Southern Shrimp Alliance v. U.S.
| Decision Date | 15 May 2009 |
| Docket Number | Slip Op. 09-44. Court No. 08-00394. |
| Citation | 617 F.Supp.2d 1334 |
| Parties | SOUTHERN SHRIMP ALLIANCE, John Williams, Versaggi Shrimp Corporation, Robert Knight, Ocean Breeze Inc., Master Mike Inc., Gulf Runner Inc., Wallace B. Inc., Gulf Runner Inc., Wallace B Inc., Doctor Bill Inc., Master Alston Inc., Miss Kelsey Inc., and Lady Gwen Doe Inc., Plaintiffs, v. UNITED STATES, U.S. Customs and Border Protection, and W. Ralph Basham, Commissioner, U.S. Customs and Border Protection, Defendants, and American Shrimp Processors Association and its Members, Defendant-Intervenors. |
| Court | U.S. Court of International Trade |
Dewey & LeBouef, LLP (Bradford L. Ward, Andrew W. Kentz, David A. Bentley, Lisa W. Wang, Nathaniel M. Rickard) for Plaintiffs.
Michael F. Hertz, Deputy Assistant Attorney General, Jeanne E. Davidson, Director, Franklin E. White, Jr., Assistant Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice (Michael J. Dierberg, Trial Attorney) for Defendants United States.
Stewart and Stewart, (Geert M. De Prest, Elizabeth J. Drake) for Defendant-Intervenors.
Leake & Anderson, LLC, (Edward T. Hayes) for Defendant-Intervenors.
Before: Gregory W. Carman, Judge Timothy C. Stanceu, Judge Leo M. Gordon, Judge.
In this action, Plaintiffs bring various challenges to the administration by U.S. Customs and Border Protection ("Customs") of the Continued Dumping and Subsidy Offset Act, Section 754 of the Tariff Act of 1930, as amended, 19 U.S.C. § 1675c (2000)1 ("CDSOA"), repealed by the Deficit Reduction Act of 2005, Pub.L. No. 109-171, Title VI I, Subtitle F § 7601(a), 120 Stat. 154 ("CDSOA Repeal"). Before the court are Defendants' motion to dismiss all but one of the claims in Plaintiffs' First Amended and Supplemented Complaint ("Complaint" or "Compl."), and Defendant-Intervenors' motion to dismiss Plaintiffs' Complaint in its entirety; both motions are made pursuant to USCIT Rules 12(b)(1) and 12(b)(5). In the Complaint, Plaintiffs allege "improper actions," (Compl. ¶ 18), "inadequate administration," (id. ¶ 21), and "wrongful policies and procedures," (id. ¶ 23), relating to the CDSOA. Defendants and Defendant-Intervenors attack the sufficiency of Plaintiffs' claims that contest Customs' interpretation and application of the CDSOA and its regulations, including a constitutional claim that Plaintiffs bring with respect to reconsideration proceedings conducted under the CDSOA. Defendants and Defendant-Intervenors also argue that certain of Plaintiffs' claims are not justiciable under the Administrative Procedure Act ("APA"). The court exercises jurisdiction pursuant to 28 U.S.C. § 1581(i)(2) and (4) (2000), except to the extent noted in the discussion pertaining to Count 1 of the Complaint, in which Plaintiffs seek judicial review of agency action that is committed to Customs' discretion by law. For the reasons set forth below, the court grants Defendants' motion to dismiss and grants Defendant-Intervenors' motion to dismiss, except that the court denies Defendant-Intervenors' motion with respect to the sole claim that Defendants do not move to dismiss; that claim is presented in Count 8 of the Complaint and arises under 19 U.S.C. § 1625(a).
In 2000, Congress amended Title VII of the Tariff Act of 1930 with the passage of the CDSOA, more popularly known as the Byrd Amendment. The CDSOA, although repealed in February 2006, continues to apply to antidumping and countervailing duties collected on entries made and filed prior to October 1, 2007. See CDSOA Repeal. Intended to strengthen the remedial purposes of the antidumping and countervailing duty laws,2 the CDSOA altered the use of proceeds from antidumping and countervailing duties. Prior to the CDSOA, Customs deposited antidumping and countervailing duties into the U.S. Treasury to be used for general government expenses. Pursuant to the CDSOA, however, Customs deposits antidumping and countervailing duties into special U.S. Treasury accounts for each antidumping and countervailing duty order. 19 U.S.C. § 1675c(e); 19 C.F.R. § 159.64 (2006). The monies in those special accounts are then distributed by Customs, annually, on a pro rata basis to "affected domestic producers" ("ADPs") for their "qualifying expenditures," (or "qualified expenditures,") i.e., certain enumerated business expenses such as manufacturing facilities, equipment, raw materials, and working capital or other funds needed to maintain production. 19 U.S.C. § 1675c(b)(4), (d)(2)-(3).
The CDSOA directs Customs to "prescribe procedures for the distribution" of CDSOA funds, 19 U.S.C. § 1675c(c), as well as to prescribe, by regulation, the time and manner of that distribution. 19 U.S.C. § 1675c(e)(3). Under the CDSOA, the United States International Trade Commission ("ITC") compiles and forwards to Customs a list of ADPs for each antidumping duty order in effect. Id. § 1675c(d)(1). An ADP is any "manufacturer, producer, farmer, rancher, or worker representative (including associations of such persons) that (A) was a petitioner or interested party in support of the petition with respect to which an antidumping duty order ... has been entered, and (B) remains in operation." Id. § 1675c(d)(1); 19 C.F.R. § 159.61(b).
Using the ITC's list of ADPs, Customs publishes a notice of intent to distribute CDSOA funds along with the list of ADPs potentially eligible for a distribution. 19 U.S.C. § 1675c(d)(2); 19 C.F.R. § 159.62(a). Customs' notice invites potentially eligible ADPs to submit certifications that the ADPs are eligible for a distribution. 19 U.S.C. § 1675c(d)(2); 19 C.F.R. § 159.63. Id. Although the CDSOA requires that Customs request a certification from each potentially eligible ADP, the regulations do not prescribe an exact format for that certification. Rather, the regulations require that a certification include identifying information regarding the domestic producer, a calculation of the amount of the distribution being claimed, a statement of eligibility for CDSOA funds, and an enumeration of qualifying expenditures incurred for which a distribution has not been made previously. 19 C.F.R. § 159.63(a)-(b). Additionally, the regulations set forth procedures for the review, correction, and verification of a certification. § 159.63(c)-(d).
Customs must distribute all CDSOA funds no later than 60 days after the first day of the fiscal year from duties assessed during the preceding fiscal year, 19 U.S.C. § 1675c(c), and on a pro rata basis from the certifications submitted by the ADPs, 19 U.S.C. § 1675c(d)(3); 19 C.F.R. § 159.64. The regulations provide a process for the distribution of refunds of CDSOA funds recovered as a result of a reliquidation or court action affecting the underlying entries, and for the collection of overpayments made to ADPs; the regulations include a statement that Customs is to use "all available methods" in the collection of those overpayments. 19 C.F.R. § 159.64(b)(2)-(3). Lastly, the regulations set forth different methods for distribution depending on whether the total amount of the certified claims do or do not exceed the amount of available CDSOA funds. Id. § 159.64(c)(1)-(2). Where a distribution is for less than the full amount of the certified claim, an ADP may request reconsideration based on a belief that the distribution was made due to a clerical error or mistake. Id. § 159.64(c)(3).
Plaintiffs are an association of domestic processors and harvesters of warmwater shrimp in eight coastal states from North Carolina to Texas (Southern Shrimp Alliance ("SSA")), and individual shrimp fishermen and corporate entities engaged in the harvesting and sale of warmwater shrimp. (Compl. ¶ 1.) Customs has distributed CDSOA funds for fiscal years 2006 and 2007, and has noticed its intent to distribute funds for fiscal year 2008. (Id. ¶¶ 26, 28, 35.) Plaintiffs' Complaint challenges Customs' distribution of CDSOA funds from antidumping duties collected from the antidumping orders on certain frozen warmwater shrimp from Brazil, China, Ecuador, India, Thailand, and Vietnam during fiscal years 2006, 2007, and 2008. Plaintiffs' Complaint involves a broad-based challenge to Customs' allegedly improper administration of the CDSOA, which, according to Plaintiffs, resulted in lower distributions to Plaintiffs for various reasons.
In deciding a USCIT Rule 12(b)(1) motion to dismiss that does not challenge the factual basis for the complainant's allegations, and when 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 plaintiff's favor. See Cedars-Sinai Med. Ctr. v. Watkins, 11 F.3d 1573, 1583-84 & n. 13 (Fed.Cir.1993); Henke v. United States, 60 F.3d 795, 797 (Fed.Cir. 1995) (subject matter jurisdiction); Gould, Inc. v. United States, 935 F.2d 1271, 1274 (Fed.Cir.1991) ().
The applicable pleading requirements for Plaintiffs' claims are set forth in USCIT Rule 8(a), which provides that a complaint shall contain "a short and plain statement of the claim" showing that the plaintiff is entitled to relief. USCIT R. 8(a) (2008). Rule 8(a) requires "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1964-65, 167 L.Ed.2d 929 (2007) ("Bell Atlantic") (citation omitted). Although a complaint need not contain detailed factual allegations, the "[f]actual 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)." Id. (citations omitted). The Court of Appeals for the Federal...
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