## United States Court of Appeals for the Federal Circuit

2008-1005, -1006, -1007, -1008 SKF USA, INC., Plaintiff-Cross Appellant,

v. UNITED STATES CUSTOMS AND BORDER PROTECTION, Defendant-Appellant,

and UNITED STATES INTERNATIONAL TRADE COMMISSION, Defendant-Appellant,

and TIMKEN U.S. CORPORATION, Defendant-Appellant,

and UNITED STATES, Robert C. Bonner, COMMISSIONER , UNITED STATES CUSTOMS AND BORDER PROTECTION, and Daniel R. Pearson, CHAIRMAN, UNITED STATES INTERNATIONAL TRADE COMMISSION,

Defendants.

Herbert C. Shelley , Steptoe & Johnson LLP, of Washin gton, DC, filed a petition for rehearing en banc for plaintiff-cross appell ant. With him on the petition were Alice A. Kipel , Shannen W. Coffin , and Susan R. Gihring

. Franklin E. White, Jr. , Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, filed a response to the petition for defendant-appellant Un ited States Customs and Border Protection. With him on the response were Michael F. Hertz , Deputy Assistant Attorney General, and Jeanne E. Davidson , Director. Of counsel on the response was Andrew G. Jones , Office of Assistant Chief Counsel, United States Customs and Bor der Protection, of I ndianapolis, Indiana.Patrick V. Gallagher, Jr. , Attorney, Office of the G eneral Counsel, United States International Trade Commission, of Washington, DC, filed a response to the petition for defendant-appellant United States International Trade Commission. With him on the response were James M. Lyons , General Counsel, and Neal J. Reynolds , Assistant General Counsel for Litigation.

Terence P. Stewart , Stewart and Stewart, of Washingt on, DC, filed a response to the petition for defendant-appellant Timk en U.S. Corporation. With him on the response were Amy S. Dwyer and Patrick J. McDonough . Of counsel on the response was Professor Douglas W. Kmiec , Pepperdine University School of Law, of Malibu, California.

Michael T. Shor , Arnold & Porter LLP, of Washingt on, DC, for amicus curiae Giorgio Foods, Inc.

William E. Brown , of Knoxville, Tennessee, for amicus curiae PS Chez Sidney LLC. John M. Gurley , Arent Fox LLP, of Washington, DC, for amicus curiae Koyo Corporation of U. S.A. With him on the brief was Nancy A. Noonan

. Matthew P. Jaffe , Crowell & Moring LLP, of Washingt on, DC, for amicus curiae NSK Corporation. With hi m on the brief were Robert A. Lipstein , Jennifer N. Waters and R. Elizabeth Abraham

. Joseph W. Dorn , King & Spalding LLP, of Washi ngton, DC, for amici curiae American Furniture Manufacturers Committee for Legal Trade and Micron Technology, Inc. With him on the brief were Gilbert B. Kaplan and Jeffrey M. Telep . Of counsel on the brief was Richard H. Fallon , of Cambridge, Massachusetts. Appealed from: United States Court of International Trade Senior Judge Nicholas Tsoucalas

## United States Court of Appeals for the Federal Circuit

2008-1005, -1006, -1007, -1008 SKF USA, INC., Plaintiff-Cross Appellant,

v. UNITED STATES CUSTOMS AND BORDER PROTECTION, Defendant-Appellant,

and UNITED STATES INTERNATIONAL TRADE COMMISSION, Defendant-Appellant,

and TIMKEN U.S. CORPORATION, Defendant-Appellant,

and UNITED STATES, Robert C. Bonner, COMMISSION ER, UNITED STATES CUSTOMS AND BORDER PROTECTION, and Dani el R. Pearson, CHAIRMAN, UNITED STATES INTERNATIONAL TRADE COMMISSION,

Defendants. Appeals from the United Stat es Court of International Trade in case no. 05-00542, Senior Judge Nicholas Tsoucalas.

ON PETITION FOR REHEARING EN BANC Before MICHEL, Chief Judge , NEWMAN, MAYER, LOURIE, RADER, SCHALL, BRYSON, GAJARSA, LINN, D YK, PROST, and MOORE, Circuit Judges , and STEARNS, District Judge

. ∗

∗ Honorable Richard G. Stearns, District Judge, United States District Court for the District of Massachusetts, sitting by designation, was on the original panel, and participated only in the decision of the petition for panel rehearing.PER CURIAM. LINN, Circuit Judge , with whom NEWMAN, RADER and MOORE, Circuit Judges , join, dissents from the denial of t he petition for rehearing en banc.

O R D E R A petition for rehearing en banc was filed by the Cross Appellant, and a response thereto was invited by the court and filed by the Appell ants. The court granted the motions of Giorgio Foods, Inc. and PS Chez Sidney LLC, Koyo Co rporation of U.S.A., NSK Corporation, an d American Furniture Manufactu rers Committee for Legal Trade and Micron Technology, Inc. for leave to file briefs as amici cu riae. The petition for rehearing was referred to the panel that heard the appeal, and thereafter the petition for rehearing en banc, responses, and the amici curiae briefs were referred to the circuit judges who are in regular active service. A poll whether to r ehear the appeal en banc was requested, taken, and failed. Upon consideration thereof,

IT IS ORDERED THAT: (1) The petition for panel rehearing is denied. (2) The petition for r ehearing en banc is denied. (3) The mandate of the court will issue on October 6, 2009.

FOR THE COURT

September 29, 2009 /s/ Jan Horbaly Date Jan Horbaly Clerk

cc: Herbert C. Shelley, Esq Franklin E. White, Esq. Patrick V. Gallagher, Jr., Esq.

2008-1005, -1006, -1007, -1008 22008-1005, -1006, -1007, -1008 3 Terence P. Stewart, Esq. Michael T. Shor, Esq. William E. Brown, Esq. John M. Gurley, Esq. Matthew P. Jaffe, Esq. Joseph W. Dorn, Esq.

## United States Court of Appeals for the Federal Circuit

2008-1005, -1006, -1007, -1008 SKF USA, INC., Plaintiff-Cross Appellant,

v. UNITED STATES CUSTOMS AND BORDER PROTECTION, Defendant-Appellant,

and UNITED STATES INTERNATIONAL TRADE COMMISSION, Defendant-Appellant, and TIMKEN U.S. CORPORATION, Defendant-Appellant, and UNITED STATES, Robert C. Bonner, COMMISSIONER, UNI TED STATES CUSTOMS AND BORDER PROTECTION, and Daniel R. Pear son, CHAIRMAN, UNITED STATES INTERNATIONAL TRADE COMMISSION,

Defendants. Appeals from the United Stat es Court of International Trade in case no. 05-00542, Senior Judge Nicholas Tsoucalas. LINN, Circuit Judge , with whom NEWMAN, RADER, and MOORE, Circuit Judges , join, dissenting from the denial of the petition for rehearing en banc.

Because the Byrd Amendment’s “petition support” require ment regulates political speech in violation of the First Amendment, and because the panel’s decision relies on

2008-1005, -1006, -1007, -1008a novel, and in my opinion flawed, analytic fr amework in sustaining that requirement, I respectfully dissent from the court’s decis ion not to rehear this case en banc. The so-called “petition support requireme nt” of the Byrd Amendment requires that a company publicly express “support of t he petition” to be eligible to receive any

funds collected as a result of the order . 19 U.S.C. § 1675c(b)(1)(A) (2000) (repealed 2006). Under the petition support requirement, if a domestic company publicly expresses the viewpoint that the government should impose a tariff on an importer, then the domestic company is eligible to receive some part of that tariff. If the domestic company either expresses the viewpoint that a tariff shoul d not be imposed or takes no public position, it is not eligible. The statute thus restrict s political speech and petitioning activity and imp licates the First Amendment. The majority opinion invokes the doctr ine of constitutional avoidance to “construe” the “purpose” of the challenged statute to avoid appl ying strict scrutiny review

to this statute under the First Amendment. But the avoidance doctrine “is a tool for choosing between competing pl ausible interpretations of a statutory text,” Clark v.

Martinez , 543 U.S. 371, 381 (2005), not inventing a hypothetical purpose for a statute,

cf. Fisherman’s Harvest, Inc. v. PBS & J , 490 F.3d 1371, 1377 (Fed. Cir. 2007) (discussing “canon of constitutional avoidance in statutory interpretation”). Because there is no statutory cons truction dispute here, the doctrine is inapplicable. *

* The government contends in its petition brief that the panel majority’s opinion construed the text of the Byrd Amendment to limit payments to supporters who expended resources in “actively supporting” t he petition. Def.-Appel lant United States Customs and Border Protection Resp. to Pet. for Reh’g En Banc 2. But this is not what the opinion actually says. The majority based its analysis almost entirely on the construction of the purpose of the Byrd Amendment, t hen—in dicta—stated that “ if we were to view this case as involving the c onstruction of statutory language rather than an

2008-1005, -1006, -1007, -1008 2The majority finds that the purpose of t he statute was “to reward injured parties who assisted government enforce ment of the antidumping laws by initiating or supporting antidumping proceedings.” SKF USA, Inc. v. U.S. Customs & Border Prot. , 556 F.3d 1337, 1352 (Fed. Cir. 2009). There are two fundamental problems with this “reward for assistance” rationale (apart from t he fact that the gover nment did not assert it in its original briefs and disclaimed it at oral argum ent). First, the “reward for assistance” rationale assumes that the gover nment has a strong interest in imposing an antidumping duty order. That is, it assume s that the government’s interest is in an investigation that results in a finding of dumping and a finding that a duty order must be imposed. But, as the government acknowledges , the government’s interest is in a fair antidumping investigation, not in an antidumpi ng investigation that necessarily results in

exercise in ascertaining st atutory purpose, the result would be the same.” SKF USA, Inc. v. U.S. Cust oms & Border Prot. , 556 F.3d 1337, 1353 (Fed. Cir. 2009) (emphasis added). The only reference to a construction of the statute is in footnote 26, which does not actually limit the statute. It says: [W]e construe the Byrd Amendment’s language providing for payments to a “petitioner or in terested party in support of the petition” to only permit distribu tions to those who actively supported the petition (i.e., a pa rty that did no more than submit a bare statement that it was a supporter without answering questionnaires or othe rwise actively participating would not receive distributions).

Id. at 1354 n.26. While “activel y supported” seems, facially, to limit the petition support requirement, the parenthetical makes clear that this is not a limitation at all. It only excludes “a party that did no more than submit a bare statement that it was a supporter without answering qu estionnaires.” Id. In fact, all members of the domestic industry, whether they support or oppose the petition, are required to complete questionnaires. See 19 U.S.C. § 1333(a); see also U.S. Int’l Trade Comm’n, Generic U.S. Producer Questionnaire, at 1, available at http://www.usitc.gov/trade_remedy/doc uments/USProducerQuestionnaire.pdf.

2008-1005, -1006, -1007, -1008 3a duty order. Def.-Appellant United States Customs and Bo rder Protection Resp. to Pet. for Reh’g En Banc 11. The majority assumes that onl y those parties that provide information and argument in support of a duty order are assisting the government, but in fact, all participants in an investi gation—whether they support or oppose the entry of a duty order—are assisting the government in reaching the right result. Second, the “reward for assistance” purpose ignores the fact that all members of the affected domestic industry are required to submit questionna ire responses, and the

International Trade Commission can issue subpoenas to obtai n any information that it

needs. See 19 U.S.C. § 1333(a), (f ) (2006) (authorizing International Trade Commission to request information, iss ue subpoenas, and demand statements under oath); see also U.S. Int’l Trade Comm’n, Generic U.S. Producer Questionnaire, at 1,

available at http://www.usitc.gov/trade_remedy/731_ad_701_cvd/investigations/ question/USProducerQuesti onnaire.pdf (“This report is mandat ory and failure to reply as directed can result in a subpoena or other order to compel the submission of records or information in your possession . . . .”). There is no need to provide a reward for assistance that those in the affected domestic industry must provide. The majority held that “[r]ewarding par ties under the circumstances here” was “similar to commercially contracting with th em” and then concluded that the commercial speech test “seem[ed] appropriate.” SKF , 556 F3d. 1355. The most significant problem with this analysis is that it creates a whole new category of speech—speech in

circumstances that are “similar to” commerc ial speech—and it subjects that speech to much less rigorous scrutiny under the First Am endment than it would otherwise receive.

2008-1005, -1006, -1007, -1008 4The negative consequences of this new exception should not be understated. Under the Supreme Court’s tr aditional analysis, the First Amendment has required strict scrutiny of content-based rest rictions on political speech in a public forum. See, e.g. , Boos v. Barry , 485 U.S. 312, 322 (1988) (holding th at content-based restrictions on political speech in public forum must be “nec essary to serve a compelling state interest and . . . narrowly drawn to achieve that end” (quoting Perry Educ. Ass’n v. Perry Local

Educators’ Ass’n , 460 U.S. 37, 45 (1983))); cf. Lac Vieux Desert Band of Lake Superior Chippewa Indians v. Mi ch. Gaming Control Bd., 172 F.3d 397, 409-10 (6th Cir. 1999) (holding that ordinance that “grants benefits and imposes bur dens according to whether an individual or entity suffici ently supported a particular political issue” was subject to strict scrutiny). What the SKF opinion does is to use the purpose it created to establish a new and ambiguous exception: speech in circumstances that are sufficiently similar to commercial speech (but are not actually co mmercial speech), such that the commercial speech test “seems appropriate.” SKF , 556 F.3d at 1354. Openi ng up this kind of exception should not be done lightly, nor should it be done without cl early defining when the exception is applicable. In my opinion, the petition support require ment is an unconsti tutional viewpointdiscriminatory restriction on political speech and petitioning activity that cannot survive strict scrutiny. Although t he Byrd Amendment was repealed in 2006, “[t]he impact of the panel’s decision is far reaching. Forty-one cases pertaining to the [Byrd Amendment] are currently stayed before t he CIT. As of October 1, 2008, more than $1 billion remained in Customs Clearing Accounts awai ting future distribution.” Pl.-Cross Appellant Pet. for Reh’g En B anc 4-5 (citation omitted). This case is simply too

2008-1005, -1006, -1007, -1008 52008-1005, -1006, -1007, -1008 6 important to allow the majority’s incorrect First Amendment analysis to stand. For these reasons, I respectfully dissent from the court’s denial of the petition to rehear this case

en banc.