Tampa Bay Fisheries, Inc. v. United States, Slip Op. 12–37.Court No. 08–00404.

• Decision Date: 20 March 2012
• Docket Number: Slip Op. 12–37.Court No. 08–00404.
• Citation: 825 F.Supp.2d 1331,34 ITRD 1333
• Parties: TAMPA BAY FISHERIES, INC. and Singleton Fisheries, Inc., Plaintiffs, 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 Tanner Okun (Chairman, United States International Trade Commission), Defendants.
• Court: U.S. Court of International Trade

34 ITRD 1333

825 F.Supp.2d 1331

TAMPA BAY FISHERIES, INC. and Singleton Fisheries, Inc., Plaintiffs,

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 Tanner Okun (Chairman, United States International Trade Commission), Defendants.

Slip Op. 12–37.Court No. 08–00404.

United States Court of International Trade.

March 20, 2012.

John J. Kenkel, J. Kevin Horgan, deKieffer & Horgan of Washington, DC, for Plaintiffs Tampa Bay Fisheries, Inc. and Singleton Fisheries, Inc.

Jessica R. Toplin, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, DC, for Defendants United States and 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 Courtney S. McNamara and David S. Silverbrand, Trial Attorneys. Of Counsel on the briefs were Andrew G. Jones and Joseph Barbato, Office of Assistant Chief Counsel for U.S. Customs and Border Protection of Washington, DC.

James M. Lyons, General Counsel, Neal J. Reynolds, Assistant General Counsel for Litigation, and Patrick V. Gallagher, Jr., Attorney Advisor, Office of General Counsel, U.S. International Trade Commission, of Washington, DC, for Defendant U.S. International Trade Commission.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”), that denied Plaintiffs, Tampa Bay Fisheries, Inc. (“Tampa Bay”) and Singleton Fisheries, Inc. (“Singleton”), 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 either Plaintiff on a list of parties potentially eligible for “affected domestic producer” (“ADP”) status, which would have qualified Tampa Bay and Singleton for distributions of antidumping duties collected under antidumping duty orders on imports of certain frozen shrimp from Brazil, Thailand, India, People's Republic of China, Socialist Republic of Vietnam, and Ecuador. Notice of Amended Final Determination of Sales at Less Than Fair Value and Antidumping Duty Order: Certain Frozen Warmwater Shrimp from Brazil, 70 Fed.Reg. 5,143, 5,143–45 (Feb. 1, 2005); ... from Thailand, id. at 5,145–47; ... from India, id. at 5,147–49; ... from People's Republic of China, id. at 5,149–52; ... from Vietnam, id. at 5,152–56; ... from Equador, id. at 5,156–58 (“ Frozen Warmwater Shrimp Antidumping Duty Orders ”). Because Plaintiffs were not on the ITC's list of potential ADPs, Customs made no CDSOA distributions to Tampa Bay or Singleton.

Plaintiffs claim that Defendants' actions are inconsistent with the CDSOA, not supported by substantial evidence, and otherwise not in accordance with law. Plaintiffs also bring 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. 39 (“ITC's Mot.”)) and Customs (Def. U.S. Customs & Border Protection's Mem. in Supp. of the Mot. to Dismiss for Failure to State a Claim, ECF No. 41 (“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). For the reasons set forth below, we conclude that certain of Plaintiffs' claims must be dismissed as untimely, certain claims must be dismissed for failure to state a claim upon which relief can be granted, and certain claims must be dismissed for lack of standing. Therefore, the motions to dismiss will be granted and this action dismissed.

I. Background

Following a 2003 petition filed by Ad Hoc Shrimp Trade Action Committee, Veraggi Shrimp Corporation, and Indian Ridge Shrimp Co., the U.S. Department of Commerce (“Commerce”) initiated an antidumping investigation of certain frozen and canned warmwater shrimp from Brazil, Ecuador, India, the People's Republic of China, the Socialist Republic of Vietnam, and Thailand. Notice of Initiation of Antidumping Duty Investigations: Certain Frozen and Canned Warmwater Shrimp From Brazil, Ecuador, India, Thailand, the People's Republic of China and the Socialist Republic of Vietnam, 69 Fed.Reg. 3,876 (Jan. 27, 2004); First Am. Compl. (“Am.Compl.”) ¶¶ 23–24, ECF No. 36. Contemporaneously, the ITC conducted an injury investigation. Certain Frozen and Canned Warmwater Shrimp and Prawns From Brazil, China, Ecuador, India, Thailand, and Vietnam; Institution of Antidumping Investigations and Scheduling of Prelim. Phase Investigations, 69 Fed.Reg. 1,301 (Jan. 8, 2004); Am. Compl. ¶ 23. During its injury investigation, the ITC sent questionnaires to the domestic industry that ask domestic producers to, inter alia, identify their position regarding the petition by checking one of three boxes indicating either support, opposition, or no position. Each Plaintiff filed responses but did not check the box indicating support for the petition on the questionnaire, and they explain that they may not have checked any of the three boxes. Pls.' Mem. in Opp'n to the Mot. of the U.S. Int'l Trade Comm'n to Dismiss for Failure to State a Claim at 3, ECF No. 44 (“Pls.' Opp'n”).

Following an affirmative injury determination on frozen shrimp by the ITC in January 2005, Commerce published its amended final determinations of sales at less than fair value and issued the antidumping duty orders covering the subject merchandise. Certain Frozen or Canned Warmwater Shrimp and Prawns From Brazil, China, Ecuador, India, Thailand, and Vietnam, 70 Fed.Reg. 3,943 (Jan. 27, 2005) (ITC final inj. determ.); Frozen Warmwater Shrimp Antidumping Duty Orders; Am. Compl. ¶¶ 27–28. Commerce since has revoked the antidumping duty order against Ecuador; however, the order remains in effect for the other countries. Implementation of the Findings of the WTO Panel in United States Antidumping Measure on Shrimp from Ecuador: Notice of Determination Under section 129 of the Uruguay Round Agreements Act and Revocation of the Antidumping Duty Order on Frozen Warmwater Shrimp from Ecuador, 71 Fed.Reg. 48,257 (Aug. 23, 2007); Am. Compl. ¶ 28.

Plaintiffs brought this action on November 14, 2008, contesting the denial of CDSOA distributions to each Plaintiff for Fiscal Years 2006–2008. Compl., ECF No. 5. Shortly thereafter, the court stayed this action pending a final resolution of other litigation raising the same or similar issues. Order (Dec. 29, 2008), ECF No. 15 (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),¹ which addressed questions also present in this action, the court issued an order directing Plaintiffs to show cause why this action should not be dismissed. Order to Show Cause, Jan. 3, 2011, ECF No. 19. After receiving Plaintiffs' response, the court lifted the stay on this action for all purposes. Order Lifting Stay, Feb. 9, 2011, ECF No. 22. On March 18, 2011, Plaintiffs filed their Amended Complaint.² Am. Compl. Defendants filed motions to dismiss for failure to state a claim upon which relief can be granted on May 2, 2011 (ITC's Mot.) and May 3, 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 plaintiff's favor. Cedars–Sinai Med. Ctr. v. Watkins, 11 F.3d 1573, 1583–84 & n. 13 (Fed.Cir.1993).

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, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). The basis of the court's determination is limited to the facts stated on the face of the complaint, documents appended to the complaint, and documents incorporated in the complaint by reference. See Asahi Seiko Co. v. United States, 33 CIT ––––, ––––, (2009), 2009 WL 3824745, at 4 (citing Allen v. WestPoint–Pepperell, Inc., 945 F.2d 40, 44 (2d Cir.1991)).

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 To be an ADP, a party must meet several criteria, including the requirement that it have been a petitioner, or interested party in support of a petition, with respect to which an antidumping duty or countervailing duty order was...