Schaeffler Group USA, Inc. v. United States , 804 F.3d 1191 ( 2015 )

United States Court of Appeals
for the Federal Circuit
______________________
SCHAEFFLER GROUP USA, INC.,
Plaintiff-Appellant
v.
UNITED STATES, UNITED STATES CUSTOMS
AND BORDER PROTECTION, INTERNATIONAL
TRADE COMMISSION, THE TIMKEN COMPANY,
MPB CORPORATION,
Defendants-Appellees
______________________
2012-1269
______________________
Appeal from the United States Court of International
Trade in Nos. 06-CV-0432, 07-CV-0064, 07-CV-0477, 08-
CV-0387, 10-CV-0048, Judge Gregory W. Carman.
______________________
ON PETITION FOR REHEARING EN BANC
______________________
MAX FRED SCHUTZMAN, Grunfeld Desiderio Lebowitz
Silverman & Klestadt LLP, New York, NY, filed a petition
for rehearing en banc for plaintiff-appellant. Also repre-
sented by ANDREW THOMAS SCHUTZ, KAVITA MOHAN,
Washington, DC.
MARTIN M. TOMLINSON, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, filed a response to the petition
2 SCHAEFFLER GROUP USA, INC. v. US
for defendants-appellees United States, United States
Customs and Border Protection. Also represented by
BENJAMIN C. MIZER, JEANNE E. DAVIDSON, FRANKLIN E.
WHITE, JR.; JESSICA MILLER, SUZANNA HARTZELL-
BALLARD, Office of Assistant Chief Counsel, United States
Customs and Border Protection, Indianapolis, IN.
PATRICK VINCENT GALLAGHER, JR., Office of the Gen-
eral Counsel, International Trade Commission, Washing-
ton, DC, filed a response to the petition for defendant-
appellee International Trade Commission. Also repre-
sented by ROBIN LYNN TURNER, JAMES M. LYONS, NEAL J.
REYNOLDS.
TERENCE PATRICK STEWART, Stewart & Stewart,
Washington, DC, for defendants-appellees The Timken
Company, MPB Corporation, filed a response to the
petition. Also represented by GEERT M. DE PREST,
PATRICK JOHN MCDONOUGH.
______________________
Before PROST, Chief Judge, NEWMAN, LOURIE, DYK,
MOORE, O’MALLEY, WALLACH, CHEN, and STOLL, Circuit
Judges. ∗
LOURIE, Circuit Judge, dissents from the denial of the
petition for rehearing en banc without opinion.
WALLACH, Circuit Judge, dissents from the denial of the
petition for rehearing en banc.
PER CURIAM.
∗
Circuit Judges Reyna, Taranto, and Hughes did
not participate.
SCHAEFFLER GROUP USA, INC. v. US 3
ORDER
A petition for rehearing en banc was filed by appel-
lant Schaeffler Group USA, Inc., and responses thereto
were invited by the court and filed by the appellees. The
petition for rehearing and responses were referred to the
panel that heard the appeal, and thereafter, to the circuit
judges who are in regular active service. A poll was re-
quested, taken, and failed.
Upon consideration thereof,
IT IS ORDERED THAT:
The petition for panel rehearing is denied.
The petition for rehearing en banc is denied.
The mandate of the court will issue on November 6,
2015.
FOR THE COURT
October 30, 2015 /s/ Daniel E. O’Toole
Date Daniel E. O’Toole
Clerk of Court
United States Court of Appeals
for the Federal Circuit
______________________
SCHAEFFLER GROUP USA, INC.,
Plaintiff-Appellant
v.
UNITED STATES, UNITED STATES CUSTOMS
AND BORDER PROTECTION, INTERNATIONAL
TRADE COMMISSION, THE TIMKEN COMPANY,
MPB CORPORATION,
Defendants-Appellees
______________________
2012-1269
______________________
Appeal from the United States Court of International
Trade in Nos. 06-CV-0432, 07-CV-0064, 07-CV-0477, 08-
CV-0387, 10-CV-0048, Judge Gregory W. Carman.
______________________
WALLACH, Circuit Judge, dissenting from the denial of the
petition for rehearing en banc.
Today, the court compounds an error that it first
committed over six years ago when it held that the peti-
tion support requirement in the Byrd Amendment did not
offend the First Amendment of the Constitution. See SKF
USA, Inc. v. U.S. Customs & Border Prot., 556 F.3d 1337
(Fed. Cir. 2009). The court has repeated this transgres-
sion several times in recent years, enshrining impermis-
sible favoritism of a particular political viewpoint at the
expense of others. See Giorgio Foods, Inc. v. United
States, 785 F.3d 595, 600–04 (Fed. Cir. 2015) (relying
2 SCHAEFFLER GROUP USA, INC. v. US
upon SKF in reaching its decision); Schaeffler Grp. USA,
Inc. v. United States, 786 F.3d 1354, 1358–64 (Fed. Cir.
2015) (same); Pat Huval Rest. & Oyster Bar, Inc. v. Int’l
Trade Comm’n, 785 F.3d 638, 643–47 (Fed. Cir. 2015)
(same); Tampa Bay Fisheries, Inc. v. United States, 609 F.
App’x 637, 641–43 (Fed. Cir. 2015) (same); Ashley Furni-
ture Indus., Inc. v. United States, 734 F.3d 1306, 1309–12
(Fed. Cir. 2013) (same); PS Chez Sidney, LLC v. U.S. Int’l
Trade Comm’n, 409 F. App’x 327, 328–29 (Fed. Cir. 2010)
(same). But see Agency for Int’l Dev. v. All. for Open Soc’y
Int’l, Inc., 133 S. Ct. 2321, 2330 (2013) (holding that the
Government transgressed the First Amendment when it
required that “funding recipients adopt—as their own—
the Government’s view of an issue of public concern”);
FCC v. League of Women Voters, 468 U.S. 364, 414 n.6
(1984) (Stevens, J., dissenting) (“‘[T]he First Amendment
forbids the government to regulate speech in ways that
favor some viewpoints or ideas at the expense of others.’”
(quoting City Council of L.A. v. Taxpayer for Vincent, 466
U.S. 789, 804 (1984))). At this point, the court’s jurispru-
dence has evolved to “prize[] form over substance,” leaving
a direct conflict from which logic cannot recover. Giorgio
Foods, 785 F.3d at 608 (Reyna, J., dissenting) (“[T]he SKF
case and the majority opinion are in direct conflict and
irreconcilable.”).
The court should overrule SKF, not only because it
reached the wrong result, but also because it did so only
by producing an untenable savings construction. Instead,
we permit its error to persist as law, as well as reduce a
complicated and constitutionally core inquiry about
government control of protected speech into an exercise
that asks only whether someone checked a particular box,
with no judicial suspicion that real life might mandate a
different result. Because no principled construction can
cure the petition support requirement of its constitutional
infirmity, I respectfully dissent from the denial of the
petition for rehearing en banc.