Gpx International Tire Corp. v. United States ( 2015 )

United States Court of Appeals
for the Federal Circuit
______________________
GPX INTERNATIONAL TIRE CORPORATION,
HEBEI STARBRIGHT TIRE CO., LTD.,
TIANJIN UNITED TIRE & RUBBER
INTERNATIONAL CO., LTD.,
Plaintiffs-Appellants
MINISTRY OF COMMERCE, PEOPLE'S REPUBLIC
OF CHINA,
Plaintiff
v.
UNITED STATES,
Defendant-Appellee
BRIDGESTONE AMERICAS, INC.,
BRIDGESTONE AMERICAS TIRE OPERATIONS,
LLC,
Defendants
TITAN TIRE CORPORATION, UNITED STEEL,
PAPER AND FORESTRY, RUBBER,
MANUFACTURING, ENERGY, ALLIED
INDUSTRIAL AND SERVICE WORKERS
INTERNATIONAL UNION, AFL-CIO-CLC,
Defendants-Appellees
______________________
2014-1188, 2014-1248
______________________
2 GPX INTERNATIONAL TIRE CORP. v. US
Appeals from the United States Court of International
Trade in No. 1:08-cv-00285-JAR, 1:08-cv-00286-JAR, 1:08-
cv-00351-JAR, 1:08-cv-00352-JAR, 1:08-cv-00358-JAR,
1:08-cv-00360-JAR, 1:08-cv-00361-JAR, Judge Jane A.
Restani.
______________________
Decided: March 13, 2015
______________________
JAMES P. DURLING, Curtis, Mallet-Prevost, Colt &
Mosle LLP, Washington, DC, argued for plaintiffs-
appellants GPX International Tire Corporation, Hebei
Starbright Tire Co., Ltd. Also represented by DANIEL L.
PORTER, CHRISTOPHER DUNN, MATTHEW PAUL
MCCULLOUGH, ROSS BIDLINGMAIER, WILLIAM H.
BARRINGER.
MARK B. LEHNARDT, Lehnardt & Lehnardt, LLC, Lib-
erty, MO, for plaintiff-appellant Tianjin United Tire &
Rubber International Co., Ltd.
ALEXANDER V. SVERDLOV, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington DC, argued for defendant-appellee
United States. Also represented by STUART F. DELERY,
JEANNE E. DAVIDSON, FRANKLIN E. WHITE, JR.; JOHN D.
MCINERNEY, DANIEL JOSEPH CALHOUN, DEVIN S. SIKES,
Office of the Chief Counsel for Trade Enforcement &
Compliance, United States Department of Commerce,
Washington, DC.
ELIZABETH DRAKE, Stewart and Stewart, Washington,
DC, argued for defendants-appellees Titan Tire Corpora-
tion, United Steel, Paper and Forestry, Rubber, Manufac-
turing, Energy, Allied Industrial and Service Workers
GPX INTERNATIONAL TIRE CORP. v. US 3
International Union, AFL-CIO-CLC. Also represented by
TERENCE PATRICK STEWART, PATRICK JOHN MCDONOUGH.
______________________
Before DYK, O’MALLEY, and TARANTO, Circuit Judges.
Opinion for the court filed by Circuit Judge DYK.
Concurring opinion filed by Circuit Judge O’MALLEY.
DYK, Circuit Judge.
GPX International Tire Corp. and Hebei Starbright
Tire Co., Ltd. (collectively, “GPX”) appeal a Court of
International Trade (“Trade Court”) decision upholding
the Department of Commerce’s (“Commerce”) imposition
of both antidumping and countervailing duties. Com-
merce acted pursuant to a 2012 law that overruled this
court’s decision in GPX International Tire Corp. v. United
States, 666 F.3d 732 (Fed. Cir. 2011) (“GPX I”), reh’g
granted, 678 F.3d 1308 (Fed. Cir. 2012) (“GPX II”), and
permitted Commerce to impose countervailing duties with
respect to non-market economy (“NME”) countries retro-
actively to proceedings initiated on or after November 20,
2006. Because the new law does not violate the Ex Post
Facto Clause of Article I, Section 9 of the U.S. Constitu-
tion or the Due Process Clause of the Fifth Amendment to
the U.S. Constitution, we affirm.
BACKGROUND
Much of the background relevant to this case is re-
counted in this court’s prior decisions in GPX I and
Guangdong Wireking Housewares & Hardware Co. v.
United States, 745 F.3d 1194 (Fed. Cir. 2014) (“Wire-
king”).
Under the Tariff Act of 1930, as amended, Commerce
may impose two types of duties on imports that injure
domestic industries: (1) antidumping duties on goods “sold
4 GPX INTERNATIONAL TIRE CORP. v. US
in the United States at less than . . . fair value,” 19 U.S.C.
§ 1673; and (2) countervailing duties on goods that receive
a “countervailable subsidy” from a foreign government, id.
§ 1671(a).
For goods imported from market economy countries,
Commerce may impose both antidumping and counter-
vailing duties. Until recently, Commerce maintained that
it could not impose countervailing duties on imports from
NME countries—focusing on Soviet bloc countries—
because of the difficulty in calculating countervailing
subsidies in those countries. See GPX I, 666 F.3d at 735.
This longstanding Commerce position was upheld by this
court in Georgetown Steel Corp. v. United States, 801 F.2d
1308, 1314–18 (Fed. Cir. 1986), as not being contrary to
the statute. Thereafter, Congress ratified Commerce’s
prior position by amending and reenacting the counter-
vailing duty statute in 1988 and 1994. See GPX I, 666
F.3d at 738–39.
Beginning on November 20, 2006, however, Com-
merce indicated that it was considering taking a new
position by applying countervailing duties to imports from
China, a NME country. See Notice of Initiation of Coun-
tervailing Duty Investigations: Coated Free Sheet Paper
from the People’s Republic of China, Indonesia, and the
Republic of Korea, 71 Fed. Reg. 68,546, 68,549 (Dep’t of
Commerce Nov. 27, 2006) (“Given the complex legal and
policy issues involved, and on the basis of the Depart-
ment’s discretion as affirmed in Georgetown Steel, the
Department intends during the course of this investiga-
tion to determine whether the countervailing duty law
should now be applied to imports from [China].”). And on
March 29, 2007, Commerce issued a memorandum stating
that “the Department’s policy that gave rise to the
Georgetown Steel litigation does not prevent us from
concluding that the [Chinese] Government has bestowed a
countervailable subsidy upon a Chinese producer.” Coun-
GPX INTERNATIONAL TIRE CORP. v. US 5
tervailing Duty Investigation of Coated Free Sheet Paper
from the People’s Republic of China—Whether the Ana-
lytical Elements of the Georgetown Steel Opinion Are
Applicable to China’s Present-Day Economy (Mar. 29,
2007), available at http://ia.ita.doc.gov/download/nme-sep-
rates/prc-cfsp/china-cfs-georgetown-applicability.pdf
(“Georgetown Steel Memo”).
In this case, on June 18, 2007, following the
Georgetown Steel Memo, several domestic tire manufac-
turers petitioned Commerce to impose both antidumping
and countervailing duties on certain Chinese tires. See
Certain New Pneumatic Off-the-Road Tires from the
People’s Republic of China: Initiation of Countervailing
Duty Investigation, 72 Fed. Reg. 44,122 (Dep’t of Com-
merce Aug. 7, 2007). On July 15, 2008, Commerce issued
its final countervailing duty determination. Certain New
Pneumatic Off-the-Road Tires from the People’s Republic
of China: Final Affirmative Countervailing Duty Deter-
mination and Final Negative Determination of Critical
Circumstances, 73 Fed. Reg. 40,480 (Dep’t of Commerce
July 15, 2008).
On September 9, 2008, GPX challenged Commerce’s
countervailing duty determination at the Trade Court,
which ultimately remanded to Commerce with instruc-
tions to forgo imposition of countervailing duties because
“it is too difficult for Commerce to determine . . . whether
and to what degree double counting is occurring.” GPX
Int’l Tire Corp. v. United States, 715 F. Supp. 2d 1337,
1346 (Ct. Int’l Trade 2010).
On appeal, we affirmed the Trade Court’s holding that
countervailing duties could not be applied to imports from
NME countries, concluding that Congress had ratified
Commerce’s prior position. See GPX I, 666 F.3d at 745.
Specifically, we found that “when amending and reenact-
ing countervailing duty law in 1988 and 1994, Congress
6 GPX INTERNATIONAL TIRE CORP. v. US
legislatively ratified earlier consistent administrative and
judicial interpretations that government payments cannot
be characterized as ‘subsidies’ in a non-market economy
context, and thus that countervailing duty law does not
apply to NME countries.” Id. at 734.
On March 13, 2012, less than three months after the
release of our decision in GPX I, Congress enacted new
legislation overruling that decision. See An Act to Apply
the Countervailing Duty Provisions of the Tariff Act of
1930 to Nonmarket Economy Countries, and for other
Purposes, Pub. L. No. 112-99, 126 Stat. 265 (2012) (codi-
fied at 19 U.S.C. §§ 1671, 1677f-1) (the “new law”). The
new law authorizes the imposition of countervailing
duties on NME countries both prospectively and retro-
spectively, applying to “all proceedings initiated . . . on or
after November 20, 2006.” 126 Stat. at 265 § 1(a); see also
Wireking, 745 F.3d at 1197 & n.1. When antidumping
and countervailing duties imposed on the same goods
double count for the same unfair trade advantage, the
new law adjusts for double counting prospectively to
proceedings initiated after March 13, 2012, but not retro-
spectively. Wireking, 745 F.3d at 1197–98.
We granted rehearing of GPX I and in a supplemental
opinion we recognized that “Congress clearly sought to
overrule our decision in GPX [I].” GPX II, 678 F.3d at
1311. We remanded the case to the Trade Court “for a
determination of the constitutionality of the new legisla-
tion . . . .” Id. at 1313. On remand, the Trade Court
rejected challenges to the new law under, inter alia, the
Ex Post Facto Clause and the Due Process Clause of the
U.S. Constitution. GPX Int’l Tire Corp. v. United States,
893 F. Supp. 2d 1296, 1334 (Ct. Int’l Trade 2013). GPX
appeals the Trade Court’s determinations under the Ex
Post Facto Clause and Due Process Clause.
GPX INTERNATIONAL TIRE CORP. v. US 7
We have jurisdiction pursuant to 28 U.S.C.
§ 1295(a)(5). We review questions of constitutional or
statutory interpretation de novo. Ashley Furniture In-
dus., Inc. v. United States, 734 F.3d 1306, 1309 (Fed. Cir.
2013) (citations omitted).
DISCUSSION
I
While this appeal was pending, we decided Wireking,
holding that the new law, while retroactive, was not
punitive and did not violate the Ex Post Facto Clause.
745 F.3d at 1207. In Wireking, we examined the new law
under the Supreme Court’s framework for determining
whether a civil law is punitive as articulated in Smith v.
Doe I, 583 U.S. 84 (2003). See Wireking, 745 F.3d at
1202–03 (citing Smith, 538 U.S. at 92). We found that the
new law was remedial, rather than punitive, and there-
fore did not violate the Ex Post Facto Clause. See id. at
1204–07. GPX acknowledges that “Wireking found the
[new law] to be non-punitive, and not subject to the Ex
Post Facto Clause,” Reply Br. 23, but continues to argue
that “[p]articularly with regard to these Appellants, the
long period of retroactivity makes the retroactive duties
especially punitive and thus unconstitutional” under the
Ex Post Facto Clause. Reply Br. 29.
Contrary to GPX’s contentions, the holding in Wire-
king was not fact-specific, and any alleged factual distinc-
tions are irrelevant to the ex post facto analysis. We held
that “[t]he predominant effect of the new law is remedial,”
and that the outcome did not depend on the facts of a
particular case, referring to the new law’s “remedial effect
generally.” 745 F.3d at 1207 (emphasis added). Thus,
whether “this particular case involves an excessive period
of retroactivity,” Reply Br. 24, does not alter the ex post
facto analysis, and GPX’s ex post facto challenge is fore-
closed by Wireking.
8 GPX INTERNATIONAL TIRE CORP. v. US
II
GPX also argues that the new law violates the Due
Process Clause because it operates retroactively. The
government responds that “legislation cannot implicate
the due process clause unless it disturbs a vested right,”
Appellee’s Br. 15 (citations omitted), and that GPX’s due
process challenge is therefore foreclosed at the outset by
its failure to establish a vested right in this case. Accord-
ing to the government, GPX has no vested right to the
countervailing duty deposits here because they could not
have a vested right in a particular rate of duty.
Contrary to the government, we do not think that the
outcome of the due process analysis depends upon a
determination that a vested right exists. None of the
Supreme Court cases that the government relies on for
this proposition, nor any decision of this court, establishes
such a threshold test. While a vested right analysis
(looking to “whether the new provision attaches new legal
consequences to events completed before its enactment,”
Landgraf v. USI Film Prods., 511 U.S. 244, 270 (1994))
may be relevant to the due process analysis, it is not a
threshold test. See United States v. Carlton, 512 U.S. 26,
33 (1994); Landgraf, 511 U.S. at 273–74; see also Weaver
v. Graham, 450 U.S. 24, 29–30 (1981) (“Evaluating
whether a right has vested is important for claims under
the Contracts or Due Process Clauses, which solely pro-
tect pre-existing entitlements.” (citations omitted)). 1
1 GPX argues that it has a vested right to its coun-
tervailing duty cash deposits in this case, which would
have automatically liquidated in September 2009 but for
GPX’s challenge to the government’s authority to collect
countervailing duties in the first place. We see no signifi-
GPX INTERNATIONAL TIRE CORP. v. US 9
In determining whether the Due Process Clause has
been violated, “the strong deference accorded legislation
in the field of national economic policy is no less applica-
ble when that legislation is applied retroactively.” Pen-
sion Benefit Guar. Corp. v. R.A. Gray & Co., 467 U.S. 717,
729 (1984). Thus, due process is satisfied “simply by
showing that the retroactive application of the legislation
is itself justified by a rational legislative purpose.” Id. at
730. Under this deferential standard, “it will be a rare
circumstance where federal legislation that is retroactive
will be held unconstitutional under the Due Process
Clause.” Commonwealth Edison Co. v. United States, 271
F.3d 1327, 1342 (Fed. Cir. 2001) (en banc). And the
burden is on GPX to establish that Congress lacked a
rational basis for the retroactive application of the new
law. See Usery v. Turner Elkhorn Mining Co., 428 U.S. 1,
15 (1976) (“It is by now well established that legislative
Acts adjusting the burdens and benefits of economic life
come to the Court with a presumption of constitutionality,
and that the burden is on one complaining of a due pro-
cess violation to establish that the legislature has acted in
an arbitrary and irrational way.” (citations omitted)).
In a number of cases, the Supreme Court has rejected
due process challenges to retroactive statutes with fea-
tures similar to the new law here. See Carlton, 512 U.S.
at 31–35 (upholding a retroactive tax against a due pro-
cess challenge because the amendment at issue “was
adopted as a curative measure,” when “Congress acted to
correct what it reasonably viewed as a mistake in the
original . . . provision”); Gen. Motors Corp. v. Romein, 503
U.S. 181, 184–86, 191 (1992) (upholding against a due
process challenge a 1987 statute, which overturned a
cance for the due process analysis in the delay in liquida-
tion of the cash deposits.
10 GPX INTERNATIONAL TIRE CORP. v. US
1985 decision of the Michigan Supreme Court, that ap-
plied retroactively to require payment of employment
benefits back to 1981; it was “a rational means of meeting
th[e] legitimate objective” of “correct[ing] the unexpected
results of the Michigan Supreme Court’s . . . opinion”); see
also Commonwealth Edison, 271 F.3d at 1344–45 (listing
“more than ten occasions” in which the Supreme Court
rejected due process challenges to retroactive statutes).
The Supreme Court has articulated five considera-
tions that are relevant to the rational basis analysis here
under the Due Process Clause: (1) whether the retroactive
provision is “wholly new,” United States v. Hemme, 476
U.S. 558, 568 (1986); (2) whether the retroactive action
resolves uncertainty in the law, see Romein, 503 U.S. at
184–85, 191–92; (3) the length of the period of retroactivi-
ty, see Carlton, 512 U.S. at 32–33; (4) whether the affected
party had notice of the potential change prior to the
conduct that was retroactively regulated, see Pension
Benefit, 467 U.S. at 731–32; and (5) whether the retroac-
tive provisions are remedial in nature, see Romein, 503
U.S. at 191. In this case, at least four of these considera-
tions (excluding the length of the retroactive effect) weigh
heavily against finding a due process violation.
First, contrary to GPX’s assertion, the new law here is
not “wholly new.” Hemme, 476 U.S. at 568. Hemme
distinguished a “wholly new tax” from “amendments that
bring about certain changes in operation of the tax laws.”
See id.; see also Carlton, 512 U.S. at 27, 34 (noting that
“[t]he amendment at issue here [retroactively limiting the
availability of a recently added deduction] certainly is not
properly characterized as a ‘wholly new tax’”). As we
explained in Wireking, “this law simply extends Com-
merce’s ability to impose countervailing duties to a new
group of importers.” 745 F.3d at 1206 (emphasis added).
Thus, this is not a “wholly new” law, but rather one “that
GPX INTERNATIONAL TIRE CORP. v. US 11
bring[s] about certain changes in operation” of pre-
existing countervailing duties. Hemme, 476 U.S. at 568.
Second, the new law resolved uncertainty in the law
with respect to whether countervailing duties applied to
NME countries. Congress did not retroactively change
the language of an otherwise clear statute, see Hemme,
476 U.S. at 572, nor did it overrule a final interpretation
of a federal statute by the United States Supreme Court.
When Commerce initiated this countervailing duty inves-
tigation in late 2007, the state of the law with respect to
countervailing duties was unclear. As we explained in
GPX I, Georgetown Steel itself was unclear. See GPX I,
666 F.3d at 738–39 (explaining that “we do not find the
statute to be clear on its face” and that “Georgetown Steel
could perhaps be interpreted as resting on Chevron”).
And even if we look to our opinion in GPX I as a clear
statement of the law at the time, it was only clear for a
matter of days before Congress overturned it, and there is
no suggestion that any action here was taken in reliance
on GPX I.
Moreover, even if there were action taken in reliance
during the interim three months, GPX I was not the final
word given the possibility of Supreme Court review, so the
parties could not reasonably rely on GPX I as the final
resolution of the subject. Thus, by passing the new law,
Congress acted promptly to adopt a “curative measure,”
“to correct what it reasonably viewed as a mistake in the
original . . . provision . . . .” Carlton, 512 U.S. at 26, 31–
32. The retroactive effect serves the legitimate govern-
ment purpose of “correct[ing] the unexpected results” of
our decision in GPX I. Romein, 503 U.S. at 191; see also
Graham v. Goodcell, 282 U.S. 409, 427 (1931) (“[D]efects
in the administration of the law may be cured by subse-
quent legislation without encroaching upon constitutional
right . . . .”).
12 GPX INTERNATIONAL TIRE CORP. v. US
Third, while the period of retroactivity in this case is
substantial, it is shorter than that in other cases where
the Supreme Court has rejected due process challenges.
In this case, the new law applies retroactively for a period
of a little over five years, from March 13, 2012, the date of
enactment, to November 20, 2006, the earliest date to
which the new law applies. Even longer periods have
been held not to violate due process. See Romein, 503
U.S. at 184–86 (approximately six years of retroactive
effect); United States v. Heinszen & Co., 206 U.S. 371,
378, 382, 386 (1907) (approximately seven years of retro-
active effect).
Fourth, GPX clearly had notice that Commerce would
apply countervailing duties to NMEs prior to the imports
in this case. The imports that are subject to the retroac-
tive countervailing duties here all occurred after GPX had
notice of the change in government policy. GPX had
notice of the possible change as early as November 20,
2006, when Commerce first indicated that it was consider-
ing applying countervailing duties to imports from China.
See 71 Fed. Reg. at 68,549. The new law is retroactive
only to proceedings initiated after that date. Commerce
thereafter continued to reiterate its view on March 29,
2007, when Commerce announced the change of policy in
the Georgetown Steel Memo. And GPX most certainly had
notice that Commerce would apply countervailing duties
to its imports no later than August 7, 2007, when Com-
merce first initiated this countervailing duty investiga-
tion. All of these dates are prior to December 17, 2007,
the earliest date of the imports here. Thus, GPX had
notice of a possible change in government policy before it
imported the goods at issue, and before any adverse
government action was taken.
Even if GPX had lacked notice of the new law and
detrimentally relied on the prior state of the law, these
factors are not dispositive of the due process analysis.
GPX INTERNATIONAL TIRE CORP. v. US 13
The retroactive tax in Carlton did not violate due process
even though the challenger “specifically and detrimentally
relied” on the prior state of the law, and even though the
challenger did not have prior notice of the change in the
law. See Carlton, 512 U.S. at 33–34; see also Usery, 428
U.S. at 16, 18 (upholding a retroactive law even though “it
may be that the liability imposed by the Act for disabili-
ties suffered by former employees was not anticipated at
the time of actual employment”).
Finally, the new law is directed to the remedial ad-
ministration of trade duties, as opposed to raising gov-
ernment revenue. Trade statutes, such as the new law,
are designed to be remedial and to preserve American
industry. See Norwegian Nitrogen Prods. Co. v. United
States, 288 U.S. 294, 318 (1933) (“No one has a legal right
to the maintenance of an existing rate or duty.”); see also
Wireking, 745 F.3d at 1205 (“It is well established that
antidumping and countervailing duty laws are remedial
in nature.”). Although trade duties are forward-looking in
part, the government also has a clear interest in fashion-
ing a remedy for damaging past acts, “level[ing] the
playing field for particular American manufacturers,” and
“remedy[ing] the harm American manufacturers and their
workers experience as a result of unfair trade practices.”
Wireking, 745 F.3d at 1206. The remedial aspect of the
new law is not merely forward-looking, but the imposition
of duties is remedial in eliminating past advantages
enjoyed by the importers.
Companies, such as GPX, that operate in the highly
regulated field of international trade can expect some
retroactive liability, even if the remedial legislation were
“severely retroactive” (which the new law is not). Com-
monwealth Edison, 271 F.3d at 1346, 1348
(“[P]articipants in [a] highly regulated field can expect
liability for remediation costs.”). Moreover, with respect
to trade duties, imports always occur with uncertainty as
14 GPX INTERNATIONAL TIRE CORP. v. US
to the extent of final duties. See Parkdale Int’l v. United
States, 475 F.3d 1375, 1376 (Fed. Cir. 2007) (“While
liability to pay dumping duties accrues upon entry of
subject merchandise, the actual duty is not formally
determined until after entry, and not paid until the goods
are liquidated by [Customs].” (citations omitted)); see also
N. Am. Foreign Trading Corp. v. United States, 783 F.2d
1031, 1032 (Fed. Cir. 1986) (“No vested right to a particu-
lar classification or rate of duty or preference is acquired
at the time of importation.” (citations omitted)).
In the few cases where the Supreme Court has invali-
dated retroactive statutes under the Due Process Clause,
the challenged laws were “most unusual,” Commonwealth
Edison, 271 F.3d at 1342, and in many instances have
been called into question by later Supreme Court deci-
sions. See Carlton, 512 U.S. at 34 (Earlier “cases were
decided during an era characterized by exacting review of
economic legislation under an approach that has long
since been discarded.” (citation and quotation omitted));
see also Pension Benefit, 467 U.S. at 733 (questioning
whether Railroad Retirement Board v. Alton Railroad Co.,
295 U.S. 330 (1935), which invalidated a retroactive
pension statute, “retains vitality” (citation omitted)). In
any event, each of these cases involved the retroactive
creation of a wholly new statute, a prolonged period of
retroactivity, and a total lack of notice at the time of the
conduct being regulated or taxed. See, e.g., E. Enters. v.
Apfel, 524 U.S. 498, 549 (1998) (Kennedy, J., concurring)
(Justice Kennedy would have invalidated on due process
grounds a statute that had retroactive effects based solely
on a company’s roster of employees approximately thirty-
five years prior to the statute’s enactment); Blodgett v.
Holden, 275 U.S. 142, 147 (1927) (retroactive imposition
of a new gift tax without even “the slightest” notice to the
taxpayer violated due process); Nichols v. Coolidge, 274
U.S. 531, 542–43 (1927) (estate tax with retroactive effect
GPX INTERNATIONAL TIRE CORP. v. US 15
on property “transferred [so many] years ago” that it was
“beyond recall” violated due process); Forbes Pioneer Boat
Line v. Bd. of Comm’rs of Everglades Drainage Dist., 258
U.S. 338, 338–40 (1922) (no indication of notice when a
state legislature sought to retroactively validate the
collection of tolls for a canal); see also Welch v. Henry, 305
U.S. 134, 147 (1938) (“In the cases in which this Court has
held invalid the taxation of gifts made and completely
vested before the enactment of the taxing statute, decision
was rested on the ground that the nature or amount of the
tax could not reasonably have been anticipated by the
taxpayer at the time of the particular voluntary act which
the statute later made the taxable event.” (citations
omitted)); Commonwealth Edison, 271 F.3d at 1342
(collecting cases).
Under these circumstances, we cannot say that the
new law does not rationally relate to the government’s
interest in retroactively remedying the damage from
unfair foreign trade practices. The new law violates
neither the Ex Post Facto Clause nor the Due Process
Clause.
AFFIRMED
United States Court of Appeals
for the Federal Circuit
______________________
GPX INTERNATIONAL TIRE CORPORATION,
HEBEI STARBRIGHT TIRE CO., LTD.,
TIANJIN UNITED TIRE & RUBBER
INTERNATIONAL CO., LTD.,
Plaintiffs-Appellants
MINISTRY OF COMMERCE, PEOPLE'S REPUBLIC
OF CHINA,
Plaintiff
v.
UNITED STATES,
Defendant-Appellee
BRIDGESTONE AMERICAS, INC.,
BRIDGESTONE AMERICAS TIRE OPERATIONS,
LLC,
Defendants
TITAN TIRE CORPORATION, UNITED STEEL,
PAPER AND FORESTRY, RUBBER,
MANUFACTURING, ENERGY, ALLIED
INDUSTRIAL AND SERVICE WORKERS
INTERNATIONAL UNION, AFL-CIO-CLC,
Defendants-Appellees
______________________
2014-1188, 2014-1248
______________________
2 GPX INTERNATIONAL TIRE CORP. v. US
Appeals from the United States Court of International
Trade in No. 1:08-cv-00285-JAR, 1:08-cv-00286-JAR, 1:08-
cv-00351-JAR, 1:08-cv-00352-JAR, 1:08-cv-00358-JAR,
1:08-cv-00360-JAR, 1:08-cv-00361-JAR, Judge Jane A.
Restani.
______________________
O’MALLEY, Circuit Judge, concurring.
I continue to believe, as discussed in my concurrence
in Guangdong Wireking Housewares v. United States, 745
F.3d 1194, 1209–11 (Fed. Cir. 2014) (O’Malley, J., concur-
ring in the result), that Pub. L. No. 112-99, 126 Stat. 265
(2012) (“the Act”), did not effect a retroactive change in
the law. GPX challenges the retroactive application of the
Act under the Due Process Clause of the Fifth Amend-
ment. Because GPX does not challenge the prospective
application of the Act, and because, in my view, the Act
does not operate retroactively, I do not believe we need to
consider whether the Act violates the Due Process Clause.
Because we are bound by the determination in Guang-
dong that the Act does apply retroactively, I agree with
the majority that we must proceed to consider the due
process question. And I agree with the majority that
Congress had a rational basis upon which to justify retro-
active application of the Act.