Pat Huval Rest. & Oyster Bar, Inc. v. United States Int'l Trade Comm'n

• Decision Date: 01 March 2012
• Docket Number: Slip Op. 12–27.Court No. 06–00290.
• Citation: 823 F.Supp.2d 1365,34 ITRD 1270
• Parties: PAT HUVAL RESTAURANT & OYSTER BAR, INC., et al., Plaintiffs, v. UNITED STATES INTERNATIONAL TRADE COMMISSION, et al., Defendants,andThe Timken Company and MPB Corporation, Defendant Intervenors.
• Court: U.S. Court of International Trade

34 ITRD 1270

823 F.Supp.2d 1365

PAT HUVAL RESTAURANT & OYSTER BAR, INC., et al., Plaintiffs,

v.UNITED STATES INTERNATIONAL TRADE COMMISSION, et al., Defendants,andThe Timken Company and MPB Corporation, Defendant Intervenors.

Slip Op. 12–27.Court No. 06–00290.

United States Court of International Trade.

March 1, 2012.

Jacques Pierre Soileau, Soileau & Soileau of Breaux Bridge, LA, for Plaintiffs Pat Huval Restaurant & Oyster Bar, Inc., Aqua Farms Crawfish, Inc., Catfish Wholesale, Inc., Charles Bernard (d/b/a/ Charles' Crawfish Pad), Andre Leger (d/b/a/ Chez Francois), Jim Fruge (d/b/a / Acadiana Fisherman's Co–Op), J. Bernard Seafood Processing, Inc., and Frank Melancon (d/b/a French's Enterprises Seafood Peeling Plant).

Herbert Carl Shelley, Alice Alexandra Kipel, Laura Rose Ardito, and Michael Thomas Gershberg, Steptoe & Johnson, LLP of Washington, DC, for Plaintiff SKF USA, Inc.

John Marshall Gurley, and Nancy Aileen Noonan, Arent Fox, LLP, of Washington, DC, for Plaintiff Koyo Corporation of U.S.A.David S. Silverbrand, Courtney S. McNamara, Michael J. Dierberg, and Todd M. Hughes, 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, and Andrew G. Jones, Office of Assistant Chief Counsel, United States Customs and Border Protection, of counsel.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 for Litigation.Geert De Prest, Terence P. Stewart, Amy S. Dwyer, and Patrick J. McDonough, Stewart and Stewart, of Washington, DC, for Defendant Intervenors.Before: GREGORY W. CARMAN, Judge, TIMOTHY C. STANCEU, Judge, LEO M. GORDON, Judge.

OPINION

CARMAN, Judge:

This action has been consolidated from six cases brought by a group of eight domestic producers of processed crawfish tail meat (collectively, the “Pat Huval Plaintiffs”),¹ Koyo Corporation of U.S.A. (“Koyo”),² and SKF USA, Inc. (“SKF”),³ challenging the constitutionality of the Continued Dumping and Subsidy Offset Act of 2000 (“CDSOA” or “Byrd Amendment”), and the administration of the statute by Defendants.⁴ These cases were consolidated by order of the Court under Consol. Ct. No. 06–00290. (Order (Feb. 23, 2007), ECF No. 91; Order (Mar. 16, 2011), ECF No. 207.) Plaintiffs claim that they unlawfully were denied affected domestic producer (“ADP”) status, which would have qualified them to receive distributions under the CDSOA.

The case is now before the Court on dispositive motions. Defendants United States Customs and Border Protection (“CBP”) and the United States International Trade Commission (“ITC”) each move to dismiss Plaintiff's complaint for failure to state a claim upon which relief can be granted pursuant to USCIT Rule 12(b)(5), and for judgment on the pleadings under USCIT Rule 12(c). (Def. U.S. Customs and Border Prot.'s Mot. to Dismiss for Failure to State a Claim upon Which Relief Can Be Granted and for J. on the Pleadings (“CBP Mot.”), May 6, 2011, ECF No. 219); (Def. U.S. Int'l Trade Comm'n's Mot. to Dismiss for Failure To State a Claim and For J. on the Pleadings (“ITC Mot.”), May 2, 2011, ECF No. 215). Defendant Intervenors Timken U.S. Corp. and MPB Corp. (collectively, “Timken”) move for judgment on the pleadings pursuant to USCIT Rule 12(c) with respect to the complaints filed by SKF and Koyo. (Timken's Mot. for J. on the Pleadings with Respect to SKF's and Koyo's Compl.'s (“Timken Mot.”), May 2, 2011, ECF No. 217.) For the reasons set forth below, Plaintiffs' consolidated action will be dismissed under USCIT Rule 12(b)(5) for failure to state a claim upon which relief can be granted, and under USCIT Rule 12(b)(1) on timeliness and mootness grounds.

Background

Certain background information is provided in our earlier opinion in this case, Pat Huval Restaurant & Oyster Bar, Inc. v. United States, 32 CIT 232, 547 F.Supp.2d 1352 (2008), and is supplemented herein.

The Pat Huval Plaintiffs ⁵ are domestic producers of crawfish tail meat who seek to obtain status as affected domestic producers and receive CDSOA disbursements from duties collected on an antidumping duty order on crawfish from China. (Compl. 1 at 10.) The Pat Huval Plaintiffs have not received CDSOA distributions because “they did not indicate ‘support’ of the original 1996 crawfish antidumping petition.” (Compl. 1 ¶ 22.)

Plaintiff Koyo is a U.S. producer of tapered roller bearings and ball bearings. ( See, e.g., Compl. 2 ¶ 1.) Koyo seeks through this litigation to obtain status as an affected domestic producer and receive CDSOA disbursements for Fiscal Years 2006 2009 from duties collected on 13 antidumping duty orders on tapered roller and ball bearings. (Compl. 2 ¶ 20; Compl. 5 ¶ 19; Compl. 6 ¶¶ 19–21.) Koyo states that it did not support any of the petitions that culminated in the issuance of those 13 orders. ( See, e.g., Compl. 2 ¶¶ 16, 28 (“Koyo USA did not support the underlying antidumping duty investigations for the subject bearings orders”; see also Compl. 5 ¶¶ 15, 29; Compl. 6 ¶¶ 15, 30.)) The ITC did not include Koyo on a list that it sent to Customs of producers potentially eligible for ADP status “for any of the fiscal years ... since the promulgation of the CDSOA.” (Compl. 2 ¶ 17; see also Compl. 5 ¶ 16; Compl. 6 ¶ 16.)

Plaintiff SKF is a U.S. manufacturer of antifriction bearings, including ball bearings. ( See, e.g., Compl. 3 ¶ 1.) SKF also seeks to obtain status as an ADP and receive CDSOA disbursements for Fiscal Years 2004 and 2006 from duties collected on various antidumping duty orders on antifriction bearings. (Compl. 3 Prayer for Relief; Compl. 4 Prayer for Relief.) SKF alleges that it was considered “part of the domestic industry for [antifriction bearings]” but does not allege that it supported the petitions that culminated in the issuance of the relevant antidumping duty orders. ( See Compl. 3 ¶ 26; Compl. 4 ¶ 37.) Because of its failure to support the petitions, SKF “has been denied status as an ‘affected domestic producer’ and, consequently, has been deemed ineligible to receive disbursements under the CDSOA.” (Compl. 3 ¶ 38; Compl. 4 ¶ 52.)

In 2008, acting on motions to dismiss pursuant to USCIT Rules 12(b)(1) and 12(b)(5), we limited the relief Plaintiffs could obtain for their facial constitutional challenges, and limited which agency actions the Pat Huval Plaintiffs would be permitted to challenge in their Administrative Procedure Act (APA) claim.⁶ Pat Huval, 547 F.Supp.2d at 1365.

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, 1307–10 (2011).

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.⁷ 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 potential 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 potential 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).

The Court of Appeals, in SKF USA, Inc. v. U.S. Customs and Border Protection (“ SKF USA II ”), upheld the CDSOA against constitutional challenges brought on First Amendment and equal protection grounds. SKF USA, Inc. v. U.S. Customs and Border Protection, 556 F.3d 1337, 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.”).⁸

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