Slip Op. 12-52 

UNITED STATES COURT OF INTERNATIONAL TRADE 

Before: Gregory W. Carman, Judge 

 Timothy C. Stanceu, Judge 

 Leo M. Gordon, Judge 

Court No. 08-00139 

OPINION 

[Dismissing all claims for failure to state a claim upon which relief can be granted; 

dismissing the action.] 

 Dated: April 20, 2012 

Gregory S. Menegaz and J. Kevin Horgan, deKieffer & Horgan, of Washington, DC for 

Plaintiff United Synthetics, Incorporated. 

Jessica R. Toplin, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. 

Department of Justice, of Washington, DC, for Defendants United States, U.S. Customs and 

Border Protection, and David V. Aguilar, Acting Commissioner of U.S. Customs and Border 

Protection. With her on the briefs were Tony West, Assistant Attorney General, Jeanne E. 

Davidson, Director, Franklin E. White, Jr., Assistant Director, and David S. Silverbrand and 

Courtney S. McNamara, Trial Attorneys. Of counsel on the briefs were Andrew G. Jones and 

Joseph Barbato, Office of Assistant Chief Counsel, U.S. Customs and Border Protection, of 

Washington, DC. 

 

UNITED SYNTHETICS, INCORPORATED, 

 

Plaintiff, 

 

 v. 

UNITED STATES OF AMERICA, UNITED 

STATES CUSTOMS AND BORDER 

PROTECTION, DAVID V. AGUILAR 

(ACTING COMMISSIONER, UNITED 

STATES CUSTOMS AND BORDER 

PROTECTION), UNITED STATES 

INTERNATIONAL TRADE COMMISSION, 

AND DEANNA T. OKUN (CHAIRMAN, 

UNITED STATES INTERNATIONAL 

TRADE COMMISSION), 

Defendants. 
Court No. 08-00139 Page 2 

Patrick V. Gallagher, Jr., Attorney Advisor, Office of General Counsel, U.S. 

International Trade Commission, of Washington, DC for Defendants U.S. International 

Trade Commission and Deanna T. Okun, Chairman, U.S. International Trade 

Commission. With him on the briefs were James M. Lyons, General Counsel and Neal 

J. Reynolds, Assistant General Counsel. 

Gordon, Judge: This case arose from the actions of two agencies, the U.S. 

International Trade Commission (the “ITC” or the “Commission”) and U.S. Customs and 

Border Protection (“Customs” or “CBP”), that denied Plaintiff United Synthetics, 

Incorporated (“USI”) certain monetary benefits under the Continued Dumping and 

Subsidy Offset Act of 2000 (“CDSOA” or “Byrd Amendment”), 19 U.S.C. § 1675c 

(2000), repealed by Deficit Reduction Act of 2005, Pub. L. 109-171, § 7601(a), 120 Stat. 

4, 154 (Feb. 8, 2006; effective Oct. 1, 2007). The ITC did not include Plaintiff on its list 

of parties potentially eligible for “affected domestic producer” (“ADP”) status, which 

would have qualified USI for distributions of antidumping duties collected under 

antidumping orders on imports of certain polyester staple fiber (“PSF”) from Korea and 

Taiwan. Certain Polyester Staple Fiber from Korea and Taiwan, Inv. No. 731-TA-825-

826 (Final), USITC Pub. 3300 (May 2000) (“Final Injury Determination”); Notice of 

Amended Final Determination of Sales at Less Than Fair Value: Certain Polyester 

Staple Fiber From the Republic of Korea and Antidumping Duty Orders: Certain 

Polyester Staple Fiber From the Republic of Korea and Taiwan, 65 Fed. Reg. 33,807 

(Dep’t of Commerce May 25, 2000) (“Final LTFV Determination and Antidumping Duty 

Orders”). Because Plaintiff was not on the ITC’s list of potential ADPs, Customs made 

no CDSOA distributions to USI. 
Court No. 08-00139 Page 3 

Plaintiff claims that Defendants’ actions are inconsistent with the CDSOA, not 

supported by substantial evidence, and otherwise not in accordance with law. Plaintiff 

also brings facial and as-applied constitutional challenges to the CDSOA under the First 

Amendment and under the equal protection and due process guarantees of the Fifth 

Amendment. 

 Before the court are motions under USCIT Rule 12(b)(5) to dismiss for failure to 

state a claim upon which relief can be granted filed by the ITC (Def. U.S. Int’l Trade 

Comm’n’s Mem. in Supp. of Its Mot. to Dismiss for Failure to State a Claim, ECF No. 44 

(“ITC’s Mot.”)) and Customs (Defs. the United States and U.S. Customs and Border 

Protection’s Mem. in Support of Their Mot. to Dismiss for Failure to State a Claim upon 

Which Relief Can Be Granted, ECF No. 47 (“Customs’ Mot.”)). The court has 

jurisdiction pursuant to 28 U.S.C. § 1581(i) (2006). See Furniture Brands Int’l, Inc. v. 

United States, 35 CIT __, __, 807 F. Supp. 2d 1301, 1307-10 (2011). For the reasons 

set forth below, we conclude that Plaintiff has failed to state a claim upon which relief 

can be granted. The court will grant Defendants’ USCIT Rule 12(b)(5) motions and 

dismiss this action. 

I. Background 

 Following a 1999 petition filed by a group of domestic manufacturers, the U.S. 

Department of Commerce (“Commerce”) initiated an antidumping investigation of PSF 

from Korea and Taiwan. Initiation of Antidumping Duty Investigations: Certain Polyester 

Staple Fiber From the Republic of Korea and Taiwan, 64 Fed. Reg. 23,053 (Dep’t of 

Commerce Apr. 29, 1999); Am. Compl. ¶ 22, ECF No. 17. Contemporaneously, the ITC 
Court No. 08-00139 Page 4 

conducted an injury investigation. Certain Polyester Staple Fibers from Korea and 

Taiwan, 64 Fed. Reg. 17,414 (ITC Apr. 9, 1999); Am. Compl. ¶ 22. 

Following an affirmative injury determination by the ITC in May 2000, Commerce, 

on May 25, 2000, published its amended final determinations of sales at less than fair 

value and issued the antidumping duty orders covering the subject merchandise. Final 

LTFV Determination and Antidumping Duty Orders, 65 Fed. Reg. 33,807; Am. Compl. 

¶ 26. The antidumping duty orders remain in effect. Am. Compl. ¶ 26. Plaintiff alleges 

that “USI did not exist at the time that the petition was filed or during the original 

investigation,” and that “USI was incorporated September 1, 1999 and began operations 

as a U.S. manufacturer of subject polyester staple fiber May 30, 2000,” five days after 

publication of the antidumping duty orders. Id. ¶ 23. 

Plaintiff commenced this action on April 18, 2008, contesting the denial of 

CDSOA distributions to Plaintiff for Fiscal Years 2006 and 2007. Compl., ECF No. 4. 

Shortly thereafter, the court stayed this action pending a final resolution of other 

litigation raising the same or similar issues. Order, May 28, 2008, ECF No. 12 (action 

stayed “until final resolution of Pat Huval Restaurant & Oyster Bar, Inc. v. United States, 

Consol. Ct. No. 06-0290, that is, when all appeals have been exhausted.”). 

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), cert. denied, 130 

S. Ct. 3273 (2010) (“SKF II”), which addressed questions also present in this action, the 

court issued an order directing Plaintiff to show cause why this action should not be 

dismissed. Order to Show Cause, Jan. 3, 2011, ECF No. 16. On February 1, 2011, 
Court No. 08-00139 Page 5 

Plaintiff filed its Amended Complaint.1 Am. Compl. After receiving Plaintiff’s response 

to the Order to Show Cause, the court lifted the stay on this action for all purposes. 

Order Lifting Stay, Feb. 9, 2011, ECF No. 20. Defendants filed motions to dismiss for 

failure to state a claim upon which relief can be granted on May 2, 2011 (ITC’s Mot.) 

and May 6, 2011 (Customs’ Mot.). 

II. Standard of Review 

 In deciding a USCIT Rule 12(b)(5) motion to dismiss for failure to state a claim 

upon which relief can be granted, the court assumes all factual allegations to be true 

and draws all reasonable inferences in plaintiff’s favor. Cedars-Sinai Med. Ctr. v. 

Watkins, 11 F.3d 1573, 1584 & n.13 (Fed. Cir. 1993). 

 A plaintiff’s factual allegations must be “enough to raise a right to relief above the 

speculative level on the assumption that all the allegations in the complaint are true 

(even if doubtful in fact.).” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) 

(internal citation and footnote omitted). “To survive a motion to dismiss, a complaint 

must contain sufficient factual matter, accepted as true, to ‘state a claim of relief that is 

 

1

 The filing of the amendment as a matter of course was untimely under Rule 15(a). 

USCIT R. 15(a) (A[A] party may amend its pleading once as a matter of course within: 

(A) 21 days after serving it, or (B) if the pleading is one to which a responsive pleading 

is required, 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is 

earlier.@). The amendments would not have been untimely under Rule 15(a) as in effect 

prior to January 1, 2011, which rule allowed a party to amend its pleading once as a 

matter of course before being served with a responsive pleading. Because the other 

parties to this action have addressed in their Rule 12(b)(5) motions the complaint in 

amended form, the court exercises its discretion under USCIT Rule 89 to accept 

Plaintiffs= First Amended Complaint. USCIT R. 89 (AThese rules and any amendments 

take effect at the time specified by the court. They govern . . . proceedings after that 

date in a case then pending unless: (A) the court specifies otherwise . . . .@).
Court No. 08-00139 Page 6 

plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 

550 U.S. at 570).

III. Discussion 

In 2000, Congress amended the Tariff Act of 1930 to add section 754, the 

CDSOA, which provides distributions of assessed antidumping and countervailing 

duties to ADPs on a fiscal year basis. 19 U.S.C. § 1675c(d)(1).2

 To be an ADP, a party 

must meet several criteria, including the requirement that it have been a petitioner, or an 

interested party in support of a petition with respect to which an antidumping duty or 

countervailing duty order was entered. Id. § 1675c(b)(1) (“petition support 

requirement”). The CDSOA directed the ITC to forward to Customs, within sixty days of 

the issuance of an antidumping or countervailing duty order, lists of persons potentially 

eligible for ADP status, i.e., “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). The CDSOA further directed that: 

[i]n those cases in which a determination of injury was not 

required or the Commission’s records do not permit an 

identification of those in support of a petition, the 

Commission shall consult with the administering authority 

[Commerce] to determine the identity of the petitioner and 

those domestic parties who have entered appearances 

 

2

 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).
Court No. 08-00139 Page 7 

during administrative reviews conducted by the 

administering authority under section 1675 of this title. 

19 U.S.C. § 1675c(d)(1) (“consultation provision”). Customs then publishes the lists of 

potential ADPs in the Federal Register annually, prior to each distribution. Id. 

§ 1675c(d)(2). Customs distributes assessed duties to parties on the list of potential 

ADPs that certify that they met the remaining eligibility criteria. Id. § 1675c(d)(2). 

 The ITC compiled lists of potential ADPs with respect to the antidumping duty 

orders on PSF and provided those lists to Customs. Am. Compl. ¶ 33. Customs 

published the lists of potential ADPs for Fiscal Year 2006 on June 1, 2006, id., and for 

Fiscal Year 2007 on May 29, 2007, id. ¶ 34. Plaintiff did not appear on either list. 

Id. ¶¶ 33-34. Nevertheless, Plaintiff certified to Customs its eligibility for both fiscal 

years. Id. ¶ 35. Customs responded by indicating that USI was allocated CDSOA 

funds for Fiscal Year 2007 on the subject antidumping duty orders but that the 

disbursement of those funds was being withheld pending the disposition of pending 

litigation over the Byrd Amendment. Id. ¶¶ 18, 37. Plaintiff also sought certification 

from the Commission based on the decisions in PS Chez Sidney v. International Trade 

Commission, 30 CIT 858, 442 F. Supp. 2d 1329 (2006) and SKF USA Inc. v. United 

States, 30 CIT 1433, 451 F. Supp. 2d 1355 (2006) (“SKF I”).3 Am. Compl. ¶¶ 19, 36. 

Stating that Plaintiff “did not qualify as an ADP because it did not support the original 

petitions,” the ITC denied USI’s request for certification. Id. ¶ 38. 

 

3

 PS Chez Sidney held the petition support requirement unconstitutional on First 

Amendment freedom of expression grounds, and SKF I held the petition support 

requirement unconstitutional on Fifth Amendment equal protection grounds. 
Court No. 08-00139 Page 8 

 Plaintiff challenges the validity and constitutionality of the Commission’s and 

CBP’s application of the CDSOA to USI. In Count 1 of its Amended Complaint, Plaintiff 

claims that the ITC’s determination not to include USI on the list of potential ADPs was 

inconsistent with the CDSOA, not supported by substantial evidence, and otherwise not 

in accordance with the law. Am. Compl. ¶ 41. In Counts 2 and 3, Plaintiff challenges 

on First Amendment grounds the CDSOA’s petition support requirement, both facially 

and as applied to USI. Id. ¶¶ 43-44, 46-48. In Counts 4 and 5, Plaintiff challenges the 

petition support requirement, both facially and as applied to USI, on Fifth Amendment 

equal protection grounds. Id. ¶¶ 50-51, 53-54. In Count 6, Plaintiff challenges the 

petition support requirement as impermissibly retroactive in violation of the Fifth 

Amendment Due Process Clause because Defendants based eligibility for ADP status, 

and thus eligibility for disbursements, on past conduct. Id. ¶ 56. 

A. Plaintiff’s Statutory Challenges to the Actions 

of the Two Agencies Must Be Dismissed 

 In Count 1 of the Amended Complaint, Plaintiff challenges on statutory grounds 

the actions of the ITC and Customs denying it CDSOA distributions for Fiscal Years 

2006 and 2007. Plaintiff challenges as unlawful under the CDSOA the ITC’s 

determination not to place USI on the list of potential ADPs and the failure of Customs 

to provide USI distributions. Am. Compl. ¶ 41. Plaintiff claims that these agency 

actions “were inconsistent with the CDSOA, not supported by substantial evidence, and 

were otherwise not in accordance with law.” Id. 

 Plaintiff states that the ITC “has never included USI in its list of eligible ADPs.” 

Id. ¶ 28. However, we do not find within the complaint alleged facts that would have 
Court No. 08-00139 Page 9 

qualified Plaintiff for inclusion on the ITC’s list. According to the CDSOA, a domestic 

producer may qualify as an ADP only if it “was a petitioner or interested party in support 

of the petition with respect to which an antidumping duty order . . . has been entered.” 

19 U.S.C. § 1675c(b)(1). The ITC is directed to prepare “a list 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.” 19 U.S.C. 

§ 1675c(d)(1). The Amended Complaint states that Plaintiff was not a petitioner with 

respect to the petition resulting in the antidumping duty orders on PSF from Korea and 

Taiwan, Am. Compl. ¶ 23, and fails to allege facts according to which we could 

conclude that USI obtained ADP status as a party who was in support of that petition. 

The Amended Complaint alleges that “USI completed the Commission’s initial 

U.S. producer questionnaire and multiple supplemental questionnaires” in the five-year 

review (“Sunset Review”) of the antidumping duty orders that the Commission instituted 

on March 31, 2005. Am. Compl. ¶ 32. The Amended Complaint further alleges that 

“USI was certified as an ADP under the 2007 antidumping duty order covering PSF from 

China and has received CDSOA disbursements from that order hence.” Id. ¶ 39. With 

respect to the orders on PSF from Korea and Taiwan, Plaintiff argues that, in denying it 

ADP status, “the Commission failed to consider USI’s participation in a Sunset Review 

under 19 U.S.C. § 1675(c) (2005) as a basis for determining [USI’s] support for the 

petition.” USI’s Mem. in Opp’n to Mot. of U.S. Int’l Trade Comm’n to Dismiss for Failure 

to State a Claim at 6, ECF No. 50 (“Pl.’s Opp’n to ITC’s Mot.”). According to USI, “[t]he 

Commission’s interpretation of the CDSOA in this regard is plainly at odds with the 

language of the statute and its underlying purpose.” Id. at 7. Plaintiff argues that the 
Court No. 08-00139 Page 10 

consultation provision requires the Commission, in certain circumstances, to consult 

with Commerce on the identity of parties in support of the petition. Id. (citing 19 U.S.C. 

§ 1675c(d)(1)). According to USI, the reference in the consultation provision to 

administrative reviews signifies congressional intent that the Commission must consider 

evidence of support for the petition found in the record of those reviews, including 

sunset reviews. In effect, Plaintiff posits that a domestic producer such as USI, who 

was not presented with a questionnaire during the ITC’s injury investigation, still may 

satisfy the CDSOA’s definition of “affected domestic producer” by entering an 

appearance in a sunset review and expressing support for the continued existence of 

the order. Thus, Plaintiff would have us construe the CDSOA to mean that an 

interested party’s expression of support for an existing antidumping duty order, at least 

in the circumstance presented by this case, is the equivalent of expressing support for 

the petition. 

 We are unable to accept Plaintiff’s proffered construction. In drafting the 

CDSOA, Congress was explicit in requiring support for the petition rather than support 

for a resulting order. Under the antidumping statute, a petition is filed on behalf of a 

U.S. industry seeking initiation of an investigation to determine whether an antidumping 

duty should be imposed on imports of a class or kind of merchandise that is alleged to 

be, or be likely to be, sold at less than fair value. 19 U.S.C. §§ 1673, 1673a(b). A 

petition that ultimately is successful results typically in the issuance of an antidumping 

duty order.4 19 U.S.C. § 1673d(c)(2). A periodic administrative review or sunset review 

 

4

 In certain cases, a petition may result in other forms of relief from unfairly traded 

imports. See 19 U.S.C. § 1673c (providing for suspension agreements). 
Court No. 08-00139 Page 11 

conducted under section 1675 may be described generally as a proceeding conducted 

upon an antidumping duty order rather than a proceeding conducted upon the original 

petition. See 19 U.S.C. § 1675(a), (c). Thus, a construction of the CDSOA that equates 

support for an order, as expressed during a review, with support for a petition, as 

expressed during the investigation conducted upon that petition, is at odds with the plain 

meaning of section 1675c(b)(1) when read in the larger context of the antidumping 

statute. Moreover, Plaintiff’s construction of the term “interested party in support of the 

petition,” as used in section 1675c(b)(1), would have the effect of broadening 

considerably the class of domestic producers eligible for CDSOA distributions beyond 

the plain meaning of that term. Had Congress intended to provide CDSOA distributions 

to parties who supported the continued existence of antidumping duty orders in sunset 

reviews, or to parties who otherwise participated as domestic producers in 

administrative reviews in ways that supported positions favorable to the domestic 

industry, it would not have conditioned ADP status on an expression of support for the 

petition. 

Plaintiff argues that support for its construction of the statute is found in the 

legislative findings of the CDSOA. Plaintiff points to the specific findings that 

demonstrate that “creating jobs and promoting investment in affected domestic 

industries are among the primary purposes of the antidumping law and in particular the 

CDSOA.” Pl.’s Opp’n to ITC’s Mot. at 8 (citing Pub. L. 106-387, § 1(a) [Title X, § 1002], 

Oct. 28, 2000, 114 Stat. 1549, 1549A–72). Plaintiff maintains that 

[t]he fact that the record of the Commission’s original 

investigation may not contain evidence of USI's support for 

the petition against Korea and Taiwan should not preclude a 
Court No. 08-00139 Page 12 

finding that USI is an ADP with respect to the AD 

[antidumping] order on PSF from Korea and Taiwan, 

particularly where the statutory language explicitly provides 

that post-order review proceedings are relevant to the 

determination of ADPs who are eligible for CDSOA 

distributions. 

Id. at 8-9. The legislative findings cited by Plaintiff, however, speak only in general 

terms. We do not discern in these findings a specific intent to provide distributions to 

domestic interested parties who were not petitioners and who did not express support 

for a petition during an investigation. 

 Plaintiff maintains, further, that the Commission’s interpretation of the CDSOA 

would render the consultation provision meaningless and thereby violate the canon of 

construction requiring that effect be given to all provisions in the statute. Pl.’s Opp’n to 

ITC’s Mot at 7. We disagree. The consultation provision appears in the statute 

immediately following a sentence directing that “the Commission shall forward to the 

Commissioner [of Customs] . . . within 60 days after the date an antidumping or 

countervailing duty order or finding is issued, a list 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.” 19 U.S.C. § 1675c(d)(1). Under 

Plaintiff’s construction, the two sentences, when read together and applied to the facts 

of this case, compelled a finding that the Commission’s records, which may have 

permitted an identification of some of those domestic interested parties who actually 

were in support of the petition that sought the imposition of antidumping duties on 

imports of PSF from Korea and Taiwan, were insufficient to determine all such 

supporters. Acceptance of Plaintiff’s argument would result in our holding that the ITC 
Court No. 08-00139 Page 13 

was required to consult with Commerce to identify domestic producers, such as USI, 

who entered appearances in administrative reviews associated with that petition. 

Positing that “USI might have participated in the original investigation by responding to a 

questionnaire from the Commission if USI had received one,” Plaintiff argues that “the 

fact that USI was not asked to respond to a Commission questionnaire should not be 

used as the basis for denying it eligibility for CDSOA distributions.” Pl.’s Opp’n to ITC’s 

Mot. at 9. 

The flaw in Plaintiff’s argument is that the ITC’s construction of the CDSOA did 

not render meaningless or superfluous the consultation provision. To the contrary, the 

provision could have application in situations other than the one presented by this case. 

For example, a party who expressed support for a petition during the ITC’s injury 

investigation might not be identifiable from the Commission’s records if it subsequently 

underwent a change in name. The fact of the name change might well be known to 

Commerce as a result of section 1675 reviews in which the party entered one or more 

appearances.

In summary, the Amended Complaint fails to allege facts from which we could 

conclude that the ITC erred in omitting USI from any list prepared under 19 U.S.C. 

§ 1675c(d)(1). For this reason, we also must dismiss the statutory claims Plaintiff brings 

against Customs. We do not find within the Amended Complaint facts by which we 

could conclude that Customs lawfully could have made distributions to Plaintiff. See 

19 U.S.C. § 1675c(d)(2) (requiring Customs to base its “list of affected domestic 

producers potentially eligible for the distribution based on the list obtained from the 
Court No. 08-00139 Page 14 

Commission under paragraph (1)”). We conclude, therefore, that the claims in Count 1 

must be dismissed for failure to state a claim upon which relief can be granted.5

B. Plaintiff’s Constitutional Challenges Must be Dismissed 

 In Counts 2, 3, 4, and 5, Plaintiff brings facial and as-applied challenges to the 

petition support requirement of the CDSOA under the First Amendment and the Fifth 

Amendment equal protection guarantee. Am. Compl. ¶¶ 42-54. In Count 6, Plaintiff 

challenges the petition support requirement as impermissibly retroactive under the Fifth 

Amendment due process guarantee. Id. ¶ 56. We conclude that the First Amendment 

and equal protection claims must be dismissed as foreclosed by binding precedent. 

The retroactivity claim must be dismissed for failure to state a claim on which relief can 

be granted. 

1. Plaintiff’s First Amendment and Equal Protection Facial Challenges 

to the Petition Support Requirement Are Foreclosed by Binding Precedent 

 In Count 3, Plaintiff claims that the petition support requirement of the CDSOA 

violates the First Amendment on its face because it compels speech. Id. ¶ 48. Plaintiff 

further claims that the CDSOA engages in impermissible viewpoint discrimination by 

conditioning receipt of a government benefit on a private speaker’s expressing a 

specific viewpoint, i.e., expression of support for an antidumping duty petition, and, 

therefore, is an unconstitutional restriction on speech. Id. ¶ 47. 

 In Count 5, Plaintiff claims that the petition support requirement facially violates 

the equal protection guarantee of the Fifth Amendment. Id. ¶ 53. Plaintiff contends that 

 

5

 Because Plaintiff’s statutory claim is dismissed for failure to state a claim on which 

relief can be granted, the court will deny as moot Plaintiff’s motion to complete the 

administrative record (ECF No. 40). 
Court No. 08-00139 Page 15 

the CDSOA creates a classification infringing on USI’s fundamental right to free speech 

that is a denial of equal protection because it is not narrowly tailored to a compelling 

government objective. Id. Plaintiff further claims that the CDSOA impermissibly 

discriminates between USI and other domestic producers who expressed support for 

the petition. Id. ¶ 54. Lastly, in Count 5, in what apparently is a restatement of the 

claims in Count 1, Plaintiff asserts that “[i]f not facially invalid, then Defendants’ 

application of the law to distinguish USI as not supporting the enforcement of the 

antidumping laws is not supported by substantial evidence.” Id. 

The Court of Appeals rejected analogous claims challenging the petition support 

requirement in SKF II, in which it upheld the petition support requirement under the First 

Amendment and under the Fifth Amendment’s equal protection guarantee. SKF II, 556 

F.3d at 1360 (the “Byrd Amendment is within the constitutional power of Congress to 

enact, furthers the government’s substantial interest in enforcing trade laws, and is not 

overly broad.”); id. at 1360 n.38 (“For the same reason, the Byrd Amendment does not 

fail the equal protection review applicable to statutes that disadvantage protected 

speech.”); id. at 1360 (“Because it serves a substantial government interest, the Byrd 

Amendment is also clearly not violative of equal protection under the rational basis 

standard.”). Plaintiff’s facial constitutional challenges to the CDSOA are 

indistinguishable from those claims rejected by the Court of Appeals in SKF II and, 

therefore, are foreclosed by the holding in SKF II. Accordingly, those challenges must 

be dismissed for failure to state a claim on which relief can be granted. 

Plaintiff argues that SKF II is no longer good law because the decision of the 

Court of Appeals in SKF II to uphold the petition support requirement using an 
Court No. 08-00139 Page 16 

intermediate level of scrutiny, the “Central Hudson” test, was implicitly overturned by the 

U.S. Supreme Court in Snyder v. Phelps, 131 S. Ct. 1207 (2011). Pl.’s Opp’n to ITC’s 

Mot. at 14-15 (citing Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 

447 U.S. 557, 564 (1980)). Plaintiff construes Snyder to hold that all speech on matters 

of public concern is “entitled to maximum First Amendment protection” and views 

responses to the ITC’s questionnaires as speech on a matter of public concern. Id. 

Snyder, however, does not support a conclusion that SKF II incorrectly applied only an 

intermediate level of First Amendment scrutiny. Snyder set aside as contrary to the 

First Amendment a jury verdict imposing substantial state law tort liability on persons 

who picketed at a military funeral. Snyder, 131 S. Ct. at 1220. The case does not hold 

that all speech addressing matters of public concern, such as a position taken in 

antidumping duty litigation, must receive a level of judicial scrutiny higher than that 

applied in SKF II. See Standard Furniture Mfg. Co. v. United States, 36 CIT ___, ___, 

Slip. Op. 12-21, at 16-17 (2012) (finding that Snyder did not compel a First Amendment 

analysis differing from that which was applied in SKF II). 

2. Plaintiff’s First Amendment As-Applied 

Challenge Must be Dismissed 

Plaintiff also asserts, in Count 2, an as-applied constitutional challenge under the 

First Amendment, claiming specifically that the CDSOA unconstitutionally restricts 

speech by discriminating against those, such as USI, who did not express a specific 

viewpoint, i.e., support for the antidumping petition. Am. Compl. ¶¶ 43-44. Plaintiff 

views the holding in SKF II that the petition support requirement did not violate the First 

Amendment as confined to situations in which parties actively opposed the petition and 
Court No. 08-00139 Page 17 

as signifying that the ITC may consider only a party=s actions, and not a party=s 

expressed viewpoints, in determining whether a party supported the petition. Pl.’s 

Opp=n to ITC’s Mot. at 10, 13-14. USI maintains that it satisfied the participation 

requirement of SKF II through its actions, i.e., its completion of the ITC’s initial domestic 

producer questionnaire and multiple supplemental questionnaires in the Sunset 

Reviews. Id. at 11. Plaintiff argues that the ITC=s application of the CDSOA, therefore, 

violated the First Amendment to the extent the ITC based its disqualification of USI as a 

potential ADP on USI’s failure to indicate support of the petition by questionnaire 

response. Id.

 Plaintiff=s argument misinterprets SKF II, which does not hold that the CDSOA 

would violate the First Amendment if applied to deny CDSOA benefits based solely on a 

party’s failing to indicate support for the petition by letter or questionnaire response. 

SKF II holds the opposite. The Court of Appeals determined that the appropriate First 

Amendment legal standard was the standard applying to regulation of commercial 

speech. It then concluded that the CDSOA, which requires a non-petitioner such as 

SKF USA, Inc. to express support for the petition in order to acquire ADP status, met 

that standard. SKF II, 556 F.3d at 1359-60. The Court of Appeals did state, as Plaintiff 

highlights, that A[t]he language of the Byrd Amendment is easily susceptible to a 

construction that rewards actions (litigation support) rather than the expression of 

particular views@ and that Aa limiting construction of the statute is necessary to cabin its 

scope so that it does not reward a mere abstract expression of support.@ Id. at 1353; 

Pl.’s Opp=n to ITC’s Mot. at 10. However, those statements were in the context of a 

discussion of statutory language as an alternative to a previous discussion in the 
Court No. 08-00139 Page 18 

opinion addressing the question of congressional purpose. They were part of the 

analysis by which the Court of Appeals subjected the CDSOA to First Amendment 

standards for the regulation of commercial speech. They do not signify a holding that 

the First Amendment prohibits a government agency implementing the CDSOA from 

conditioning ADP status on the expression of support for a petition. See Furniture 

Brands, 35 CIT at __, 807 F. Supp. 2d at 1311-12 (rejecting the argument that SKF II 

adopted a limiting construction of the CDSOA that modified the petition support 

requirement). 

 Plaintiff also argues that, on these facts, Defendants applied the petition support 

requirement in a way that was overbroad, thereby violating the First Amendment 

according to the test applied by the Court of Appeals in SKF II, the Central Hudson test. 

Pl.’s Opp=n to ITC’s Mot. at 12-13 (citing SKF, 556 F.3d at 1357). Positing SKF II to 

hold that Adomestic producers who are not petitioners but nevertheless respond to 

Commission questionnaires have done enough to be regarded as supporting the 

petition,@ Plaintiff argues that denying it CDSOA distributions served no governmental 

interest. Id. at 13. This argument is misguided. The Court of Appeals concluded in 

SKF II that the CDSOA’s providing benefits only to those who supported the petition, 

and not to those who opposed or took no position on the petition, served a substantial 

governmental interest, directly advanced that interest, and was not more extensive than 

necessary in advancing that interest. SKF II, 556 F.3d at 1355-59. 

For the aforementioned reasons, we conclude that Plaintiff’s First Amendment asapplied challenge is foreclosed by the holding in SKF II. The claims stated in Count 2 of 

the complaint, therefore, must be dismissed. 
Court No. 08-00139 Page 19 

3. Plaintiff’s Fifth Amendment 

Equal Protection As-Applied Challenge Must Be Dismissed 

In Count 4, Plaintiff claims that the CDSOA impermissibly discriminates between 

Plaintiff and other domestic producers who expressed support for the underlying 

antidumping duty petition in that the petition support requirement, as applied to USI, 

was not narrowly tailored to a compelling government objective, and thereby 

contravened the equal protection guarantee of the Fifth Amendment. Am. Compl. ¶ 51; 

see also Pl.’s Opp’n to ITC’s Mot. at 16. 

Plaintiff has alleged no facts that distinguish its equal protection claim from the 

equal protection claim addressed and rejected in SKF II. The Court of Appeals held that 

the petition support requirement of the CDSOA does not violate the equal protection 

guarantee, holding that the petition support requirement is rationally related to the 

government’s legitimate purpose of rewarding parties who promote the government’s 

policy against dumping. SKF II, 556 F.3d at 1360. SKF II reasoned that it was “rational 

for Congress to conclude that those who did not support the petition should not be 

rewarded.” Id. at 1359. For these reasons, relief cannot be granted on Plaintiff’s asapplied equal protection claims, which must be dismissed. 

4. Plaintiff’s Retroactivity Claims Must Be Dismissed 

Plaintiff claims in Count 6 that the petition support requirement is impermissibly 

retroactive in violation of the Fifth Amendment due process guarantee because 

Defendants based eligibility for ADP status, and thus eligibility for disbursements, on 

past conduct. Am. Compl. ¶ 56. The Amended Complaint states that “[t]he Due 

Process clause disfavors retroactive legislation, i.e., imposition of a requirement that 
Court No. 08-00139 Page 20 

USI could not have met because it was not yet operating during the original 

investigation, and Defendants’ disbursements only to those companies that express 

support for a petition are not rationally related to a legitimate governmental purpose.” 

Id.6

The petition support requirement was applied retroactively to USI, the 

antidumping duty orders on PSF from Korea and Taiwan having been published on 

May 25, 2000. Final LTFV Determination and Antidumping Duty Orders, 65 Fed. Reg. 

33,807. Publication of the orders thus occurred prior to October 28, 2000, the effective 

date of the CDSOA. 19 U.S.C. § 1675c. Only by having expressed support for the 

petition that resulted in a pre-enactment antidumping duty order may a domestic 

producer qualify as an ADP to receive distributions of duties assessed under such an 

order. Id. § 1675c(d)(1). 

In New Hampshire Ball Bearing, Inc. v. United States, 36 CIT ___, 815 F. Supp. 

2d 1301 (2012), we rejected a claim challenging on due process grounds the retroactive 

reach Congress attached to the petition support requirement. The plaintiff in New 

Hampshire Ball Bearing had made a decision, long before enactment of the CDSOA, 

not to express to the ITC support for an antidumping duty petition. 36 CIT at ___, 815 

F. Supp. 2d at 1307. Due to the retroactive reach Congress applied to the petition 

support requirement, the plaintiff in that case could not have known the adverse 

consequence that Congress, nearly twelve years later, would attach to its decision. 

 

6

 The court notes that Plaintiff states that it “does not oppose dismissal of Count 6 of its 

complaint which relates to a possible violation of the Due Process Clause of the 

Constitution based on the retroactive nature of the CDSOA.” Pl.’s Opp’n to ITC’s Mot. 

at 16. 
Court No. 08-00139 Page 21 

Although we recognized that the CDSOA, in its retroactive petition support provision, 

“adjusts ‘rights and burdens’ of ‘economic life’ and ‘upsets otherwise settled 

expectations,’” 36 CIT at ___, 815 F. Supp. 2d at 1308 (quoting Usery v. Turner 

Elkhorn Mining Co., 428 U.S. 1, 15-16 (1976)), we nevertheless concluded that 

Congress did not act arbitrarily and irrationally in attaching a retroactive reach to the 

petition support requirement. 36 CIT at ___, 815 F. Supp. 2d at 1309. We concluded 

instead that the “‘retroactive application of the legislation is itself justified by a rational 

legislative purpose’” and, therefore, permissible on due process grounds. 36 CIT at 

___, 815 F. Supp. 2d at 1309 (quoting Pension Benefit Guaranty Corp. v. R.A. Gray 

Co., 467 U.S. 717, 729 (1984)). We reasoned that “[i]t was not arbitrary or irrational for 

Congress to conclude that the legislative purpose of rewarding domestic producers who 

supported antidumping petitions . . . would be ‘more fully effectuated’ if the petition 

support requirement were applied both prospectively and retroactively. 36 CIT at ___, 

815 F. Supp. 2d at 1309 (quoting Pension Benefit, 467 U.S. at 730-31). By applying the 

petition support requirement retroactively, Congress expanded the group of rewarded 

domestic producers to include those who expressed support for petitions in antidumping 

duty investigations completed prior to enactment of the CDSOA. In this way, Congress 

furthered the purpose of remedying unfairly traded imports. 36 CIT at ___, 815 F. Supp. 

2d at 1309.

USI grounds its due process retroactivity claim in alleged facts differing from 

those in New Hampshire Ball Bearing. Unlike the plaintiff in that case, USI asserts that 

it had no opportunity to express support for the petition seeking the imposition of 

antidumping duties on imports of PSF from Korea and Taiwan, having begun operations 
Court No. 08-00139 Page 22 

as a U.S. manufacturer of the subject PSF on May 30, 2000, five days after the 

publication of the antidumping duty orders, and having received no ITC questionnaires 

during the injury investigation. Am. Compl. ¶¶ 23, 56. Presuming this allegation to be 

true, we nevertheless conclude that USI’s retroactivity claim lacks merit. 

Congress chose in the CDSOA to make disbursements potentially available to 

domestic producers who expressed support for petitions that, as of the effective date of 

the statute, already had ripened into antidumping duty orders. 19 U.S.C. § 1675c(d)(1) 

(requiring the ITC to forward its list to Customs “within 60 days after the effective date of 

this section in the case of orders . . . in effect on January 1, 1999, or thereafter . . .”). As 

discussed above, and as we concluded in New Hampshire Ball Bearing, Congress did 

so to fulfill a rational legislative purpose. New Hampshire Ball Bearing, 36 CIT at ___, 

815 F. Supp. 2d at 1308. That purpose does not depend on the reason why a given 

domestic producer did not express support for a petition: under the CDSOA’s benefit 

scheme (as applied either retroactively or prospectively), it makes no difference whether 

a producer chose not to express its support to the ITC or, having yet to acquire 

interested party status, had no opportunity to respond. As we recognized in New 

Hampshire Ball Bearing, it is understandable that domestic producers who had the 

opportunity to support a petition but declined to do so prior to enactment, such as the 

plaintiff in New Hampshire Ball Bearing, would object to the retroactive reach of the 

support provision. 36 CIT at ___, 815 F. Supp. 2d at 1309. Those producers lacked 

notice of the consequence Congress later would attach to their choice. Domestic 

producers who had no opportunity to express support for a petition resulting in a preenactment antidumping duty order are similarly disadvantaged and justifiably could 
Court No. 08-00139 Page 23 

object to their lack of an opportunity to obtain distributions of duties assessed under that 

order. In enacting the CDSOA, Congress could have avoided the retroactivity problem 

for both classes of disadvantaged producers by allowing them to qualify as ADPs by 

some other means, such as, for example, by recognizing post-enactment expressions of 

support for an antidumping duty order that existed at the time of enactment. Of course, 

doing so would have enlarged the group of domestic producers who could benefit from 

the CDSOA reimbursement scheme. Alternatively, Congress could have avoided the 

retroactivity problem by making the CDSOA entirely prospective, thus narrowing the 

group of beneficiaries. 

In short, Congress could have chosen to dispense with any retroactive 

application of the petition support requirement, and it could have done so either by 

broadening or by narrowing the class of domestic producers that it chose to benefit in 

the CDSOA. That Congress chose not to do so does not, in our view, make the 

CDSOA vulnerable to constitutional attack on due process grounds. As the Supreme 

Court stated in Turner Elkhorn: “[i]t is by now well established that legislative acts 

adjusting the burdens and benefits of economic life come to the Court with a 

presumption of constitutionality, and that the burden is on one complaining of a due 

process violation to establish that the legislature has acted in an arbitrary and irrational 

way.” 428 U.S. at 15. In furthering a purpose of rewarding domestic producers who 

expressed support for petitions, including those who expressed support for petitions 

associated with pre-enactment orders, Congress acted neither arbitrarily nor irrationally. 

And as the Supreme Court instructed in Pension Benefit: “[p]rovided that the retroactive 

application of a statute is supported by a legitimate legislative purpose furthered by 
Court No. 08-00139 Page 24 

rational means, judgments about the wisdom of such legislation remain within the 

exclusive province of the legislative and executive branches.” 467 U.S. at 729. We 

conclude, therefore, that Count 6 must be dismissed for failure to state a claim on which 

relief can be granted. 

IV. Conclusion 

Count 1 must be dismissed because Plaintiff fails to state facts sufficient to 

qualify Plaintiff for distributions under the CDSOA. Plaintiff’s First Amendment and 

equal protection claims are foreclosed by binding precedent, and Plaintiff’s retroactivity 

claims must be dismissed for failure to state a claim on which relief can be granted. USI 

already has availed itself of the opportunity to amend its complaint and has not 

indicated that it desires to seek leave to amend its complaint further. Therefore, we 

conclude that it is appropriate to enter judgment dismissing this action.

 /s/ Leo M. Gordon 

 Judge Leo M. Gordon 

 

Dated: April 20, 2012 

 New York, New York