United Synthetics, Inc. v. United States
| Decision Date | 20 April 2012 |
| Citation | 844 F.Supp.2d 1310,34 ITRD 1435 |
| Parties | UNITED SYNTHETICS, INCORPORATED, 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 |
OPINION TEXT STARTS HERE
Gregory S. Menegaz and J. Kevin Horgan, deKieffer & Horgan, of Washington, DC for Plaintiff United Synthetics, Incorporated.
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.
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 United Synthetics, Incorporated (“USI”) 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under the Continued Dumping and Subsidy Offset Act of 2000 (“CDSOA” or “Byrd Amendment”), 19 U.S.C. § 1675c (2000), repealed by Deficit Reduction Act of 2005, Pub.L. 109–171, § 7601(a), 120 Stat. 4, 154 (Feb. 8, 2006; effective Oct. 1, 2007).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 its list of parties potentially eligible for “affected domestic producer” (“ADP”) status, which would have qualified USI for distributions of antidumping duties collected under antidumping orders on imports of certain polyester staple fiber (“PSF”) from Korea and Taiwan. Certain Polyester Staple Fiber from Korea and Taiwan, Inv. No. 731–TA–825–826 (Final), USITC Pub. 3300 (May 2000) (“ Final Injury Determination ”); 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 USI.
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 under 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 Mem. in Supp. of Its Mot. to Dismiss for Failure to State a Claim, ECF No. 44 (“ITC's Mot.”)) and Customs (Defs. the United States and U.S. Customs and Border Protection's Mem. in Support of Their Mot. to Dismiss for Failure to State a Claim upon Which Relief Can Be Granted, ECF No. 47 (“Customs' Mot.”)). The court has jurisdiction pursuant to 28 U.S.C. § 1581(i) (2006). SeeFurniture 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 Plaintiff has failed 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.
Following a 1999 petition filed by a group of domestic manufacturers, the U.S. Department of Commerce (“Commerce”) initiated an antidumping investigation of PSF from 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); Am. Compl. ¶ 22, ECF No. 17. Contemporaneously, the ITC conducted an injury investigation. Certain Polyester Staple Fibers from Korea and Taiwan, 64 Fed.Reg. 17,414 (ITC Apr. 9, 1999); Am. Compl. ¶ 22.
Following an affirmative injury determination 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; Am. Compl. ¶ 26. The antidumping duty orders remain in effect. Am. Compl. ¶ 26. Plaintiff alleges that “USI did not exist at the time that the petition was filed or during the original investigation,” and that “USI was incorporated September 1, 1999 and began operations as a U.S. manufacturer of subject polyester staple fiber May 30, 2000,” five days after publication of the antidumping duty orders. Id. ¶ 23.
Plaintiff commenced this action on April 18, 2008, contesting the denial of CDSOA distributions to Plaintiff for Fiscal Years 2006 and 2007. Compl., ECF No. 4. 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. 12 ().
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), cert. denied,––– U.S. ––––, 130 S.Ct. 3273, 176 L.Ed.2d 1182 (2010) ( “SKF II ”), 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. 16. On February 1, 2011, Plaintiff filed its Amended Complaint.1 Am. Compl. After receiving Plaintiff's response to the Order to Show Cause, the court lifted the stay on this action for all purposes. Order Lifting Stay, Feb. 9, 2011, ECF No. 20. 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 6, 2011 (Customs' Mot.).
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, 1584 & 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) (internal citation and footnote omitted). “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).
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).2 To be an ADP, a party must meet several criteria, including the requirement that it have been a petitioner, or an interested party in support of a petition with respect to which an antidumping duty or countervailing duty order was entered. Id. § 1675c(b)(1) (“petition support requirement”). 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). The CDSOA further directed that:
[i]n those cases in which a determination of injury was not required or the Commission's records do not permit an identification of those in support of a petition, the Commission shall consult with the administering authority [Commerce] to determine the identity of the petitioner and those domestic parties who have entered appearances during administrative reviews conducted by the administering authority under section 1675 of this title.
19 U.S.C. § 1675c(d)(1) (“consultation provision”). Customs then 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 met the remaining eligibility criteria. Id. § 1675c(d)(2).
The ITC compiled lists of potential ADPs with respect to the antidumping duty orders on PSF and provided those lists to Customs. Am. Compl. ¶ 33. Customs published the lists of potential ADPs for Fiscal Year 2006 on June 1, 2006, id., and for Fiscal Year 2007 on May 29, 2007, id. ¶ 34. Plaintiff did not appear on either list. Id. ¶¶ 33–34. Nev...
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