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 st ate a claim upon which relief can be granted; dismissing the action.] Dated: April 20, 2012 Gregory S. Menegaz and J. Ke vin Horgan, deKieffer & Hor gan, of Washington, DC for Plaintiff United Synthet ics, Incorporated. Jessica R. Toplin, Trial Atto rney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Wash ington, DC, for Defendants Unit ed 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 Attorn ey General, Jeanne E. Davidson, Director, Franklin E. White, Jr., Assistant Director, and David S. Silverbrand and Courtney S. McNamara, Trial Attorneys. Of co unsel on the briefs we re Andrew G. Jones and Joseph Barbato, Office of Assistant Chief Counse l, U.S. Customs and Bo rder 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 Advi sor, Office of General Counsel, U.S. International Trade Commission, of Washingt on, 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 Pl aintiff United Synthetics, Incorporated (“USI”) certai n monetary benefits under t he Continued Dumping and Subsidy Offset Act of 2000 (“CDSOA” or “Byrd Amendment”), 19 U.S.C. § 1675c (2000), repealed by Deficit Reduction Act of 2005, Pub.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 “affect ed domestic producer” (“ADP”) status, which would have qualified USI for distributions of antidumping duties collected under antidumping orders on imports of certain pol yester staple fiber (“PSF”) from Korea and Taiwan. Certain Polyester Staple Fiber fr om 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 Kore a and Antidumping Duty Orders: Certain Polyester Staple Fiber From t he 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 evidenc e, and otherwise not in accord ance with law. Plaintiff also brings facial and as-applied constitution al challenges to the CDSOA under the First Amendment and under the equal pr otection 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 Un ited 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 Furn iture 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 cour t will grant Defendant s’ USCIT Rule 12(b)(5) motions and

dismiss this action. I. Background Following a 1999 petition fil ed by a group of domestic manufacturers, the U.S. Department of Commerce (“Commerce”) initiat ed an antidumping investigation of PSF

from Korea and Taiwan. Initiation of Antidum ping 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 ITCCourt No. 08-00139 Page 4 conducted an injury investigation. Certai n Polyester Staple Fibers from Korea and Taiwan, 64 Fed. Reg. 17, 414 (ITC Apr. 9, 1999) ; Am. Compl. ¶ 22. Following an affirmative injury determinat ion 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 An tidumping Duty Orders , 65 Fed. Reg. 33,807; Am. Compl. ¶ 26. The antidumping duty orde rs remain in effect. Am. Co mpl. ¶ 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 incor porated 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 antidumpi ng duty orders. Id. ¶ 23. Plaintiff commenced this action on Apr il 18, 2008, contesting the denial of

CDSOA distributions to Plaintiff for Fiscal Years 2006 and 2007. Compl., ECF No. 4. Shortly thereafter, the cour t stayed this action pending a final resolution of other litigation raising the same or similar i ssues. 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, w hen 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 rece iving Plaintiff’s response to the Order to Show Cause, the court li fted the stay on this action for all purposes. Order Lifting Stay, Feb. 9, 2011, ECF No. 20. Defendants f iled 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 assu mes all factual allegations to be true

and draws all reasonable inferenc es in plaintiff’s favor. Cedars-Sinai Med. Ctr. v. Watkins, 11 F.3d 1573, 1584 & n.13 (Fed. Cir. 1993). A plaintiff’s factual allegat ions must be “enough to raise a right to relief above the speculative level on the assu mption 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 moti on to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a clai m of relief that is

1 The filing of the am endment as a matter of course wa s 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, wh ich 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 a ddressed in their Rule 12(b)(5 ) motions the complaint in amended form, the court exercises its discre tion under USCIT Rule 89 to accept Plaintiffs = First Amended Complaint. USCIT R. 89 ( A These rules and any amendments take effect at the time specified by the cour t. 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, in cluding the requirement that it have been a petitioner, or an interested party in support of a petition wi th 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 det ermination 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 wit h the administering authority [Commerce] to determine the i dentity of the petitioner and those domestic parties w ho 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 distributi ons by prohibiting payments with respect to entries of goods that as of December 8, 2010 were “(1) un liquidated; 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 se ction 1675 of this title. 19 U.S.C. § 1675c(d)(1) (“consultation provision”). Cust oms 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 Cu stoms. 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 di d not appear on either list. Id. ¶¶ 33-34. Nevertheless, Plaintiff certifi ed to Customs its eligibility for both fiscal years. Id. ¶ 35. Custom s responded by indicating t hat 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 Amendm ent. Id. ¶¶ 18, 37. Plainti ff 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 suppor t the original petitions,” the ITC denied USI’s reques t for certification. Id. ¶ 38.

3 PS Chez Sidney held the petition support requirement unconstitutional on First Amendment freedom of expres sion grounds, and SKF I held the petition support requirement unconstitutional on Fifth Amendment equal prot ection grounds.Court No. 08-00139 Page 8 Plaintiff challenges the validity and c onstitutionality of the Commission’s and CBP’s application of the CDSOA to USI. In Count 1 of its Amende d Complaint, Plaintiff

claims that the ITC’s determi nation not to include USI on t he 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 petit ion 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 US I, 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 Def endants based eligibility for ADP status, and thus eligibility for disburse ments, 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, Plai ntiff 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 wit h the CDSOA, not supported by substantial evidence, and

were otherwise not in accordance with law.” Id.

Plaintiff states that the IT C “has never included USI in its list of eligible ADPs.” Id. ¶ 28. However, we do not find within the complaint al leged facts that would haveCourt No. 08-00139 Page 9 qualified Plaintiff for inclusi on on the ITC’s list. Accordi ng to the CDSOA, a domestic producer may qualify as an ADP onl y if it “was a pet itioner or interested party in support of the petition with respect to which an ant idumping duty order . . . has been entered.” 19 U.S.C. § 1675c(b)(1). The ITC is dire cted to prepare “a list of petitioners and persons with respect to each order and findi ng and a list of persons that indicate support of the petition by letter or thr ough 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 ant idumping duty orders on PSF from Korea and Taiwan, Am. Compl. ¶ 23, and fails to a llege facts according to which we could

conclude that USI obtained ADP status as a party who was in support of t hat petition. The Amended Complaint alleges that “USI completed the Commission’s initial U.S. producer questionnaire and multiple suppl emental questionnaires” in the five-year review (“Sunset Review”) of t he antidumping duty orders that the Commission instituted on March 31, 2005. Am. Compl. ¶ 32. The Amended Compla int further alleges that

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

China and has received CDSOA disbursements fr om that order hence.” Id. ¶ 39. With respect to the orders on PSF from Korea and Ta iwan, 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 determi ning [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 th is regard is plainly at odds with the language of the statute and its under lying purpose.” Id. at 7. Plaintiff argues that theCourt No. 08-00139 Page 10 consultation provision requires the Commissi on, in certain circumstances, to consult with Commerce on the identity of parties in support of the petit ion. 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 t he Commission must consider evidence of support for the petition found in the record of those reviews, including sunset reviews. In effect, Plaintiff posit s that a domestic producer such as USI, who was not presented with a questionnaire during t he ITC’s injury investigation, still may satisfy the CDSOA’s definition of “affe cted 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 pr offered construction. In drafting the CDSOA, Congress was explicit in requiring support for the petition rather than support for a resulting order. Under the antidumping st atute, a petition is filed on behalf of a U.S. industry seeking initiation of an inve stigation to determine whether an antidumping duty should be imposed on import s of a class or kind of me rchandise 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 result s typically in the issuance of an antidumping duty order. 4 19 U.S.C. § 1673d(c)(2). A periodic adm inistrative review or sunset review

4 In certain cases, a petition may result in other forms of relie f from unfairly traded imports. See 19 U.S.C. § 1673c (pro viding for suspension agreements).Court No. 08-00139 Page 11 conducted under section 1675 may be described generally as a pr oceeding conducted upon an antidumping duty order rather than a proceeding con ducted upon the original petition. See 19 U.S.C. § 1675(a), (c). T hus, 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 investigat ion 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 Congr ess intended to provide CDSOA distributions to parties who supported the continued exist ence of antidumping dut y orders in sunset reviews, or to parties who otherwise participated as domestic producers in administrative reviews in ways that suppor ted positions favorable to the domestic industry, it would not have co nditioned ADP status on an ex pression of support for the petition. Plaintiff argues that support for its constr uction of the statut e is found in the legislative findings of the CDSOA. Plaint iff points to the specific findings that demonstrate that “creating jobs and prom oting investment in affected domestic industries are among t he primary purposes of the antidumping law and in particular the CDSOA.” Pl.’s Opp’n to ITC’s Mot. at 8 (citi ng Pub. L. 106-387, § 1(a) [Title X, § 1002], Oct. 28, 2000, 114 Stat. 1549, 1549A–7 2). 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 aCourt 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 statutor y 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, how ever, speak only in general terms. We do not discern in these findings a s pecific intent to prov ide distributions to domestic interested parties who were not pet itioners and who did not express support for a petition during an investigation. Plaintiff maintains, further, that t he Commission’s interpretation of the CDSOA would render the consultation provision me aningless 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 co nsultation provision appears in the statute immediately following a sentence directing that “the Commission s hall forward to the Commissioner [of Customs] . . . within 60 days after the date an antidumping or countervailing duty order or fi nding is issued, a list of petitioners and persons with respect to each order and finding and a list of persons that indica te support of the petition by letter or through q uestionnaire 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 petit ion that sought the impositi on 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 ITCCourt No. 08-00139 Page 13 was required to consult with Commerce to i dentify domestic producers, such as USI, who entered appearances in administrative revi ews associated with that petition. Positing that “USI might have participated in t he original investigation by responding to a questionnaire from the Commission if USI had re ceived one,” Plaintiff argues that “the fact that USI was not asked to respond to a Commission questio nnaire 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 ar gument is that the ITC’s c onstruction of the CDSOA did not render meaningless or super fluous the consultation provis ion. To the contrary, the provision could have application in situations other than the one presented by this case. For example, a party who ex pressed support for a petition during the ITC’s injury investigation might not be ident ifiable 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 review s 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 cl aims Plaintiff brings against Customs. We do not find within the Amended Comp laint facts by which we

could conclude that Customs la wfully could have made distributions to Plaintiff. See 19 U.S.C. § 1675c(d)(2) (requ iring Customs to base its “list of affected domestic producers potentially eligible for the distribut ion based on the list obtained from theCourt No. 08-00139 Page 14 Commission under paragraph (1)”). We conclude, therefore, that the claims in Count 1

must be dismissed for failure to stat e 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 bri ngs facial and as-applied challenges to the petition support requirement of the CDSOA under the Firs t Amendment and the Fifth Amendment equal protection guar antee. 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 dismiss ed 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 t he petition support require ment of the CDSOA

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

further claims that the CDS OA engages in impermissible vi ewpoint discrimination by conditioning receipt of a government benef it on a private speaker’s expressing a specific viewpoint, i.e., expression of s upport for an antidumping duty petition, and, therefore, is an unconstitutional re striction on speech. Id. ¶ 47. In Count 5, Plaintiff clai ms that the petition support r equirement 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 pr otection because it is not narro wly tailored to a compelling government objective. Id. Plaintiff furt her claims that the CDSOA impermissibly

discriminates between USI and other domes tic 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 inva lid, then Defendants’ application of the law to di stinguish USI as not supporti ng the enforcement of the antidumping laws is not supported by substantial evidence.” Id. The Court of Appeals rejected analogous cl aims challenging the petition support requirement in SKF II, in whic h it upheld the petiti on support requirement under the First

Amendment and under the Fifth Amendment’s equal protecti on guarantee. SKF II, 556 F.3d at 1360 (the “Byrd Amendment is within the constituti onal power of Congress to enact, furthers the government’s substantial in terest 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 di sadvantage 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 consti tutional challenges to the CDSOA are indistinguishable from those claims rejected by the Court of A ppeals 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 long er good law because the decision of the Court of Appeals in SKF II to uphold t he petition support requirement using anCourt No. 08-00139 Page 16 intermediate level of scrutiny, the “Central H udson” 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)). Pl aintiff construes Snyder to hold that all speech on matters of public concern is “ent itled to maximum First Amendment protection” and views responses to the ITC’s questionnaires as speec h on a matter of public concern. Id. Snyder, however, does not support a conclu sion that SKF II incorre ctly applied only an

intermediate level of First Am endment scrutiny. Snyder set aside as contrary to the First Amendment a jury verdict imposing subs tantial 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 scr utiny higher than that applied in SKF II. See Standard Furniture Mfg. Co. v. Unit ed 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 pet ition. 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 situat ions in which parties active ly opposed the petition andCourt 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 supple mental questionnaires in the Sunset

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

violated the First Amendment to the extent t he ITC based its disqualif ication 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, whic h does not hold that the CDSOA

would violate the First Amendm ent if applied to deny CDSO A benefits based solely on a party’s failing to indicate support for the pet ition by letter or questionnaire response. SKF II holds the opposite. The Court of Appeals determined that the appropriate First Amendment legal standard wa s 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 s upport 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 (litigatio n support) rather than the expression of particular views @ and that A a limiting construction of the stat ute 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, thos e statements were in the context of a

discussion of statutor y language as an alternative to a previous discussion in theCourt No. 08-00139 Page 18 opinion addressing the question of congressiona l purpose. They were part of the analysis by which the Court of Appeals s ubjected the CDSOA to First Amendment standards for the regulation of commercial speech. They do not signify a holding that the First Amendment prohibits a governm ent agency implementi ng 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 (rejecti ng the argument that SKF II adopted a limiting construction of the CDSOA that modified the petition support requirement). Plaintiff also argues that, on these fact s, 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 A domestic producers who are not petitio ners but nevertheless respond to Commission questionnaires have done enough to be regarded as supporting the petition, @ Plaintiff argues that de nying it CDSOA distributions served no governmental interest. Id. at 13. This argument is mi sguided. The Court of Appeals concluded in SKF II that the CDSOA’s prov iding benefits only to those who supported the petition, and not to those who opposed or took no posit ion on the petition, served a substantial governmental interest, directly advanced that interest, and was not more extensive than necessary in advancing that inte rest. SKF II, 556 F.3d at 1355-59. For the aforementioned reasons, we conclu de 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 t he CDSOA impermissibly discriminates between Plaintiff and other domestic producers who expressed support for the underlying antidumping duty petition in that the petitio n support requirement, as applied to USI, was not narrowly tailored to a compel ling government objective, and thereby contravened the equal protec tion guarantee of the Fifth Am endment. Am. Compl. ¶ 51; see also Pl.’s Opp’n to ITC’s Mot. at 16. Plaintiff has alleged no fact s 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 pet ition support requirement is rationally related to the government’s legitimate purpose of reward ing parties who prom ote 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 di d not support the petition should not be

rewarded.” Id. at 1359. Fo r 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 pet ition support requirement is impermissibly

retroactive in violation of the Fi fth Amendment due proc ess guarantee because Defendants based eligibility for ADP status, and thus eligibil ity for disbursements, on past conduct. Am. Compl. ¶ 56. The Amended Complaint states that “[t]he Due Process clause disfavors retroactive legislati on, i.e., imposition of a requirement thatCourt 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 relat ed to a legitimate governmental purpose.”

Id. 6 The petition support requirement was applied retroactively to USI, the antidumping duty orders on PSF from Ko rea and Taiwan having been published on May 25, 2000. Final LTFV Determinat ion and Antidumping Duty Orders, 65 Fed. Reg. 33,807. Publication of the orders thus occu rred 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 du ty order may a domestic producer qualify as an ADP to receive dist ributions of duties assessed under such an order. Id. § 1675c(d)(1). In New Hampshire Ba ll Bearing, Inc. v. United States, 36 CIT ___, 815 F. Supp. 2d 1301 (2012), we rejected a claim challengi ng on due process grounds the retroactive reach Congress attached to the petition s upport requirement. T he 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 anti dumping duty petition. 36 CIT at ___, 815 F. Supp. 2d at 1307. Due to the retroacti ve reach Congress applied to the petition support requirement, the plaintiff in that case could not have known the adverse consequence that Congress, nearly twelve year s later, would attach to its decision.

6 The court notes that Plaintiff states that it “does not oppos e dismissal of Count 6 of its complaint which relates to a possible viol ation 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 ‘econom ic 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 attachin g a retroactive reach to the petition support requirement. 36 CIT at ___, 815 F. Supp. 2d at 1309. We concluded instead that the “‘retroactive app lication of the legislation is itself justified by a rational legislative purpose’” and, theref ore, permissible on due proc ess grounds. 36 CIT at ___, 815 F. Supp. 2d at 1309 (quot ing 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 t he legislative purpose of rewa rding domestic producers who supported antidumping petitions . . . would be ‘more fully e ffectuated’ if the petition support requirement were applied both prospecti vely 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 expre ssed support for petitions in antidumping duty investigations completed prior to enactm ent of the CDSOA. In this way, Congress furthered the purpose of remedy ing 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 Bear ing. 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 Taiwa n, having begun operationsCourt 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 potentia lly available to domestic producers who expressed support for petit ions that, as of the effective date of the statute, already had ripened into antid umping duty orders. 19 U.S.C. § 1675c(d)(1) (requiring the ITC to forward its list to Customs “within 60 day s after the effective date of

this section in the case of orders . . . in effe ct on January 1, 1999, or thereafter . . .”). As discussed above, and as we concluded in Ne w Hampshire Ball B earing, Congress did so to fulfill a rational legislat ive purpose. New Hampshire Ball Bearing, 36 CIT at ___, 815 F. Supp. 2d at 1308. Th at 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 pr ospectively), it makes no difference whether a producer chose not to express its suppor t 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 dom estic producers who had the opportunity to support a petition but declined to do so prior to enactment, such as the plaintiff in New Hampshire Ba ll 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 woul d attach to their choice. Domestic producers who had no opportunity to express support for a pet ition resulting in a preenactment antidumping duty order are similarly disadvantaged and justifiably couldCourt No. 08-00139 Page 23 object to their lack of an opportunity to obtai n distributions of duties assessed under that order. In enacting the CDSOA, Congress coul d 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 pr oducers who could benefit from

the CDSOA reimbursement scheme. Alter natively, Congress could have avoided the retroactivity problem by ma king the CDSOA entirely pros pective, thus narrowing the group of beneficiaries. In short, Congress could have chosen to dispense with any retroactive application of the petition su pport requirement, and it coul d have done so either by broadening or by narrowin g 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 benef its of economic life come to the Court with a presumption of constitutiona lity, and that the bur den is on one comp laining of a due process violation to establish that the legislature has act ed 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 expr essed support for petitions associated with pre-enac tment orders, Congress acted neither arbitrarily nor irrationally. And as the Supreme Court instructed in Pens ion Benefit: “[p]rovided that the retroactive application of a statute is s upported by a legitimate l egislative purpose furthered byCourt No. 08-00139 Page 24 rational means, judgments about the wisdom of such legislation remain within the exclusive province of the legislative and ex ecutive branches.” 46 7 U.S. at 729. We conclude, therefore, that Count 6 must be dismissed for failu re to state a claim on which relief can be granted.

IV. Conclusion

Count 1 must be dismissed because Plaint iff fails to state facts sufficient to qualify Plaintiff for distributions under t he CDSOA. Plaintiff’s First Amendment and equal protection claims are foreclosed by bi nding 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 opportu nity 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