Slip Op. 13- UNITED STATES COURT OF INTERNATIONAL TRADE

Before: Timothy C. Stanceu, Judge

Court No. 03-00286

OPINION [Grating motions to dismiss pursuant to USCIT Rules 12(b)(1) and 12(b)(5)] Dated: March 6, 2013

Michael T. Shor and Sarah Brackney Arni , Arnold & Porter LLP, of Washington, DC, for plaintiff. Courtney S. McNamara , Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington DC , for defendant United States. With her on the brief were Stuart F. Delery , Principal Deputy Assist ant Attorney General, Jeanne E. Davidson , Director, and Franklin E. White , Jr. , Assistant Director. Neal J. Reynolds , Assistant General Counsel for Litigation, and Patrick V. Gallagher , Jr ., Attorney Advisor, Office of the General Couns el, U.S. Internationa l Trade Commission, of Washington DC, for defendant U.S. International Trade Commission.

GIORGIO FOODS, INC. , Plaintiff,

v. UNITED STATES and UNITED STATES INTERNATIONAL TRADE COMMISSION , Defendants,

and L.K. BOWMAN COMPANY , MONTEREY MUSHROOMS, INC., and THE MUSHROOM COMPANY , Defendant-intervenors.Court No. 03-00286 Page 2

Valerie A. Slater , Akin, Gump, Strauss, Hauer & Feld, LLP, of Washington, DC, for defendant-intervenors L.K. Bo wman Company and The Mushroom Company. With her on the brief were W. Randolph Teslik and Troy D. Cahill. Michael J. Coursey and R. Alan Luberda , Kelley Drye & Warren, LLP, of Washington, DC, for defendant-intervenor Monterey Mushrooms, Inc. Stanceu, Judge: This case arose from decisi ons of two agencies, the U.S. International Trade Commission (the “ITC” or the “Commissi on”) and U.S. Customs and Border Protection (“Customs”), denying plaintiff monetary benef its under the now-repealed Continued Dumping and Subsidy Offset Act of 2000 (“CDSOA” or “Byrd Amendment”), 19 U.S.C. § 1675c (2000). 1 The ITC determined that Giorgio Foods, Inc. (“ Giorgio”), a domestic producer of preserved mushrooms, did not qualify for “affected domes tic producer” (“ADP”) stat us, which a domestic producer must obtain in order to receive CDSOA disbursement s (“offsets”) of collected antidumping duties from Customs. Giorgio clai ms it is owed a share of the duties Customs collected under various antidumping duty orders on imports of certain preserved mushrooms from Chile, the People’s Republic of China (“Ch ina”), Indonesia, and India and distributed to other domestic mushroom producers. 2 Second Am. Compl. ¶ 17 (June 7, 2011), ECF No. 150-1.

1 Pub.L. No. 106-387, §§ 1001-03, 114 Stat. 1549, 1549A-72-75, repealed by Deficit Reduction Act of 2005, Pub.L. 109-171, § 7601(a), 120 Stat. 4, 154 (Feb. 8, 2006; effective Oct. 1, 2007). Citations are to the codified version of the Continued Dumping and Subsidy Offset Act (“CDSOA”), 19 U.S.C. § 1675c (2000). All other citati ons to the United States Code are to the 2006 edition.

2 See Notice of Antidumping Duty Order: Certain Preserved Mushrooms from Chile , 63 Fed. Reg. 66,529 (Dec. 2, 1998); Notice of Amendment of Final Determination of Sales at Less Than Fair Value and Antidumping Duty Orde r: Certain Preserved Mushrooms from the People’s Republic of China , 64 Fed. Reg. 8,308 (Feb. 19, 1999); Notice of Antidumping Duty Order: Certain Preserved Mushrooms from Indonesia , 64 Fed. Reg. 8,310 (Feb. 19, 1999); Notice of Amendment of Final Determination of Sales at Less Than Fair Value and Antidumping Duty Order: Certain Preserved Mushrooms from India , 64 Fed. Reg. 8,311 (Feb. 19, 1999).Court No. 03-00286 Page 3

The ITC construed the “peti tion support requirement” of the CDSOA, 19 U.S.C. § 1675c(b)(1)(A), (d)(1), under which CDSOA offset s are limited to petitioners and parties in support of an antidumping or countervailing duty pe tition, so as to disqualify Giorgio from the list of potential ADPs because Giorgio indicated to the ITC in questionnaire responses that it did not support the petition that resulted in the antidumping duty orders. Id . ¶ 45. Because Giorgio lacked ADP status, Customs ma de no CDSOA disbursements to Giorgio for Fiscal Years 2001 through 2010. Id . ¶¶ 10, 80-84, 87. Plaintiff’s second amended complaint brings as-applied constitutiona l challenges to the CDSOA’s petition support requir ement that are grounded in the First Amendment and the Fifth Amendment equal protection guarantee. Id . ¶¶ 89-98. Plaintiff also asserts “unjust enrichment” claims against the defendant-intervenors opposin g it in this action, L.K. Bowman Company, a

division of Hanover Foods Cor poration (“L.K. Bowman”), Monterey Mushrooms, Inc. (“Monterey”), and The Mushroom Company (“Mush room Co.”), each of whom Giorgio alleges to have received and retained, unjustly, Gi orgio’s share of CDSOA distributions. Id . ¶¶ 85, 108.

Before the court are several motions to dism iss. The court conc ludes that Giorgio’s

constitutional claims must be dismissed for failure to state a claim upon which relief can be granted and that it lacks subject matter jurisdicti on over Giorgio’s unjust enrichment claims. The court will enter judgment dismissing this action.

I. B ACKGROUND 3 On January 6, 1998, an antidumping duty pet ition filed with Commerce and the ITC sought the imposition of antidumping duties on preserved mushrooms from Chile, China,

3 The facts as stated herein are as pled in the Second Amended Complaint.Court No. 03-00286 Page 4

Indonesia, and India. Second Am. Compl. ¶ 26. Beginning that year, the ITC conducted investigations to determine whet her imports of certain preserve d mushrooms from Chile, China, Indonesia, and India were causing or threatening to cause material injury to a domestic industry.

Id . ¶ 27 (citing Initiation of Antidumping Investigations : Certain Preserved Mushrooms from Chile, India, Indonesia, and the People’s Republic of China , 63 Fed. Reg. 5,360 (Feb. 2, 1998)). In conducting those investigations, the ITC sent questionnaires to domestic producers of preserved mushrooms, including Giorgio. Id . ¶¶ 9, 45. In its respons es to the Commission’s questionnaires for the preliminary, as well as the final, phase of the investigations, “Giorgio wrote that it (1) took no position with respect to the petition filed against preserved mushrooms from Chile, China, and Indonesia, and (2) opposed the petition with respect to India.” Id . ¶ 45. Based on an affirmative ITC injury determina tion and its own affirmative finding of sales at less than fair value, the International Trad e Administration, U.S. Department of Commerce (“Commerce” or the “Department”) issued an antidumping duty order on certain preserved mushrooms from Chile on December 2, 1998. Id . ¶¶ 8, 62; see also Notice of Antidumping Duty Order: Certain Preserved Mushrooms from Chile , 63 Fed. Reg. 66,529 (Dec. 2, 1998). Similarly, on February 19, 1999, Commerce i ssued antidumping duty orders on preserved mushrooms from India, Indonesia, and China. Second Am. Compl. ¶¶ 8, 62; see also Notice of Amendment of Final Determina tion of Sales at Less Than Fair Value and Antidumping Duty Order: Certain Preserved Mushrooms from India , 64 Fed. Reg. 8,311 (Feb. 19, 1999); Notice of Antidumping Duty Order: Certain Preserved Mushrooms from Indonesia , 64 Fed. Reg. 8,310 (Feb. 19, 1999); Notice of Amendment of Fina l Determination of Sales at Less Than Fair Value and Antidumping Duty Order: Certain Preserved Mushrooms from the People’s Republic of

China , 64 Fed. Reg. 8,308 (Feb. 19, 1999).Court No. 03-00286 Page 5

The CDSOA was enacted on October 28, 2000. 19 U.S.C. § 1675c. Concluding that Giorgio had not supported a petiti on resulting in any of the four mushroom antidumping orders so as to qualify Giorgio for CDSOA offsets, the ITC did not include Giorgio on its published lists of ADPs for the mushroom antidumping duty orders for Fiscal Years 2001 through 2010. 4 Second Am. Compl. ¶ 10. The ITC subsequently denied Giorgio’s written requests for ADP

status. Id. ¶¶ 71-73. Giorgio filed CDSOA certifications with Customs for various fiscal years to request CDSOA disbursements, but Cu stoms made no disbursements to Giorgio. 5 Id

. ¶¶ 67, 78. In contrast, the ITC included the de fendant-intervenors on it s ADP lists, under the four mushroom antidumping orders, for all fi scal years since the CDSOA was enacted, and

Customs has distributed CDSOA o ffsets to the defendant-interve nors in every fiscal year. Id

. ¶ 11.

4 Distribution of Continued Dumping and Subs idy Offset to Affected Domestic Producers , 66 Fed. Reg. 40,782, 40,797 (Aug. 3, 2001); Distribution of C ontinued Dumping and Subsidy Offset to Affected Domestic Producers , 67 Fed. Reg. 44,722, 44,735-36 (July 3, 2002); Distribution of Continued Dumping and Subsidy Offset to Affected Domestic Producers , 68 Fed. Reg. 41,597, 41,630-31 (July 14, 2003); Distribution of Continued Dumping & Subsidy Offset to Affected Domestic Producers , 69 Fed. Reg. 31,162, 31,193-94 (June 2, 2004); Distribution of Continued Dumping & Subsidy Offset to Affected Domestic Producers , 70 Fed. Reg. 31,566, 32,156-57 (June 1, 2005); Distribution of Continued Dumpi ng & Subsidy Offset to Affected Domestic Producers , 71 Fed. Reg. 31,336, 31,351, 31,366, 31,369, 31,372 (June 1, 2006); Distribution of Continued Dumping & Subsidy Offset to Affected Domestic Producers , 72 Fed. Reg. 29,582, 29,597, 29,612, 29,615, 29,619 (May 29, 2007); Distribution of Continued Dumping & Subsidy Offset to Affected Domestic Producers , 73 Fed. Reg. 31,196, 31,211, 31,226-27, 31,230, 31,233 (May 30, 2008); Distribution of Continued Dumping & Subsidy Offset to Affected Domestic Producers , 74 Fed. Reg. 25,814, 25,830, 25,846, 25,849, 25,852 (May 29, 2009); Distribution of Continued Dumping & Subsidy Offset to Affected Domestic Producers , 75 Fed. Reg. 30,530, 30,546, 30,562, 30,565, 30,568 (June 1, 2010).

5 Plaintiff pleads that Giorgi o Foods, Inc. (“Giorgio”) did not file a certification for CDSOA benefits under the antidumping duty orde r for preserved mushrooms from India on account of futility, as the Commission’s response to Giorgio’s certifications for the three other antidumping duty orders had stated that it was “inappropriate” to a dd Giorgio to the list of ADPs because of Giorgio’s questionnaire responses in the original investigations. Second Am. Compl. ¶¶ 70-73 (June 7, 2011), ECF No. 150.Court No. 03-00286 Page 6

Giorgio commenced this action on May 23, 2003. Summons, ECF N o. 1; Compl., ECF No. 4. This case was stayed on October 10, 2003 pending resolution of cross-motions for judgment upon the agency record in another ca se involving a constitutional challenge to the CDSOA, PS Chez Sidney, L.L.C. v. U.S. Intern. Trade Com’n , Court No. 02-00635. Order, ECF No. 27. The decision in that case, PS Chez Sidney , 30 CIT 858, 442 F. Supp. 2d 1329 (2006) (“ Chez Sidney I ”), rejected a statutory CDSOA claim but held the CDSOA petition support requirement violative of the First Amendment, id . at 1331-33. After the lifting of the stay, plaintiff m oved on July 28, 2006 for a temporary restraining order and a preliminary injunc tion, seeking to prevent further CDSOA distributions to the recognized ADPs for the mushroom antidumping duty orders. 6 Giorgio Foods Inc.’s Mot. for a TRO & for a Prelim. Inj., ECF No. 30. This Cour t denied the motion for a temporary restraining order on August 2, 2006, Order, ECF No. 32, a nd on August 9, 2006, plaintiff filed a second motion for a preliminary injunction, Giorgio Foods Inc.’s Mot. for a Prelim. Inj., ECF No. 34. On August 23, 2006, L.K. Bowman, Monterey, Mu shroom Canning, and Sunny Dell Foods, Inc. (“Sunny Dell”), parties that were petitioners in the antidumping duty investigations, Second Am. Compl. ¶ 27, moved to intervene in this action, Mo t. to Intervene as of Right, ECF No. 39. The court granted the intervention motion with respec t to all movants except for Sunny Dell, which declined to produce a witness re quested by plaintiff for questioni ng at the preliminary injunction

6 As a result of the commencement of this action and plaintiff’ s moving on August 9, 2006 for a preliminary injunction, U.S. Customs & Border Protection (“Customs”), pending resolution of this action, provisionally treated Giorgio as an affected domestic producer for Fiscal Years 2006 through 2009 and withheld Gior gio’s claimed share from distribution to recognized ADPs. Second Am. Compl. ¶ 87. Cu stoms did not withhold any CDSOA funds for Giorgio for Fiscal Year 2010. Id . ¶ 88.Court No. 03-00286 Page 7

hearing. Order 2 (Sept. 13, 2006), ECF No. 51. On September 22, 2006, this Court denied the motion for a preliminary injunction. Order De nying Pl.’s Mot. for Prelim. Inj., ECF No. 58. On October 12, 2006, plaintiff moved for leave to amend its complaint. Giorgio Foods, Inc.’s Mot. for Leave to Amend the Compl., ECF No. 59. Plaintiff sought to abandon a statutory claim it had brought against the ITC, to add faci al and as-applied challenges to the petition support requirement under the Fifth Amendment e qual protection guarantee, and to add claims for unjust enrichment against the defendant-interve nors. Mem. of Law in Supp. of Pl.’s Mot. for Leave to Amend the Compl. 1-2, ECF No. 59. Plaint iff also sought to “upda te” its claims, to add “factual allegations” to account for developments since the case was filed and stayed in 2003, and to clarify its requested relief, which plaint iff specified as CDSOA distributions for fiscal years 2001 through 2005. Id .; First Am. Compl. ¶¶ 64, 69 (Oct. 12, 2006), ECF 59-2. On August 21, 2007, the court granted plaintiff’s mo tion with respect to the aforementioned

amendments. 7 Giorgio Foods, Inc. v. United States , 31 CIT 1261, 1262, 515 F. Supp. 2d 1313, 1316 (2007) (“ Giorgio I ”). On May 6, 2008, this Court stayed this acti on a second time pending appellate resolution

of the Chez Sidney litigation as well as another case that addressed constitutional issues involving the CDSOA, SKF USA Inc. v. United States , Court No. 05-00542. Order, ECF No. 84; SKF USA, Inc. v. United States , 30 CIT 1433, 1446-47 451 F. Supp. 2d 1355, 1366-67 (2006) (“ SKF USA I ”) (holding the petition support requir ement of the CDSOA unconstitutional on

7 Plaintiff’s motion for leave to amend also sought to add Sunny Dell Foods, Inc. (“Sunny Dell”) as a defendant. Giorgio Foods, Inc.’s Mot. for Leave to Amend the Compl. 4 (Oct. 12, 2006), ECF No. 59. The court denied th is request, concluding th at the addition would unduly prejudice plaintiff, based on Sunny Dell’s previous refusal to produce a witness in response to plaintiff’s request at the hearing on the motion for preliminary injunction. Giorgio Foods, Inc. v. United States , 31 CIT 1261, 1265-1267, 515 F. Supp. 2d 1313, 1318-20 (2007).Court No. 03-00286 Page 8

Fifth Amendment equal protection grounds). On February 19, 2009, the Cour t of Appeals for the Federal Circuit (“Court of Appeals”) reversed SKF USA I and upheld the petition support requirement under the First Amendment and th e equal protection guarantee of the Fifth

Amendment. SKF USA, Inc. v. United States , 556 F.3d 1337, 1360 (Fed. Cir. 2009) (“ SKF

USA II ”). On May 17, 2010, the United States Supr eme Court denied a petition for a writ of

certiorari in SKF USA II

. SKF USA, Inc. v. Customs and Border Protection , 130 S.Ct. 3273 (2010). On October 28, 2010, the Court of A ppeals issued a non-pr ecedential order in PS Chez Sidney , stating that, following the denial of certiorari, SKF USA II is a final decision that “is controlling with regard to all constitutional issu es presented in [the] appeal,” while limiting briefing to the non-constitutional issues in that case. PS Chez Sidney, L.L.C. v. U.S. Intern.

Trade Com’n , 409 F.App’x 327, 329 (Fed. Cir. 2010) (“ Chez Sidney II ”). After the lifting of the second stay, plaint iff moved on April 5, 2010 for leave to amend its complaint a second time. Giorgio Foods, Inc. ’s Second Mot. for Leave to Amend the Compl., ECF No. 150. Plaintiff sought to withdraw its facial First Amendment and equal protection challenges to the CDSOA and replace them with claims that the CDSOA violates the First Amendment and Fifth Amendment equal protection gua rantee “as applied to Giorgio” for Fiscal Years 2001 through 2010. Mem. of Law in Supp. of Pl.’s Second Mot. for Leave to Amend the Compl. 2-4, ECF No. 150 (“Pl.’ s Mem. in Supp. of Second Mo t. to Amend”); Second Am. Compl. ¶¶ 90-91, 94-97. Plaintiff also sought to reinstate its previous ly abandoned statutory claim and, in the alternative, to add a claim alleging “substan tive and procedural due process violations, arising from the CD SOA’s failure to afford Giorgi o notice and an opportunity to present evidence of actions Gior gio took in support of the petit ion.” Pl.’s Mem. in Supp. of Second Mot. to Amend 3-4. Finally, plaintiff s ought to add a claim for money damages againstCourt No. 03-00286 Page 9

the United States. Id . at 3-4, 12. On November 17, 2011, this Court granted plaintiff’s request to abandon the facial constitutional claims, Giorgio Foods, Inc. v. United States , 35 CIT __, __, 804 F. Supp. 2d 1315, 1320-21 (2011) (“ Giorgio II ”), but denied plaintiff’s requests to add a statutory claim, due process claims , and a claim for money damages, id . 35 CIT at __, 804 F. Supp. 2d at 1321-25. On July 13, 2012, the Court of Appeals issued its decision in PS Chez Sidney, L.L.C. v.

U.S. Intern. Trade Com’n , 684 F.3d 1374 (Fed. Cir. 2012) (“ Chez Sidney III ”). On October 16, 2012, defendant and defendant-inter venors filed their motions to dismiss. On January 30, 2013, the court denied a motion by plaintiff to stay th is action pending the outc ome of two appeals of CDSOA-related decisions arising from an an tidumping duty order on Chinese wooden bedroom furniture that were, and continue to be, pending before the Court of Appeals. G iorgio Foods v.

United States , 37 CIT __, __, Slip Op. 13-14, at 5 (“ Giorgio III ”). On March 1, 2013, plaintiff filed its response to the motions to dismiss. Pl.’s Opp’n to Defs.’ and Def.-Intervenors’ Mots. to Dismiss, ECF No. 200 (“Pl.’s Opp’n”).

II. D ISCUSSION Before the court are the motions to dismiss the second amended complaint, as filed on October 16, 2012 by defendant United States, de fendant ITC, and defendant-intervenors. 8 The

8 Defendant U.S. International Trade Comm ission (“ITC”) moved to dismiss under Rule 12(b)(5). Def. U.S. Int’l Trade Comm’n’s Mot. to Dismiss Pursuant to R. 12(b)(5), ECF No. 179 (“ITC’s Mot.”). The United States and defe ndant-intervenors moved to dismiss under Rules 12(b)(1) and 12(b)(5). Def.’s Mot. to Dismi ss for Failure to State a Claim upon which Relief Can Be Granted and Mot. to Dismiss for Lack of J. (“Def.’s Mot.”), ECF No. 180; Mot. by Def.-Intervenors L.K. Bowman Co. and The Mu shroom Co. (Formerly Mushroom Canning Co.) to Dismiss the Second Am. Compl., ECF No. 181 (“L.K. Bowman & Mushroom Co.’s Mot.”); Def.-Intervenor Monterey Mushrooms, Inc.’s Mot. to Dismiss Pl.’s Second Am. Compl. Pursuant to Rs. 12(b)(1) and 12(b)(5), ECF N o. 182 (“Monterey’s Mot.”). Earlier (in 2003), a motion to dismiss a count in the original comp laint pursuant to USCIT Rule 12(b)(5) was filed (continued...)Court No. 03-00286 Page 10

claims remaining in that complaint fo llowing the decision of this Court in Giorgio II , 35 CIT at __, 804 F. Supp. 2d at 1320-21, are constitutional challenges to the CDSOA, brought against defendants ITC and the United States, and clai ms of unjust enrichment, brought against the

defendant-intervenors. 9 Specifically, plaintiff challenges th e petition support re quirement of the CDSOA, as applied to Giorgio, on First Amendment grounds. Second Amended Compl. ¶¶ 89-92. Further, it challenges th e petition support requirement, as applied to Giorgio, on Fifth Amendment equal protection grounds. Id . ¶¶ 93-98. Finally, invoking supplemental jurisdiction,

id . ¶ 21, plaintiff claims that the defendant-int ervenors have been unjus tly enriched at the expense of Giorgio, having received and retained Giorgio’s lawful share of CDSOA distributions for certain fiscal years, and s eeks restitution, through dire ct recovery of those distributions, from each of the defendant-intervenors, id . ¶¶ 107-108, 109(e). The court exercises subject matter jurisdiction ov er plaintiff’s constitutional challenges to the CDSOA according to section 201 of the Cu stoms Courts Act of 1980 (2006), 28 U.S.C. § 1581(i)(4), which provides the Cour t of International Trade jurisd iction of civil actions arising out of any law of the United States, such as the CDSOA, providing for administration with respect to duties (incl uding antidumping duties) on the importation of merchandise for reasons other than the raising of revenue . The CDSOA, out of which the constitutional claims arise, is

such a law. See Furniture Brands Int’l v. United States , 35 CIT ___, ___, 807 F. Supp. 2d 1301, (continued...) by the ITC. Mot. of Def. U.S. Int’l Trade Co mm’n to Dismiss Claim 1 of the Compl. (Aug. 25, 2003), ECF No. 18. Because this motion was limited to the statutory claim in plaintiff’s original complaint, it became moot when plaintiff abandone d that claim in its first amended complaint.

9 In accordance with this Court’s Orde r dated April 22, 2011, ECF No. 143, which granted a Consent Motion for Bifurcation, the cour t adjudicates plaintiff’s constitutional claims prior to adjudicating any other i ssues, including remedy issues a nd plaintiff’s claims for unjust enrichment and restitution.Court No. 03-00286 Page 11

1307-10 (2011). The court conclude s it lacks subject matter jurisd iction over plaintiff’s claims of unjust enrichment. This issue is addr essed in Part II(B) of this Opinion.

A. No Relief Is Available on Plaintiff’s As -Applied Constitutional Challenges to the CDSOA In deciding USCIT Rule 12(b)(5) motions to dismiss for failure to state a claim upon which relief can granted, “the court must accep t as true the complaint’s undisputed factual allegations and should construe them in a light most favorable to the plaintiff.” Cambridge v.

United States , 558 F.3d 1331, 1335 (Fed. Cir. 2009) (citations omitted). However, plaintiff's complaint must “contain sufficient factual matter, accep ted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 570 (2007)). “Determi ning whether a complaint states a plausible claim for relief [is] a c ontext-specific task that require s the reviewing court to draw on its judicial experience and common sense.” Id . at 679.

The CDSOA amended the Tariff Act of 1930 (“Tariff Act”) to provide for the distribution of antidumping and countervailing duties to persons with ADP status, which is limited to petitioners, and intere sted parties in suppor t of petitions, with respect to which antidumping duty and countervail ing duty orders are entered. 10 19 U.S.C. § 1675c(a), (d). 11

10 The CDSOA provided that: The term “affected domestic producer” mean s any manufacturer, producer, farmer, rancher or worker representative (incl uding 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 fi nding 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).

11 Congress repealed the CDSOA in 2006, but th e repealing legislation provided that “[a]ll duties on entries of goods ma de and filed before October 1, 2007, that would [but for the legislation repealing the CDSOA], be distributed under [the CDSOA] . . . shall be distributed as (continued...)Court No. 03-00286 Page 12

The statute directed the ITC to forward to Custom s “within sixty days after the effective date of this section [19 U.S.C. § 1675c] in the case of orders . . . in effect on January 1, 1999, or thereafter . . . a list of petitioners and persons w ith respect to each order and finding and a list of persons that indicate support of the petition by letter or th rough questionnaire response.” Id

. § 1675c(d)(1). The CDSOA directed that Customs publish in the Federal Register, prior to each distribution, lists of ADPs potenti ally eligible for di stributions of a “continuing dumping and subsidy offset” based on the lists obtained from the Commission and that Customs request that potentially eligible parties certify eligibility for such an offset. Id . § 1675c(d)(2). The CDSOA also directed Customs to segregate antidum ping and countervailing duties according to the relevant antidumping or countervailing duty order, to maintain these duties in special accounts, and to distribute to companies determined to be ADPs annually, as reimbursement for incurred qualifying expenditures, a ratable share of the funds (including a ll interest earned) from duties assessed on a specific unfairly trad ed product that were received in the preceding fiscal year. Id

. § 1675c(d)(3), (e). The Second Amended Complaint states that “[ a]s applied to Giorgio . . . the CDSOA’s petition support requirement violates the free speech clause of the Fi rst Amendment of the United States Constitution.” Second Am. Compl. ¶ 90. Plaintiff alleges that “[a]s a result of the

(continued...) if [the CDSOA] . . . had not been repealed . . . . ” Deficit Re duction Act of 2005, Pub.L. No. 109-171, § 7601(b), 120 Stat. 4, 154 (2006). In 2010, Congre ss further limited CDSOA distributions by prohibiting payments with respec t to entries of goods that as of December 8, 2010 were “(1) unliquidated; and (2 )(A) not in litigati on; or (B) not under an order of liquidation from the Department of Commerce.” Clai ms Resolution Act of 2010, Pub.L. No. 111-291, § 822, 124 Stat. 3064, 3163 (2010).Court No. 03-00286 Page 13

unconstitutional application of the petition support requirement, Gi orgio has unlawfully been . . .

denied CDSOA offsets . . . for fiscal years 2001-2010 . . . .” Id . ¶ 91. Plaintiff alleges, further, th at “[a]s applied to Giorgio . . . the CDSOA’s petition support requirement violates the Equal Protecti on guarantee of the U.S. Constitution.” Id . ¶ 94. The complaint states that the CDSOA’s speech-based e ligibility criterion “creates a classification that implicates the exercise of constitutional free speech rights . . . that is not narrowly tailored to achieve a compelling government objective.” Id . ¶ 95. Plaintiff also claims that the petition support requirement “discriminat es without a rational basis be tween Giorgio . . . and other domestic producers . . . , includ ing the Defendant-Intervenors.” Id . ¶ 96. Plaintiff alleges that because of the equal protection violation, “Giorg io has unlawfully been . . . denied [CDSOA offsets] . . . for fiscal years 2001-2010 . . . .” Id . ¶ 97. Both of plaintiff’s constitutional cl aims are foreclosed by the holding of SKF USA II , which upheld the petition support requirement of the CDSOA on both First Amendment and equal protection grounds. The Court of Appeals stated that “the Byrd Amendment is within the constitutional power of Congre ss to enact, furthers the governme nt’s substantial interest in enforcing the trade laws, and is not overly broa d. We hold that the Byrd Amendment is valid

under the First Amendment.” SKF USA II , 556 F.3d at 1360. The Court of Appeals further held that “[b]ecause it serves a substa ntial government interest, the By rd Amendment is also clearly not violative of equal protection unde r the rational basis standard.” Id. Although stating that its chal lenges are “as applied to Gi orgio,” Second Am. Compl. ¶¶ 90, 94, plaintiff does not plead facts distinguis hing Giorgio’s constitutional challenges from the challenges asserted, and reject ed by the Court of Appeals, in SKF USA II . Plaintiff alleges

various facts that it characterizes as demonstrating that it is in support of an antidumping dutyCourt No. 03-00286 Page 14

petition, including “providing all re quested factual information” in its questionnaire responses to the ITC. Pl.’s Opp’n 1, 3 (citing Second Am. Comp l. ¶ 45). The controll ing fact, however, is plaintiff’s admission in the complaint that, in both the preliminary and final phases of the Commission’s investigation, “in response to one question on each questionnaire asking whether it supported the petition against each country, Gi orgio wrote that it (1) took no position with respect to the petition filed agai nst preserved mushrooms from Ch ile, China, and Indonesia, and (2) opposed the petition with respect to India. ” Second Am. Compl. ¶ 45. SKF USA, Inc. (“SKF”), the plaintiff in SKF USA II , challenged the petition support requirement on grounds indistinguishable from those asserted here. SK F did not express support for the petition involved

in that case. SKF USA II , 556 F.3d at 1343. In opposing dismissal, plaintiff atte mpts to distinguish its case from SKF USA II , arguing that SKF had actively opposed the petition whil e Giorgio actively “supported” the petition by responding completely to the ITC’s questionnai res and performing numerous other actions before and during the ITC’s investigation. Pl .’s Opp’n 1-2 (citing Second Am. Compl. ¶¶ 29, 32-44). Plaintiff submits that as-applied cons titutional challenges are inherently fact-based, id

. at 14, and emphasizes that “Giorgio took no actions (as distinguished from its abstract expression of viewpoint in respons e to the petition support questio n) to oppose the petitions or

Petitioners’ trade enforcement efforts at a ny time in the Commission’s investigation,” id . at 1, 3-4 (citing Second Am. Compl. ¶ 54) (footnote omitted). The court rejects plaintiff’s argument. A party in the position of SKF and Giorgio, i.e. , a party without petitioner status in an antidumpi ng duty investigation brought under the Tariff Act of 1930, can satisfy the petition support requ irement of the CDSOA only if that party “indicate[s]” to the Commission “s upport of the petition by letter or through questionnaireCourt No. 03-00286 Page 15

response .” 19 U.S.C. § 1675c(d)(1) (emphasis added). From the facts set forth in the Second Amended Complaint, it is clear th at Giorgio, like SKF, failed to do so. The fact that Giorgio, as to three of the four countries named in the pe tition, did not take a posi tion in opposition to the petition is not a meaningful distin ction in light of the holding in SKF USA II

. Nothing in the SKF USA II opinion supports the notion that the Court of Appeals upheld the petition support requirement only partially or upheld the petition s upport requirement in

some form other than as set forth in the CDSOA. Although SKF undertook various actions to “actively oppose” the petition, id . at 1358-59, whereas Giorgio opposed the petition only as to one country, this distinction is not meaningful because the petition s upport requirement draws no distinction between opposing a petition and declining to support a petition. See 19 U.S.C. § 1675c(b)(1)(A), (d)(1). Nor is the holding in SKF USA II based on any such distinction. As the Court of Appeals stated, “[ a]t best, the role of parties opposing (or not supporting) the petition in responding to questionnai res is similar to the role of opposing or neutral parties in litigation who must reluctantly respond to interrogatories or other discovery.” SKF USA II , 556 F.3d at 1359. The Court of Appeals explaine d that because “the purpose of the Byrd Amendment’s limitation of eligible recipients was to reward injured parties who assisted government enforcement of the antidumping laws by initiating or supporting antidumping proceedings,” id. at 1352, it was “rational for Congress to conclude that those who did not support the petition should not be rewarded ,” id . at 1360 (emphasis added). Next, plaintiff argues that in SKF USA II , the Court of App eals “adopted a limiting construction of the [CDSOA]” and in so doing esta blished a new test for eligibility based on a company’s actions during the inve stigation, including its litigati on support actions, rather than the particular viewpoint expre ssed in questionnaire responses. Pl.’s Opp’n 18, 20 (citing SKFCourt No. 03-00286 Page 16

USA II , 556 F.3d at 1353). Accordingly, as plainti ff submits, “the ITC failed to consider [Giorgio’s] actions and failed to make any factual findings concerning [the] actions it took in support or in opposition to the petition.” Id . at 21 (citation omitted). Plaintiff misinterprets the holding of SKF USA II . The statements in the opinion all uding to a “limiting construction” that “rewards actions (litigation support) rather than the expression of particular views,” were made

in the context of a theoretical construction of st atutory language as an al ternative to the Court’s previous discussion of congressi onal purpose and as part of th e larger analysis by which the Court subjected the CDSOA to First Amendmen t standards for the regulation of commercial speech. See SKF USA II , 556 F.3d at 1353 (“Finally, if we were to view this case as involving the construction of statutory langua ge rather than an exercise in ascertaining statutory purpose, the result would be the same.”) (emphasis added). 12 Contrary to plaintiff’s view, SKF USA II did not establish a new test for ADP eligibility in order to conform the statute to the First Amendment. Instead, the Court upheld, in the face of constitutional challenges, the test for ADP eligibility that C ongress enacted. Like the plaintiff in SKF USA II , Giorgio did not meet that test. In support of its as-applied challenges, plain tiff also cites the recen t decision of the Court of Appeals in Chez Sidney III . Plaintiff considers Chez Sidney III to be controlling in this action and submits that the Court of Appeals, “[b] uilding on its First Amendment analysis in SKF [USA II] . . . ruled [] that CDSOA bene fits could neither be granted nor denied to a claimant solely based on an abstract expression of viewpoint.” Pl.’s Opp’n 23. Thus, “ Chez Sidney [III]

12 The court notes, further, that “as applied” First Amendment challenges in the commercial speech context are generally disfavored. See United States v. Edge Broadcasting Co. , 509 U.S. 418, 430-31 (1993) (“[We] judge the validity of the restriction in this case by the relation it bears to the genera l problem . . . not by the extent to which it furthers the Government’s interest in an individual case.”).Court No. 03-00286 Page 17

[] reiterates that . . . ‘it is the surrounding circum stances, not abstract stat ements of support alone, upon which an appropriate support determination depends.’” Id . (citing Chez Sidney III , 684 F.3d at 1382-83). 13 Plaintiff argues, further, th at “the analysis and holding of Chez Sidney [III] cannot be ignored simply because Chez Sidney asserted a statutory claim, rather than a constitutional claim” because “[t] here is little pr actical difference . . . between a claim that the ITC interpreted the [CDSOA] incorrectly as a ma tter of statutory constr uction and a claim that the ITC’s construction of the [CDSOA] as applied to Giorgio was unconstitutional.” Id . at 27. Chez Sidney III is not controlling of the outcome of this case. That decision did not

overturn the decision in SKF USA II. Nor did it rule on any issue concerning the constitutionality of the petition support requirement. As the Court of Appeals made clear, the constitutional issues presented in Chez Sidney III were definitively resolved by SKF USA II , Chez Sidney III , 684 F.3d at 1379 n.3, and the decision rende red therein is strictly limited to a statutory challenge, id . at 1378-79. No such statutory cha llenge is found in Giorgio’s second amended complaint. See Giorgio II , 35 CIT at __, 804 F. Supp. 2d at 1321-22. Plaintiff’s assertion that there is “little practical differe nce” between a constitutional and statutory challenge to the CDSOA thus ignores the explicit pronoun cement of the Court of Appeals concerning the

13 Plaintiff also argues that in Chez Sidney III , the Court of Appeals for the Federal Circuit (“Court of Appeals”) stated that the limiting construction “‘effectively redefine[ed] [affected domestic producers] from ‘interested pa rties in support of a pe tition’ to ‘interested parties in a petition.’” Pl.’s O pp’n to Defs.’ and Def.-Intervenor s’ Mots. to Dismiss 23 (Mar. 1, 2013), ECF No. 200 (citing PS Chez Sidney, L.L.C. v. United States , 684 F.3d 1374, 1380 (Fed. Cir. 2012) (“ Chez Sidney III ”)). However, the Court of Appeals made this statement in reference to this Court’s decision in SKF USA Inc. v. United States , 30 CIT 1433, 1446, 451 F. Supp. 2d 1355, 1366 (2006), which was reversed by SKF USA, Inc. v. United States , 556 F.3d 1337, 1360 (Fed. Cir. 2009) (“ SKF USA II ”)

. The court, therefore, dism isses this misguided argument.Court No. 03-00286 Page 18

scope of Chez Sidney III . Neither the holding nor the analysis of Chez Sidney III makes viable Giorgio’s as-applied constitutional challenges to the CDSOA. In summary, plaintiff has failed to allege facts sufficient to demonstrate that its

constitutional claims are not for eclosed by the binding precedent of SKF USA III. As to these claims, therefore, the second amended complain t does not “contain sufficient factual matter, accepted as true, to ‘state a claim to re lief that is plausible on its face.’” Iqbal , 556 U.S. at 662 (citation omitted). The court must dismiss th ese claims pursuant to USCIT Rule 12(b)(5). B. The Court Lacks Subject Matter Jurisdicti on over Plaintiff’s Unjust Enrichment Claims Subject matter jurisdiction is a threshold issue, Steel Co. v. Citizens for Better

Environment , 523 U.S. 83, 94-95 (1998), and plaintiff ca rries the burden of demonstrating that its assertion of subject ma tter jurisdiction is proper, McNutt v. General Motors Acceptance Corp. , 298 U.S. 178, 189 (1936). In ruling on a moti on to dismiss for lack of subject matter jurisdiction, the “court must accep t as true all undisputed facts asserted in the plaintiff’s complaint and draw all r easonable inferences in favor of the plaintiff.” Trusted Integration, Inc.

v. United States , 659 F.3d 1159, 1163 (Fed. Cir. 2011) (citation omitted).

Plaintiff claims that the three defendant-inte rvenors have been “unjustly enriched at the expense of Giorgio as a result of the unconstitu tional petition support requirement.” Second Am. Compl. ¶ 108. According to plaintiff, “Defendant-In tervenors have received . . . more than their appropriate pro rata share of CDSOA disbursements unde r the mushroom antidumping orders, including the portions of such disburseme nts that rightfully belong to Giorgio.” Id . ¶ 18. As a remedy, plaintiff seeks “to disgorge and make fu ll restitution to Giorgio of Giorgio’s lawful share of all CDSOA disbursements [defendant -intervenors] have received . . . .” Id . ¶ 109(e).Court No. 03-00286 Page 19

Plaintiff submits that the court possesses subject matter jurisdic tion over this claim because it “falls within the [court’s] supplementa l jurisdiction . . . [as it] stems from and is directly related to Giorgio’s cl aims against Defendant the United States in connection with its administration and enforcement of the CDSOA, as to which this Court ha s original jurisdiction, such that they form part of the same case or controversy.” Id . ¶ 21 (citations omitted). Plaintiff also submits that its unjust en richment claims “raise[] complex jurisdictional issu es involving not only the applicability of this C ourt of the federal supplemental ju risdiction statute . . . but also common law doctrines of ancillary, pendant, and pendant-party jurisdiction.” Pl.’s Opp’n 32 (citing Thyssenkrupp Mexinox S.A. v. United States , 33 CIT __, __, 616 F. Supp. 2d 1376, 1381-83 (2009); Old Republic Ins. Co. v. United States , 14 CIT 377, 382, 741 F. Supp. 1570, 1575 (1990)). The court rejects plaintiff’s argument on s ubject matter jurisdiction. “Some statutory grant of authority is required” for this Court to entertain a di rect claim by one private party against another, and this C ourt lacks statutory supplementa l jurisdiction under 28 U.S.C. § 1367(a), which is limited to the district courts. Sioux Honey Assoc. v. Hartford Fire Insurance

Co. , 672 F.3d 1041, 1051-56 (Fed. Cir. 2012), cert. denied 133 S.Ct. 126 (2012). Therefore, the court may not exercise jurisdicti on over plaintiff’s claims agains t the defendant-intervenors, and those claims must be dismissed according to USCIT Rule 12(b)(1).

III. C ONCLUSION For the foregoing reasons, all of the claims in plaintiff’s second amended complaint must be dismissed. Plaintiff’s as-applied constitu tional claims brought unde r the First Amendment and Fifth Amendment equal protection guarantee are precluded by binding precedent and must

be dismissed for failure to state a claim upon which relief can be granted under USCITCourt No. 03-00286 Page 20

Rule 12(b)(5). The court lacks subject matter jurisdiction over plaint iff’s unjust enrichment claims, which therefore must be dismissed pursuan t to USCIT Rule 12(b)(1). Plaintiff twice has amended its complaint, and the court sees no justif ication for allowing plaintiff to seek leave for further amendment. Therefore, the court sh all enter judgment dismissing this action.

/s/ Timothy C. Stanceu Timothy C. Stanceu Judge Dated: March 6, 2013 New York, New York