N OTE : This disposition is nonprecedential. 

# United States **Court of Appeals**  **for the Federal Circuit**

______________________ TAMPA BAY FISHERIES, INC., SINGLETON FISHERIES, INC., Plaintiffs

- Appellants

v.

UNITED STATES, UNITED STATES CUSTOMS AND BORDER PROTECTION, DAVID V. AGUILAR, ACTING COMMISSIONER, UNITED STATES CUSTOMS AND BORDER PROTECTION, INTERNATIONAL TRADE COMMISSION, IRVING A. WILLIAMSON, CHAIRMAN, U.S. INTERNATIONAL TR ADE COMMISSION, Defendants

- Appellees

______________________

2012

- 1419

______________________ Appeal from the United States Court of International Trade in No. 08

- CV

- 0404, Judge Leo M. Gordon.

______________________

Decided: April 29 , 2015

______________________

J AMES K EVIN H ORGAN , DeKieffer & Horgan, PLLC, Washington, DC, argued for plaintiff s- appellants. Al so represented by J OHN J. K ENKEL

.TAMPA BAY FISHERIES , INC

. v. US 2

M ARTIN M. T OMLINSON , Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for defendant s-appellees United States, United States Customs and Border Prote ction, David V. Aguilar, Acting Commissioner. Also repr esented by J ESSICA R. T OPLIN , S TUART F. D ELERY , J EANNE E. D AVIDSON , F RANKLIN E. W HITE , J R .; S UZANNA H ARTZELL -B AIRD , J ESSICA M ILLER , Office of Assistant Chief Counsel, United States Customs & Border Prote ction.

P ATRICK V INCENT G ALLAGHER , J R ., Office of the Ge neral Counsel, United States International Trade Commi ssion, Washington, DC, argued for defendant s- appellee s International Trade Commission, Irving A. Williamson, Chairman. Also represented by D OMINIC L. B IANCHI , R OBIN L YNN T URNER

.

______________________

Before P ROST , Chief Judge, B RYSON , and O’M ALLEY , Circuit Judges.

O’M ALLEY , Circuit Judge

. Tampa Bay Fisheries, Inc. (“Tampa Bay”) and Singl eton Fisheries, Inc. (“Singleton”) (collectively, “Appellants”) appeal the final judgment of the United States Court of International Trade (“Trade Court”) dismissing their complaint for failure to state a claim. See Tampa Bay Fisheries, Inc. v United States , 825 F. Supp. 2d 1331 (Ct. Int’l Trade 2012)

. Becau se the Trade Court properly determined that the parties failed to allege sufficient facts upon which relief could be granted, we affirm

. B ACKGROUND Following a 2003 petition on behalf of the domestic shrimp industry to the Department of Commerce (“Co mmerce”) regarding the importation of certain frozen and canned warm water shrimp from Brazil, Ecuador, India,TAMPA BAY FISHERIES , INC

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China, Vietnam, and Thailand, Commerce instituted an antidumping investigation. Contemporaneously

, the International Trade Commission (“Commission”) began to examine whether the se shrimp imports were threatening the domestic shrimp indus try. To determine if the dome stic industry was injured, the Commission sent questio nnaires to the domestic industry, asking if they supported, opposed, or took no position on the 2003 petition.
After its investigation, the Commission found that the domestic industry was injured by the import of canned frozen shrimp, and Commerce issued its antidumping duty orders on these imports February 1, 2005. See Certain Froze n or Canned Warmwater Shrimp and Prawns from Brazil, China, Ecuador, Thaila nd, and Vietnam, 70 Fed. Reg. 3 943 (Jan. 27, 2005); Notice of Amended Final De termination of Sales at Less Than Fair Value and Antidumping Duty Order: Certain Frozen Warmwater Shrimp from Brazil, 70 Fed. Reg. 5 143 (Feb. 1, 2005) ; Notice of Amended Final Determination of Sales at Less Than Fair Value and Antidumping Duty Order: Certa in Frozen Warmwater Shrim p from Thailand, 70 Fed. Reg. 5 145 (Feb. 1, 2005); Notice of Amended Final Determination of Sales at Less Than Fair Value and Antidumping Duty Order: Certain Frozen Warmwater Shrimp from India , 70 Fed. Reg. 5 147 (Feb. 1, 2005); Not ice of Amended Final Determination of Sales at Less Than Fair Value and Antidumping Duty Order: Certain Frozen Warmwater Shrimp from the People’s Re public of China, 70 Fed. Reg. 5 149 (Feb. 1, 2005); Notice of Amen ded Final Determination of Sales at Less Th an Fair Value and Antidumping Duty Order: Certain Frozen War mwater Shrimp from the Socialist Republic of Vietnam , 70 Fed. Reg. 5 1 52 (Feb. 1, 2005); Notice of Amended Final Determination of Sales at Less Than Fair Value and Antidumping Duty Order: Certain Frozen Warmwater Shrimp from Ecuador , 70 Fed. Reg. 5 1 56 (Feb. 1, 2005)

.TAMPA BAY FISHERIES , INC

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Under the statutory scheme at the time, any duties collected by the United States Customs and Bo rder Patrol (“Customs” ) under these dumping orders were distributed to affecte d domestic producer s

. Continued Dumping and Subsidy Offset Act (“CDSOA” or “the Byrd Amendment”), 19 U.S.C. § 1675c(a) (2000)

, repealed by Deficit Reduction Act of 2005, Pub. L. No. 109

- 171, § 7601, 120 Stat. 4, 154 (Feb. 8, 2006; effective Oct. 1, 2007). To qualify as an affected domestic producer

, one had to demonstrate that it “was a petitioner or interested party [who] support ed

. .

. the petition with respect to which an antidumping duty order . . . ha [d] been enter [ed] .” Id . § 1675c(b)(1)(A) (“the support requirement”)

. Once a duty order issues, the Commission forward s a list of affected domestic producers to Customs, w hich will distribute all the funds from the assessed duties collected in the prior fiscal year to those affected parties who have certified that they are eligible to receive a CDSOA distribution

. Id

. § 1675c(d)(1)

– (3).

In connection with Commerce’s antidumping invest igation regarding shrimp imports , the Commission did not list Tampa Bay or Singleton as an affected domesti c producer for the relevant years

— 2006, 2007, and 2008. Tampa Bay and Singleton nevertheless filed certifications with Customs, stating that they were entitled to CDSOA distributions. But , because neither was listed as an affected domestic producer, Customs refused to admini ster any funds to either party

. In November 2008, Tampa Bay and Singleton requested that the Commission amend the list of affected domestic producers to include both parties in November 2008. Without any evidence that either Tampa Bay or Singleton supported the petition during the original investigations, the Commission denied the request in December 2008.

Also d uring this time, on November 14, 2008, Tamp a Bay and Singleton filed suit against the Commission and Customs, challenging the Commission’s failure to add Tampa Bay and Singleton to the list of affected domesticTAMPA BAY FISHERIES , INC

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producers and Customs’ decision not to make a distrib ution to Tampa Bay or Singleton for fiscal years 2006, 2007, and 2008

. While neither Tampa Bay nor Singleton alle ged that they expressed support for the 2003 petition in their questionnaire responses or through a letter, they asserted that they supported the petition in other ways. They also argued that, if the Byrd Amendment is co nstrued to require a show of support via a particular form of expression

— i.e., checking a box on a questionnaire or writing a letter

— it is unconstitutional. Because the se issues were then being considered in other pending cases, the Trade Court stayed the case pending the final resol ution of the other litigation. Tampa Bay F isheries, 825 F. Supp. 2d at 1336. Following this c ourt’s decision in SKF USA Inc. v. United States Customs & Border Protection

, 556 F.3d 1337 (Fed. Cir. 2009), which both construed the Byrd Amendment to require both a show of support via a questionnaire response or a letter and other affirmative efforts to aid the investigation, and upheld the constit utionality of the B yr d Amendment as so construed

, the Trade Court issued an order asking Tampa Bay and Singleton to show cause why their case should not be dismissed in light of SKF

. Id. Upon review of their response, the Trade Court lifted the stay, and

, on March 18, 2011

, Tampa Bay and Singleton filed an amended complaint.

In their amended complaint, Tampa Bay and Singl eton raised five separate claims . T hey alleged that : (1 ) the agencies’ decisions were inconsistent with the CDSOA, were not supported by substantial evidence, and were otherwise not in accordance with law; (2) the support requirement of the CDSOA violates the First Amendment of the Constitution; (3) this same requirement also vi olates the Equal Protection Clause; (4) the support requirement contravenes the Due Process Clause because it is impermissibly retroactive ; and (5) financial evidence of

s upport should be considered when determining whetherTAMPA BAY FISHERIES , INC

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a party meets the support requirement of the CDSOA

. Again, neither Tampa Bay nor Singleton alleged that they indicated support for the investigation in writing. Based in part on this court’s ruling in SKF

, the Commission and Customs then moved to dismiss the amended complaint for failure to state a claim.
Upon consideration, the Trade Court dismissed Ta mpa Bay and Singleton ’s entire complaint

. With respect to
count one and count five , the Trade Court concluded that both parties had failed to state facts that they qu alified for CDSOA distributions because there was no allegation either party supported the petition via letter or questio nnaire response, as required by law

. Tampa Bay Fisheries

, 825 F

. Sup p. 2d at 1340

– 42. Regarding Tampa Bay and Singleton’s Equal Protection and First Amendment claims, the Trade Court dismissed these claims, find ing that this c ourt’s decision in SKF forec losed their reques ted relief. Id . at 1343

– 45. Lastly , the Trade Cour t co ncluded that both parties lacked standing to raise a due process retroactivi ty claim because Tampa Bay and Singleton both completed their responses to the Commi ssion’s questionnaires after the enactment of the CDSOA; thus

, there was no basis to find th at the CDSOA was applied retroactively to either party

. Id . at 1345. 1
Appellants timely appealed the Trade Court’s decision to this court. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(5).

D ISCUSSION Whether a party before the Trade Court has sufficiently stated a claim for relief is a question of law we

1 Both Tampa Bay and Singleton conceded dismi ssal of this count as well. See Tampa Bay Fisheries , 825 F. Supp. 2d at 1345. Neither party disputes this finding on appeal

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review de novo. Sioux Honey Ass’n v. Hartford Fire Ins. Co. , 672 F.3d 1041, 1049 (Fed. Cir. 2012) (citing Boyle v. United States , 200 F.3d 1369, 1372 (Fed. Cir. 2000))

. Questions of stat utory or constitutional interpretations are also questions of law that are reviewed de novo. See Ashley Furniture Indus., Inc. v. United States , 734 F.3d 1306, 1309 (Fed. Cir. 2013), cert. denied , 135 S. Ct. 72 (2014).
Under Court of International Trade Rule 8(a)(2), a pleading must include “a short and plain statement of the claim showing that the pleader is entitled to relief.” Although this standard does not require “detailed factual allegations ,” it does require mor e than “a formulaic recit ation of the element of a cause of action .” Ashcroft v. Iqbal

, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555 (2007) ) . Thus, “[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to reli ef that is plausible on its face .’” Id . (quoting Twombly , 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonabl e inference that the defendant is liable for the misconduct alleged.” Id

. (citing Twombly , 550 U.S. at 556). “In deciding a motion to dismiss, the court must accept well

- pleaded factual allegations as true and must draw all reasonable inferences in favor of the claimant.” Kellogg Brown & Root Servs., Inc. v. United States , 728 F.3d 1348, 1365 (Fed. Cir. 2013).
In this case, Tampa Bay and Singleton ’s statutory and constitutional claims are foreclosed by this Court’s dec isions in SKF

, PS Chez Si dney, LLC v. United States International Trade Commission , 684 F.3d 1374 (Fed. Cir. 2012), and Ashley Furniture Industries, Inc. v. United States , 7 34 F.3d 1306 (Fed. Cir. 2013). In SKF

, we found that the statute unambiguously required, among other things, a show of support for the investigation via que stionnaire response or a letter and that, in the absence ofTAMPA BAY FISHERIES , INC

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such statements of support, other efforts which might happen to assist an investigation were insufficient to qualify an entity as an affected domestic producer under the Act. 556 F.3d at 1352

– 53 . We then found that this type of sup port requirement did n ot violate the First Amendment. Id

. at 1360. Specifically, we concluded that the purpose of the statute was to compensate those pa rties who assist ed with th e government’s trade investig ations because “the Byrd Amendment’s language providing for payments to a ‘petitioner or interested party in su pport of the petition’ [] 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 1353 n.26. Thus, we decided that the support requirement should be treated like commercial speech, as is the case when the government commercially contract s with a party for their assistance in a government fun ction. Id . at 1355. Because the government has a substa ntial interest in preventing dumping, the Byrd Amendment direct ly advances this interest by rewarding parties who assist in trade law enforcement, and the a mendment was not overly broad, we determined that the Byrd Amen dment did not run afoul of the First Amendment. Id . at 1355

– 60. Finally, we also rejected an Equal Protection challenge in SKF , finding that “the Byrd Amendment [was] rationally related to the government’s legitimate purpose of rewarding parties who promote the gover nment’s policy against dumping.” Id . at 1360.
The court next considered the support requirement in Chez Sidney . In that case, t he government denied Chez Sidney CDSOA distributions, even though Chez Sidney had indicated support for the petition via its questio nnaire responses during the initial investigation, because it later in dicated that it “ took no position ” on the ITC’s final questionnaire. 684 F.3d at 1377. Because we had foundTAMPA BAY FISHERIES , INC

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in SKF that the Byrd Amendment did not “reward or penalize abstract expression by itself,” we concluded that, where a “producer submit[s] two detailed responses, check[ed] the ‘support’ box in its preliminary response but check[ed] the ‘take no position’ box in its final response,” such a producer is eligible for CDSOA distributions. Id

. at 1381.
Lastly, in Ashley Furniture , we reiterated our decis ion in SKF . 734 F.3d at 1310. Specifically, we stated:

SKF resolved the facial First Amendment cha llenge presented in [the present] case [] . We are bound to follow this precedent and are not free to revisit the First Amendment arguments that were before the SKF panel. To the extent that Appe llants argue that recent Supreme Court precedent overruled our SKF holding, we do not agree. We also reject the Appellants’ as

- applied First Amendment challenges because . . . the gover nment did not deny Byrd Amendme nt distributions to Appellants solely on the basis of abstract e xpression.

Id . With respect to the Appellants then before us

— Ashley Furniture and Ethan Allen

— we restated that “[i]t [was] not enough . . . merely to supply the answers to the que stion naires; ” to be an af fected domestic producer one had
to indicate support by checking the box saying so

. Id . at 1311. Because neither party had indicated support in this fashion , even though both provided information to the C ommission upon request , we concluded that Ashley Furniture and Ethan Allen could not qualify for CDSOA distributions.
Here, both parties reraise arguments already a ddressed in SKF

, Chez Sidney

, and Ashley Furniture

. As we are bound by our prior precedent, we cannot revisit Appellants’ Fir st Amendment and Equal Protection arguments in this case. Further, although AppellantsTAMPA BAY FISHERIES , INC

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argue in their reply brief that this court’s First Amen dment analysis is flawed in light of the Supreme Court ’s recent decision in McCullen v. Coakley , 134 S. Ct. 2518 (2014), our case law is clear that any argu ment “not raised in the opening brief [is] waived.” SmithKline Beecham Corp. v. Apotex Corp. , 439 F.3d 1312, 1319 (Fed. Cir. 2006). Even if not waived, moreover

, Appellants fail to explain how McCullen

, a case involving the regulation of a traditional public forum

— a sidewalk

— that is subject to strict scrutiny

, impacts an analysis of speech this court has found to be commercial speech. 134 S. Ct. at 2528 ; see SKF , 556 F.3d at 135 5 (“Rewarding parties under the circumstances here is similar to commercially contracting with them to assist in the performance of a government function, in this particular context assisting in the e nforcement of government policy in litigation. The well established Central Hudso n test seems appro priate.” (citing Central Hudson , 447 U.S. 577, 566 (1980)) ). A ccordingly, Appellants’ arguments are unpersuasive.
Additionally, Tampa Bay’s statutory claim that it should be considered a petitioner simply because it su bmitted responses to the Commission’s questionnaires also
must be dismissed in light of this c ourt’s prior decisions

. At oral argument, Tampa Bay conceded that it answered “Oppose” in response to the Commission’s question whether it supported, opposed, or took no position a s to the 2003 petition. Oral Arg. at 00:35

– 54, available at http:// oralarguments.cafc.uscourts.gov/default.aspx?fl=20 12

- 1419.mp3

. As explained in SKF and Ashley Furniture

, a party that states it opposes the petition has not met the support requirement and is not entitled to CDSOA distr ibutions, regardless of its submission of information in response to the questionnaires. SKF

, 556 F.3d at 1358 (“Congress could permissibly conclude that it is not r equired to reward an opposing party.”) ; Ashley Furnitur e , 734 F.3d at 1311 ( explaining that a party who “indicate[d]TAMPA BAY FISHERIES , INC

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only opposition to the petition in questionnaires” cannot be considered a petition supporter).
Similarly, Singleton’s claim that it was entitled to CDSOA distributions because it supported the 2003 petition by offering financial support to petitioners is unavailing. As we now have said repeatedly, i n order to be considered an affected domestic produce r, one must indicate support of a petition “by letter or through que stionnaire response .” 19 U .S.C. § 1675c(d)(1) ; SKF , 556 F.3d at 1342; Ashley Furniture , 734 F.3d at 1311 ; see also Giorgio Foods, Inc. v. United States , No. 13

- 1304 , slip op. at 11 (Fed. Cir. Apr. 24, 2014 ) . Because Singleton made no allegation in the amended complaint that it had ind icated support in the manner required by statute, the Trade Court did not err when it dismissed the remainder of Singleton’s claims. See Ashley Furniture , 734 F.3d at 1311 (“Appellants did not indicate support for the petition in a questionnaire an d did not actively oppose the pet ition. We hold that Appellants have not supported the petition under the plain meaning of the Byrd Amen dment.”)

. C ONCLUSION Because the Trade Court correctly determined that Appellants failed to properly allege that they had su pported the petition and that their statutory claims were foreclosed by this c ourt’s precedent, we affirm.

AFFIRMED