Standard Furniture Manufacturing Co. v. United States

Slip Op. 12- 21
UNITED STATES COURT OF INTERNATIONAL TRADE
STANDARD FURNITURE
MANUFACTURING CO., INC.,
Plaintiff,
v.
UNITED STATES and UNITED STATES
INTERNATIONAL TRADE COMMISSION,
Defendants,
Before: Gregory W. Carman, Judge
and Timothy C. Stanceu, Judge
Leo M. Gordon, Judge
AMERICAN FURNITURE
MANUFACTURERS COMMITTEE FOR Consol. Court No. 07-00028
LEGAL TRADE, KINCAID FURNITURE
CO., INC., L. & J.G. STICKLEY, INC.,
SANDBERG FURNITURE
MANUFACTURING COMPANY, INC.,
STANLEY FURNITURE COMPANY, INC.,
T. COPELAND AND SONS, INC., and
VAUGHAN-BASSETT FURNITURE
COMPANY, INC.,
Defendant-Intervenors.
OPINION
[Dismissing the consolidated case, in which certain claims must be dismissed for lack of standing
and the remaining claims must be dismissed for failure to state a claim upon which relief can be
granted]
Dated: February 17, 2012
Kristin H. Mowry, Jeffrey S. Grimson, Jill A. Cramer, Sarah M. Wyss, and Susan L.
Brooks, Mowry & Grimson, PLLC, of Washington, DC and Kevin K. Russell, Goldstein, Howe
& Russell, P.C., of Bethesda, MD, for plaintiff.
Jessica R. Toplin, David S. Silverbrand, Courtney S. McNamara, and Michael J.
Dierberg, Trial Attorneys, Commercial Litigation Branch, Civil Division, U.S. Department of
Consol. Court No. 07-00028 Page 2
Justice, of Washington, DC, for defendant United States. With them on the briefs were Tony
West, Assistant Attorney General, Jeanne E. Davidson, Director, and Franklin E. White, Jr.,
Assistant Director. Of counsel on the briefs was Andrew G. Jones, Office of Assistant Chief
Counsel, U.S. Customs and Border Protection, of New York, NY.
Patrick V. Gallagher, Jr., Attorney Advisor, Office of the General Counsel, U.S.
International Trade Commission, of Washington, DC, for defendant. With him on the briefs
were James M. Lyons, General Counsel, and Neal J. Reynolds, Assistant General Counsel.
Joseph W. Dorn and Jeffrey M. Telep, King & Spalding, LLP, of Washington, DC, for
defendant-intervenors the American Furniture Manufacturers Committee for Legal Trade,
Kincaid Furniture Co., Inc., L. & J.G. Stickley, Inc., Sandberg Furniture Manufacturing
Company, Inc., Stanley Furniture Co., Inc., T. Copeland and Sons, Inc., and Vaughan-Bassett
Furniture Company, Inc. With them on the briefs was Taryn K. Williams. Of counsel on the
briefs was Richard H. Fallon, of Cambridge, MA.
Stanceu, Judge: Plaintiff Standard Furniture Manufacturing Co., Inc. (“Standard”), a
domestic furniture manufacturer, brought four separate actions, now consolidated,1 during the
period of January 31, 2007 through March 4, 2010, all stemming from certain administrative
determinations of the U.S. International Trade Commission (“ITC” or the “Commission”) and
U.S. Customs and Border Protection (“Customs” or “CBP”). The ITC did not include Standard
on the list of entities potentially eligible for status as an “affected domestic producer” (“ADP”)
under the Continued Dumping and Subsidy Offset Act of 2000 (the “CDSOA” or “Byrd
Amendment”), Pub. L. No. 106-387, §§ 1001-03, 114 Stat. 1549, 1549A-72-75, 19 U.S.C.
§ 1675c (2000),2 repealed by Deficit Reduction Act of 2005, Pub. L. 109-171, § 7601(a),
1
Due to the presence of common issues, the court, on February 15, 2011, consolidated
plaintiff’s four actions under Consol. Court No. 07-00028. Order (Feb. 15, 2011), ECF No. 57.
Consolidated with Standard Furniture Mfg. Co. v. United States under Consol. Court No. 07-
00028 are Standard Furniture Mfg. Co. v. United States, Court No. 07-00295, Standard
Furniture Mfg. Co. v. United States, Court No. 09-00027, and Standard Furniture Mfg. Co. v.
United States, Court No. 10-00082.
2
Citations are to the version of the Continued Dumping and Subsidy Offset Act
(continued...)
Consol. Court No. 07-00028 Page 3
120 Stat. 4, 154 (Feb. 8, 2006; effective Oct. 1, 2007). If the ITC had included Standard on the
list of companies potentially eligible for ADP status, Standard might have qualified for annual
monetary distributions by Customs of antidumping duties collected under an antidumping duty
order on imports of wooden bedroom furniture from the People’s Republic of China. Notice of
Amended Final Determination of Sales at Less Than Fair Value & Antidumping Duty Order:
Wooden Bedroom Furniture From the People’s Republic of China, 70 Fed. Reg. 329 (Jan. 4,
2005) (“Antidumping Duty Order”). The ITC construed the “petition support requirement” of the
CDSOA, under which distributions are limited to petitioners and parties in support of a petition,
to disqualify Standard from the list of potential ADPs because Standard indicated to the ITC that
it opposed the petition that resulted in the antidumping duty order.
Plaintiff claims that the administrative actions of the two agencies were inconsistent with
the CDSOA, were not supported by substantial evidence, and were otherwise not in accordance
with law. Plaintiff also brings constitutional challenges grounded in the First Amendment, the
Fifth Amendment equal protection guarantee, and the Fifth Amendment due process guarantee.
Before the court are four dispositive motions. On February 23, 2011, defendant-
intervenors American Furniture Manufacturers Committee for Legal Trade, Kincaid Furniture
Co., Inc., L. & J.G. Stickley, Inc., Sandberg Furniture Manufacturing Company, Inc., Stanley
Furniture Co., Inc., T. Copeland and Sons, Inc., and Vaughan-Bassett Furniture Company, Inc.
moved to dismiss under Rule 12(b)(5) and for judgment on the pleadings under Rule 12(c). Def.-
intervenors’ Mot. to Dismiss & for J. on the Pleadings (Feb. 23, 2011), ECF No. 61 (“Def.-
2
(...continued)
(“CDSOA”) found at 19 U.S.C. § 1675c (2000). All other citations to the United States Code are
to the 2006 edition.
Consol. Court No. 07-00028 Page 4
intervenors’ Feb. Mot.”). After the court granted plaintiff leave to amend its complaints in Court
Nos. 07-00028 and 07-00295, defendant-intervenors moved to dismiss under USCIT Rule
12(b)(5). Def.-intervenors’ Mot. to Dismiss Case Nos. 07-00028 & 07-00295 (April 1, 2011),
ECF No. 83 (“Def-intervenors’ Apr. Mot.”). Defendants ITC and Customs moved to dismiss
under Rule 12(b)(5) on May 2, 2011. Def. U.S. Customs & Border Protection’s Mot. to Dismiss
the Second Amended Compl. for Failure to State a Claim upon which Relief can be Granted
(May 2, 2011), ECF No. 92 (“Customs’ Mot.”); Def. U.S. Int’l Trade Comm’n’s Mot. to Dismiss
for Failure to State a Claim (May 2, 2011), ECF No. 91 (“ITC’s Mot.”).
Also before the court is Standard’s motion for a preliminary injunction, filed January 11,
2012. Pl.’s Mot. for Prelim. Inj. (Jan. 11, 2012), ECF No. 110. Standard seeks to halt, pending a
final disposition of this litigation, including all appeals and remands, CBP’s pending distribution
of certain collected antidumping duties to domestic parties recognized as ADPs by the
Commission, including the defendant-intervenors in this case. Id. at 1. The distribution was
scheduled to occur on or after January 31, 2012.3 Def. U.S. Customs & Border Protection’s
Resp. to the Ct.’s Feb. 14, 2011 Request (Feb. 28, 2011), ECF No. 66. Customs withheld these
funds from distribution pending the resolution of various lawsuits, including plaintiff’s,
challenging the constitutionality of the CDSOA.
The court concludes that relief is not available on plaintiff’s claims challenging the
administration of the CDSOA by the two agencies. We also conclude that no relief can be
granted on Standard’s claims challenging the CDSOA on First Amendment and Fifth
3
Defendants represent that distribution is now scheduled to take place on or after
March 9, 2012. Def.’s Mot. for an Extension of Time for all Defs. to File Their Resps. in Opp’n
to Pl.’s Mot. for Prelim. Inj. 2 (Jan. 19, 2012), ECF No. 112.
Consol. Court No. 07-00028 Page 5
Amendment equal protection grounds. Plaintiff lacks standing to assert the claims it bases on
Fifth Amendment due process grounds. Finally, plaintiff does not satisfy the standards for
obtaining the injunction it seeks. The court will enter judgment dismissing this action.
I. BACKGROUND
During a 2003 ITC investigation to determine whether imports of wooden bedroom
furniture from China were causing or threatening to cause material injury to the domestic
industry, Initiation of Antidumping Duty Investigation: Wooden Bedroom Furniture from the
People’s Republic of China, 68 Fed. Reg. 70,228, 70,231 (Dec. 17, 2003), Standard responded to
the ITC’s questionnaires, indicating that it opposed the issuance of an antidumping duty order.
See, e.g., First Amended Compl. ¶ 19 (Mar. 23, 2011), ECF No. 81. Based on the affirmative
ITC injury determination, the International Trade Administration, U.S. Department of Commerce
(“Commerce” or the “Department”) issued the antidumping duty order on imports of wooden
bedroom furniture from China in 2005. Antidumping Duty Order, 70 Fed. Reg. at 329.
Determining that Standard had not supported the petition so as to qualify it for CDSOA benefits,
ITC declined to place Standard on the list of potential ADPs with respect to this order for Fiscal
Years 2006 through 2010. Distribution of Continued Dumping & Subsidy Offset to Affected
Domestic Producers, 71 Fed. Reg. 31,336, 31,375-76 (June 1, 2006); Distribution of Continued
Dumping & Subsidy Offset to Affected Domestic Producers, 72 Fed. Reg. 29,582, 29,622-23
(May 29, 2007); Distribution of Continued Dumping & Subsidy Offset to Affected Domestic
Producers, 73 Fed. Reg. 31,196, 31,236-37 (May 30, 2008); Distribution of Continued Dumping
& Subsidy Offset to Affected Domestic Producers, 74 Fed. Reg. 25,814, 25,855-56
Consol. Court No. 07-00028 Page 6
(May 29, 2009); Distribution of Continued Dumping & Subsidy Offset to Affected Domestic
Producers, 75 Fed. Reg. 30,530, 30,571-72 (June 1, 2010).
Plaintiff filed actions contesting the government’s refusal to provide it CDSOA
distributions of antidumping duties collected during Fiscal Years 2006 (Court No. 07-00028),
2007 (Court No. 07-00295), 2008 (Court No. 09-00027), and 2009-2010 (Court No. 10-00082).
The court stayed the four actions pending a final resolution of other litigation raising the same or
similar issues.4 See, e.g., Order (June 11, 2007), ECF No. 37.
Following the decision of the U.S. Court of Appeals for the Federal Circuit (“Court of
Appeals”) in SKF USA Inc. v. United States, 556 F.3d 1337 (2009) (“SKF”), cert. denied, 130 S.
Ct. 3273 (2010), which addressed legal questions also present in this case, the court issued an
order directing Standard to show why these actions should not be dismissed and lifted the stay for
the purposes of allowing any brief, response, or reply described in that order. See, e.g., Order
(Jan. 3, 2011), ECF No. 45. On February 1, 2011, plaintiff responded to the court’s order and
moved for a partial lift of the stay to allow amendment of the complaints in Court Nos. 07-00028
and 07-00295 as a matter of course to add an additional count challenging the CDSOA under the
First Amendment as applied to Standard. See, e.g., Pl.’s Br. in Resp. to the Ct.’s Order to Show
Cause (Feb. 1, 2011), ECF No. 50 (“Pl.’s Br.”); Mot. for Leave to Amend Compl. (Jan. 24,
2011), ECF No. 47; Proposed First Am. Compl. ¶ 50 (Jan. 24, 2011), ECF No. 47; Mot. for
4
The court’s orders stayed the actions “until final resolution of Pat Huval Restaurant &
Oyster Bar, Inc. v. United States International Trade Commission, Consol. Court No. 06-00290,
that is, when all appeals have been exhausted.” Order (June 11, 2007), ECF No. 37. The
language of the court’s stay orders in the other consolidated actions was substantially the same.
Consol. Court No. 07-00028 Page 7
Leave to Amend Compl. (Jan. 24, 2011), ECF No. 45 (Court No. 07-00295); Proposed Second
Am. Compl. ¶ 50 (Jan. 24, 2011), ECF No. 45 (Court No. 07-00295).
The court lifted the stay for all purposes on February 9, 2011. See, e.g., Order (Feb. 9,
2011), ECF No. 52. The same day, plaintiff filed notices of amended complaints in Courts Nos.
09-00027 and 10-00082. First Amended Compl. (Feb. 9, 2011), ECF No. 32 (Court No.
09-00027); First Amended Compl. (Feb. 9, 2011), ECF No. 29 (Court No. 10-00082). On
February 15, 2011, the court consolidated Standard Furniture Mfg. Co. v. United States, Court
No. 07-00295, Standard Furniture Mfg. Co. v. United States, Court No. 09-00027, and Standard
Furniture Mfg. Co. v. United States, Court No. 10-00082 under Consol. Court No. 07-00028.
Order (Feb. 15, 2011), ECF No. 57. Defendant-intervenors filed their motions to dismiss the
consolidated action and for judgment on the pleadings on February 23, 2011. Def-intervenors’
Feb. Mot. On March 23, 2011, this court acknowledged plaintiff’s amendment of its complaints
in Court Nos. 09-00027 and 10-00082, granted plaintiff’s motion to amend the complaints in
Court Nos. 07-00028 and 07-00295, and accepted the amended complaints in the 2007 actions
for filing in the consolidated action. Standard Furniture Mfg. Co. v. United States, 35 CIT __,
Slip Op. 11-32 (Mar. 23, 2011); First Amended Compl.; Second Amended Compl., ECF No. 82
(Court No. 07-00295). Defendant-intervenors filed a motion to dismiss the consolidated action
on April 1, 2011. Def-intervenors’ Apr. Mot. The ITC and Customs filed their motions to
dismiss the consolidated action on May 2, 2011. ITC’s Mot.; Customs’ Mot.
In July 2011, plaintiff filed a notice of supplemental authority highlighting recent
decisions by the U.S. Supreme Court, which, according to plaintiff, are “relevant to the pending
motions to dismiss Standard’s as-applied First Amendment challenge to the government’s
Consol. Court No. 07-00028 Page 8
implementation of the [CDSOA].” Notice of Supp. Authority 1 (July 7, 2011), ECF No. 105
(“Pl.’s Notice of Supp. Authority”) (citing Sorrell v. IMS Health Inc., 131 S. Ct. 2653 (2011);
Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, 131 S. Ct. 2086 (2011); Citizens
United v. Federal Election Comm’n, 130 S. Ct. 876 (2010)). Defendant-intervenors filed a reply
to this letter, and both defendants addressed the supplemental authority question in their reply
briefs. Def.-intervenor’s Resp. to Pl.’s Notice of Supplemental Authority (July 22, 2011),
ECF No. 109; United States & U.S. Customs & Border Protection’s Reply in Supp. of their Mot.
to Dismiss for Failure to State a Claim upon which Relief Can Be Granted 5-6 n.4 (July 14,
2011), ECF No. 107; Def. U.S. Int’l Trade Comm’n’s Reply to Pl.’s Br. in Opp’n to Mot. to
Dismiss for Failure to State a Claim 12-14 (July 14, 2011), ECF No. 108.
Standard filed its motion for a preliminary injunction on January 11, 2012, seeking to
prevent the pending CBP distribution. Pl.’s Mot. for Prelim. Inj.; Pl.’s Mem. of Points &
Authorities in Supp. of Mot. for Prelim. Inj. (Jan. 11, 2012), ECF No. 110.
II. DISCUSSION
The court exercises jurisdiction over this action according to section 201 of the Customs
Courts Act of 1980, 28 U.S.C. § 1581(i)(4), which provides the Court of International Trade
jurisdiction of civil actions arising out of any law of the United States, such as the CDSOA,
providing for administration with respect to duties (including antidumping duties) on the
importation of merchandise for reasons other than the raising of revenue. See Furniture Brands
Int’l v. United States, 35 CIT __, __, 807 F. Supp. 2d 1301, 1307-10 (2011) (“Furniture
Brands”).
Consol. Court No. 07-00028 Page 9
The CDSOA amended the Tariff Act of 1930 (“Tariff Act”) to provide for the distribution
of funds from assessed antidumping and countervailing duties to persons with ADP status, which
is limited to petitioners, and interested parties in support of petitions, with respect to which
antidumping duty and countervailing duty orders are entered. 19 U.S.C. § 1675c(a)-(d).5 The
statute directed the ITC to forward to Customs, within sixty days after an antidumping or
countervailing duty order is issued, lists of “petitioners and persons with respect to each order
and finding and a list of persons that indicate support of the petition by letter or through
questionnaire response.” Id. § 1675c(d)(1).6 The CDSOA directed Customs to publish in the
Federal Register lists of entities potentially eligible to be ADPs for distributions of a “continuing
dumping and subsidy offset” based on the lists obtained from the Commission. Id.
§ 1675c(d)(2). The CDSOA also directed Customs to segregate antidumping and countervailing
duties according to the relevant antidumping or countervailing duty order, to maintain these
duties in special accounts, and to distribute to an ADP annually, as reimbursement for incurred
qualifying expenditures, a ratable share of the funds (including all interest earned) from duties
5
The CDSOA provided that:
The term “affected domestic producer” means any manufacturer, producer, farmer,
rancher or worker representative (including associations of such persons) that
(A) was a petitioner or interested party in support of the petition with respect to
which an antidumping duty order, a finding under the Antidumping Act of 1921, or a
countervailing duty order has been entered, and
(B) remains in operation.
19 U.S.C. § 1675c(b)(1) (emphasis added).
6
Additionally, the CDSOA directed the U.S. International Trade Commission to forward
to U.S. Customs and Border Protection a list identifying potential affected domestic producers
“within 60 days after the effective date of this section in the case of orders or findings in effect
on January 1, 1999 . . . .” 19 U.S.C. § 1675c(d)(1). The antidumping duty order at issue in this
case was not in effect on that date.
Consol. Court No. 07-00028 Page 10
assessed on a specific unfairly traded product that were received in the preceding fiscal year. Id.
§ 1675c(d)(3), (e).7
In February 2009, approximately two years after plaintiff filed the first of its four actions,
the Court of Appeals decided SKF, upholding the CDSOA against constitutional challenges
brought on First Amendment and Fifth Amendment equal protection grounds. 556 F.3d at 1360.
SKF reversed the decision of the Court of International Trade in SKF USA Inc. v. United States,
30 CIT 1433, 451 F. Supp. 2d 1355 (2006), which held the petition support requirement of the
CDSOA unconstitutional on Fifth Amendment equal protection grounds.
We address below the motions to dismiss, basing our rulings on the five claims that are
stated in plaintiff’s First Amended Complaints. In Count 1 of the amended complaints, plaintiff
claims that defendants’ actions were unlawful under the CDSOA and not supported by
substantial evidence.8 First Amended Compl. ¶¶ 39-40. In Counts 2 and 5, plaintiff challenges
the “in support of the petition” requirement of the CDSOA (“petition support requirement”) on
constitutional First Amendment grounds. Id. ¶¶ 41-43, 49-50. In Count 3, plaintiff brings a
7
Congress repealed the CDSOA in 2006, but the repealing legislation provided that “[a]ll
duties on entries of goods made and filed before October 1, 2007, that would [but for the
legislation repealing the CDSOA], be distributed under [the CDSOA] . . . shall be distributed as
if [the CDSOA] . . . had not been repealed . . . .” Deficit Reduction Act of 2005, Pub. L. No.
109-171, § 7601(b), 120 Stat. 4, 154 (2006). In 2010, Congress further limited CDSOA
distributions by prohibiting payments with respect to entries of goods that as of December 8,
2010 were “(1) unliquidated; and (2)(A) not in litigation; or (B) not under an order of liquidation
from the Department of Commerce.” Claims Resolution Act of 2010, Pub. L. No. 111-291,
§ 822, 124 Stat. 3064, 3163 (2010).
8
Plaintiff’s four First Amended Complaints are essentially identical but directed to
CDSOA distributions for the different Fiscal Years, i.e., 2006, 2007, 2008, 2009, and 2010. In
citing to the claims in the consolidated action, the court will cite to the First Amended Complaint
as filed in Standard Furniture Manufacturing Co., Inc., v. United States, Court No. 07-00028.
Consol. Court No. 07-00028 Page 11
challenge to the petition support requirement on Fifth Amendment equal protection grounds. Id.
¶¶ 44-46. In Count 4, plaintiff challenges the petition support requirement on Fifth Amendment
due process grounds, claiming that the CDSOA is impermissibly retroactive. Id. ¶¶ 47-48. We
also address, in Part II(C) of this opinion, plaintiff’s motion for an injunction.
A. No Relief Can Be Granted on the Claims in Counts 1, 2, 3, and 5 of the Amended Complaints
In ruling on motions to dismiss made under USCIT Rule 12(b)(5), we dismiss complaints
that do not “contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). For the reasons discussed below, we conclude
that plaintiff has failed to plead facts on which we could conclude that it could obtain a remedy
on any of the claims asserted in Counts 1, 2, 3, and 5 of the amended complaints. In brief
summary, plaintiff’s claims that the actions by the two agencies were not supported by
substantial evidence and were otherwise not in accordance with law must be dismissed because
Standard admits a fact establishing its disqualification from receiving CDSOA distributions and
presents no other facts from which the court could reach a conclusion that those actions must be
set aside. Relief on Standard’s constitutional claims under the First Amendment and the equal
protection guarantee of the Fifth Amendment is foreclosed by the binding precedent established
by SKF, which upheld the CDSOA against constitutional challenges brought on First
Amendment and equal protection grounds. In the following, we address Counts 1 through 3, and
Count 5, in further detail.9
9
Although relief on the Fifth Amendment due process claims that plaintiff bases on
retroactivity, which are stated in Count 4 of its amended complaints, is not foreclosed by binding
(continued...)
Consol. Court No. 07-00028 Page 12
1. Count 1 Fails to State a Claim upon which Relief Can Be Granted
In Count 1, plaintiff claims that “[t]he Commission’s determination not to include
Standard on its list of affected domestic producers for the antidumping order covering wooden
bedroom furniture from China and Customs’ failure to make distributions to Standard, were
inconsistent with the CDSOA, were not supported by substantial evidence, and were otherwise
not in accordance with law.” First Amended Compl. ¶¶ 39-40. We conclude that Count 1 fails
to state a claim upon which relief can be granted and, therefore, must be dismissed.
Plaintiff alleges that “[d]uring the injury phase of the antidumping investigation covering
wooden bedroom furniture from China, Standard filed timely and complete questionnaire
responses to the Commission’s domestic producer and importer questionnaires.” Id. ¶ 19. The
CDSOA language pertinent to the issue raised by Count 1 is the directive that the ITC, in
providing its list to Customs, include “a list of persons that indicate support of the petition by
letter or through questionnaire response.” 19 U.S.C. § 1675c(d)(1) (emphasis added).
Standard’s filing of questionnaire responses without an indication of support for the petition does
not satisfy the petition support requirement. Moreover, plaintiff admits that “[in] its
questionnaire responses, Standard indicated that it opposed the petition.” First Amended Compl.
¶ 19. Doing so disqualified Standard from receiving CDSOA distributions.
In opposing dismissal of Count 1, plaintiff argues that “[in] SKF, the Federal Circuit
adopted a saving construction of the CDSOA that could otherwise have violated the First
Amendment by conditioning receipt of CDSOA payments on the content of a domestic
9
(...continued)
precedent, we conclude in Part II(B) of this opinion that Standard has no standing to bring these
claims.
Consol. Court No. 07-00028 Page 13
producer’s speech.” Pl.’s Resp. to Def.’s May 2, 2011 Mot. to Dismiss 9 (Jun. 6, 2011), ECF
No. 101 (“Pl.’s Resp.”). Plaintiff submits that, due to this saving construction, SKF does not
support dismissal of Standard’s claims but rather “makes clear that Standard is entitled to
disbursements under the statute, constitutionally construed.” Id. (footnote omitted). Plaintiff
views SKF to hold “that the CDSOA ‘only permit[s] distributions to those who actively
supported the petition (i.e., 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
distributions).’” Id. at 10 (quoting SKF, 556 F.3d at 1353 n.26) (alteration in original). Under
this saving construction, plaintiff argues, SKF USA Inc. (“SKF”), the plaintiff in SKF, “was
ineligible to receive distributions not because it opposed the petition in its responses to the ITC
questionnaire, but rather because it actively opposed the petition in other concrete ways that
placed it in ‘a role that was nearly indistinguishable from that played by a defendant in a qui tam
or attorney’s fees award case.’” Id. at 11 (quoting SKF, 556 F.3d at 1358). According to
plaintiff, “[in] light of this substantial opposition, . . . the First Amendment did not bar denying
[SKF] a share in antidumping duties” but “compels the opposite result” in this case because,
“[by] contrast, Standard took no similar steps to ‘impede the investigation,’ nor did it express a
‘refus[al] to cooperate’ with the Government.” Id. at 11-12 (quoting SKF, 556 F.3d at 1359)
(second alteration in original).
Plaintiff’s argument is based on an incorrect understanding of the SKF holding. The
Court of Appeals did not construe the CDSOA such that a domestic producer may express
opposition to a petition in its ITC questionnaire response and still be eligible to receive CDSOA
distributions, so long as the producer does not take additional steps that amount to “substantial
Consol. Court No. 07-00028 Page 14
opposition” to the petition. The opinion in SKF recounts the various steps SKF took in opposing
an antidumping duty order that were beyond merely indicating opposition to the petition on a
questionnaire response, but it did so in the context of explaining why it considered the petition
support requirement not to be overly broad, and therefore permissible, under the test established
by Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557, 566 (1980).
SKF, 556 F.3d at 1357-59. The Court of Appeals reasoned that in enacting the petition support
requirement Congress permissibly, and rationally, could conclude that those who did not support
a petition should not be rewarded. Id. at 1357, 1359.
Defendants’ determinations denying benefits to Standard comported with the CDSOA.
Therefore, we reject plaintiff’s claims that either or both of the agencies acted contrary to law.
2. Relief on Plaintiff’s First Amendment Claims Is Foreclosed by Binding Precedent
In Count 2 of the First Amended Complaints, plaintiff claims that the petition support
requirement “violates the First Amendment to the Constitution.” First Amended Compl. ¶ 42.
Standard claims, specifically, that “[d]efendants’ application of the [CDSOA] conditions receipt
of a government benefit on a private speaker[’s] expressing a specific viewpoint support for an
antidumping petition and, therefore, is viewpoint discrimination in contravention of the First
Amendment.” Id. ¶ 43. Count 5 of plaintiff’s First Amended Complaints contains an as-applied
challenge to the CDSOA that plaintiff also bases on the First Amendment. Id. ¶¶ 49-50.
Plaintiff claims that the CDSOA violates the First Amendment as applied to Standard “because it
discriminates against Standard based on expression of [Standard’s] views rather than action
([Standard’s] litgation support).” Id. ¶ 50.
Consol. Court No. 07-00028 Page 15
Relief on Standard’s facial First Amendment claims is precluded by the holding in SKF,
556 F.3d at 1360 (holding that the Byrd Amendment is “valid under the First Amendment”
because it “is within the constitutional power of Congress to enact, furthers the government’s
substantial interest in enforcing the trade laws, and is not overly broad.”). The holding in SKF
also forecloses relief on plaintiff’s as-applied First Amended claims. The Court of Appeals held
that the CDSOA did not violate constitutional First Amendment principles as applied to SKF,
which expressed in its response to the ITC’s questionnaire its opposition to the antidumping duty
petition involved in that litigation. See SKF, 556 F.3d at 1343 (stating that “SKF also responded
to the ITC’s questionnaire, but stated that it opposed the antidumping petition”). Standard, like
SKF, expressed opposition to the petition in its response to the ITC’s questionnaire. First
Amended Compl. ¶ 19. Plaintiff fails to plead any facts allowing the court to conclude,
notwithstanding the binding precedent of SKF, that the CDSOA was applied to Standard in a
manner contrary to the First Amendment. In all material respects, Standard’s expression of
opposition to an antidumping duty petition was equivalent to that of SKF and properly resulted in
Standard’s disqualification from receiving distributions under the CDSOA.
In support of its as-applied First Amendment claims, Standard directs the court’s
attention to the Supreme Court’s decisions in Snyder v. Phelps, 131 S. Ct. 1207 (2011), Citizens
United v. Federal Election Comm’n, 130 S. Ct. at 876, Sorrell v. IMS Health, Inc., 131 S. Ct.
at 2653, and Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, 131 S. Ct. at 2806.
According to plaintiff, these recent decisions have “rendered [the] conclusion of [SKF] utterly
untenable. . . . Today, it is clear that corporate speech relating to matters such as international
trade and law enforcement is entitled to the strictest First Amendment protection.” Pl.’s
Consol. Court No. 07-00028 Page 16
Resp. 21. We recently addressed these arguments in our opinions in Ashley Furniture Industries,
Inc. v. United States, 36 CIT __, __, Slip Op. 12-14, at 16-25 (Jan. 31, 2012) (“Ashley
Furniture”) and Furniture Brands, 35 CIT __, __, 807 F. Supp. 2d at 1313-15. We conclude
here, as we did in those opinions, that the cases plaintiff cites do not implicitly overturn SKF or
otherwise require us to apply a level of scrutiny to the CDSOA different from that applied in
SKF.
In Snyder v. Phelps, the Supreme Court held that members of the Westboro Baptist
Church who picketed near the funeral of a member of the U.S. Marine Corps killed in the line of
duty in Iraq could not be held liable on state-law tort claims alleging intentional infliction of
emotional distress, intrusion upon seclusion, and civil conspiracy. 131 S. Ct. at 1213-14, 1220.
Concluding that the various messages condemning the United States and its military displayed on
the picketer’s signs were entitled to “‘special protection’ under the First Amendment,” id.
at 1219, the Supreme Court held that the jury verdict holding the Westboro picketers liable on
the tort claims for millions of dollars in damages must be set aside as an impermissible burden on
protected speech, even if the picketing caused emotional distress to the mourners, id. at 1213,
1220. The Supreme Court cautioned that its holding was narrow and limited only to the
particular facts before it, having emphasized that the picketers carried signs displaying messages
that, for the most part, constituted speech addressing matters of public concern, id. at 1216-17,
and conducted their picketing peacefully, and without interfering with the funeral, at each of
three locations the Supreme Court considered to be a public forum, id. at 1218-19.
Plaintiff maintains that “[in] light of the Court’s decision in Snyder, there can be no
dispute that opposition to a government antidumping investigation constitutes speech on a matter
Consol. Court No. 07-00028 Page 17
of public concern, subject to full First Amendment protection” and that to the extent that SKF
rested on a belief that this opposition does not constitute political speech, “Snyder demonstrates
that the Federal Circuit erred.” Pl.’s Resp. 22. Snyder, however, resolved a First Amendment
question differing from those presented by this case and by SKF. Standard is not asserting First
Amendment rights as a defense against civil liability for an award of monetary damages. The
“burden” the CDSOA placed on Standard’s speech ineligibility for potential CDSOA
distributions does not rise to a level commensurate with the burden the Supreme Court
addressed by setting aside the jury verdict against the Westboro picketers. In speaking to a
different First Amendment issue than the one Standard raises, Snyder does not establish a
principle of First Amendment law under which we may invalidate the CDSOA petition support
requirement in response to Standard’s as-applied challenge.
In Citizens United v. Federal Election Commission, the Supreme Court struck down a
federal election law imposing an “outright ban, backed by criminal sanctions” on independent
expenditures by “corporation[s],” including “nonprofit advocacy corporations” or “unions,”
during the thirty-day period preceding a primary election or the sixty-day period preceding a
general election, for an “electioneering communication” or for advocacy of the election or defeat
of a candidate. 130 S. Ct. at 886-87, 897. Reasoning that “political speech must prevail against
laws that would suppress it, whether by design or inadvertence,” the Supreme Court concluded
that “[l]aws that burden political speech are ‘subject to strict scrutiny,’ which requires the
Government to prove that the restriction ‘furthers a compelling interest and is narrowly tailored
to achieve that interest.’” Id. at 898 (citing Federal Election Comm’n v. Wisconsin Right to Life,
Inc., 551 U.S. 449, 464 (2007)).
Consol. Court No. 07-00028 Page 18
Standard argues that the holding in SKF cannot stand now that the Supreme Court has
“made perfectly clear that so long as speech relates to matters of public concern, it is entitled to
the highest form of constitutional protection, even if it involves corporations or ‘activities of a
commercial nature.’” Pl.’s Resp. 23 (quoting SKF, 556 F.3d at 1355). According to plaintiff,
applying a lesser standard of scrutiny to the petition support requirement, as the Court of Appeals
did in SKF based on a perceived statutory purpose of rewarding cooperation with the
government, “is incompatible with Citizens United.” Id. Positing that the petition support
requirement as applied to entities like Standard “is calculated to silence or at least
discourage dissent against proposed antidumping actions,” plaintiff argues that “[t]his sort of
arm-twisting cannot withstand constitutional scrutiny after Citizens United.” Id. at 24.
Citizens United does not hold that any statute affecting speech relating to matters of
public concern, whether made by individuals or corporations, is to be subjected to a strict
scrutiny standard. The statute struck down in Citizens United banned political speech, and the
Supreme Court’s decision to apply strict scrutiny can only be viewed properly in that context. As
the Court of Appeals recognized in SKF, the CDSOA “does not prohibit particular speech,” that
“statutes prohibiting or penalizing speech are rarely sustained,” and that “cases addressing the
constitutionality of such statutes are of little assistance in determining the constitutionality of the
far more limited provisions of the Byrd Amendment.” 556 F.3d. at 1350. The Court of Appeals
reasoned that “[in] considering limited provisions that do not ban speech entirely, the purpose of
the statute is important,” and concluded that “[n]either the background of the statute, nor its
articulated purpose, nor the sparse legislative history supports a conclusion that the purpose of
the Byrd Amendment was to suppress expression.” Id. at 1350-51. Contrary to this view,
Consol. Court No. 07-00028 Page 19
Standard maintains that “the Supreme Court in Citizens United made clear that the degree of
First Amendment protection afforded corporate speech on matters of public concern does not
vary depending on whether the government directly prohibits speech or instead withholds
benefits based on speech.” Pl.’s Resp. 24 (citing Citizens United, 130 S. Ct. at 905). Thus,
plaintiff’s argument would have us consider immaterial the distinction between the CDSOA,
which does not prohibit speech, and the statute struck down in Citizens United, which had as its
purpose and effect the suppression of political speech through an “outright ban, backed by
criminal sanctions.” Citizens United, 130 S. Ct. at 897.
Plaintiff misreads Citizens United. In the passage from the opinion to which plaintiff
directs our attention, the Supreme Court explained that it no longer subscribes to certain
reasoning expressed in Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990), which
Citizens United overturned. Citizens United signaled the Supreme Court’s rejection of the notion
that the special state-law advantages corporations enjoy over wealthy individuals, such as limited
liability, perpetual life, and favorable treatment of accumulation and distribution of assets, can
suffice to allow laws “prohibiting speech,” i.e., laws prohibiting corporations from speaking on
matters of public concern. 130 S. Ct. at 905. Plaintiff misconstrues the Supreme Court’s
explanation to mean broadly that “[w]hile the government has no obligation to provide those
benefits to corporations, the Court made clear that the government may not condition
corporations’ receipt of these benefits on corporations’ foregoing full First Amendment
protection for their speech.” Pl.’s Resp. 24 (citing Citizens United, 130 S. Ct. at 905). Rather,
the Supreme Court was specific in concluding that the granting of benefits to corporations under
state laws “does not suffice, however, to allow laws prohibiting speech.” Citizens United,
Consol. Court No. 07-00028 Page 20
130 S. Ct. at 905 (emphasis added). Because the CDSOA is not a prohibitory statute, and
because the relevant purpose of the CDSOA is to reward petitioners and those in support of
petitions, we reject the argument that Citizens United implicitly invalidates the SKF analysis
upholding the CDSOA against attack on First Amendment grounds.
Plaintiff argues, next, that in the wake of the Supreme Court’s decision in Sorrell, the
conclusion that intermediate scrutiny should be applied to the CDSOA “despite the CDSOA’s
viewpoint discrimination” is a conclusion that “can no longer stand” and that the CDSOA now
must be subjected to “heightened judicial scrutiny.” Pl.’s Notice of Supp. Authority 2 (citing
Sorrell, 131 S. Ct. at 2663-64). We reject the argument that Sorrell implicitly overturned SKF.
In Sorrell, the Supreme Court struck down a Vermont statute (the “Prescription
Confidentiality Law”) that prohibited, subject to certain exceptions, the sale, disclosure, and use
of “prescriber-identifying information,” which is information obtained from pharmacy records
that reveals the drug prescribing practices of individual physicians. 131 S. Ct. at 2660 (citation
omitted). The statute prohibited pharmacies, health insurers, and similar entities from selling this
information, or allowing such information to be used for marketing, without the prescriber’s
consent, and it prohibited pharmaceutical manufacturers and marketers from using such
information for marketing without the prescriber’s consent. Id. The statute authorized the
Vermont attorney general to pursue civil remedies against violators. Id.
The Supreme Court concluded that the Prescription Confidentiality Law “enacts
content-and speaker-based restrictions on the sale, disclosure, and use of prescriber-identifying
information.” Id. at 2663. Under the “heightened scrutiny” the Supreme Court considered to be
warranted, “the State must show at least that the statute directly advanced a substantial
Consol. Court No. 07-00028 Page 21
government interest and that the measure is drawn to achieve that interest.” Id. at 2667-68. The
Court concluded that the State of Vermont failed to make that showing. The Court considered
that the stated interest of promoting medical privacy and physician confidentiality did not justify
the prohibitions placed on the sale and use of the information. Id. at 2668. The Court noted that
the law allowed wide dissemination of the information but effectively prohibited use of the
information by a class of disfavored speakers (“detailers,” who used the prescriber-identifying
information to promote brand-name drugs on behalf of pharmaceutical manufacturers) and in
effect prohibited a disfavored use, marketing. Id. Under the Supreme Court’s analysis, the
Vermont law “forbids sale” of the information “subject to exceptions based in large part on the
content of a purchaser’s speech,” disfavors “marketing, that is, speech with a particular content,”
and “disfavors specific speakers, namely, pharmaceutical manufacturers.” Id. at 2663. Another
purpose the State of Vermont advanced in support of the Prescription Confidentiality Law,
reducing health care costs and promoting public health, also failed to justify the burden on
speech. Id. at 2668, 2670. In restraining certain speech by certain speakers, and specifically, in
diminishing the ability of detailers to influence prescription decisions, the statute sought to
influence medical decisions by the impermissible means of keeping physicians from receiving
the disfavored information. Id. at 2670-71.
Sorrell and SKF analyze dissimilar statutes, which vary considerably in the nature and
degree of the effect on expression as well as in purpose. SKF concluded that the CDSOA does
not have as a stated purpose, or even an implied purpose, the intentional suppression of
expression, SKF, 556 F.3d at 1351-52, whereas the Vermont statute authorized civil remedies
against those selling or using the prescriber-identifying information that the statute sought to
Consol. Court No. 07-00028 Page 22
suppress. See Sorrell, 131 S. Ct. at 2660. Sorrell does not require us to review the CDSOA
according to a First Amendment analysis differing from that applied by the Court of Appeals in
SKF. In analyzing the Vermont statute, the Supreme Court stated in Sorrell that “the State must
show at least that the statute directly advances a substantial government interest and that the
measure is drawn to achieve that interest.” 131 S. Ct. at 2667-68 (citing Board of Trustees of
State Univ. of N.Y. v. Fox, 492 U.S. 469, 480-81 (1989); Central Hudson, 447 U.S. at 566). SKF
concluded that “SKF’s opposition to the antidumping petition is protected First Amendment
activity,” 556 F.3d at 1354, and applied a test to which it referred to as the “well established
Central Hudson test,” id. at 1355. The Court of Appeals described this test as requiring that
regulation of commercial speech be held permissible if the asserted governmental interest is
substantial, the regulation directly advances that interest, and the regulation is not more extensive
than is necessary to serve that interest. Id. (citing Central Hudson, 447 U.S. at 566). We reject
plaintiff’s argument that Sorrell requires us to apply to the CDSOA a level of scrutiny different
from that applied by the Court of Appeals in SKF.
In Arizona Free Enterprise, the Supreme Court struck down an Arizona campaign finance
law imposing a “matching funds scheme” that “substantially burdens protected political speech
without serving a compelling state interest and therefore violates the First Amendment.” 131 S.
Ct. at 2813. Under the Arizona statute, candidates for state office who agreed to accept public
funding received matching funds when the allotment of state funds to the publicly financed
candidate were exceeded by an amount calculated according to the amount a privately funded
candidate received in contributions (including the candidate’s “contribution” of expenditures of
personal funds), combined with the expenditures independent groups made in support of the
Consol. Court No. 07-00028 Page 23
privately funded candidate or in opposition to a publicly funded candidate. Id. at 2313-14.
According to plaintiff, “the Supreme Court’s decision in Arizona Free Enterprise
demonstrates that, contrary to the government’s position, strict scrutiny applies to viewpoint
discrimination that falls short of an ‘outright ban’” and that “[in] SKF, the Federal Circuit
declined to apply heightened scrutiny even though the CDSOA has the equivalent effect,
providing a subsidy to the direct economic competitors of those engaging in disfavored speech.”
Pl.’s Notice of Supp. Authority 3-4. Therefore, plaintiff argues, SKF “is no longer compatible
with Supreme Court precedent.” Id. at 4.
We do not agree that the Supreme Court’s holding in Arizona Free Enterprise implicitly
invalidates the holding in SKF. Arizona Free Enterprise is one of a line of Supreme Court cases
that struck down laws affecting speech during campaigns for political office. That line of cases
includes Citizens United, discussed supra, and Davis v. Federal Election Comm’n, 554 U.S. 724(2008), which invalidated a federal statute under which a new, asymmetrical regulatory scheme
of limits on campaign donations of individuals in elections for the U.S. House of Representatives
was triggered when one candidate in such an election spent more than $350,000 of personal
funds on the race. Arizona Free Enterprise, 131 S. Ct. at 2818. The Supreme Court grounded its
reasoning in Arizona Free Enterprise partly on the principle that “the First Amendment ‘has its
fullest and most urgent application’ to speech uttered during a campaign for political office.” Id.
(quoting Eu v. San Francisco County Democratic Central Comm., 489 U.S. 214, 223 (1989))
(internal quotation omitted). Stating in Arizona Free Enterprise that “[t]he logic of Davis largely
controls our approach to this case,” the Supreme Court found the burdens the Arizona law
imposed on speech uttered during a campaign to impose an even more onerous penalty on the
Consol. Court No. 07-00028 Page 24
free speech of a privately funded candidate than did the federal statute invalidated in Davis and to
inflict a penalty on groups making or desiring to make independent expenditures. Id. at 2818-20.
Under the Arizona law’s scheme, “[t]he direct result of the speech of privately financed
candidates and independent expenditure groups is a state-provided monetary subsidy to a
political rival.” Id. at 2821. Contrary to plaintiff’s argument, the CDSOA does not bear more
than a superficial resemblance to the laws invalidated in Arizona Free Enterprise, Davis (a case
decided prior to SKF), and similar such cases, which regulated and impermissibly burdened
political speech during an election by restricting campaign expenditures. Accordingly, we reject
Standard’s contention that Arizona Free Enterprise established a new First Amendment principle
requiring us to disregard the holding in SKF and to apply a strict scrutiny analysis to the CDSOA.
In summary, SKF remains binding precedent that is controlling on the disposition of
plaintiff’s as-applied First Amendment claims. These claims must be dismissed according to
USCIT Rule 12(b)(5).
3. Relief on Plaintiff’s Equal Protection Claims Is Foreclosed by Precedent
In Count 3 of the amended complaints, plaintiff claims that the petition support
requirement of the CDSOA “violates the Equal Protection Clause of the Constitution because
Defendants have created a classification that implicates Standard’s fundamental right of speech
and Defendants’ actions are not narrowly tailored to a compelling government objective.” First
Amended Compl. ¶ 45. Count 3 claims, further, that defendants’ application of the CDSOA to
Standard “also violates the Equal Protection Clause because it impermissibly discriminates
between Standard and other domestic parties who expressed support for the relevant antidumping
petition, denying a benefit to Standard.” Id. ¶ 46.
Consol. Court No. 07-00028 Page 25
Relief on these claims is foreclosed by the holding in SKF. The Court of Appeals held in
SKF that the CDSOA did not violate equal protection principles as applied to plaintiff SKF.
Standard, like SKF, expressed opposition to the relevant antidumping duty petition and thus
failed to satisfy the petition support requirement, 19 U.S.C. § 1675c(d)(1). Compare First
Amended Compl. ¶ 19 (“In its questionnaire responses, Standard indicated that it opposed the
petition.”) with SKF, 556 F.3d at 1343 (“SKF also responded to the ITC’s questionnaire, but
stated that it opposed the antidumping petition.”). Plaintiff points out that SKF “did much more
than simply express abstract opposition to the petition,” Pl.’s Resp. 11, but this fact does not
distinguish the holding in SKF from the instant case. In ruling on claims that are not
distinguishable from Standard’s in any material way, the Court of Appeals held that “[b]ecause it
serves a substantial government interest, the Byrd Amendment is . . . clearly not violative of
equal protection under the rational basis standard,” SKF, 556 F.3d at 1360, and that “the Byrd
Amendment does not fail the equal protection review applicable to statutes that disadvantage
protected speech,” id. at 1360 n.38.
Because plaintiff fails to plead facts allowing the court to conclude that its equal
protection claims are distinguishable from those brought, and rejected, in SKF, Count 3 must be
dismissed for failure to state a claim upon which relief can be granted.
B. Plaintiff Lacks Standing to Bring a Fifth Amendment Retroactivity Challenge to the CDSOA
Count 4 of the amended complaints challenges the CDSOA under the Due Process
guarantee of the Fifth Amendment on the ground that the statute is impermissibly retroactive.
Plaintiff claims that the petition support requirement of the CDSOA “violates the Due Process
Clause of the Constitution because Defendants base Standard’s eligibility for disbursements on
Consol. Court No. 07-00028 Page 26
past conduct (i.e., support for a petition).” First Amended Compl. ¶ 48. According to Count 4,
“[t]he Due Process Clause disfavors retroactive legislation, and Defendants’ disbursements only
to those companies that express support for a petition is not rationally related to a legitimate
governmental purpose.” Id.We construe Standard’s retroactivity claims, which are vaguely stated, to mean that the
CDSOA is impermissibly retroactive under the Fifth Amendment due process guarantee because
it conditions the receipt of distributions on a decision whether or not to support an antidumping
duty petition that was made before the statute went into effect, and thus before the affected party
making that decision could have had notice of the consequences. See 19 U.S.C. § 1675c(d)(1)
(directing the ITC to forward to Customs a list identifying petitioners and parties expressing
support for a petition “within 60 days after the effective date of this section in the case of orders
or findings in effect on January 1, 1999 . . .”). Because it applies to petition support decisions
made prior to enactment, the CDSOA may be characterized as having a retroactive aspect. See
Landgraf v. USI Film Prods., 511 U.S. 244, 270 (1994) (considering a retroactive statute to be
one that attaches “new legal consequences to events completed before its enactment”).
We previously have concluded that the CDSOA is not violative of the due process
guarantee because “the retroactive reach of the petition support requirement in the CDSOA is
justified by a rational legislative purpose and therefore is not vulnerable to attack on
constitutional due process grounds.” New Hampshire Ball Bearing Co., Inc. v. United States, 36
CIT __, __, Slip Op. 12-2, at 14 (Jan. 3, 2012); see also Schaeffler Grp. USA, Inc. v. United
States, 36 CIT __, __, Slip Op. 12-8, at 11-12 (Jan. 17, 2012). We conclude that Standard’s
Consol. Court No. 07-00028 Page 27
retroactivity claims, when construed in this way, must be dismissed for lack of standing.10
Because the CDSOA was enacted in 2000, it was not applied retroactively to Standard, which
expressed opposition to the wooden bedroom furniture petition in 2003. First Amended Compl.
¶¶ 18-19. Standard, therefore, had the “opportunity to . . . conform [its] conduct accordingly.”
Landgraf, 511 U.S. at 265. As a consequence, plaintiff’s amended complaints fail to allege an
injury in fact arising from conduct predating the CDSOA’s enactment. See Friends of the Earth,
Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167, 180-81 (citing Lujan v. Defenders of Wildlife, 504
U.S. 555, 560-61 (1992)) (“To satisfy Article III’s standing requirements, a plaintiff must show
(1) it has suffered an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or
imminent, not conjectural or hypothetical . . .”).
Because the amended complaints do not allege facts from which we may conclude that
Standard has standing to bring the claims stated as Count 4, we must dismiss these claims for
lack of jurisdiction pursuant to USCIT Rule 12(b)(1).
10
It is also possible to construe Standard’s retroactivity claims, when read literally, to
mean that the CDSOA is impermissibly retroactive under the due process guarantee simply
because it attaches negative consequences to petition support decisions made prior to the
determination of eligibility for distributions. We decline to construe the claims in this way
because, according to such a construction, the CDSOA would not be “retroactive” as the term has
been recognized in case law and would be indistinguishable from any of innumerable statutes
attaching a consequence to a past action of a person to whom enactment of the statute provided
notice of the consequences. See Landgraf v. USI Film Prods., 511 U.S. 244, 265 (1994)
(“Elementary considerations of fairness dictate that individuals should have an opportunity to
know what the law is and to conform their conduct accordingly; settled expectations should not
be lightly disrupted.”). Were we to adopt the alternate construction of plaintiff’s retroactivity
claims that we pose hypothetically, we would be compelled to dismiss such claims as ones upon
which no relief could be granted.
Consol. Court No. 07-00028 Page 28
C. Plaintiff Does Not Qualify for an Injunction
Plaintiff’s January 11, 2012 motion seeks what plaintiff terms a “preliminary injunction,”
under which defendants would be enjoined from disbursing any funds “that are currently being
withheld by CBP for Standard for FY2006-FY2010 . . . for the pendency of this litigation,
including all relevant appeals and remands, until such time as a final court decision is rendered in
this case.” Pl.’s Mot. for Prelim. Inj. 1. A preliminary injunction normally dissolves upon the
entry of judgment. See Univ. of Texas v. Camenisch, 451 U.S. 390, 395 (1981) (stating that the
purpose of a preliminary injunction is to preserve the status quo until the merits of the action are
ultimately determined); 11A Charles A. Wright, Arthur R. Miller & Mary K. Kane, Federal
Practice and Procedure, § 2947 (2d ed. 2010) (the principal purpose of preliminary injunctive
relief is to preserve the court’s power to render a meaningful decision pursuant to a trial on the
merits). Because our decision today will conclude this action, the question of a preliminary
injunction to prevent irreparable harm during the pendency of this case is moot.
By attempting to enjoin distribution through all remands and appeals, plaintiff’s
January 11, 2012 motion seeks equitable relief beyond a preliminary injunction. Additionally,
plaintiff seeks as a remedy that the court order the ITC to declare Standard an ADP and order
Customs to “disburse pursuant to the CDSOA a pro rata portion of the assessed antidumping
duties on wooden bedroom furniture from China . . . .” First Amended Compl. ¶ 51 (Prayer for
Relief). In summary, Standard seeks to prevent Customs from paying to other CDSOA claimants
what Standard claims is its share of the withheld distributions and seeks affirmative injunctions
against both agencies so that Standard will receive those distributions. In these respects, plaintiff
is seeking permanent equitable relief both as a provisional measure pending a possible appeal
Consol. Court No. 07-00028 Page 29
and as a remedy on its claims. We conclude, however, that Standard does not qualify for
permanent equitable relief.
Standard is required to show for a permanent injunction that it has suffered an irreparable
injury, that the remedies available at law are inadequate to compensate for that injury, that,
considering the balance of hardships between the parties, a remedy in equity is warranted, and
that the public interest would not be disserved by a permanent injunction. Ebay Inc. v.
Mercexchange, L.L.C., 547 U.S. 388, 391 (2006). Here, we conclude that there are no “remedies
available at law” and that no “remedy in equity is warranted,” based on our analysis of plaintiff’s
claims as discussed supra. We presume, without deciding, that plaintiff would be irreparably
harmed were Customs to distribute to other parties what Standard claims to be its share of the
withheld distributions. With respect to the balance of hardships, Standard would be prejudiced
by such a distribution, but defendant-intervenors also will be prejudiced by further delay in
obtaining what they claim to be their lawful CDSOA disbursements. The public interest favors
an orderly and lawful distribution of the withheld funds. The controlling factor, however, is that
neither a remedy at law nor a remedy in equity is appropriate in these circumstances. For the
reasons discussed in this opinion, we conclude that the appropriate disposition is the dismissal of
this action.
III. CONCLUSION
Because Counts 1, 2, 3, and 5 of plaintiff’s amended complaints fail to state a claim upon
which relief may be granted, and because the claims in Count 4 of plaintiff’s amended
complaints must be dismissed for lack of standing, we will grant the motions to dismiss filed by
defendants and defendant-intervenors. And because neither a remedy at law nor a remedy in
Consol. Court No. 07-00028 Page 30
equity is available on the claims stated, we conclude that plaintiff is not entitled to injunctive
relief that would delay the pending CBP distribution of CDSOA funds or to an affirmative
injunction directing distribution of CDSOA benefits to Standard. Plaintiff has taken the
opportunity to amend its original complaints and has not indicated an intention to seek leave to
amend its complaints again, and we see no reason why this action should be prolonged.
Accordingly, we shall enter judgment dismissing this consolidated action.
/s/ Timothy C. Stanceu
Timothy C. Stanceu
Judge
Dated: February 17, 2012
New York, New York