Gilda Industries, Inc. v. United States , 622 F.3d 1358 ( 2010 )

United States Court of Appeals
for the Federal Circuit
__________________________
GILDA INDUSTRIES, INC.,
Plaintiff-Appellee,
AND
NESTLE WATERS NORTH AMERICA, INC.,
Plaintiff-Appellee,
v.
UNITED STATES,
Defendant-Appellant.
__________________________
2009-1492
__________________________
Appeal from the United States Court of International
Trade in Case No. 07-00474, Senior Judge R. Kenton Mus-
grave.
___________________________
Decided: October 13, 2010
___________________________
PETER S. HERRICK, Peter S. Herrick, P.A., of Miami,
Florida, argued for plaintiff-appellee Gilda Industries, Inc.
JONATHAN T. STOEL, Hogan & Hartson LLP of Washing-
ton, DC, argued for plaintiff-appellee Nestle Waters North
America, Inc. With him on the brief was CRAIG A. LEWIS.
GILDA INDUSTRIES v. US 2
DAVID S. SILVERBRAND, Trial Attorney, Commercial Liti-
gation Branch, Civil Division, United States Department of
Justice, of Washington, DC, argued for defendant-appellee
United States. With him on the brief were TONY WEST,
Assistant Attorney General, JEANNE E. DAVIDSON, Director,
and PATRICIA M. MCCARTHY, Assistant Director.
MARK R. SANDSTROM, Law Offices of Mark R. Sand-
strom, for amicus curiae Cheese Importers Association of
America, Inc. Of counsel on the brief was JOHN C.
STEINBERGER.
__________________________
Before RADER, Chief Judge, NEWMAN, AND PLAGER, Circuit
Judges.
NEWMAN, Circuit Judge.
The government appeals from a decision of the Court of
International Trade holding that a retaliatory duty order
assessing duties against certain imports of Gilda Industries,
Inc. had terminated by operation of law. The Court of
International Trade ordered liquidation of Gilda’s goods
without assessment of the duty, and ordered the govern-
ment to refund, with interest, the 100 percent ad valorem
duty that Gilda paid on products imported after the retalia-
tory duties expired. 1 We affirm the judgment.
BACKGROUND
I
The retaliatory measures at issue here were first im-
posed on July 28, 1999. The measures were implemented in
1 Gilda Indus., Inc. v. United States, 625 F. Supp. 2d
1377 (Ct. Int’l Trade 2009) (“Gilda II”).
3 GILDA INDUSTRIES v. US
response to an import ban adopted by the European Com-
munity (“EC”) targeting meat products from the United
States. Our prior decision on Gilda’s earlier challenge to
these measures provides a detailed history:
In December 1985 the European Community
prohibited imports of the meat of animals that had
been treated with hormones. The United States at-
tempted to negotiate a change in the EC’s policy.
When those efforts failed, the United States invoked
formal dispute settlement proceedings before the
World Trade Organization challenging the EC’s ban
on hormone-treated meat. In 1997 a WTO panel is-
sued a report concluding that the EC’s ban was con-
trary to its WTO obligations because the ban was
not based on scientific evidence. The WTO’s Dis-
pute Settlement Body subsequently adopted the
panel’s report. Nevertheless, the EC did not imple-
ment the panel’s recommendations. As a result, in
1999 the United States requested suspension of the
duty concessions that WTO countries are obligated
to grant to one another. The EC objected, and the
matter was referred for arbitration. On July 12,
1999, the WTO arbitrator determined that the
United States had suffered impairment as a result
of the EC’s ban and therefore authorized the United
States to increase its duties on EC products.
Pursuant to section 301 of the Trade Act of
1974, the United States Trade Representative has
authority to take certain retaliatory measures when
this country’s trade rights are violated by another
country. In particular, 19 U.S.C. § 2416 authorizes
the Trade Representative to create “retaliation
lists,” which subject certain products of the target
countries to increased duties. On March 25, 1999,
GILDA INDUSTRIES v. US 4
the Trade Representative published notice of his in-
tention to implement retaliatory measures against
the EC pursuant to the WTO dispute settlement
agreement. Implementation of WTO Recommenda-
tions Concerning EC-Measures Concerning Meat
and Meat Products (Hormones), 64 Fed. Reg. 14,486(Mar. 25, 1999). After a notice and comment period
for the proposed retaliatory measures, the Trade
Representative adopted a retaliation list and sub-
jected all the products on the list to a 100 percent ad
valorem duty. Among the listed products were
those falling under [Harmonized Trade Schedule of
the United States] subheading 9903.02.35, which
encompasses “[r]usks, toasted bread and similar
products.”
Gilda Indus., Inc. v. United States, 446 F.3d 1271, 1274–75
(Fed. Cir. 2006) (“Gilda I”).
Gilda imports toasted breads from Spain, and has been
paying the retaliatory duty on these imports since 1999.
This court has explained that 19 U.S.C. §2417(c)(1) “pro-
vides that actions taken under section 2411 (e.g., implemen-
tation of a retaliation list) terminate after four years unless
a representative of the domestic industry ‘which benefits
from’ the action submits a written request for continuation
of the action.” Gilda I, 446 F.3d at 1277–78. Prior to the
end of the first four-year period in 2003, representatives of
the domestic beef industry submitted written requests for
continuation of the list. Gilda brought suit to challenge the
retaliation list. Gilda argued that despite the beef indus-
try’s request for continuation of the retaliation list, the list
nonetheless terminated because the domestic beef industry
“is not an industry ‘which benefits from’ the retaliation list.
Gilda contend[ed] that the domestic beef industry cannot be
said to be a beneficiary of the retaliation list unless and
5 GILDA INDUSTRIES v. US
until the EC responds to the retaliatory measure by comply-
ing with the WTO settlement agreement.” Id. at 1278. This
court rejected that argument in Gilda I, and held that the
requests for continuation of the retaliatory action by repre-
sentatives of the United States beef industry prevented
termination of the retaliation under §2417(c). Id.
II
Gilda brought the present action against the United
States in December 2007, after another four-year period had
passed since the implementation of the retaliatory list. No
requests for continuation of the retaliatory action were
received by the Trade Representative during this second
four-year period. Thus, Gilda argued that the retaliation
had terminated pursuant to 19 U.S.C. §2417(c) on July 29,
2007. The government moved to dismiss Gilda’s case for
failure to state a claim upon which relief could be granted.
The government argued that §2417(c) applied only to the
first four-year period after imposition of retaliatory duties.
Specifically, the government contended that §2417(c)(1)(A)’s
phrase “a particular action . . . under section 2411” referred
only to the initial “action” undertaken by the Trade Repre-
sentative to impose the retaliation list, and that “actions
taken pursuant to section 2411 do not include the continua-
tion of a particular action under section 2411.” Gilda In-
dus., Inc. v. United States, 556 F. Supp. 2d 1366, 1377 (Ct.
Int’l Trade 2008) (“Order on Motion to Dismiss”). Because
the Trade Representative had taken no action during the
second four-year period other than to continue the retalia-
tion list, the government argued that there was no action to
terminate under §2417(c). The Court of International Trade
rejected this argument and denied the government’s motion
to dismiss. The court found no support in the text of the
statute for the government’s interpretation, and found that
the legislative history supported a contrary interpretation.
GILDA INDUSTRIES v. US 6
The court also reasoned that “[b]ecause an action cannot
terminate unless the action is somehow continuing, the
court is unable to accept that the ‘action’ to which the stat-
ute refers is not a continuing one.” Id. at 1378. The gov-
ernment has not appealed this ruling by the trial court.
After the denial of the government’s motion to dismiss,
Gilda moved for summary judgment on its claim. Before
considering the motion, the Court of International Trade
granted the government’s request for a remand to the Trade
Representative to re-evaluate its position in view of the
court’s interpretation of §2417(c) in the Order on Motion to
Dismiss. The Trade Representative determined that the
retaliation list did not terminate because the Trade Repre-
sentative had not complied with 19 U.S.C. §2417(c)(2),
which requires the Trade Representative to notify represen-
tatives of the domestic industry of any impending termina-
tion under §2417(c)(1) at least 60 days before termination.
The Trade Representative provided notice to United States
beef industry representatives (long after the time required
by statute), and the domestic industry requested continua-
tion of the retaliatory measures.
The Trade Representative determined that “the only
reason that representatives of the U.S. beef industry did not
formally request continuation of the July 1999 action 60
days prior to the eight-year anniversary of the July 1999
action was that USTR . . . had not provided the notification”
required by §2417(c)(2). Susan C. Schwab, U.S. Trade
Representative, Exec. Office of The President, Remand
Results 1 (Jan. 14, 2009) (J.A. 37). The Trade Representa-
tive concluded that the lack of notice “must lead to an
extension” such that the late requests by the domestic beef
industry representatives “foreclose the possibility of a
termination of the July 1999 action.” Id. at 2 (J.A. 38). The
Trade Representative also modified the retaliation list,
7 GILDA INDUSTRIES v. US
removing Gilda’s products and adding those of plaintiff
Nestle Waters North America, Inc.
The Court of International Trade then considered
Gilda’s summary judgment motion, which had been par-
tially mooted with respect to Gilda by the Trade Represen-
tative’s removal of Gilda’s products from the retaliation list.
The court concluded that the lack of notice under 19 U.S.C.
§2417(c)(2) did not preclude automatic termination of the
retaliatory duties under §2417(c)(1). The court reasoned
that
[t]he text of section (c)(1) is conspicuously devoid of
any reference to actions by, or the discretion of, the
USTR. Although sections (c)(2) and (c)(3) impose
other requirements on the USTR, those provisions
are listed separately from, and follow after, the
automatic termination provision; nothing in the text
of the statute indicates that the USTR’s failure to
perform the duties outlined in section (c)(2) or (c)(3)
in any way affects the automatic termination provi-
sion contained in section (c)(1).
Gilda II, 625 F. Supp. 2d at 1383. The court rejected the
government’s additional arguments based on policy and
equitable tolling of the statute. Thus, the court granted
summary judgment in favor of Gilda. The government
appeals.
DISCUSSION
“In reviewing the grant of summary judgment on the
administrative record, we reapply the standard of review
that the Court of International Trade applied.” Corus
Group PLC v. Int’l Trade Comm’n, 352 F.3d 1351, 1360
(Fed. Cir. 2003). The Court of International Trade had
GILDA INDUSTRIES v. US 8
jurisdiction under 28 U.S.C. §1581(i) to review the Trade
Representative’s actions implicated here. See Gilda I, 446
F.3d at 1277. The applicable standard of review is provided
by the Administrative Procedure Act (“APA”), 5 U.S.C. §706.
See 28 U.S.C. §2640(e) (“In any civil action not specified in
this section, the Court of International Trade shall review
the matter as provided in section 706 of title 5.”); Shake-
proof Industrial Prods. Div. Of Ill. Tool Works Inc. v. United
States, 104 F.3d 1309, 1313 (Fed. Cir. 1997) (explaining that
under 28 U.S.C. §2640(e) the “Administrative Procedure Act
standard of review applies to civil actions brought under 28
U.S.C. §1581(i)”). Accordingly, “[t]o the extent necessary to
decision and when presented,” this court must “decide all
relevant questions of law, interpret constitutional and
statutory provisions,” and “hold unlawful and set aside
agency action, findings, and conclusions found to be . . .
arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law.” 5 U.S.C. §706.
In addition, this court affords substantial deference to
decisions of the Trade Representative implicating the dis-
cretionary authority of the President in matters of foreign
relations. See Maple Leaf Fish Co. v. United States, 762
F.2d 86, 89 (Fed. Cir. 1985) (“In international trade contro-
versies of this highly discretionary kind -- involving the
President and foreign affairs -- this court and its predeces-
sors have often reiterated the very limited role of reviewing
courts. For a court to interpose, there has to be a clear
misconstruction of the governing statute, a significant
procedural violation, or action outside delegated authority.”
(citations omitted)). However, “[t]he judiciary is the final
authority on issues of statutory construction and must reject
administrative constructions which are contrary to clear
congressional intent.” Chevron, U.S.A., Inc. v. Natural Res.
Def. Council, Inc., 467 U.S. 837, 843 n.9 (1984). “If the
intent of Congress is clear, that is the end of the matter; for
9 GILDA INDUSTRIES v. US
the court, as well as the agency, must give effect to the
unambiguously expressed intent of Congress.” Id. at 842–
43.
Here, the intent of Congress is expressed clearly in the
text of 19 U.S.C. §2417(c):
(c) Review of necessity
(1) If--
(A) a particular action has been taken under
section 2411 of this title during any 4-year pe-
riod, and
(B) neither the petitioner nor any representa-
tive of the domestic industry which benefits
from such action has submitted to the Trade
Representative during the last 60 days of such
4-year period a written request for the con-
tinuation of such action,
such action shall terminate at the close of such 4-
year period.
(2) The Trade Representative shall notify by mail
the petitioner and representatives of the domestic
industry described in paragraph (1)(B) of any ter-
mination of action by reason of paragraph (1) at
least 60 days before the date of such termination.
(3) If a request is submitted to the Trade Represen-
tative under paragraph (1)(B) to continue taking a
particular action under section 2411 of this title, the
Trade Representative shall conduct a review of--
GILDA INDUSTRIES v. US 10
(A) the effectiveness in achieving the objectives
of section 2411 of this title of--
(i) such action, and
(ii) other actions that could be taken (in-
cluding actions against other products or
services), and
(B) the effects of such actions on the United
States economy, including consumers.
In particular, subsection (1) provides that if the petitioner or
any domestic industry representative does not request to
continue retaliatory action during the last 60 days of any 4-
year period following the implementation of the retaliatory
action, “such action shall terminate at the close of such 4-
year period.” When a statute directs that a certain conse-
quence “shall” follow from specified contingencies, the
provision is mandatory and leaves no room for discretion.
This principle was reiterated in National Association of
Home Builders v. Defenders of Wildlife, 551 U.S. 644 (2007).
The Court explained that:
Section 402(b) of the [Clean Water Act] provides,
without qualification, that the EPA “shall approve”
a transfer application unless it determines that the
State lacks adequate authority to perform the nine
functions specified in the section. 33 U.S.C. §
1342(b). By its terms, the statutory language is
mandatory and the list exclusive; if the nine speci-
fied criteria are satisfied, the EPA does not have the
discretion to deny a transfer application. Cf. Lopez
v. Davis, 531 U.S. 230, 241, 121 S.Ct. 714, 148
L.Ed.2d 635 (2001) (noting Congress’ “use of a man-
datory ‘ shall’ . . . to impose discretionless obliga-
11 GILDA INDUSTRIES v. US
tions”); Lexecon Inc. v. Milberg Weiss Bershad Hynes
& Lerach, 523 U.S. 26, 35, 118 S.Ct. 956, 140
L.Ed.2d 62 (1998) (“[T]he mandatory ‘ shall’ . . .
normally creates an obligation impervious to judi-
cial discretion”); Association of Civilian Technicians
v. FLRA, 22 F.3d 1150, 1153 (C.A.D.C.1994) (“The
word ‘shall’ generally indicates a command that
admits of no discretion on the part of the person in-
structed to carry out the directive”); Black's Law
Dictionary 1375 (6th ed. 1990) (“As used in statutes
. . . this word is generally imperative or manda-
tory”).
Id. at 661–62. Thus, the retaliatory action at issue here
terminated by operation of law on July 29, 2007, for it is
undisputed that no requests for continuation of the retalia-
tory list were received within the 60-day window specified
by §2417(c)(1).
No other provision alters the effect of §2417(c)(1)’s
automatic termination provision. The government empha-
sizes the court’s obligation to “interpret the statute as a
symmetrical and coherent regulatory scheme, and fit, if
possible, all parts into an harmonious whole.” Food & Drug
Admin. v. Brown & Williamson Tobacco Corp., 529 U.S.
120, 133 (2000) (internal quotations and citations omitted).
According to the government, interpreting §2417(c) as a
“harmonious whole” means that if the Trade Representative
does not comply with the obligation under §2417(c)(2) to
notify the domestic industry of an impending termination
pursuant to §2417(c)(1), the retaliatory action will not
terminate. We cannot agree. The statute fails to specify
such a consequence. The lack of a specified consequence in
this provision is not an interpretive gap to be filled by the
Trade Representative, and even if it were, construing sub-
section (c)(2) in contravention of subsection (c)(1) would not
GILDA INDUSTRIES v. US 12
be reasonable or permissible. Rather, the absence of a
consequence indicates, as amicus curiae Cheese Importers
Association of America, Inc. points out, that subsection (c)(2)
is a directory provision and not “mandatory.” Subsection
(c)(2) is likely meant to “spur the [Trade Representative] to
action,” Barnhart v. Peabody Coal Co., 537 U.S. 149, 158
(2003) (quoting Brock v. Pierce County, 476 U.S. 253, 265
(1986)), and the “failure to specify a consequence for non-
compliance” can “impl[y] that Congress intended the re-
sponsible officials administering the Act to have discretion
to determine what disciplinary measures are appropriate
when their subordinates fail to discharge their statutory
duties,” United States v. James Daniel Good Real Prop., 510
U.S. 43, 64–65 (1993).
The government argues that treating noncompliance
with the notice provision of subsection (c)(2) as irrelevant to
automatic termination under subsection (c)(1) impermissi-
bly renders subsection (c)(2) inoperative. That is not the
effect of our interpretation. Subsection (c)(2) means what it
says, and is meant to be complied with. We assume that a
party with standing could bring an APA action to compel the
Trade Representative to provide the statutory notice. Cf.
Pierce County, 476 U.S. at 260 n.7 (“Thus, it would appear
that a complainant adversely affected by the Secretary's
failure to act on a complaint could bring an action in the
district court. The court would have the authority to ‘com-
pel agency action unlawfully withheld or unreasonably
delayed,’ §706(1).”). However, nothing in the text of sur-
rounding provisions or overall policy of the statute suggests
a congressional intent to have termination by operation of
law (subsection (c)(1)) hinge on whether the Trade Repre-
sentative provides timely notice of impending termination
(subsection (c)(2)).
13 GILDA INDUSTRIES v. US
As the Court of International Trade observed, “other
provisions contained in section 301 [of the Trade Act of
1974] expressly provide that some of the USTR’s actions are
contingent upon an actual consultation with the domestic
industry (which entails, at the very least, notice) and do
involve the USTR’s discretion.” Gilda II, 625 F. Supp. 2d at1383 (citing 19 U.S.C. §§2417(a)(2), 2416(b)). The absence of
such a statutory dependence between subsections (c)(1) and
(c)(2) therefore indicates that noncompliance with the notice
provisions will not affect termination under §2417(c)(1).
The Supreme Court has recognized other instances in which
there is virtually no consequence for noncompliance with a
statutory timing provision that does not specify a conse-
quence for missing the deadline. See, e.g., Dolan v. United
States, 560 U.S. __, 130 S. Ct. 2533, 2538 (2010) (“In still
other instances, we have found that a deadline seeks speed
by creating a time-related directive that is legally enforce-
able but does not deprive a judge or other public official of
the power to take the action to which the deadline applies if
the deadline is missed. See, e.g., United States v. Montalvo
Murillo, 495 U.S. 711, 722 (1990) (missed deadline for
holding bail detention hearing does not require judge to
release defendant); Brock v. Pierce County, 476 U.S. 253,
266 (1986) (missed deadline for making final determination
as to misuse of federal grant funds does not prevent later
recovery of funds); Barnhart v. Peabody Coal Co., 537 U.S.
149, 171–72 (2003) (missed deadline for assigning industry
retiree benefits does not prevent later award of benefits).”).
Here, Congress could reasonably intend to increase the
likelihood of receiving continuation requests by obligating
the Trade Representative to provide notice to the domestic
industry, but also intend for retaliatory action to terminate
automatically if no requests for continuation are received,
even in the absence of notice from the Trade Representative.
GILDA INDUSTRIES v. US 14
The government observes that termination of retaliatory
action without notice does not serve the interests of the
domestic industry, and argues that §2417(c) is meant to
protect such interests. If the domestic industry requests
continuation, then the Trade Representative has discretion
under §2417(c)(3) to determine whether continuation of the
retaliatory action is in the best overall interest of the United
States economy and consumers. The interests of the domes-
tic industry cannot override the clear language of the stat-
ute or the other interests that the text suggests are
intended to be considered. Because we conclude that Con-
gress did not intend that the domestic industry be excused
from requesting continuation of retaliatory action in the
absence of notice from the Trade Representative, we also do
not accept the government’s position that this interpretation
of the statute imposes on the domestic industry additional
burdens not contemplated by Congress.
As an alternative basis for reversal, the government ar-
gues that even if §2417(c) is construed such that failure to
notify will not generally prevent termination, it should
prevent termination in this case because the Trade Repre-
sentative’s failure to notify was caused by an incorrect
interpretation of the statute. The government asserts that
the Trade Representative and domestic industry did not
interpret §2417(c)(1) to be applicable beyond the first four-
year period after imposition of retaliatory duties. The
government states that it held this view until the Court of
International Trade held that §2417(c)(1) could operate to
terminate retaliatory action in any subsequent four-year
period, see Order on Motion to Dismiss, 556 F. Supp. 2d at1377–78. After learning the correct interpretation, the
Trade Representative provided the notice and the domestic
industry requested continuation of the retaliatory action.
Thus, according to the government, the failure to notify was
excusable and should therefore prevent termination.
15 GILDA INDUSTRIES v. US
In pursuing this argument, the government relies on
Amber Resources Co. v. United States, 538 F.3d 1358 (2008).
As the Court of International Trade recognized, Amber
Resources is inapplicable. In Amber Resources the govern-
ment had granted leases to private entities to explore for
and develop oil and gas resources off the California coast,
and “because of court decisions construing a 1990 statute
that was enacted after the leases were in place, the govern-
ment took action that had the effect of preventing the les-
sees from continuing exploratory activities on the leased
properties, at least temporarily.” Id. at 1362. This court
held that “[b]ecause the parties to the lease agreements all
treated the agreements as unaffected by the 1990 [statute],
we conclude that the 1990 enactment itself did not consti-
tute either a breach or an anticipatory repudiation that gave
the lessees a right to restitution at that time.” Id. at 1369–
70. Because the government did not treat the statute as
applicable to the leases until courts construed it as such,
“[i]t was only at that point that the government can be said
to have repudiated the lease agreements by putting into
practice the new rules” preventing enjoyment of the lease.
Id. at 1370.
The government asserts that Amber Resources broadly
held that “where parties ‘right[ly] or wrong[ly]’ interpret a
statutory provision one way, only to learn through an inter-
vening court decision that the court views the provision
differently, the court’s decision should become the operative
time from which the parties should be on notice of the
correct interpretation. Nothing in Amber purports to limit
this principle to concepts unique to contract law.” Gov’t Br.
26–27 (quoting Amber Resources, 538 F.3d at 1370) (altera-
tion in original). To the contrary, the holding in Amber
Resources is explicitly tied to its context. The Amber Re-
sources court explains the general rule that “court decisions
construing statutes are typically viewed as not changing the
GILDA INDUSTRIES v. US 16
law but merely announcing what the law has meant since
its enactment,” but then states that this rule is not useful
“in a case such as this one.” 538 F.3d at 1370. The entire
discussion of how the parties interpreted the statute is in
the context of contract repudiation and breach and is ana-
lyzed with these concepts in mind. See id. (“It would ignore
the reality of the situation in this case to suggest that the
interpretation of the 1990 CZMA amendments, as ulti-
mately announced by the courts more than a decade later,
was clear to the parties from the moment of enactment or
that the governing principles of contract law should be
applied as if it were. The fact of the matter is that, right or
wrong, the parties interpreted the 1990 CZMA amendments
in a way that would not have resulted in a breach.”).
Apart from the contract-specific language in Amber Re-
sources, the government’s proposed expansion of Amber
Resources would change existing law and eliminate reme-
dies for any party affected by the misinterpretation of a
statute. Even if Amber Resources could be stretched to
excuse noncompliance with the notice provisions of
§2417(c)(2), such noncompliance still could not prevent the
mandatory termination of the retaliatory action effected by
§2417(c)(1).
For the foregoing reasons, the judgment of the Court of
International Trade is affirmed.
AFFIRMED