Nan Ya Plastics Corp. v. United States

• Decision Date: 12 July 2012
• Citation: 34 ITRD 1768,853 F.Supp.2d 1300
• Parties: NAN YA PLASTICS CORPORATION, AMERICA, Plaintiff, v. UNITED STATES of America, United States Customs and Border Protection, David V. Aguilar (Acting Commissioner, United States Customs and Border Protection), United States International Trade Commission, and Deanna T. Okun (Chairman, United States International Trade Commission), Defendants.
• Court: U.S. Court of International Trade

853 F.Supp.2d 1300

34 ITRD 1768

NAN YA PLASTICS CORPORATION, AMERICA, Plaintiff,

v.UNITED STATES of America, United States Customs and Border Protection, David V. Aguilar (Acting Commissioner, United States Customs and Border Protection), United States International Trade Commission, and Deanna T. Okun (Chairman, United States International Trade Commission), Defendants.

United States Court of International Trade.

Slip Op. 12–92.

Court No. 08–00138.

July 12, 2012.

J. Kevin Horgan, deKieffer & Horgan, of Washington, DC, for Plaintiff Nan Ya Plastics Corporation, America.

Jessica R. Toplin, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, DC, for Defendants United States, U.S. Customs and Border Protection, and David V. Aguilar, Acting Commissioner of U.S. Customs and Border Protection. With her on the briefs were Tony West, Assistant Attorney General, Jeanne E. Davidson, Director, Franklin E. White, Jr., Assistant Director, and David S. Silverbrand and Courtney S. McNamara, Trial Attorneys. Of counsel on the briefs were Andrew G. Jones and Joseph Barbato, Office of Assistant Chief Counsel, U.S. Customs and Border Protection, of Washington, DC.

Patrick V. Gallagher, Jr., Attorney Advisor, Office of General Counsel, U.S. International Trade Commission, of Washington, DC, for Defendants U.S. International Trade Commission and Deanna T. Okun, Chairman, U.S. International Trade Commission. With him on the briefs were James M. Lyons, General Counsel, and Neal J. Reynolds, Assistant General Counsel.

Before: GREGORY W. CARMAN, Judge, TIMOTHY C. STANCEU, Judge, LEO M. GORDON, Judge.

OPINION

GORDON, Judge:

This case arose from the actions of two agencies, the U.S. International Trade Commission (the “ITC” or the “Commission”) and U.S. Customs and Border Protection (“Customs” or “CBP”), that denied Plaintiff, Nan Ya Plastics Corporation, America (“Nan Ya”), certain monetary benefits under the Continued Dumping and Subsidy Offset Act of 2000 (“CDSOA” or “Byrd Amendment”), 19 U.S.C. § 1675c (2000), repealed by Deficit Reduction Act of 2005, Pub.L. 109–171, § 7601(a), 120 Stat. 4, 154 (Feb. 8, 2006; effective Oct. 1, 2007). The ITC did not include Plaintiff on a list of parties potentially eligible for “affected domestic producer” (“ADP”) status, which potentially would have qualified Nan Ya for distributions of antidumping duties collected under antidumping duty orders on imports of certain polyester staple fiber (“PSF”) from the Republic of Korea and Taiwan. Certain Polyester Staple Fiber from Korea and Taiwan, Inv. No. 731–TA–825–826 (Final), USITC Pub. 3300 (May 2000); Notice of Amended Final Determination of Sales at Less Than Fair Value: Certain Polyester Staple Fiber from the Republic of Korea and Antidumping Duty Orders: Certain Polyester Staple Fiber from the Republic of Korea and Taiwan, 65 Fed.Reg. 33,807 (Dep't of Commerce May 25, 2000) (“ Final LTFV Determination and Antidumping Duty Orders.”) Because Plaintiff was not on the ITC's list of potential ADPs, Customs made no CDSOA distributions to Nan Ya.

Plaintiff claims that Defendants' actions are inconsistent with the CDSOA, not supported by substantial evidence, and otherwise not in accordance with law. Plaintiff also brings facial and as-applied constitutional challenges to the CDSOA under the First Amendment and the equal protection and due process guarantees of the Fifth Amendment.

Before the court are motions under USCIT Rule 12(b)(5) to dismiss for failure to state a claim upon which relief can be granted, filed by the ITC (Def. U.S. Int'l Trade Comm'n's Mot. to Dismiss for Failure to State a Claim upon Which Relief can be Granted, ECF No. 49 (“ITC's Mot.”)) and Customs (Defs. the United States and U.S. Customs and Border Protection's Mem. in Supp. of the Mot. to Dismiss for Failure to State a Claim, ECF No. 47 (“Customs' Mot.”)). The court has jurisdiction pursuant to 28 U.S.C. § 1581(i) (2006). See Furniture Brands Int'l, Inc. v. United States, 35 CIT ––––, ––––, 807 F.Supp.2d 1301, 1307–10 (2011) (“Furniture Brands I ”). For the reasons set forth below, we conclude that Plaintiff's claims must be dismissed for failure to state a claim upon which relief can be granted. The court will grant Defendants' USCIT Rule 12(b)(5) motions and dismiss this action.

I. Background

Following a 1999 petition filed by a group of domestic manufacturers, including Plaintiff, the U.S. Department of Commerce (“Commerce”) initiated an antidumping investigation of PSF from the Republic of Korea and Taiwan. Initiation of Antidumping Duty Investigations: Certain Polyester Staple Fiber From the Republic of Korea and Taiwan, 64 Fed.Reg. 23,053 (Dep't of Commerce Apr. 29, 1999); Sec. Am. Compl. ¶ 21, ECF No. 46. The ITC conducted an injury investigation. Certain Polyester Staple Fiber from Korea and Taiwan, 64 Fed.Reg. 17,414 (ITC Apr. 9, 1999); Sec. Am. Compl. ¶ 21. Shortly thereafter, on May 4, 1999, Nan Ya withdrew as a petitioner as to Korea. See Certain Polyester Staple Fiber from Korea and Taiwan (Review), USITC Pub. 3483 at I–6 n. 5 (Mar. 2006); Sec. Am. Compl. ¶ 22.¹ As part of its investigation, the ITC sent questionnaires to the domestic industry that asked domestic producers, including Nan Ya, to, inter alia, identify their position regarding the petition by checking one of three boxes indicating either support, opposition, or no position. Plaintiff filed a response but did not check the box indicating support for the petition on the ITC's final phase questionnaire. Id. ¶ 23.

Following an affirmative injury determination on PSF by the ITC in May 2000, Commerce, on May 25, 2000, published its amended final determinations of sales at less than fair value and issued the antidumping duty orders covering the subject merchandise. Final LTFV Determination and Antidumping Duty Orders, 65 Fed.Reg. 33,807; Sec. Am. Compl. ¶ 25. The antidumping duty orders remain in effect. Sec. Am. Compl. ¶ 25.

Plaintiff brought this action on April 18, 2008, contesting the denial of CDSOA distributions to Plaintiff for Fiscal Years 2006 and 2007. Id. ¶ 6. Shortly thereafter, the court stayed this action pending a final resolution of other litigation raising the same or similar issues. Order May 28, 2008, ECF No. 11 (action stayed “until final resolution of Pat Huval Restaurant & Oyster Bar, Inc. v. United States, Consol. Ct. No. 06–0290, that is, when all appeals have been exhausted.”).

Following the decision of the U.S. Court of Appeals for the Federal Circuit (“Court of Appeals”) in SKF USA Inc. v. United States, 556 F.3d 1337 (2009) (“SKF ”), cert. denied,––– U.S. ––––, 130 S.Ct. 3273, 176 L.Ed.2d 1182 (2010),² which addressed questions also present in this action, the court issued an order directing Plaintiff to show cause why this action should not be dismissed. Order to Show Cause, Jan. 3, 2011, ECF No. 15. After receiving Plaintiff's response, the court lifted the stay on this action for all purposes. Order Lifting Stay, Feb. 9, 2011, ECF No. 219. On May 5, 2011, Plaintiff filed its Second Amended Complaint, seeking CDSOA disbursements for Fiscal Years 2006, 2007, and subsequent fiscal years. See Sec. Am. Compl., Prayer for Relief. Defendants filed motions to dismiss for failure to state a claim upon which relief can be granted on May 24, 2011 (ITC's Mot.) and May 5, 2011 (Customs' Mot.).

II. Standard of Review

In deciding a USCIT Rule 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); Gould, Inc. v. United States, 935 F.2d 1271, 1274 (Fed.Cir.1991).

A plaintiff's factual allegations must be “enough to raise a 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 Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim of relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955).

III. Discussion

In 2000, Congress amended the Tariff Act of 1930 to add section 754, the CDSOA, which provides distributions of assessed antidumping and countervailing duties to ADPs on a fiscal year basis. 19 U.S.C. § 1675c(d)(1).³ ADP status is available only to a party who “was a petitioner or interested party in support of a petition with respect to which an antidumping duty order, a finding under the Antidumping Duty Act of 1921, or a countervailing duty order was entered.” Id. § 1675c(b)(1). The CDSOA directed the ITC to forward to Customs, within sixty days of the issuance of an antidumping or countervailing duty order, lists of persons potentially eligible for ADP status, i.e., “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. § 1675c(d)(1). Customs publishes the lists of potential ADPs in the Federal Register annually, prior to each distribution. Id. § 1675c(d)(2). Customs distributes assessed duties to parties on the list of potential ADPs that certify that they meet the remaining eligibility criteria. Id. § 1675c(d)(2).

The ITC compiled lists of potential ADPs with respect to the antidumping duty orders on PSF, which lists it then provided to Customs. Sec. Am. Compl. ¶ 27. Customs published the lists of potential ADPs for Fiscal Year 2006 on June 1, 2006, and for Fiscal Year 2007 on May 29, 2007. Id. ¶¶ 32, 33. Plaintiff did not appear on either list. Id. ¶¶ 27, 32, 33. Nevertheless, Plaintiff certified to Customs its eligibility for...