Ps Chez Sidney, L.L.C. v. U.S. International Trade Commission ( 2012 )

United States Court of Appeals
for the Federal Circuit
__________________________
PS CHEZ SIDNEY, L.L.C.,
Plaintiff-Appellee,
v.
UNITED STATES INTERNATIONAL TRADE
COMMISSION,
Defendant-Appellant,
and
UNITED STATES CUSTOMS SERVICE,
Defendant-Appellant,
and
CRAWFISH PROCESSORS ALLIANCE,
Defendant-Appellant,
and
COMMISSIONER BOB ODOM
AND LOUISIANA DEPARTMENT OF
AGRICULTURE AND FORESTRY,
Defendants.
__________________________
2008-1526, -1527, -1534
__________________________
Appeal from the United States Court of International
Trade in case no. 02-00635, Judge Evan J. Wallach.
__________________________
Decided: July 13, 2012
PS CHEZ SIDNEY v. USITC 2
__________________________
MICHAEL T. SHOR, Arnold & Porter, LLP, of Washing-
ton, DC, argued for plaintiff-appellee. With him on the
brief was WILLIAM E. BROWN, of Knoxville, Tennessee. Of
counsel was ERUM Z. MIRZA, Arnold & Porter, LLP, of
Washington, DC.
PATRICK V. GALLAGHER, JR., Office of the General
Counsel, United States International Trade Commission,
of Washington, DC, argued for defendant-appellant
United States International Trade Commission. With
him on the brief were JAMES M. LYONS, General Counsel,
and NEAL J. REYNOLDS, Assistant General Counsel for
Litigation.
FRANKLIN E. WHITE, JR., Assistant Director, Commer-
cial Litigation Branch, Civil Division, United States
Department of Justice, of Washington, DC, argued for
defendant-appellant United States Customs and Border
Protection. With him on the brief were TONY WEST,
Assistant Attorney General, and JEANNE E. DAVIDSON,
Director. Of counsel on the brief was ANDREW G. JONES,
Office of Assistant Chief Counsel, United States Customs
and Border Protection, of Washington, DC.
JOHN C. STEINBERGER, Adduci, Mastriani, & Schaum-
berg, L.L.P., of Washington, DC, argued for defendant-
appellant Crawfish Processors Alliance. With him on the
brief was WILL E. LEONARD.
__________________________
Before RADER, Chief Judge, NEWMAN and REYNA, Circuit
Judges.
REYNA, Circuit Judge.
3 PS CHEZ SIDNEY v. USITC
The now-repealed Continued Dumping and Subsidy
Offset Act of 2000 (the “Byrd Amendment”) allowed
affected domestic producers (“ADPs”) to receive distribu-
tions of antidumping duties collected by the United
States. See Pub. L. No. 106-387, §§ 1001-1003, 114 Stat.
1549, 1549A-72 to -75 (codified at 19 U.S.C. § 1675c
(2000)), repealed by Deficit Reduction Act of 2005, Pub. L.
No. 109-171, § 7601, 120 Stat. 4, 154 (Feb. 8, 2006) (effec-
tive Oct. 1, 2007). PS Chez Sidney, L.L.C. (“Chez Sidney”)
appeals the decision of the United States Court of Inter-
national Trade affirming the determination of the United
States International Trade Commission (“ITC”) that it did
not qualify as an ADP under the Byrd Amendment be-
cause its final questionnaire response indicated that it
“t[ook] no position” regarding the underlying petition. See
PS Chez Sidney, L.L.C. v. Int’l Trade Comm’n (Chez I),
442 F. Supp. 2d 1329, 1331-32 (Ct. Int’l Trade 2006). In
addition, Chez Sidney appeals the affirmance of the
decision of U.S. Customs and Border Protection (“Cus-
toms”) that it was required to make distributions to Chez
Sidney only to the extent that it could recover the funds
from other ADPs. See PS Chez Sidney, L.L.C. v. U.S. Int’l
Trade Comm’n (Chez III), 558 F. Supp. 2d. 1370, 1373 (Ct.
Int’l Trade 2008). Because we conclude that Chez Sidney
is an ADP for the purpose of receiving Byrd Amendment
distributions and that the Byrd Amendment imposes no
conditions on the recovery of such funds, we reverse.
I. BACKGROUND
This case arises out of Chez Sidney’s attempt to ob-
tain Byrd Amendment distributions under an antidump-
ing duty order related to crawfish tail meat. The Byrd
Amendment requires the ITC to send Customs an initial
list of ADPs within 60 days after the issuance of an anti-
dumping duty order. See § 1675c(d)(1). In order to be
included on the list, a domestic producer must have been
PS CHEZ SIDNEY v. USITC 4
either a petitioner or an “interested party in support of
the petition.” Id. § 1675c(b)(1)(A); see also 19 C.F.R.
§ 159.61(b)(1) (2012). Domestic producers can show
support either “by letter or through questionnaire re-
sponse.” See § 1675c(b)(1)(A), (d)(1). Within 60 days of
the end of each fiscal year, Customs makes distributions
to the ADPs on this list that it determines have submitted
timely certifications of qualifying expenditures. See §
1675c(d); 19 C.F.R. § 159.64; see also Distribution of
Continued Dumping and Subsidy Offset to Affected
Domestic Producers, 77 Fed. Reg. 32,718, 32,751-52 (June
1, 2012) (announcing that Customs intends to distribute
Byrd Amendment funds for fiscal year 2012, including
funds related to the Crawfish Tail Meat/China order).
On September 20, 1996, the Crawfish Processors Alli-
ance (“Alliance”) filed a petition with the Department of
Commerce (“Commerce”) alleging dumping of crawfish
tail meat from China. 1 The ITC issued questionnaires to
domestic crawfish producers, including Chez Sidney,
during the preliminary phase of the investigation. In its
completed response, Chez Sidney indicated that it sup-
ported the petition by checking the box labeled “support.”
Although the record contains only two pages of the re-
sponse, it is evident that missing portions of the response
contained substantial information about the U.S. and
Chez Sidney’s crawfish production, as the ITC asks pro-
ducers to supply detailed production, financial, and other
information. After preliminarily determining that there
was an indication of material injury to the domestic
crawfish industry, the ITC sent final questionnaires to 47
firms identified as possible producers, including Chez
Sidney. In its response to the final questionnaire, Chez
1 Chez Sidney was neither a member of the Craw-
fish Processors Alliance nor a named petitioner.
5 PS CHEZ SIDNEY v. USITC
Sidney checked the “take no position” box on whether it
supported the petition and also indicated that it had
completed the questionnaire. The record contains no
indication that Chez Sidney participated in the investiga-
tion in any other way, that it took any action indicating
that it did not support the petition, or that it in any way
opposed the potential imposition of antidumping duties on
imports of crawfish tail meat from China. The ITC sub-
sequently issued an affirmative final determination that
the crawfish tail meat industry in the United States had
been materially injured by virtue of imports of crawfish
tail meat that had been sold in the United States at less
than fair value. Crawfish Tail Meat from China Determi-
nation, 62 Fed. Reg. 49,255 (Sept. 19, 1997). On Septem-
ber 15, 1997, the Department of Commerce issued an
antidumping duty order. Notice of Amendment to Final
Determination of Sales at Less Than Fair Value and
Antidumping Duty Order: Freshwater Crawfish Tail
Meat From the People’s Republic of China, 62 Fed. Reg.
48,218, 42,219 (Sept. 15, 1997).
In October 2000, Congress enacted the Byrd Amend-
ment. Pursuant to § 1675c(d)(1), the ITC provided Cus-
toms with a list of eligible ADPs for each antidumping
duty order then in effect. The list identified the Alliance
as a group of domestic crawfish tail meat producers but
did not list individual members. Nor is it clear from the
record which of the individual members filed question-
naire responses or otherwise checked boxes indicating
support of the petition. The Alliance sent a letter to
Customs identifying the members who sought to be added
to the list, and Customs added most of the members to the
list on June 20, 2002. Customs declined to add six mem-
bers who had neither submitted letters nor responded to
the questionnaires.
PS CHEZ SIDNEY v. USITC 6
In August 2002, Chez Sidney requested that the ITC
add it as an ADP and submitted to Customs its certifica-
tion for a distribution under the Byrd Amendment. The
ITC denied Chez Sidney’s request because Chez Sidney’s
response to the final questionnaire “d[id] not indicate
support for the petition.” J.A. 93. Chez Sidney requested
reconsideration, arguing that the statement of support on
its preliminary response was sufficient. The ITC again
denied the request, stating:
The Commission has reconsidered your
request to add PS Chez Sidney, LLC to the
list of petitioners and other entities sup-
porting petitions in the subject investiga-
tion and again finds that it is
inappropriate to do so. Chez Sidney pro-
vided conflicting statements on its position
with respect to the petition by indicating
support for the petition in the preliminary
phase of the investigation but changing its
position to expressly “take no position” in
the final phase of the investigation. Fur-
ther, as the latter is the latest expressed
position during the original investigation,
under these circumstances the Commis-
sion does not find it to be appropriate to
add Chez Sidney Seafood, Inc. (the com-
pany’s name at the time) to the list.
J.A. 98. Customs likewise denied Chez Sidney’s request
for a Byrd Amendment distribution because the ITC had
not added Chez Sidney to the list of eligible ADPs.
On October 2, 2002, pursuant to 28 U.S.C. § 1581(i),
Chez Sidney filed a complaint with the Court of Interna-
tional Trade challenging the ITC’s determination that
Chez Sidney had not supported the petition. Chez I, 442
7 PS CHEZ SIDNEY v. USITC
F. Supp. 2d at 1335. Chez Sidney immediately moved to
enjoin Customs from making distributions to eligible
parties, but its motion was denied.
Chez Sidney also moved for summary judgment on
the grounds that the “support” requirement of the Byrd
Amendment violated the First Amendment or, in the
alternative, that the ITC had misinterpreted the Byrd
Amendment when it found that Chez Sidney had failed to
satisfy the support requirement. See id. at 1337-38. The
Court of International Trade granted the motion, conclud-
ing that the Byrd Amendment violated the First Amend-
ment. Id. at 1359-60. It declined to resolve the statutory
argument, stating that it would not substitute its judg-
ment for the ITC’s regarding “the factual question of
whether Chez Sidney indicated support for the subject
petition.” Id. at 1332. The court certified the issue for
immediate review and reserved the questions of severabil-
ity and damages. Id. at 1359.
In July 2007, the Court of International Trade ad-
dressed the issues of severability and damages. PS Chez
Sidney, L.L.C. v. U.S. Int’l Trade Comm’n (Chez II), 502
F. Supp. 2d 1318, 1320 (Ct. Int’l Trade 2007). It deter-
mined that the unconstitutional sections of the Byrd
Amendment were severable, id. at 1323, and struck the
support requirement from the definition of an ADP in §
1675c(b)(1)(A) and from the description of the list of ADPs
in § 1675c(d)(1), id. at 1324. It then remanded the matter
to the ITC for a determination of whether, under the new
definition, Chez Sidney qualified to be on the list of ADPs
and, if so, to Customs for a determination of the suffi-
ciency of Chez Sidney’s claims. Id. at 1324-25. It in-
structed Customs to determine “how Chez Sidney [would]
receive its pro rata share, if any,” of the distributions. Id.
at 1325.
PS CHEZ SIDNEY v. USITC 8
On remand, the ITC determined that Chez Sidney
qualified for inclusion on the list of ADPs. 2 Chez III, 558
F. Supp. 2d. at 1373. Customs found that Chez Sidney
was eligible for distributions for fiscal years 2002 and
2003, but that this eligibility was conditional, applying
only “to the extent these funds are either recoverable from
the affected domestic producers who initially received
them or are available in the Special Account.” Id. at
1373-74.
Chez Sidney again appealed to the Court of Interna-
tional Trade, challenging Customs’ remand determination
on three grounds: (1) that the proposed remedy was
inadequate; (2) that Chez Sidney was entitled to pre- and
post-adjustment interest on its pro rata shares; and (3)
that Chez Sidney was entitled to post-2003 fiscal year
Byrd Amendment distributions. The Court of Interna-
tional Trade affirmed, explaining that “Customs’ decision
to . . . follow its internal administrative process to secure
the funds with which to [pay Chez Sidney] is neither
inconsistent with the court’s remand instructions nor
arbitrary and capricious.” Id. at 1375.
2 The procedural history of this case is long and
complex. A more complete account of the history of this
case can be found in the three Court of International
Trade opinions. We have included only those aspects
necessary to our analysis. Here, the ITC’s second deter-
mination—that Chez Sidney was an ADP—was implicitly
reversed by our order of October 28, 2010 summarily
reversing the Court of International Trade’s judgment
with regard to the constitutional issues and ordering Chez
Sidney to submit the first brief. The parties have there-
fore framed the issue as an appeal from the ITC’s original
determination that Chez Sidney was not an ADP, and this
is the perspective from which we view the matter in
writing this opinion.
9 PS CHEZ SIDNEY v. USITC
The ITC, Customs, and the Alliance appealed to this
court, and Chez Sidney cross-appealed. We stayed the
appeals and cross-appeals pending a final decision in SKF
USA, Inc. v. U.S. Customs & Border Protection, 556 F.3d
1337, 1340, 1358-60 (Fed. Cir. 2009) (holding that the
Byrd Amendment’s support requirement was constitu-
tional under both the First Amendment and the Equal
Protection Clause). After the Supreme Court denied
certiorari in SKF, see SKF USA, Inc. v. U.S. Customs &
Border Protection, 130 S. Ct. 3273 (2010), we granted
Chez Sidney’s motion to lift the stay in this case. In
accordance with SKF, we reversed the Court of Interna-
tional Trade’s judgment with respect to the constitutional
issues and dismissed Chez Sidney’s cross-appeal. 3 PS
Chez Sidney, L.L.C. v. U.S. Int’l Trade Comm’n, 409 F.
App’x 327, 329 (Fed. Cir. 2010). With respect to the
statutory issues, we ordered Chez Sidney to submit the
first brief as appellee. This court has jurisdiction under
28 U.S.C. § 1295(a)(5).
II. DISCUSSION
A.
When reviewing a Court of International Trade deci-
sion in an action initiated under 28 U.S.C. § 1581(i), this
court applies the standard of review set forth in 5 U.S.C. §
706. See Consol. Bearings Co. v. United States, 348 F.3d
997, 1004 (Fed. Cir. 2003). Accordingly, we review ques-
tions of law, including the interpretation of statutory
provisions, to determine whether agency actions or con-
clusions are “arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law.” 5 U.S.C. § 706.
3 This opinion does not address the constitutional-
ity of the Byrd Amendment, which was decided in SKF.
556 F.3d at 1360.
PS CHEZ SIDNEY v. USITC 10
We review questions of fact to determine if they are
“unsupported by substantial evidence.” Id. § 706(2)(E).
B.
We must examine whether Chez Sidney was an eligi-
ble ADP given that it filed preliminary and final ques-
tionnaire responses, indicating in its preliminary
questionnaire response that it supported the petition but
stating that it took no position in its final questionnaire
response. Although the Court of International Trade
treated the ITC’s determination of Chez Sidney’s ADP
status as a question of fact, the issue before us—whether
the ITC’s determination was based on a proper interpre-
tation of the Byrd Amendment—is a question of law
which we review de novo. Cf. Bayer AG v. Schein Pharm.,
Inc., 301 F.3d 1306, 1312 (Fed. Cir. 2002). In light of
SKF, we conclude that the ITC’s original determination
that Chez Sidney was not an ADP was contrary to law.
In our review of the ITC’s interpretation of the Byrd
Amendment, we are guided by the Supreme Court’s
decision in Chevron, U.S.A., Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837 (1984). See Ad Hoc
Shrimp Trade Action Comm. v. United States, 596 F.3d
1365, 1368 (Fed. Cir. 2010). The Chevron analysis has
two steps. First, we must determine if there is an ambi-
guity in the statute such that an agency has room to
interpret. If so, then we must determine whether the
agency’s action is a reasonable interpretation of Con-
gress’s intent. Chevron, 467 U.S. at 842-43.
We begin with the question of whether the language
of § 1675c(d) is reasonably susceptible to only one inter-
pretation. Section 1675c(d) requires the ITC to forward to
Customs “a list of persons that indicate support of the
petition by letter or through questionnaire response.” By
its terms, the statute clearly defines “ supporters” as
11 PS CHEZ SIDNEY v. USITC
persons who either submitted letters or responded to
questionnaires. Both the ITC and Customs, however,
contend that § 1675c(d) requires not just the submission
of letters or responses, but also the inclusion of an af-
firmative declaration of support for the petition. But the
statute’s plain language does not require that producers
indicate an expression of support other than through a
letter or by filing a response—it states that supporting
producers are those who submit letters or responses.
In this case, Chez Sidney submitted its response as a
U.S. producer of crawfish tail meat in the preliminary
stage of the investigation. Its response provided informa-
tion sought by the ITC for use in making critical determi-
nations, including standing and “like-product”
determinations. Information provided by Chez Sidney
was used along with other domestic producer information,
such as that of the Alliance, to prepare the ITC staff
report and the ITC’s preliminary injury determination. In
addition, Chez Sidney filed a response in the final phase
of the investigation, providing information used by the
ITC as a basis for its final injury determination. Such
participation by domestic producers is essential to allow
the ITC to successfully complete its investigations.
To the extent that any ambiguity existed in §
1675c(d), it was resolved by the limiting construction of
the Byrd Amendment adopted by this court in SKF. In
SKF, the Court of International Trade held that the
support requirement of § 1675c(b)(1)(A) of the Byrd
Amendment violated the Equal Protection Clause. See
SKF, 556 F.3d at 1346. It also held that the support
requirement was severable, effectively redefining ADPs
from “interested parties in support of a petition” to “inter-
ested parties in a petition.” See id. This potentially
allowed SKF, which had responded to questionnaires but
also had actively opposed the petition, to qualify for over
PS CHEZ SIDNEY v. USITC 12
$1.4 million in Byrd Amendment distributions. See id. at
1346-47.
On appeal, this court focused on SKF’s contention
that “the Byrd Amendment violate[d] the First Amend-
ment because ‘a manufacturer who opposes an investiga-
tion is penalized . . . for expressing its views on the
matter.’” Id. at 1351. We noted that “if this were the
purpose of the Byrd Amendment, it might well render the
statute unconstitutional.” Id. To avoid this result, we
concluded that the Byrd Amendment’s purpose was not to
prohibit opposing views but “to reward injured parties
who assisted government enforcement of the antidumping
laws by initiating or supporting antidumping proceed-
ings.” Id. at 1352, 1353 n.25. This purpose had the
additional benefit of furthering the statute’s stated goals
of strengthening the remedial purpose of the law by
deterring continued dumping after the issuance of anti-
dumping orders. See id.Under this reading, it was necessary to limit the
meaning of the term “support” so that it would not include
the mere abstract expression of support. This raised the
question of whether SKF, which had expressed its opposi-
tion to the petition, was nevertheless a supporter because
it assisted the ITC’s investigation by responding to ques-
tionnaires. We acknowledged that “those supporting a
petition by completing a questionnaire may supply less
assistance than petitioners.” Id. at 1358. However, focus-
ing on the purpose of the statute to reward assistance to
the government, we noted that “ITC questionnaires . . .
are extremely detailed,” and that “the costs of responding
to such questionnaires are substantial.” Id. Thus, in
SKF, we “agree[d] with the Court of International Trade
to the extent that it construed the Byrd Amendment to
permit distributions to those who ‘participated’,” noting
that “[e]ach of the supporters in this case responded to an
13 PS CHEZ SIDNEY v. USITC
ITC questionnaire and thus participated actively in the
proceeding.” Id. at 1353 n.26. On the other hand, “a
party that did no more than submit a bare statement that
it was a supporter without answering questionnaires or
otherwise actively participating would not receive distri-
butions.” Id. at 1353 n.26. By concentrating on the
activities of supporters, we were able to “cabin [the sup-
port requirement’s] scope so that it [did] not reward a
mere abstract expression of support.” Id. at 1353. How-
ever, SKF’s other actions in opposition to the petition
outweighed the assistance it provided by responding to
the questionnaire. See id. at 1359.
Both the ITC and Customs contend that under SKF, a
neutral party cannot be considered a supporter of a peti-
tion:
At best the role of parties opposing (or not
supporting) the petition in responding to
questionnaires is similar to the role of op-
posing or neutral parties in litigation who
must reluctantly respond to interrogato-
ries or other discovery. There is no sug-
gestion that such parties must be favored
by an award of attorney’s fees or other
compensation similar to that given to pre-
vailing plaintiffs who successfully enforce
government policy. It was thus rational
for Congress to conclude that those who
did not support the petition should not be
rewarded.
Id. We are not persuaded. SKF did not address the
proper result when, as here, a producer actively supports
a petition by responding to questionnaires but, by check-
ing a box, expresses in one of its responses that it sup-
ports the petition but in the other that it takes no
PS CHEZ SIDNEY v. USITC 14
position. We conclude that in this circumstance, the
producer qualifies as a supporter. In SKF, we noted that
while a bare statement of support was insufficient, such a
statement would be enough when combined with the
activity of responding to questionnaires. Id. at 1353 n.26.
Because we have construed the Byrd Amendment not to
reward or penalize abstract expression by itself, the same
result would necessarily obtain here, where the producer
submitted two detailed responses, checking the “support”
box in its preliminary response but checking the “take no
position” box in its final response. There is no indication
that Chez Sidney undertook any activity to oppose the
petition or investigation, including checking the “oppose”
box in either of the questionnaire responses.
The legislative history of the Byrd Amendment sup-
ports an inclusive determination of ADPs. As we ob-
served in SKF,
Congressional findings supporting the
Byrd Amendment state that “United
States unfair trade laws have as their
purpose the restoration of conditions of
fair trade” and that “injurious dumping is
to be condemned.” Pub. L. No. 106-387, §
1002, 114 Stat. at 1549A-72; see also 146
Cong. Rec. 23,117 (2000) (statement of
Sen. Byrd) (describing the Byrd Amend-
ment as necessary to “deter unfair trade
practices”). These findings also state that
“continued dumping . . . after the issuance
of antidumping orders . . . can frustrate
the remedial purpose of the laws” to the
detriment of “domestic producers . . . small
businesses and American farmers and
ranchers” and that the “United States
trade laws should be strengthened to see
15 PS CHEZ SIDNEY v. USITC
that the remedial purpose of those laws is
achieved.” Pub. L. No. 106-387, § 1002,
114 Stat. at 1549A-72-73.
Id. at 1352. We agree with the Court of International
Trade that the Byrd Amendment’s legislative history
generally “expresses Congressional intent to assist do-
mestic U.S. industries injured by foreign dumping and
subsidization.” Chez I, 442 F. Supp. 2d at 1338. Here,
Chez Sidney is a U.S. producer of a like product under
investigation and as such formed part of the U.S. industry
found to be materially injured by import of dumped
crawfish tail meat. There is no language within the
legislative history to imply that the ITC should minimize
the number of such domestic producers on its list.
Rather, Congress emphasized the need to assist domestic
producers. An inclusive reading of the Byrd Amendment
furthers that goal.
We hold that when a U.S. producer assists investiga-
tion by responding to questionnaires but takes no other
action probative of support or opposition, the producer has
supported the petition under § 1675c(d) and is eligible for
distributions if it can otherwise make the required certifi-
cation that it has been injured. In light of our holding in
SKF, we find the statute to be unambiguous. Accordingly,
we do not reach the issue of whether deference is owed to
the agency’s interpretation of the statute under Chevron.
See Chevron, 467 U.S. at 842.
We reject as unreasonable the ITC’s interpretation of
the “support” term in § 1675c(d) to mean the last indi-
cated expression of support. For example, a producer’s
expression of support in the response to the preliminary
questionnaire is critical to the determination of whether
to commence an investigation of an antidumping petition.
See 19 U.S.C. § 1673a(c)(1)(A), (c)(4)(A) (allowing an
PS CHEZ SIDNEY v. USITC 16
investigation to go forward only upon a showing that a
sufficient percentage of producers express support for the
petition); SKF, 556 F.3d at 1362-63 (Linn, J., dissenting)
(explaining concisely how the preliminary determination
works). For this reason, the ITC’s bald assertion that a
final expression of “take no position” is sufficient to deny
ADP status to Chez Sidney is unreasonable.
With the foregoing in mind, we turn to the ITC’s de-
termination that Chez Sidney did not support the peti-
tion. The ITC based its denial of Chez Sidney’s request to
be added to the list of ADPs on the fact that Chez Sidney’s
“latest expressed position” was not in support of the
petition. J.A. 98. It is evident that the ITC considered
only the boxes Chez Sidney had checked in making its
decision. As our discussion above illustrates, however,
such an approach is unreasonable.
When asked what would have happened if Chez Sid-
ney had not checked any box on the final questionnaire,
the ITC stated that Chez Sidney’s status as an ADP
would “depend on the surrounding circumstances.” Oral
Argument at 18:45. This is correct because it is the
surrounding circumstances, not abstract statements of
support alone, upon which an appropriate support deter-
mination depends. One such important circumstance is
whether the producer has participated in the investiga-
tion by providing supporting information or arguments in
a questionnaire response. Here, Chez Sidney provided
sales, production, and other data to the ITC in both
phases of the investigation. It also expressed abstract
support in the preliminary response and took no position
in its final response. Significantly, Chez Sidney did not
fail to file responses to the questionnaires, it did not
engage in activity in opposition to the petition, and it
never expressed that it opposed the petition. Under these
17 PS CHEZ SIDNEY v. USITC
circumstances, Chez Sidney was an ADP within the
meaning of the Byrd Amendment.
C.
We turn next to the question of damages. Chez Sid-
ney originally requested an injunction to prohibit Cus-
toms from distributing payments pending resolution of its
case. See Chez I, 442 F. Supp. 2d at 1335. The injunction
was denied, the funds were distributed, and Chez Sidney
amended its complaint to request money damages.
As a preliminary matter, we must address an issue
arising out of the somewhat unusual procedural posture
of this case. After SKF was decided, we summarily re-
versed the Court of International Trade with respect to
the constitutional issues in this case but allowed the
parties to brief the non-constitutional issues. See PS Chez
Sidney, L.L.C., 409 F. App’x at 329. The issue of damages
does not involve a constitutional question and was origi-
nally addressed in Chez Sidney’s cross-appeal. Our order
dismissed the cross-appeal, and we deemed it appropriate
to reverse the order of the briefs, effectively placing Chez
Sidney in the role of an appellant despite its status as an
appellee. See id. Customs now argues that Chez Sidney
cannot raise the issue of money damages because doing so
would enlarge its rights as an appellee without having a
cross-appeal before this court. See Bailey v. Dart Con-
tainer Corp. of Mich., 292 F.3d 1360, 1362 (Fed. Cir.
2002). Under these circumstances, we do not believe that
Chez Sidney’s status as an appellee should preclude it
from arguing for increased money damages.
Here, the question of entitlement to money damages
is not focused on whether Chez Sidney should be awarded
such damages, but on whether Customs’ conditional
award of damages was “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.” 5
PS CHEZ SIDNEY v. USITC 18
U.S.C. § 706. Customs determined that Chez Sidney
could only recover the distributions to which it was enti-
tled “to the extent these funds are either recoverable from
the [ADPs] who initially received them or are available in
the Special Account.” Chez III, 558 F. Supp. 2d at 1374;
see also Notice of Filing of Remand Decision, PS Chez
Sidney, L.L.C. v. U.S. Int’l Trade Comm’n, No. 02-00635
(Ct. Int’l Trade Feb. 5, 2008), ECF No. 131. It stated that
this determination was in accordance with 19 C.F.R. §
159.64(b)(3). Chez III, 558 F. Supp. 2d at 1375. The
Court of International Trade concluded that Customs had
not abused its discretion by following its published regu-
lations. Id.
However, the cited regulation applies not to an ADP’s
recovery of funds from Customs, but to Customs’ recovery
of funds from ADPs. To be sure, 19 C.F.R. § 159.64(b)(3)
will govern how Customs recovers the overpayments it
made to other ADPs in this case. But it does not limit an
ADP’s entitlement to distributions to only those situations
in which Customs can recover funds previously paid. The
Byrd Amendment states that Customs “shall distribute
all funds” to eligible ADPs. See § 1675c(d)(3). Here, this
may be as simple as directing the ITC to release funds
from the special account, which it stated at oral argument
has typically contained more than adequate funds in the
past. Oral Argument at 26:47-28:45. It may require the
Court of International Trade to exercise its power to
award a money judgment. See 28 U.S.C. § 2643(a)(1)
(2006); Shinyei Corp. of Am. v. United States, 355 F.3d
1297, 1312 (Fed. Cir. 2004) (“[T]he Court of International
Trade’s relief statute provides for entry of a money judg-
ment for or against the United States in any civil action
commenced under section 1581 . . . .” (internal quotation
marks omitted)).
19 PS CHEZ SIDNEY v. USITC
Chez Sidney should not be treated as a second-class
ADP; it should be treated in the same manner as any
other ADP eligible to receive Byrd Amendment distribu-
tions. We therefore vacate that portion of the judgment
establishing the mechanism by which Chez Sidney would
receive its funds. On remand, the Court of International
Trade should fashion a remedy that ensures Chez Sidney
will receive the money to which it is entitled, along with
such interest as may be provided in accordance with law.
III. CONCLUSION
For the foregoing reasons, the decision of the Court of
International Trade is hereby
REVERSED-IN-PART, VACATED-IN-PART, AND
REMANDED
COSTS
Each party shall bear its own costs.