New Hampshire Ball Bearing, Inc. v. United States

• Decision Date: 03 January 2012
• Docket Number: Slip Op. 12–2.Court No. 08–00398.
• Citation: 815 F.Supp.2d 1301,34 ITRD 1035
• Parties: NEW HAMPSHIRE BALL BEARING, INC., Plaintiff, v. UNITED STATES, United States Customs and Border Protection, and United States International Trade Commission, Defendants,andThe Timken Company and MPB Corporation, Defendant–Intervenors.
• Court: U.S. Court of International Trade

34 ITRD 1035

815 F.Supp.2d 1301

NEW HAMPSHIRE BALL BEARING, INC., Plaintiff,

v.UNITED STATES, United States Customs and Border Protection, and United States International Trade Commission, Defendants,andThe Timken Company and MPB Corporation, Defendant–Intervenors.

Slip Op. 12–2.Court No. 08–00398.

United States Court of International Trade.

Jan. 3, 2012.

Frank H. Morgan, White & Case, LLP, of Washington, DC, for Plaintiff.

David S. Silverbrand, and Courtney S. McNamara, Trial Attorneys, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, for Defendant United States Customs and Border Protection. With them on the briefs were Tony West, Assistant Attorney General, Jeanne E. Davidson, Director, Franklin E. White, Jr., Assistant Director.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. With him on the briefs were James M. Lyons, General Counsel, and Neal J. Reynolds, Assistant General Counsel.Geert De Prest, Stewart and Stewart, of Washington, DC, for defendant-intervenors. With him on the briefs were Terrence P. Stewart, Amy S. Dwyer, and Patrick J. McDonough.Before: GREGORY W. CARMAN, Judge, TIMOTHY C. STANCEU, Judge, LEO M. GORDON, Judge.

OPINION

CARMAN, Judge:

Plaintiff New Hampshire Ball Bearing, Inc. (“NHBB”) challenges the constitutionality of the Continued Dumping and Subsidy Offset Act of 2000 ¹ (“CDSOA” or “Byrd Amendment”) and the administration of the statute by Defendants. Plaintiff claims that it unlawfully was denied “affected domestic producer” (“ADP”) status, which would have qualified it to receive distributions under the CDSOA. The case is now before the court on dispositive motions. Defendants United States Customs and Border Protection (“Customs” or “CBP”) and the United States International Trade Commission (the “ITC”) each moved pursuant to USCIT Rule 12(b)(5) to dismiss Plaintiff's complaint for failure to state a claim upon which relief can be granted. (Def.'s, United States Customs and Border Protection's Mot. To Dismiss (“CBP Mot.”), ECF No. 47); (Def. United States International Trade Commission's Mot. to Dismiss (“ITC Mot.”), ECF No. 46). Defendant–Intervenors Timken Company and MPB Corp. (collectively, “Timken”) moved under USCIT Rule 12(c) for judgment on the pleadings. (Timken's Mot. For J. on the Pleadings (“Timken Mot.”), ECF No. 49). For the reasons set forth below, this action will be dismissed for failure to state a claim upon which relief can be granted.

Background

Plaintiff, a U.S. producer of ball bearings and spherical plain bearings, participated in a 1988 investigation conducted by the ITC that culminated in the issuance of antidumping duty orders on ball bearings and spherical plain bearings from Germany, France, Italy, Japan, Singapore, Sweden, and the United Kingdom. (First Am. Compl. ¶¶ 1, 8 (Feb. 11, 2011), ECF No. 27); Antidumping Duty Orders: Ball Bearings, ..., 54 Fed.Reg. 20,900, 20,900–20,910 (May 15, 1989). During those proceedings, NHBB responded to the ITC's questionnaires but declined to indicate to the ITC that it supported the antidumping petition. (First Am. Compl. ¶ 8). Consequently, the ITC has never included NHBB on a published list of ADPs, and, as a result, NHBB has never received a CDSOA distribution from CBP. ( Id. ¶ 18).

Plaintiff brought this case in November 2008 to challenge the government's refusal to provide it CDSOA distributions for fiscal years 2006 through 2008. (Compl. ¶ 26 (Nov. 13, 2008), ECF No. 4). Shortly thereafter, the court stayed this action pending a final resolution of other litigation raising the same or similar issues.² 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 USA II ”), the court ordered Plaintiff to show cause why this action should not be dismissed. (Order (Jan. 3, 2011), ECF No. 21). After Plaintiff responded to the court's order, the court lifted its stay on this action for all purposes. (Order (Feb. 9, 2011), ECF No. 25); (Pl. NHBB's Resp. to the Court's Jan. 3, 2011 Order to Show Cause (Feb. 1, 2011), ECF No. 22).³ Plaintiff filed a notice of an amended complaint under USCIT Rule 15(a) on February 11, 2011 (Notice of First Am. Compl., First Am. Compl., ECF No. 27), and on the same day Timken filed an unopposed moved to intervene and answer (Unopposed Mot. to Intervene, Answer of the Timken Co. and MPB Corp., ECF No. 28). The instant motions to dismiss and motion for judgment on the pleadings were filed on May 2, 2011. (ITC Mot., ECF No. 46; CBP Mot., ECF No. 47; Timken Mot., ECF No. 49) ⁴.

Jurisdiction

The court exercises subject matter jurisdiction over this action pursuant to section 201 of the Customs Courts Act of 1980, 28 U.S.C. § 1581(i)(4), which grants the Court of International Trade exclusive jurisdiction of any civil action commenced against the United States that arises out of any law providing for administration and enforcement with respect to, inter alia, the matters referred to in § 1581(i)(2), which are “tariffs, duties, fees, or other taxes on the importation of merchandise for reasons other than the raising of revenue.” The CDSOA, under which this action arises, is such a law. See Furniture Brands Int'l, Inc. v. United States, 35 CIT ––––, 807 F.Supp.2d 1301, 1308, Ct.No. 07–00026, Slip Op. 11–132 at 9–15.

Discussion

The CDSOA amended the Tariff Act of 1930 to provide for an annual distribution (a “continuing dumping and subsidy offset”) of duties assessed pursuant to an antidumping duty or countervailing duty order to affected domestic producers as reimbursements for qualifying expenditures.⁵ 19 U.S.C. § 1675c(a)–(d). ADP status is limited to petitioners, and interested parties in support of petitions, with respect to which antidumping duty and countervailing duty orders are entered, and who remain in operation. Id. § 1675c(b)(1). The CDSOA directed the ITC to forward to Customs, within sixty days after an antidumping or countervailing duty order is issued, lists of persons with 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). The CDSOA also provided for distributions of antidumping and countervailing duties assessed pursuant to existing antidumping duty and countervailing duty orders and for this purpose directed the ITC to forward to CBP a list identifying ADPs “within 60 days after the effective date of this section in the case of orders or findings in effect on January 1, 1999 or thereafter....” Id. The CDSOA directed CBP to publish in the Federal Register, prior to each distribution, lists of ADPs potentially eligible for distributions based on the lists obtained from the ITC, id. § 1675c(d)(2), and to distribute annually all funds, including accrued interest, from antidumping and countervailing duties received in the preceding fiscal year. Id. § 1675c(d)(3), (e).

After this case was brought, the Court of Appeals, in SKF USA II, upheld the CDSOA against constitutional challenges brought on First Amendment and equal protection grounds. 556 F.3d at 1360 (“[T]he Byrd Amendment is within the constitutional power of Congress to enact, furthers the government's substantial interest in enforcing the trade laws, and is not overly broad. We hold that the Byrd Amendment is valid under the First Amendment.”); id. (“Because it serves a substantial government interest, the Byrd Amendment is also clearly not violative of equal protection under the rational basis standard.”).⁶

We address below the four claims that are stated in Plaintiff's First Amended Complaint.⁷ In Claims one and two, Plaintiff challenges the “in support of the petition” requirement of the CDSOA (“petition support requirement”), both facially and as applied to NHBB, on constitutional First Amendment (First Am. Compl. ¶¶ 20–22) and Fifth Amendment equal protection grounds ( Id. ¶¶ 23–25). In Claim three, Plaintiff claims that the petition support requirement violates the Fifth Amendment due process clause, both facially and as applied, in basing NHBB's eligibility for disbursements on past conduct, i.e., support for a petition. ( Id. ¶¶ 26–28). Finally, Plaintiff claims that Defendants' actions violate the Administrative Procedure Act, 5 U.S.C. §§ 701– 706 (“APA”) ( Id. ¶¶ 29–31).

I. Plaintiff's Facial and As Applied Challenges under the First Amendment and the Equal Protection Clause Are Foreclosed by Binding Precedent

Plaintiff's claims facially challenging the constitutionality of the CDSOA's petition support requirement under the First Amendment (First Am. Compl. ¶¶ 20–22) and the Equal Protection clause of the Fifth Amendment ( Id. ¶¶ 23–25) are precluded by the holding in SKF USA II. A claim that a statute is facially unconstitutional is rebutted by even a single constitutional application of the statute. See Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449, 128 S.Ct. 1184, 170 L.Ed.2d 151 (2008) (citing United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987)) (“a Plaintiff can only succeed in a facial challenge by ‘establish[ing] that no set of circumstances exists under which the Act would be valid,’ i.e., that the law is unconstitutional in all of its applications.”). In SKF USA II, the Court of Appeals held that the CDSOA did not violate constitutional First Amendment or equal protection principles as applied to Plaintiff SKF USA, Inc. (“SKF”). This ruling forecloses any possibility that the statute is facially unconstitutional on the First Amendment and Equal Protection grounds asserted by SKF in SKF USA II. Plaintiff's claims to the same effect therefore must be dismissed pursuant to USCIT Rule 12(b)(5) for...