Guangdong Wireking Housewares & Hardware Co. v. United States ( 2014 )

United States Court of Appeals
for the Federal Circuit
______________________
GUANGDONG WIREKING HOUSEWARES &
HARDWARE CO., LTD.,
Plaintiff-Appellant,
AND
BUREAU OF FAIR TRADE FOR IMPORTS &
EXPORTS, MINISTRY OF COMMERCE, THE
PEOPLE’S REPUBLIC OF CHINA,
Plaintiff,
v.
UNITED STATES,
Defendant-Appellee,
AND
NASHVILLE WIRE PRODUCTS, INC. AND
SSW HOLDING COMPANY, INC.,
Defendants-Appellees.
______________________
2013-1404
______________________
Appeal from the United States Court of International
Trade in No. 09-CV-0422, Senior Judge Nicholas Tsou-
calas.
______________________
Decided: March 18, 2014
2 GUANGDONG WIREKING HOUSEWARES v. US
______________________
JAMES P. DURLING, Curtis, Mallet-Prevost, Colt &
Mosle LLP, of Washington, DC, argued for plaintiff-
appellant. With him on the brief were DANIEL L. PORTER,
CHRISTOPHER DUNN, MATTHEW P. MCCULLOUGH, and
ROSS BIDLINGMAIER.
ALEXANDER V. SVERDLOV, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, argued for defendant-
appellee United States. With him on the brief were
STUART F. DELERY, Assistant Attorney General, JEANNE
E. DAVIDSON, Director, and FRANKLIN E. WHITE, JR.,
Assistant Director. Of counsel on the brief were JOHN D.
MCINERNEY, Chief Counsel for Import Administration,
United States Department of Commerce, of Washington,
DC, DANIEL J. CALHOUN and DEVIN S. SIKES, Attorneys.
PAUL C. ROSENTHAL, Kelley Drye & Warren LLP, of
Washington, DC, argued for defendants-appellees Nash-
ville Wire Products, Inc., et al. With him on the brief were
KATHLEEN W. CANNON, BENJAMIN BLASE CARYL, and
KATHERINE E. WANG. Of counsel on the brief was DAVID C.
SMITH, JR.
______________________
Before DYK, O’MALLEY, and CHEN, Circuit Judges.
Opinion for the court filed by Circuit Judge DYK.
Opinion concurring in the result filed by Circuit Judge
O’MALLEY.
DYK, Circuit Judge.
Appellant Guangdong Wireking Housewares &
Hardware, Co., Ltd. (“Wireking”) appeals from a judg-
ment of the Court of International Trade (“Trade Court”).
In 2012, Congress enacted new legislation that overruled
GUANGDONG WIREKING HOUSEWARES v. US 3
our decision in GPX Int’l 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 the
imposition of both antidumping and countervailing duties
with respect to importers from non-market economy
(“NME”) countries. Because this law is retroactive and
does not require the Department of Commerce (“Com-
merce”) to adjust for any double counting that may result
from the retroactive imposition of both countervailing and
antidumping duties, the appellant argues that it violates
the Ex Post Facto Clause of Article I, Section 9 of the U.S.
Constitution. We affirm the Trade Court’s judgment that
the new law does not violate the Ex Post Facto Clause.
BACKGROUND
I. Legislative and Judicial History
This case concerns two prior decisions of this court,
GPX I and GPX II, and newly enacted legislation overrul-
ing our decision in GPX I.
The Tariff Act of 1930, as amended, permits Com-
merce to impose two types of duties on imports that injure
domestic industries: First, Commerce may levy antidump-
ing duties on goods “sold in the United States at less
than . . . fair value.” 19 U.S.C. § 1673 (2006). Second,
Commerce may impose countervailing duties on goods
that receive “a countervailable subsidy” from a foreign
government. Id. § 1671(a). Thus, antidumping duties
remedy unfair conduct on the part of importers, while
countervailing duties are directed towards the unfair
conduct of foreign governments.
In the case of goods imported from market economy
countries, Commerce may impose both antidumping and
countervailing duties. GPX I, 666 F.3d at 734. Com-
merce’s ability to collect both types of duties from market
economy importers has long been accepted. The anti-
dumping duty equals the amount the good’s price in the
4 GUANGDONG WIREKING HOUSEWARES v. US
exporting country (the “home market price” or “normal
value”) exceeds its price in the United States (the “export
price” or “constructed export price”). See 19 U.S.C.
§§ 1673, 1677a–1677b. If the importer is selling its prod-
uct at a lower price in the United States than in its home
market, this difference will result in an affirmative dump-
ing margin. Whether a product is selling for less than fair
market value can be determined by comparing the good’s
normal values with export (or constructed export) prices
for comparable merchandise, using statistically calculated
weighted averages or data from individual transactions.
See id. § 1677f-1(d)(1)(A).
The countervailing duty is “the amount of the net
countervailable subsidy.” See id. § 1671(a). In other
words, it equals the amount by which a foreign govern-
ment subsidizes a particular product. To the extent that
the subsidy reduces the home market price, the anti-
dumping duty will be correspondingly reduced. Id.
§ 1677f-1(f)(1)(C).
With respect to NME countries, the method of calcu-
lating antidumping duties creates the possibility of double
counting when both antidumping and countervailing
duties are imposed. In NME countries, the “normal value”
of a good is not calculated based on the actual home
market sales price for antidumping purposes if Commerce
determines that the available information does not permit
it to calculate the good’s “normal value.” Id.
§ 1677b(c)(1)(B). Instead, in that scenario, the “normal
value” is a surrogate calculation for the home market
price in NME countries. The antidumping statute re-
quires Commerce to estimate this “normal value”—the
home market price—based on data from “appropriate”
market economy countries. Id. Thus, Commerce uses
unsubsidized market economy prices to calculate the
“normal value” of NME imports. This method of calculat-
ing “normal value” or home market price does not take
account of the subsidization NME importers may receive
GUANGDONG WIREKING HOUSEWARES v. US 5
that reduces the home market price. Therefore, the dual
imposition of antidumping and countervailing duties on
NME importers may double count for the subsidization
advantage NME importers enjoy.
The history of countervailing duties with respect to
NME countries is recounted in our GPX I decision and
need not be repeated in detail here. See GPX I, 666 F.3d
at 734-37. Briefly, until recently, countervailing duty law
made no explicit provision with respect to NME countries
and provided no explicit guidance as to how such duties
should be levied on those countries. Commerce also main-
tained that it could not impose countervailing duties on
NME importers. Id. at 735. However, in 2007, Commerce
reversed its long-standing position and announced that it
could and would apply countervailing duties to products of
China, a NME country. Id.
This major policy change triggered the GPX I litiga-
tion. There, two Chinese tire manufacturers contested
Commerce’s imposition of countervailing duties on their
imports, contending that countervailing duties could not
be imposed with respect to China. Id. at 736. Based on an
extensive review of the history of the Tariff Act, focusing
on its subsequent amendments and reenactments, this
court found that “in amending and reenacting the trade
laws in 1988 and 1994, Congress adopted [Commerce’s]
position that countervailing duty law does not apply to
NME countries. . . . We affirm the holding of the Trade
Court that countervailing duties cannot be applied to
goods from NME countries.” Id. at 745.
About two and a half months after we released GPX I,
Congress enacted new legislation that overruled our GPX
I decision. See 158 Cong. Rec. H1167 (daily ed. Mar. 6,
2012) (statement of Rep. Camp) (“This legislation . . .
overturns an erroneous decision by the Federal [C]ircuit
that the Department of Commerce does not have the
authority to apply these countervailing duty rules to
6 GUANGDONG WIREKING HOUSEWARES v. US
nonmarket economies.”). The new law authorizes Com-
merce to impose countervailing duties on NME importers
both prospectively as well as retrospectively. 1 To assure
compliance with the United States’ World Trade Organi-
zation (“WTO”) obligations, this law contains a provision
that instructs Commerce to “reduce the antidumping duty
[applied to NME imports] by the amount of the increase
in the weighted average dumping margin estimated by
[Commerce] [to result from the imposition of countervail-
ing duties].” Application of Countervailing Duty Provi-
sions to Nonmarket Economy Countries, § 2(a), Pub. L.
No. 112-99, March 13, 2012, 126 Stat. 265 (March 13,
2012) (codified as amended at 19 U.S.C. § 1677f-
1(f)(1)(C)). Thus, the new law instructs Commerce to
reduce the duties applied to NME imports when the
antidumping and countervailing duties imposed on those
goods double count for the same unfair trade advantage.
This double-counting provision applies only prospectively
to proceedings initiated after March 13, 2012, the date of
the new law’s enactment. Id. § 2(b). Trade proceedings
initiated between November 20, 2006, and March 13,
2012, are subject to both antidumping and countervailing
duties but do not benefit from this double-counting ad-
justment. Id. §§ 1(b), 2(b).
At the time this new legislation was enacted, the gov-
ernment had a pending petition for rehearing in GPX I,
and the mandate had not yet issued in that case. On
March 23, 2012, the United States filed a letter brief,
requesting, in light of the new legislation, that the Court
vacate GPX I. We granted the government’s petition for
1 The new legislation applied countervailing duties
retroactively to “all proceedings initiated . . . on or after
November 20, 2006.” Application of Countervailing Duty
Provisions to Nonmarket Economy Countries, Pub. L. No.
112-99, March 13, 2012, 126 Stat. 265 (March 13, 2012).
GUANGDONG WIREKING HOUSEWARES v. US 7
rehearing, but declined to vacate our decision. Issuing a
further decision on May 9, 2012 (GPX II), we determined
that the new legislation changed the law: “[T]wo things
are clear from the new legislation. First, Congress clearly
sought to overrule our decision in GPX. . . . Second, . . .
Congress changed the law . . . .” GPX II, 678 F.3d at 1311.
The Chinese exporters argued that the new legislation
was unconstitutional because “it attempts to prescribe a
rule of decision for this case after [the Federal Circuit’s]
decision in GPX was rendered.” Id. at 1312. Nevertheless,
we concluded that this argument was meritless under
Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 226 (1995),
and we were bound to apply the new law to the pending
case as long as the new law was constitutional. See GPX
II, 678 F.3d at 1312. The Chinese importers also chal-
lenged the constitutionality of the new law because it
provided no retrospective double-counting adjustment.
They argued that it “creates a situation in which both
antidumping and countervailing duties may be imposed,
without providing a mechanism to account for potential
double counting.” Id. Noting that this argument raised a
“question of first impression as to which we have received
only cursory briefing,” we remanded the case to the Trade
Court to consider that constitutional issue in the first
instance. Id. at 1312-13. Our decision in GPX II mandated
on May 16, 2012.
II. The Wireking Case
Wireking was one of many importers directly affected
by the significant change in trade law. The present case
was pending in the Trade Court at the time of our remand
in GPX I and raised the same constitutional issue as the
GPX case. Before the new law was enacted, on July 31,
2008, U.S. producers filed a petition with Commerce and
the U.S. International Trade Commission seeking the
imposition of antidumping and countervailing duties on
imports of certain kitchen appliance shelving and racks
8 GUANGDONG WIREKING HOUSEWARES v. US
from China. In response to this petition, Commerce initi-
ated dual duty investigations on August 20, 2008. These
antidumping and countervailing duty investigations
examined Wireking’s imports from January 1, 2008, to
June 30, 2008, and January 1, 2007, to December 31,
2007, respectively. By early 2009, Commerce selected
Wireking as a mandatory respondent for both its anti-
dumping and countervailing duty investigations. As a
result of these investigations, Commerce issued final
antidumping and countervailing duty determinations on
July 24 and 27, 2009, respectively.
To determine the antidumping margin applicable to
Wireking’s imports, Commerce relied on the statutorily
prescribed NME analysis: instead of using the actual
home market prices for the inputs Wireking used to
manufacture its kitchen shelving and racks, Commerce
calculated the margin using a higher, “normal value” for
the product’s inputs based on market economy values of
the inputs. The primary raw material (input) Wireking
used to manufacture kitchen shelving and racks was steel
wire rod. Accordingly, Commerce used a surrogate, “nor-
mal value” of steel wire rod to calculate the home market
price of Wireking’s imports. This resulted in an antidump-
ing duty rate equal to 95.99 percent.
Commerce also imposed a countervailing duty on
Wireking of 13.30 percent. The bulk of this duty can be
attributed to
the difference between the delivered world market
price and what [Wireking] paid for wire rod pro-
duced by the [Government of China] during the
[period of interest]. . . . [Commerce] divided this
by [Wireking’s] total sales during the [period of in-
terest]. On this basis, [Commerce] calculated a net
countervailable subsidy rate of 11.76 percent ad
valorem for Wire king [as a penalty for the wire
rod subsidy it received].
GUANGDONG WIREKING HOUSEWARES v. US 9
J.A. 63 (internal citation omitted). Because the market
economy rate used to calculate Wireking’s antidumping
duty was unaffected by the government subsidization
Wireking received, Wireking contended that the “simul-
taneous imposition of these special NME [antidumping]
measures and market economy [countervailing duty]
measures . . . demonstrates the imposition of a double
remedy” and was improper. Appellant’s Br. 7. Ultimately,
Commerce rejected this argument and imposed a net
countervailing duty rate of 13.30 percent on Wireking.
Wireking appealed Commerce’s final antidumping
and countervailing duty determinations to the Trade
Court on October 5, 2009. The Trade Court stayed Wire-
king’s appeal, pending the outcome of the GPX proceed-
ings. After our decision in GPX II mandated on May 16,
2012, Wireking amended its complaint to include the
constitutional challenge to the new legislation.
Wireking did not contest Commerce’s application of
antidumping duties to Chinese imports; instead, it con-
tested Commerce’s simultaneous imposition of counter-
vailing and antidumping duties, without adjusting for
double counting for the same conduct. 2 Wireking contend-
ed that, due to this failure to eliminate double counting,
2 Wireking also argued that the “distortion” result-
ing from the simultaneous imposition of antidumping and
countervailing duties without adjustment for double
counting affected the required injury determination and
were “compounded by the fact that in sunset reviews,
under current law, the Department of Commerce always
utilizes the [antidumping] and [countervailing duty]
margins from the original investigation as the ‘likely’
[antidumping] and [countervailing duty] margins that
will exist upon revocation, and the Commission must
accept these Commerce findings in its own sunset analy-
sis.” Appellant’s Br. 43.
10 GUANGDONG WIREKING HOUSEWARES v. US
the trade remedies were not related and proportional to
the harm suffered and, therefore, constituted a penalty
and violated the Ex Post Facto Clause. 3 At this stage of
the proceedings, Wireking had not established the exist-
ence of double counting in this particular case, and if it
had occurred, to what extent.
The Trade Court granted judgment in favor of the
government. It declined to decide whether the new law
had a retroactive effect, but found that Commerce’s
simultaneous imposition of antidumping and countervail-
ing duties on Wireking was not penal and, therefore, did
not violate the Ex Post Facto Clause even if it were retro-
active. Guangdong Wireking Housewares & Hardware
Co., Ltd. v. United States, 900 F. Supp. 2d 1362, 1370-71
(Ct. Int’l Trade 2013). The Trade Court first explained
that “[i]t is well established that trade duties are remedi-
al, not punitive,” and “[t]he specific purpose of [counter-
vailing duty] law is to ‘offset’ the harmful effects of foreign
subsidies.” Id. at 1370. The Trade Court then concluded
that the new law was not punitive because Wireking
failed to show “the absence of an association between the
costs imposed and the actual harm done.” Id. at 1371
(internal quotation marks omitted). Wireking timely
appealed. We have jurisdiction pursuant to 28 U.S.C.
§ 1295(a)(5). We review the Trade Court’s decision of the
constitutional question de novo.
3 Wireking also raised other constitutional objec-
tions to the 2012 legislation, which the Trade Court
rejected. Guangdong Wireking Housewares & Hardware
Co., Ltd. v. United States, 900 F. Supp. 2d 1362, 1372-76
(Ct. Int’l Trade 2013). Wireking has abandoned these
other constitutional claims on appeal.
GUANGDONG WIREKING HOUSEWARES v. US 11
DISCUSSION
Article I, Section 9, Clause 3 of the Constitution states
“[n]o Bill of Attainder or ex post facto Law shall be
passed.” U.S. Const. art. I, § 9, cl. 3. A law only violates
the Ex Post Facto Clause if it (1) applies retroactively and
(2) imposes a punishment for an act that was not punish-
able at the time it was committed or increases the pun-
ishment for an act that was committed before the new law
was enacted. Weaver v. Graham, 450 U.S. 24, 28-29
(1981). We first address whether the 2012 law is retroac-
tive.
I. Retroactivity
As the Supreme Court held in Weaver v. Graham, “for
a criminal or penal law to be ex post facto[] it must be
retrospective, that is, it must apply to events occurring
before its enactment.” 450 U.S. at 29; see Landgraf v. USI
Film Prods., 511 U.S. 244, 280 (1994) (defining a retroac-
tive law as one that affects conduct that occurred before
its enactment). The conduct at issue in the present suit is
Wireking’s importation of certain kitchen appliance
shelving and racks from China during the period before
the enactment of the 2012 legislation. The antidumping
and countervailing duty proceedings with respect to that
conduct were initiated on August 27, 2008, and August
26, 2008, respectively. Designed to reach all NME coun-
tervailing duty proceedings that were “initiated . . . on or
after November 20, 2006,” the 2012 amendment applies
retroactively to Wireking’s imports before the 2012 legis-
lation. Application of Countervailing Duty Provisions to
Nonmarket Economy Countries, § 2(b)(1), Pub. L. No. 112-
99, March 13, 2012, 126 Stat. 265 (March 13, 2012).
Nevertheless, the government contends that the 2012
amendment to the Tariff Act does not have a retroactive
effect, i.e., it did not change the law. The government
argues that (1) the 2012 law renders the GPX I decision a
nullity and (2) GPX I was wrongly decided—trade law has
12 GUANGDONG WIREKING HOUSEWARES v. US
always permitted Commerce to impose countervailing
duties on NME imports. We find the government’s argu-
ments unpersuasive.
A
The government first argues that the new law nulli-
fied GPX I and that decision has no legal effect. There is
no language in the 2012 legislation purporting to nullify
GPX I (as opposed to overruling it), and the legislation
was enacted without the benefit of committee reports. To
support its position, the government cites statements
made by members of the House of Representatives, ex-
plaining that the new law would overturn the GPX I
decision. 4 The government contends such statements
prove that “Congress uniformly did not want the GPX I
opinion to have any legal effect.” Appellee’s Br. 17. Even if
the statements made during the House floor debate were
viewed as an authority, they simply speak to Congress’s
desire to change the law. Nothing in the congressional
record shows an intent to nullify GPX I rather than
simply overturn it.
In any event, while Congress has the power to over-
rule GPX I (assuming that the new law does not impose
punishment), Congress does not possess the power to
nullify our decision retroactively so that the question of
punishment becomes irrelevant. In Plaut, the Supreme
Court clarified that “Congress can always revise the
judgments of Article III courts in one sense: When a new
law makes clear that it is retroactive, an appellate court
must apply that law in reviewing judgments still on
4 For example, Representative Levin stated, “[w]ith
this bill, we are making clear that the Federal [C]ircuit’s
decision was wrong and that it cannot stand.” 158 Cong.
Rec. H1167 (daily ed. Mar. 6, 2012) (statement of Rep.
Levin).
GUANGDONG WIREKING HOUSEWARES v. US 13
appeal that were rendered before the law was enacted,
and must alter the outcome accordingly.” 514 U.S. at 226;
Robertson v. Seattle Audubon Soc., 503 U.S. 429, 441
(1992). Therefore, if a judicial decision is not yet final,
Congress may change the law applicable generally, and
the court must apply the changed law to pending cases.
Congress may not, however, nullify particular decisions
by “prescrib[ing a] rule[] of decision to the Judicial De-
partment.” United States v. Klein, 80 U.S. 128, 146 (1871);
see Plaut, 514 U.S. at 218. Thus, to change the outcome of
a pending legal decision, Congress must change the
underlying law; it may not tell a court how to interpret
existing laws. Just so, while it was lawful for Congress to
change the relevant legislation while the GPX litigation
was pending, it would not have been lawful for Congress
to dictate to this court how to interpret the Tariff Act as it
existed at the time of the GPX I litigation. Accordingly,
the 2012 amendment does not nullify this court’s reason-
ing and conclusion in GPX I. To paraphrase the Supreme
Court, GPX I “provides the authoritative interpretation of
the [statute] . . . before the [2012] amendment went into
effect . . . . That interpretation provides the baseline for
our conclusion that the [2012] amendment would be
‘retroactive’ if applied to cases arising before that date.”
Rivers v. Roadway Exp., Inc., 511 U.S. 298, 313 (1994).
Adopting the government’s view would mean that no
legislative change would ever be retroactive so long as
Congress determined that the original decision interpret-
ing the law before the amendment was incorrect. There is
no support for such a theory. The 2012 amendment did
not nullify our opinion in GPX I, but, instead, attempted
to change trade law retroactively.
In addition to its argument regarding Congress’s in-
tent in enacting the 2012 amendment, the government
also argues that “GPX I cannot be considered to be an
authoritative statement of law because it never became
final.” Appellee’s Br. 19. The government contends that
14 GUANGDONG WIREKING HOUSEWARES v. US
because GPX I never mandated, while GPX II did, the
decision rendered in GPX I should be “disregarded,”
Appellee’s Br. 22, as it carries “no weight.” Id. at 24. It is
undisputed that GPX I was not a final decision. Neverthe-
less, this lack of finality does not, as the government
suggests, sap GPX I of its persuasive force. As we previ-
ously explained, the government invited this court to
vacate GPX I, and we declined to do so. Instead, we re-
heard GPX and applied the new law to its facts. Thus,
even though GPX I was not a final decision, it still stands
as a statement of the law at the time of its decision.
B
Alternatively, the government attempts to re-litigate
the issue we decided in GPX I and asks us to overrule
that decision. The government contends that the “plain
language” of the Tariff Act has always required Com-
merce to apply countervailing duties to NME imports “in
the same way it was required to apply countervailing
duties to any other imports that benefitted from a coun-
tervailable subsidy.” Appellee’s Br. 12.
We considered and rejected this argument in GPX I.
As previously explained, GPX I held that Congress previ-
ously “adopted the position that countervailing duty law
does not apply to NME countries.” GPX I, 666 F.3d at 745.
Therefore, prior to March 2012, Commerce could not
impose countervailing duties on NME imports. Amber
Res. Co. v. United States, 538 F.3d 1358, 1370 (Fed. Cir.
2008) (“[C]ourt decisions construing statutes are typically
viewed as not changing the law but merely announcing
what the law has meant since its enactment . . . .”). We
remain persuaded that our opinion in GPX I reflects the
correct interpretation of the Tariff Act at the time of the
decision. The government’s current attempt to re-litigate
GPX I is unavailing.
GUANGDONG WIREKING HOUSEWARES v. US 15
II. Ex Post Facto Analysis
Since the 2012 amendment operates retroactively, we
must determine whether its provisions are penal legisla-
tion that violate the Ex Post Facto Clause. The Ex Post
Facto Clause forbids the government from punishing
individuals for actions that were lawful at the time of
their execution. Weaver, 450 U.S. at 28. Because the Ex
Post Facto Clause prohibits retroactive punishment, this
constitutional provision is directed at statutes that “‘ret-
roactively alter the definition of crimes or increase the
punishment for criminal acts.’” Cal. Dep’t of Corr. v.
Morales, 514 U.S. 499, 504-05 (quoting Collins v.
Youngblood, 497 U.S. 37, 43 (1990)); Calder v. Bull, 3 U.S.
(Dall.) 386, 390 (1798). There is no dispute that the Tariff
Act and the 2012 amendment are civil in nature. Thus,
they fall outside the scope of the Supreme Court’s tradi-
tional ex post facto analysis.
Nevertheless, in rare circumstances, the Supreme
Court has held that a civil law violates the Ex Post Facto
Clause because the law was punitive. So far as we have
been able to determine, the Supreme Court has held a
civil statute violates the Ex Post Facto Clause on three
occasions and in no instance since 1878. See Burgess v.
Salmon, 97 U.S. 381, 384 (1878) (retroactive application
of a tax increase on tobacco violated the Ex Post Facto
Clause); Cummings v. Missouri, 71 U.S. 277, 325-29
(1866) (Missouri law that imposed fines on priests for
ministering without first taking an oath denying past
sympathy for Confederacy violated the Ex Post Facto
Clause); Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 138
(1810) (Georgia law that retroactively terminated a right
to property constituted an ex post facto violation). These
cases represent a narrow exception to the general rule
that the Ex Post Facto Clause only applies to laws that
alter the criminal penalties associated with particular
conduct. Wireking argues that the 2012 amendment falls
within this narrow exception.
16 GUANGDONG WIREKING HOUSEWARES v. US
The Supreme Court’s standard for determining when
a civil law can be deemed punitive is most clearly spelled
out in the Court’s decision in Smith, 538 U.S. 84 (2003),
based on the Court’s earlier decision in Kennedy v. Men-
doza-Martinez, 372 U.S. 144, 168-69 (1963). This standard
is exacting and difficult to satisfy. Under this standard,
we must first “ascertain whether the legislature meant
the statute to establish ‘civil’ proceedings.” Id. at 92
(quoting Kansas v. Hendricks, 521 U.S. 346, 361 (1997))
(internal quotation marks omitted).
If the intention of the legislature was to impose
punishment, that ends the inquiry. If, however,
the intention was to enact a regulatory scheme
that is civil and nonpunitive, we must further ex-
amine whether the statutory scheme is “‘so puni-
tive either in purpose or effect as to negate [the
State’s] intention’ to deem it ‘civil.’”
Id. (quoting Hendricks, 521 U.S. at 361 (quoting United
States v. Ward, 448 U.S. 242, 248-49 (1980))).
A
As to the first inquiry, there can be no serious ques-
tion that Congress intended to create a civil remedy
rather than impose punishment. The congressional intent
behind the enactment of countervailing duty and anti-
dumping law generally was to create a civil regulatory
scheme that remedies the harm unfair trade practices
cause. See infra Slip. Op. at 21. As the Trade Court noted,
“[antidumping] and [countervailing duties] are separate
remedies that counteract different anticompetitive behav-
iors. . . . The imposition of one type of duty does not
obviate the need for the other, nor does it address the
harm caused by the conduct the other duty is designed to
remedy.” Guangdong, 900 F. Supp. 2d at 1371 (citation
omitted). As the House floor debate demonstrates, this
remedial intent drove Congress to enact the 2012 law. See
158 Cong. Rec. H1168-73 (daily ed. Mar. 6, 2012) (various
GUANGDONG WIREKING HOUSEWARES v. US 17
remarks stating that the new law would “level the playing
field” and ensure that Commerce could adequately reme-
dy China’s unfair trade practices). Indeed, almost every
speaker emphasized the curative purpose of the new
legislation. Id. H1169 (statement of Rep. Ellmers) (“These
duties are not punitive; they merely serve as a correction
to unfair Chinese subsidies.”); id. H1168 (statement of
Rep. Neal) (“Countervailing duties level the playing field
for U.S. employers and workers and allow them to com-
pete against imports that are subsidized through unfair
trade practices, emphasis on the word ‘unfair.’”); id.
H1168 (statement of Rep. Boustany) (“This bill restores
Commerce’s ability to protect American jobs and compa-
nies from unfair . . . trade practices perpetrated by non-
market economies . . . .”). These statements demonstrate
the new law’s overall remedial intent.
Congress’s decision to direct Commerce to adjust for
double counting prospectively, but not retrospectively,
does not undermine Congress’s overarching remedial
intent. Congress enacted the prospective adjustment
provision to ensure that the United States complied with
its WTO obligations. 5 Instead, it demonstrates Congress’s
5 The Congressmen that introduced the bill, Repre-
sentatives Camp, Levin, Brady, and McDermott, ex-
plained that the proposed law included a prospective
double-counting provision to ensure compliance with the
United States’ WTO obligations. See Press Release, Com-
mittee on Ways and Means, Camp, Levin, Brady, and
McDermott Introduce Legislation to Ensure Commerce
Department Can Continue to Apply Countervailing Duty
Laws to Non-Market Economies Like China (Feb. 29,
2012), available at http://waysandmeans.house.gov/news/
documentsingle.aspx?DocumentID=282425; see also 158
Cong. Rec. H1167 (daily ed. Mar. 6, 2012) (statement of
Rep. Camp) (“This legislation . . . brings the United States
18 GUANGDONG WIREKING HOUSEWARES v. US
desire to do no more than is necessary to comply with the
United States’ WTO obligations in light of the complexity
of double-counting calculations. Thus, we find that Con-
gress enacted the 2012 amendment to modify the civil
regulatory scheme, not to impose punishment.
B
Having resolved the first inquiry, we must turn to the
second: Is the 2012 amendment “so punitive either in
purpose or effect as to negate [Congress’s] intention to
deem it civil?” Smith, 538 U.S. at 92 (internal quotations
omitted). In contrast to the first question, which focuses
on Congress’s overall intent in enacting the new law, the
second question examines the law’s specific objectives and
effects.
In Smith, the Supreme Court, following Mendoza-
Martinez, articulated seven factors that help guide this
inquiry: (1) whether the sanction “has been regarded in
our history and traditions as a punishment”; (2) whether
it “imposes an affirmative disability or restraint”; (3)
whether it “promotes the traditional aims of punishment”;
(4) whether it “has a rational connection to a nonpunitive
into compliance with its [WTO] obligations by requiring
the Department of Commerce to make an adjustment
when there is evidence of a double remedy.”). Senators
Baucus and Thune, who introduced the parallel bill in the
Senate, made similar statements. See Press Release,
Committee on Finance, Baucus, Thune Introduce Bill to
Protect U.S. Jobs, Fight Unfair Chinese Subsidies with
Countervailing Duties (Feb. 29, 2012), available at
http://www.finance.senate.gov/newsroom/chairman/releas
e/?id=1611b6e1-f691-4223-933b-b980771e16b2. Thus, the
failure to enact a retrospective double-counting adjust-
ment does not represent, as Wireking contends, a desire
to punish Chinese importers.
GUANGDONG WIREKING HOUSEWARES v. US 19
purpose”; (5) whether it “is excessive with respect to this
purpose”; (6) “whether the regulation comes into play only
on a finding of scienter”; and (7) “whether the behavior to
which it applies is already a crime.” Smith, 538 U.S. at
97, 105; see Seling v. Young, 531 U.S. 250, 272 n.3 (2001)
(recounting the seven factors); Hudson v. United States,
522 U.S. 93, 99-100 (1997) (listing the seven factors). The
Court also instructed that “these factors must be consid-
ered in relation to the statute on its face,” Mendoza-
Martinez, 372 U.S. at 169, and “‘only the clearest proof’
will suffice to override legislative intent and transform
what has been denominated a civil remedy into a criminal
penalty.” Hudson, 522 U.S. at 100 (quoting Ward, 448
U.S. at 249).
Unfortunately, neither party has addressed the Su-
preme Court’s clear seven-factor inquiry. Instead, the
parties focused almost entirely on a three-factor test this
court introduced in Huaiyin Foreign Trade Corp. v. Unit-
ed States, 322 F.3d 1369, 1380 (Fed. Cir. 2003). Under
this test, a statute only imposes a penalty when:
(1) the costs imposed are unrelated to the amount
of actual harm suffered and are related more to
the penalized party’s conduct, (2) the proceeds
from infractions are collected by the state, rather
than paid to the individual harmed, and (3) the
statute is meant to address a harm to the public,
as opposed to remedying a harm to an individual.
Huaiyin, 322 F.3d at 1380 (quoting Ingalls Shipbuilding,
Inc. v. Dalton, 119 F.3d 972, 978 (Fed. Cir. 1997) (discuss-
ing when a statute imposes a penalty in the context of
contract law)). Nevertheless, as both parties conceded at
oral argument and Huaiyin itself suggests, 322 F.3d at
1380-81, the three-part Huaiyin test is not exclusive and
was developed without the benefit of the Supreme Court’s
decision in Smith, which was decided less than a month
before Huaiyin and never cited in it. The component parts
20 GUANGDONG WIREKING HOUSEWARES v. US
of Huaiyin test largely overlap aspects of the Supreme
Court’s seven part test.
1
The first three and final two Smith factors do not
support a finding that the 2012 law is punitive. They cut
in the opposite direction. Under the first factor, as de-
scribed in greater detail below, countervailing duties have
not “been regarded in our history and traditions as a
punishment.” Smith, 538 U.S. at 97; see Nucor Corp. v.
United States, 414 F.3d 1331, 1336 (Fed. Cir. 2005);
Huaiyin, 322 F.3d at 1380, 1381; Chaparral Steel Co. v.
United States, 901 F.2d 1097, 1103-04 (Fed. Cir. 1990).
Under the second factor, the 2012 amendment does not
constitute “an affirmative disability or restraint.” Smith,
538 U.S. at 97. This reference to disability or restraint
concerns the liberty of individual persons. As the Su-
preme Court explained in Smith, the paradigmatic af-
firmative disability or restraint is physical restraint, i.e.,
imprisonment. Id. at 100 (citing Hudson, 522 U.S. at 104).
Such restraints are not at issue here. With respect to the
third factor, the 2012 amendment does not promote the
“traditional aims of punishment.” Id. at 97. Instead, the
amendment creates a remedy for unfair conduct when it
occurs. The sixth and seventh factors—“whether the
regulation comes into play only on a finding of scienter”
and “whether the behavior to which it applies is already a
crime”—are not applicable to the present case. Id. at 105.
We find that these factors weigh against a finding that
the 2012 law is punitive.
2
Only two of the seven Smith factors (the fourth and
fifth factors) could possibly support Wireking’s position.
And these two factors overlap with the three factors
articulated in Huaiyin. The fourth factor is essentially
directed towards determining whether the law has an
alternative, non-punitive purpose. The fifth factor ad-
GUANGDONG WIREKING HOUSEWARES v. US 21
dresses the relationship between the law’s effects and its
purported remedial purpose.
The fourth Smith factor—whether the regulation “has
a rational connection to a nonpunitive purpose,” id. at
97—is both “a ‘[m]ost significant’ factor,” id. at 102 (quot-
ing United States v. Ursery, 518 U.S. 267, 290 (1996)), and
the most relevant to this case. It is well established that
antidumping and countervailing duty laws are remedial
in nature. Both the courts and Congress have consistently
confirmed this understanding. See Nucor, 414 F.3d at
1336 (“[T]he purpose of antidumping and countervailing
duty laws is remedial, not punitive or retaliatory.”);
Huaiyin, 322 F.3d at 1380, 1381; Chaparral Steel, 901
F.2d at 1103-04 (clarifying that trade duties are intended
to be “solely remedial”); Peer Bearing Co. v. United States,
182 F. Supp. 2d 1285, 1310 (Ct. Int’l Trade 2001); Badger-
Powhatan v. United States, 608 F. Supp. 653, 656 (Ct.
Int’l Trade 1985); S. Rep. No. 92-1221, at 8 (1972) (Conf.
Rep.) (“[C]ountervailing duties are not, nor were they ever
intended to be, penal in nature; they are remedial in
nature inasmuch as they operate to offset the effect of
subsidies afforded foreign merchandise.”). Indeed, Wire-
king itself concedes that “countervailing duty and anti-
dumping laws in general are remedial in nature,”
Appellant’s Br. 48, “[these duties] in general address
different issues,” Appellant’s Reply Br. 17, and counter-
vailing duty law “in general imposes duties that are
proportional to the harm.” Id. Thus, the primary purpose
of antidumping and countervailing duties generally is
remedial, not punitive.
The current amendment does not stray from the re-
medial nature of trade duties generally. The 2012
amendment enables Commerce to apply countervailing
duties to NME imports. Thus, this law simply extends
Commerce’s ability to impose countervailing duties to a
new group of importers. And like countervailing duty law
generally, the specific purpose of the new law is to remedy
22 GUANGDONG WIREKING HOUSEWARES v. US
the harm American manufacturers and their workers
experience as a result of unfair foreign trade practices.
Although the government, as opposed to American manu-
facturers themselves, receives the duties levied on NME
imports, the specific purpose of these laws is to level the
playing field for particular American manufacturers,
which is relevant under the third Huaiyin factor. Huaiyin,
322 F.3d at 1380 (“remedying a harm to an individual”
suggests that the law is non-punitive). Thus, like anti-
dumping and countervailing duties generally, the specific
purpose of the 2012 amendment is remedial, not punitive.
3
Wireking focuses primarily on the fifth factor—
whether the regulation “is excessive with respect to this
purpose,” Smith, 538 U.S. at 97—a factor similar to the
first Huaiyin factor—whether “the costs imposed are
unrelated to the amount of actual harm suffered and are
related more to the penalized party’s conduct.” Huaiyin,
322 F.3d at 1380. Wireking admits that the imposition of
both antidumping and countervailing duties on imports
from NME countries does not in and of itself have a
punitive effect. Indeed, Wireking admits that the law
would not violate the Ex Post Facto Clause if it simply
made no adjustment at all for double counting. The law’s
vice, in Wireking’s view, is that it makes no double-
counting adjustment for proceedings commenced between
November 20, 2006, and March 13, 2012, while adjusting
for proceedings commenced thereafter. Wireking argues
that the antidumping and countervailing duties it must
pay account for the same subsidies, and this double
counting derogates the law’s remedial effect and renders
it punitive.
Wireking’s mistake lies in its attempt to parse the
antidumping law into discrete parts and apply the ex post
facto analysis to each detached portion. Even if the 2012
law could be considered separately from the overall anti-
GUANGDONG WIREKING HOUSEWARES v. US 23
dumping and countervailing duty law, treating aspects of
the 2012 legislation in isolation is not consistent with
Supreme Court authority. In Smith, the appellees made a
similar argument to the one set forth in the case: they
contended that the law at issue, a sex offender registra-
tion statute, lacked the necessary regulatory connection
because it was not “‘narrowly drawn to accomplish the
stated purpose.’” Smith, 538 U.S. at 103 (quoting Brief for
Respondents 38). The Ninth Circuit agreed with the
appellees, finding that the law was “excessive in relation
to its regulatory purpose . . . [because]: first, . . . the
statute applie[d] to all convicted sex offenders without
regard to their future dangerousness; and, second, . . . it
place[d] no limits on the number of persons who ha[d]
access to the information.” Id.
In response to this argument, the Supreme Court ex-
plained that, “[a] statute is not deemed punitive simply
because it lacks a close or perfect fit with the nonpunitive
aims it seeks to advance.” Id. The Court repeatedly em-
phasized that even though a law may, in certain circum-
stances, have an effect that resembles punishment, such
imperfect legislation cannot be deemed punitive if its
principal impact is non-punitive. Id. at 99, 100, 102, 103.
So here.
Although the 2012 amendment may permit some ret-
roactive double counting, this small “imprecision” does not
vitiate the law’s remedial effect generally. See also Seling,
531 U.S. at 263. While the remedial purpose of the 2012
law may “lack[] a close or perfect fit” with its overarching
remedial intent, such a potential flaw does not render it
punitive. Smith, 538 U.S. at 103. The predominant effect
of the new law is remedial. Indeed, if perfect proportional-
ity were necessary to prevent a remedial duty from trans-
forming into a punitive one, most trade laws would fall if
applied retroactively since, as we have recognized in past
cases, imperfections are a feature of trade law generally.
See, e.g., Changzhou Wujin Fine Chem. Factory Co., Ltd.
24 GUANGDONG WIREKING HOUSEWARES v. US
v. United States, 701 F.3d 1367, 1376 (Fed. Cir. 2012)
(“We have recognized that in some circumstances, anti-
dumping investigations require calculations that are ‘by
necessity imperfect . . . .’”).
Wireking’s approach is particularly problematic be-
cause double counting is hardly a simple calculation, as
this case demonstrates and the 2012 legislation recog-
nized by providing for relief only where “the administer-
ing authority is []able to identify and measure subsidies
provided by the government of the nonmarket economy
country.” Application of Countervailing Duty Provisions to
Nonmarket Economy Countries, Pub. L. No. 112-99,
March 13, 2012, 126 Stat. 265 (March 13, 2012). In this
case, it is not entirely clear that such double counting has
even occurred. The existence of an ex post facto violation
cannot depend on the existence of a complex and unclear
calculation designed to determine whether the law goes
beyond what is necessary to remedy the injury incurred in
a particular case.
In summary, Wireking has not shown, let alone by the
clearest proof, that the absence of a retrospective double-
counting provision negates the law’s predominantly
remedial impact. Thus, under the Smith analysis, we find
that the 2012 law is not punitive and does not violate the
Ex Post Facto Clause.
AFFIRMED
GUANGDONG WIREKING HOUSEWARES v. US 25
APPENDIX
Public Law 112–99
112th Congress
An Act
To apply the countervailing duty provisions of
the Tariff Act of 1930 to nonmarket economy coun-
tries, and for other purposes.
Be it enacted by the Senate and House of Representatives
of the United States of America in Congress assembled,
SECTION 1. APPLICATION OF
COUNTERVAILING DUTY PROVISIONS TO
NONMARKET ECONOMY COUNTRIES.
(a) In General.—Section 701 of the Tariff Act of 1930 (19
U.S.C. 1671) is amended by adding at the end the follow-
ing:
“(f) Applicability to Proceedings Involving Nonmarket
Economy Countries.—
“(1) In General.—Except as provided in paragraph
(2), the merchandise on which countervailing du-
ties shall be imposed under subsection (a) includes
a class or kind of merchandise imported, or sold
(or likely to be sold) for importation, into the
United States from a nonmarket economy coun-
try.
“(2) Exception.—A countervailing duty is not re-
quired to be imposed under subsection (a) on a
class or kind of merchandise imported, or sold (or
likely to be sold) for importation, into the United
States from a nonmarket economy country if the
administering authority is unable to identify and
measure subsidies provided by the government of
the nonmarket economy country or a public entity
26 GUANGDONG WIREKING HOUSEWARES v. US
within the territory of the nonmarket economy
country because the economy of that country is es-
sentially comprised of a single entity.”
(b) Effective Date.—Subsection (f) of section 701 of the
Tariff Act of 1930, as added by subsection (a) of this
section, applies to—
(1) all proceedings initiated under subtitle A of ti-
tle VII of that Act (19 U.S.C. 1671 et seq.) on or
after November 20, 2006;
(2) all resulting actions by U.S. Customs and Bor-
der Protection; and
(3) all civil actions, criminal proceedings, and oth-
er proceedings before a Federal court relating to
proceedings referred to in paragraph (1) or actions
referred to in paragraph (2).
SEC. 2. ADJUSTMENT OF ANTIDUMPING
DUTY IN CERTAIN PROCEEDINGS RELATING TO
IMPORTS FROM NONMARKET ECONOMY
COUNTRIES.
(a) In General.—Section 777A of the Tariff Act of 1930 (19
U.S.C. 1677f–1) is amended by adding at the end the
following:
“(f) Adjustment of Antidumping Duty in Certain Proceed-
ings Relating to Imports from Nonmarket Economy
Countries.—
“(1) In General.—If the administering authority
determines, with respect to a class or kind of mer-
chandise from a nonmarket economy country for
which an antidumping duty is determined using
normal value pursuant to section 773(c), that—
“(A) pursuant to section 701(a)(1), a coun-
tervailable subsidy (other than an export
subsidy referred to in section 772(c)(1)(C))
GUANGDONG WIREKING HOUSEWARES v. US 27
has been provided with respect to the class
or kind of merchandise,
“(B) such countervailable subsidy has been
demonstrated to have reduced the average
price of imports of the class or kind of
merchandise during the relevant period,
and
“(C) the administering authority can rea-
sonably estimate the extent to which the
countervailable subsidy referred to in
subparagraph (B), in combination with the
use of normal value determined pursuant
to section 773(c), has increased the
weighted average dumping margin for the
class or kind of merchandise,
the administering authority shall, except
as provided in paragraph (2), reduce the
antidumping duty by the amount of the
increase in the weighted average dumping
margin estimated by the administering
authority under subparagraph (C).
“(2) Maximum Reduction in Antidumping Duty.—
The administering authority may not reduce the
antidumping duty applicable to a class or kind of
merchandise from a nonmarket economy country
under this subsection by more than the portion of
the countervailing duty rate attributable to a
countervailable subsidy that is provided with re-
spect to the class or kind of merchandise and that
meets the conditions described in subparagraphs
(A), (B), and (C) of paragraph (1).”.
(b) Effective Date.—Subsection (f) of section 777A of the
Tariff Act of 1930, as added by subsection (a) of this
section, applies to—
28 GUANGDONG WIREKING HOUSEWARES v. US
(1) all investigations and reviews initiated pursu-
ant to title VII of that Act (19 U.S.C. 1671 et seq.)
on or after the date of the enactment of this Act;
and
(2) subject to subsection (c) of section 129 of the
Uruguay Round Agreements Act (19 U.S.C. 3538),
all determinations issued under subsection (b)(2)
of that section on or after the date of the enact-
ment of this Act.
Approved March 13, 2012.
LEGISLATIVE HISTORY—H.R. 4105 (S.2153):
CONGRESSIONAL RECORD, Vol. 158 (2012):
Mar. 6, considered and passed House.
Mar. 7, considered and passed Senate.
United States Court of Appeals
for the Federal Circuit
______________________
GUANGDONG WIREKING HOUSEWARES &
HARDWARE CO., LTD.,
Plaintiff-Appellant,
AND
BUREAU OF FAIR TRADE FOR IMPORTS &
EXPORTS, MINISTRY OF COMMERCE, THE
PEOPLE’S REPUBLIC OF CHINA,
Plaintiff,
v.
UNITED STATES,
Defendant-Appellee,
AND
NASHVILLE WIRE PRODUCTS, INC. AND
SSW HOLDING COMPANY, INC.,
Defendants-Appellees.
______________________
2013-1404
______________________
Appeal from the United States Court of International
Trade in No. 09-CV-0422, Senior Judge Nicholas Tsou-
calas.
______________________
2 GUANGDONG WIREKING HOUSEWARES v. US
O’MALLEY, Circuit Judge, concurring in the result.
I concur in the result the majority reaches today, but
not with the entirety of its rationale therefor. I agree
with the analysis in Section II of the Discussion section of
the majority opinion. That is, I agree that, assuming the
Ex Post Facto Clause of the U.S. Constitution is implicat-
ed by passage of § 1(b) of Pub. L. No. 112-99, 126 Stat. 265
(2012) (the “Act”), the legal consequences imposed on the
activities identified therein are not sufficiently punitive to
violate the Ex Post Facto Clause. I do not agree, however,
that the Ex Post Facto Clause is necessarily implicated by
the Act. And, I disagree that any binding precedent of
this court forces us to conclude that it is. For these rea-
sons, I write separately.
I believe we should either conclude that, assuming the
Ex Post Facto Clause is implicated, it has not been violat-
ed by passage of the Act or should decide as a panel
whether the Act was actually restorative, doing so anew.
The government argues that the Ex Post Facto Clause
was not implicated by passage of the Act because the Act
did not have the effect of attaching “new legal conse-
quences to events completed before [the statute’s] enact-
ment.” Landgraf v. USI Film Prods., 511 U.S. 244, 266,
269–70 (1994). It asserts that, because the Act did no
more than reaffirm the state of the law prior to the Act
(i.e., that Commerce always had the authority to impose
countervailing duties upon goods imported from non-
market economy countries in those instances where it was
able to identify a net countervailable subsidy), we need
not determine whether § 1(b) is remedial or punitive in
nature. While the government concedes that we held in
GPX International Tire Corp. v. United States, 666 F.3d
732 (Fed. Cir. 2011) (“GPX I”), that Commerce did not
have the authority to impose countervailing duties on
such countries, including China, as of the date GPX I was
decided, the government argues that our decision was
mistaken and that Congress has now made that fact clear.
GUANGDONG WIREKING HOUSEWARES v. US 3
As we conceded in GPX International Tire Corp. v.
United States, 678 F.3d 1308 (Fed. Cir. 2012) (“GPX II”),
Congress passed the Act to prevent our decision in GPX I,
from becoming law, and did so because it believed GPX I
did not accurately describe the state of the law at the time
it was issued. As we noted:
Having reviewed the briefs submitted by the par-
ties, two things are clear from the new legislation.
First, Congress clearly sought to overrule our deci-
sion in GPX [I]. The language of section 1(b) is
clear in this respect. Moreover, during the floor
debate, our decision in GPX [I] was referenced by
name and discussed at length. One of the bill’s
sponsors specifically noted that the new legislation
“overturns an erroneous decision by the Federal
circuit [sic] that the Department of Commerce does
not have the authority to apply these countervail-
ing duty rules to nonmarket economies.” 158 Cong.
Rec. H1167 (daily ed. Mar. 6, 2012) (statement of
Rep. Dave Camp).
GPX II, 678 F.3d at 1311. We also observed that the new
legislation makes clear “that Commerce’s imposition of
both countervailing duties and antidumping duties on
NME countries under ‘pre-existing law’” (i.e., the law in
place before GPX I issued) did not amount to “‘unreasona-
ble’ double counting.” Id. at 1312 n.3. Finally, we found
in GPX II that Congress had the authority to prevent this
Court’s decision in GPX I from becoming a final judgment.
Id. at 1312. Indeed, we acknowledged that the Act pre-
vented issuance of a mandate that would have put into
effect this Court’s then-belief that, under pre-existing law,
Congress did not intend to allow Commerce to impose
both countervailing and anti-dumping duties on non-
market economy countries, including China. Id. And, no
such mandate ever issued.
4 GUANGDONG WIREKING HOUSEWARES v. US
Because Congress could and did prevent GPX I from
ever becoming a final judgment, I cannot agree with the
majority that GPX I “still stands as a statement of the law
at the time of its decision.” Maj. Op. at 14. Id. GPX I
never became a judgment of this Court and should not be
treated as if it did. The fact that we did not vacate the
opinion does not give that opinion the force of law or make
it precedential.
Because GPX I never became law, the only way the Ex
Post Facto Clause could be implicated is if we were to
decide today, as a newly constituted panel, that the
holding in GPX I was correct—i.e., that Commerce did not
have the authority to impose countervailing duties on
non-market economy countries prior to passage of the Act.
While the decision in GPX I contained many persua-
sive arguments, it remains true that the exercise the
panel there undertook was to determine whether Con-
gress intended to exclude non-market economy countries
from 19 U.S.C. § 1671 Section 1671 provides, without
express exception, that, when a “government of a country”
is providing a “countervailable subsidy” with respect to
the production or exportation of specific merchandise,
“there shall be imposed upon such merchandise a coun-
tervailing duty, in addition to any other duty imposed,
equal to the amount of the net countervailable subsidy.”
This unqualified language in the Tariff Act on its face
appears to require Commerce to impose countervailing
duties on all merchandise for which it identifies a coun-
tervailable benefit, regardless of the country of origin.
The issue in GPX I was whether this language not only
permitted Commerce to refrain from imposing counter-
vailing duties where evidence of a subsidy was lacking—
as we found in Georgetown Steel Corp. v. United States,
801 F.2d 1308 (Fed. Cir. 1986)—but actually prohibited
Commerce from imposing countervailing duties where
non-market economy countries were the ones supplying
the otherwise countervailable subsidy.
GUANGDONG WIREKING HOUSEWARES v. US 5
While GPX I had, as noted, a variety of thoughtful ra-
tionales to support reading an unexpressed prohibition
into the Tariff Act, Commerce is correct that, even at that
time, there also were thoughtful arguments that coun-
seled against that conclusion. Not the least of these
arguments were the seemingly unequivocal language of
the Tariff Act itself, and the fact that Commerce had been
exercising what it viewed as its authority under the Act
for many years, with Congress specifically allocating
funds to Commerce to “defend” against both “antidumping
and countervailing duty measures with respect to prod-
ucts of the People’s Republic of China,” a non-market
economy country. 22 U.S.C. § 6943(a)(1); see also Consol-
idated Appropriations Act, 2010, Pub. L. No. 111–117, 123
Stat. 3034, 3113 (2009) (appropriating funds to the China
Countervailing Duty Group at Commerce for fiscal year
2010). In addition, as the government argues, not only
was there fair room for debate about whether Commerce
was prohibited from imposing countervailing duties on
China and other non-market economy countries at the
time GPX I was decided, the landscape has evolved since
then.
We now have a clear indication of whether Congress
itself believes the Tariff Act meant something other than
what it said on its face, and contained the implied prohi-
bition the appellant urges here, and previously urged in
GPX I. While not binding on us, we now know that Con-
gress believes we misread its earlier silence when we
decided GPX I.
As the United States points out in its brief: (1) Con-
gress acted quickly to prevent GPX I from becoming a
final judgment and, thus, having any force of law; (2)
Congress changed the language of the statute to make
clear that Commerce may—indeed must—impose coun-
tervailing duties unless countervailable subsidies are not
discernible in a given non-market economy country (the
circumstances at issue in Georgetown Steel Corp.); (3) the
6 GUANGDONG WIREKING HOUSEWARES v. US
bill received almost unanimous support, despite its rapid
pace; (4) those members of Congress who spoke on the
floor about the bill emphasized that its purpose was to
prevent GPX I from stripping Commerce of its ability to
impose countervailing duties on non-market economy
countries and to “reaffirm” that the countervailing duty
laws apply to subsidies from China and other non-market
economy countries; and (5) the legislative history is re-
plete with references to legislators’ beliefs that our deci-
sion in GPX I was “based on a deeply flawed assessment
of Congressional intent.” All of these facts indicate Con-
gress’s belief that the Act was intended simply to reaffirm
Commerce’s authority, an authority Congress believes
“Commerce has always had” and believes Commerce
should “continue to have and exercise . . . in the future.”
158 Cong. Rec. H1166–67 (daily ed. March 6, 2012). This
evidence is a congressional signal of what it believes its
prior enactment authorized. I believe this expression of
congressional intent should be considered when we de-
termine whether—as the United States urges—the Act
did not change the law; but merely confirmed it. Whatev-
er the merits of the rationale employed in GPX I when it
was originally decided, in light of all of the additional
information available to us we may well not reach the
same result today that the panel did in GPX I.
Because I believe the Act may not have changed the
law and may only expose appellant to the same legal
consequences it faced before passage of the Act, the Ex
Post Facto Clause may not even come into play. I would
either avoid this question, since it is not necessary to
resolve the constitutional challenge before us, or address
it directly and anew, in light of the entire and updated
congressional record.