade Commission (the “ITC” or the “Commission”) and U.S. Customs and Border Protection (“Customs”), denying plaintiff monetary benefits under the now-repealed Continued Dumping and Subsidy Offset Act of 2000 (“CDSOA” or “Byrd Amendment”), 19 U.S.C. § 1675c (2000).1 The ITC determined that Giorgio Foods, Inc. (“Giorgio”), a domestic producer of preserved mushrooms, did not qualify for “affected domestic producer” (“ADP”) status, which a domestic producer must obtain in order to receive CDSOA disbursements (“offsets”) of collected antidumping duties from Customs. Giorgio claims it is owed a share of the duties Customs collected under various antidumping duty orders on imports of certain preserved mushrooms from Chile, the People's Republic of China (“China”), Indonesia, and India and distributed to other domestic mushroom producers.2 Second Am. Compl. ¶ 17 (June 7, 2011), ECF No. 150–1.
The ITC construed the “petition support requirement” of the CDSOA, 19 U.S.C. § 1675c(b)(1)(A), (d)(1), under which CDSOA offsets are limited to petitioners and parties in support of an antidumping or countervailing duty petition, so as to disqualify Giorgio from the list of potential ADPs because Giorgio indicated to the ITC in questionnaire responses that it did not support the petition that resulted in the antidumping duty orders. Id. ¶ 45. Because Giorgio lacked ADP status, Customs made no CDSOA disbursements to Giorgio for Fiscal Years 2001 through 2010. Id. ¶¶ 10, 80–84, 87.
Plaintiff's second amended complaint brings as-applied constitutional challenges to the CDSOA's petition support requirement that are grounded in the First Amendment and the Fifth Amendment equal protection guarantee. Id. ¶¶ 89–98. Plaintiff also asserts “unjust enrichment” claims against the defendant-intervenors opposing it in this action, L.K. Bowman Company, a division of Hanover Foods Corporation (“L.K. Bowman”), Monterey Mushrooms, Inc. (“Monterey”), and The Mushroom Company (“Mushroom Co.”), each of whom Giorgio alleges to have received and retained, unjustly, Giorgio's share of CDSOA distributions. Id. ¶¶ 85, 108.
Before the court are several motions to dismiss. The court concludes that Giorgio's constitutional claims must be dismissed for failure to state a claim upon which relief can be granted and that it lacks subject matter jurisdiction over Giorgio'sunjust enrichment claims. The court will enter judgment dismissing this action.
On January 6, 1998, an antidumping duty petition filed with Commerce and the ITC sought the imposition of antidumping duties on preserved mushrooms from Chile, China, Indonesia, and India. Second Am. Compl. ¶ 26. Beginning that year, the ITC conducted investigations to determine whether imports of certain preserved mushrooms from Chile, China, Indonesia, and India were causing or threatening to cause material injury to a domestic industry. Id. ¶ 27 (). In conducting those investigations, the ITC sent questionnaires to domestic producers of preserved mushrooms, including Giorgio. Id. ¶¶ 9, 45. In its responses to the Commission's questionnaires for the preliminary, as well as the final, phase of the investigations, “Giorgio wrote that it (1) took no position with respect to the petition filed against preserved mushrooms from Chile, China, and Indonesia, and (2) opposed the petition with respect to India.” Id. ¶ 45.
Based on an affirmative ITC injury determination and its own affirmative finding of sales at less than fair value, the International Trade Administration, U.S. Department of Commerce (“Commerce” or the “Department”) issued an antidumping duty order on certain preserved mushrooms from Chile on December 2, 1998. Id. ¶¶ 8, 62; see also Notice of Antidumping Duty Order: Certain Preserved Mushrooms from Chile, 63 Fed. Reg. 66,529 (Dec. 2, 1998). Similarly, on February 19, 1999, Commerce issued antidumping duty orders on preserved mushrooms from India, Indonesia, and China. Second Am. Compl. ¶¶ 8, 62; see also Notice of Amendment of Final Determination of Sales at Less Than Fair Value and Antidumping Duty Order: Certain Preserved Mushrooms from India, 64 Fed. Reg. 8,311 (Feb. 19, 1999); Notice of Antidumping Duty Order: Certain Preserved Mushrooms from Indonesia, 64 Fed. Reg. 8,310 (Feb. 19, 1999); Notice of Amendment of Final Determination of Sales at Less Than Fair Value and Antidumping Duty Order: Certain Preserved Mushrooms from the People's Republic of China, 64 Fed. Reg. 8,308 (Feb. 19, 1999).
The CDSOA was enacted on October 28, 2000. 19 U.S.C. § 1675c. Concluding that Giorgio had not supported a petition resulting in any of the four mushroom antidumping orders so as to qualify Giorgio for CDSOA offsets, the ITC did not include Giorgio on its published lists of ADPs for the mushroom antidumping duty orders for Fiscal Years 2001 through 2010.4 SecondAm. Compl. ¶ 10. The ITC subsequently denied Giorgio's written requests for ADP status. Id. ¶¶ 71–73. Giorgio filed CDSOA certifications with Customs for various fiscal years to request CDSOA disbursements, but Customs made no disbursements to Giorgio.5Id. ¶¶ 67, 78. In contrast, the ITC included the defendant-intervenors on its ADP lists, under the four mushroom antidumping orders, for all fiscal years since the CDSOA was enacted, and Customs has distributed CDSOA offsets to the defendant-intervenors in every fiscal year. Id. ¶ 11.
Giorgio commenced this action on May 23, 2003. Summons, ECF No. 1; Compl., ECF No. 4. This case was stayed on October 10, 2003 pending resolution of cross-motions for judgment upon the agency record in another case involving a constitutional challenge to the CDSOA, PS Chez Sidney, L.L.C. v. U.S. Intern. Trade Com'n, Court No. 02–00635. Order, ECF No. 27. The decision in that case, PS Chez Sidney v. U.S. Intern. Trade Com'n, 30 CIT 858, 442 F.Supp.2d 1329 (2006) (“Chez Sidney I ”), rejected a statutory CDSOA claim but held the CDSOA petition support requirement violative of the First Amendment, id. at 1331–33.
After the lifting of the stay, plaintiff moved on July 28, 2006 for a temporary restraining order and a preliminary injunction, seeking to prevent further CDSOA distributions to the recognized ADPs for the mushroom antidumping duty orders.6 Giorgio Foods Inc.'s Mot. for a TRO & for a Prelim. Inj., ECF No. 30. This Court denied the motion for a temporary restraining order on August 2, 2006, Order, ECF No. 32, and on August 9, 2006, plaintiff filed a second motion for a preliminary injunction, Giorgio Foods Inc.'s Mot. for a Prelim. Inj., ECF No. 34. On August 23, 2006, L.K. Bowman, Monterey, Mushroom Canning, and Sunny Dell Foods, Inc. (“Sunny Dell”), parties that were petitioners in the antidumping duty investigations, Second Am. Compl. ¶ 27, moved to intervene in this action, Mot. to Intervene as of Right, ECF No. 39. The court granted the intervention motion with respect to all movants except for Sunny Dell, which declined to produce a witness requested by plaintiff for questioning at the preliminary injunction hearing. Order 2 (Sept. 13, 2006), ECF No. 51. On September 22, 2006, this Court denied the motion for a preliminary injunction. Order Denying Pl.'s Mot. for Prelim. Inj., ECF No. 58.
On October 12, 2006, plaintiff moved for leave to amend its complaint. Giorgio Foods, Inc.'s Mot. for Leave to Amend the Compl., ECF No. 59. Plaintiff sought to abandon a statutory claim it had brought against the ITC, to add facial and as-applied challenges to the petition support requirement under the Fifth Amendment equal protection guarantee, and to add claims for unjust enrichment against the defendant-intervenors. Mem. of Law in Supp. of Pl.'s Mot. for Leave to Amend the Compl. 1–2, ECF No. 59. Plaintiff also sought to “update” its claims, to add “factual allegations” to account for developments since the case was filed and stayed in 2003, and to clarify its requested relief, which plaintiff specified as CDSOA distributions for fiscal years 2001 through 2005. Id.; First Am. Compl. ¶¶ 64, 69 (Oct. 12, 2006), ECF 59–2. On August 21, 2007, the court granted plaintiff's motion with respect to the aforementioned amendments.7Giorgio Foods, Inc. v. United States, 31 CIT 1261, 1262, 515 F.Supp.2d 1313, 1316 (2007) ( “ Giorgio I ”).
On May 6, 2008, this Court stayed this action a second time pending appellate resolution of the ...
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