PS Chez Sidney, L.L.C v. United States Internationa Trade Commission , 409 F. App'x 327 ( 2010 )

NOTE: This order is n0nprecede11tial.
United States Court of AppeaIs
for the Federal Circuit
PS CHEZ SIDNEY, L.L.C.,
Plaintiff-Appellee,
V.
UNITED STATES INTERNATIONAL TRADE
COMMISSION,
Defen,dant-Appellant,
AND -
UNITED STATES CUSTOMS SERVICE,
Defendant-Appellan,t,
AND
CRAWFISI~I PROCESSORS ALLIANCE,
Defendan,t-Appellant,
AND
COMMISSIONER BOB ODOM
AND LOUISIANA DEPARTMENT OF
AGRICULTURE AND FORESTRY,
Defendants.
2008-1526, -1527, -1534
@-1-1-»
PS CI-IEZ SIDNEY V. USITC 2
PS CHEZ SIDNEY, L.L.C.,
Plaintiff-Appellan.t,
V.
UNITED STATES INTERNATIONAL TRADE
COMMISSION,
Defen,dcm,t-Appellee,
AND
UNITED STATES CUSTOMS SERVICE,
Defendant-Appellee,
AND
CRAVVFISH PROCESSORS ALLIANCE,
Defen,dant-Appellee,
AND
COMMISSIONER BOB ODOM
AND LOUISIANA DEPARTMENT OF
AGRICULTURE AND FORESTRY,
Defendants.
2008-1555
Appeals from the United States C0urt of Internati0na1
Trade in case n0. 02-0O635, Judge Evan J. Wa1lach.
ON MOTION
Before LINN, DYK, and PROST, Circu,it Judges.
3 PS CH'EZ SIDN``EY V. USITC
PROST, Circuit Judge.
0 R D E R
PS Chez Sidney, L.L.C., United States International
Trade Cornmission (lTC), United States Customs Service
(CustoIns), and Crawf1sh Processors A]liance (CrawHsh
Alliance) separately respond to this court’s February 26,
2010 order directing the parties to inform the court how
this case should proceed in light of the Supre1ne Court’s
disposition in SKF USA, Inc. u. U.S. Cu,stoms and Border
Protection, 556 F.3d 1337 (Fed. Cir. 2009). PS Chez moves
to lift the stay of proceedings
In the decision here on appeal, the United States Court
of International Trade held that the “support requirernent"
of the Continued Dumping and Subsidy Offset Act of 2000,
commonly known as the "Byrd Amendn1ent," violated the
First A1nendment. The court also briefly rejected two non-
constitutional arguments made by PS Chez. The ITC,
Customs, and Crawfish Al]iance all filed appeals with this
court. PS Chez, who ultimately won below, also Eled a
cross-appeal. The appeals were consolidated and stayed
pending this court’s disposition in SKF. In SKF, we held
that the support requirement of the Byrd Amendment did
not violate the First A1nendment. The Supreme Court of
the United States recently denied a petition for a writ of
certiorari in SKF rendering that decision final
PS Chez urges this court to lift the stay of proceedings
and allow the consolidated appeals to be fully briefed. The
ITC, Customs, and Crawfish Alliance argue that this court
should summarily dispose of this matter in light of SKF or
alternatively that briefing should be narrowed. Having
considered the parties’ arguments we lift the stay of
proceedings and allow the appeal to go forward as f0llows.
PS CHEZ SIDNEY v. USITC 4
Because SKF is controlling with regard to all
constitutional issues presented in this appeal, we
summarily reverse that portion of the Court of
International Trade’s judgment. The parties may only
brief the non-constitutional arguments to be heard by a
merits panel.
Because PS Chez is not seeking to enlarge its own
rights under the judgment or to lessen the rights of its
adversary under the judgment its cross-appeal is improper
and must be dismissed. Bailey u. Dart Con,to£ner Corp. of
Michigan, 292 F.3d 1360, 1362 (Fed. Cir. 2002). Because of
the unusual circumstances here, we deem it appropriate to
reverse the briefing schedule so that PS Chez files the
initial brief, the appellants nle their response brief, and PS
Chez may also file a reply brief.
Accordingly,
IT ls ORDERED THAT:
(1) PS Chez’s motion to lift the stay of proceedings is
granted The stay of proceedings is lifted.
(2) Cross-appeal 2008-1555 is dismissed.
(3) Each side shall bear their own costs with regard to
that appeal.
(4) The revised official caption is reflected above
(5) The C0urt of International Trade’s judgment with
regard to the constitutional issues is summarily reversed
A copy of this order shall be transmitted to the merits
panel assigned to hear 2008-1526, -1527, -1534.
(6) PS Chez is directed to file its opening brief raising
non-constitutional arguments within 40 days from the date
of filing of this order.
5 PS CHEZ SIDN``EY V. USITC
FoR THE CoURT
2 8 /s/ Jan H0rbaly
Date J an Horb aly
Clerk
cc: William E. Brown, Esq.
!``-'-'
59
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LED
oF APPEALs ron
01-:RAL macon
Joseph W. Dorn, Esq. ocr 2 8 mm
Franklin E. White, Jr., Esq.
Patrick V. Gallagher, Esq. _|AN |-|()R3A|_y
S
1ssUED As MANDATE As To 2003-1551-z; 997 3 3 fm
19 CI.ERK