Barden Corp. v. United States

864 F.Supp.2d 1370

The BARDEN CORPORATION, Plaintiff,

v. UNITED STATES of America, United States Customs and Border Protection, W. Ralph Basham (Commissioner, United States Customs and Border Protection), United States International Trade Commission and Daniel R. Pearson (Chairman, United States International Trade Commission), Defendants,andThe Timken Company and MPB Corp., Defendant–Intervenors.

United States Court of International Trade.

Slip Op. 12–85.

Court No. 06–00435.

June 15, 2012.

Max F. Schutzman and Andrew T. Schutz, Grunfeld Desiderio Lebowitz Silverman & Klestadt, LLP, of New York, NY, for plaintiff.

David S. Silverbrand and Courtney S. McNamara, Trial Attorneys, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, DC, for defendant United States. With them on the briefs were Tony West, Assistant Attorney General, Jeanne E. Davidson, Director, and Franklin E. White, Jr., Assistant Director.

Patrick V. Gallagher, Jr., Attorney Advisor, Office of the General Counsel, U.S. International Trade Commission, of Washington, DC, for defendant U.S. International Trade Commission. With him on the briefs were James M. Lyons, General Counsel, and Neal J. Reynolds, Assistant General Counsel.

Geert M. De Prest, Terence P. Stewart, Amy S. Dwyer, and Patrick J. McDonough, Stewart and Stewart, of Washington, DC, for defendant-intervenors.

Before: GREGORY W. CARMAN, Judge, TIMOTHY C. STANCEU, Judge, LEO M. GORDON, Judge.

OPINION AND ORDER

STANCEU, Judge:

Plaintiff, The Barden Corporation (“Barden”), a domestic producer of antifriction bearings (“AFBs”), initiated five actions (now consolidated) against the United States asserting constitutional challenges to the Continued Dumping and Subsidy Offset Act of 2000 (“CDSOA” or “Byrd Amendment”), Pub.L. No. 106–387, §§ 1001–03, 114 Stat. 1549, 1549A–72–75, 19 U.S.C. § 1675c (2000),¹repealed by Deficit Reduction Act of 2005, Pub.L. No. 109–171, § 7601(a), 120 Stat. 4, 154 (Feb. 8, 2006; effective Oct. 1, 2007). ² Barden claims entitlement to a share of CDSOA distributions of duties assessed on various antidumping duty orders on imported AFBs, having been denied eligibility for those distributions by decisions of the U.S. International Trade Commission (the “ITC” or the “Commission”) and U.S. Customs and Border Protection (“Customs” or “CBP”). Barden seeks disbursements for Federal Fiscal Years 2004 through 2009.

For Fiscal Years 2004 through 2006, the ITC did not recognize Barden as potentially eligible for “affected domestic producer” (“ADP”) status with respect to the AFBs orders. ADP status is necessary under the CDSOA to qualify a domestic producer for a share of distributed antidumping duties. ADP status is limited by the CDSOA to petitioners and parties who expressed support for the antidumping duty petition. The ITC denied Barden ADP status for Fiscal Years 2004 through 2006 because Barden did not waive confidentiality for its expression of support for the petition seeking antidumping duties on imported AFBs. For Fiscal Years 2007 through 2009, Customs denied Barden CDSOA disbursements because Barden had been acquired by a company related to a company that “opposed the investigation” resulting in issuance of the AFBs antidumping duty orders. Under the CDSOA, a company so acquired is barred from obtaining ADP status. Barden claims that denying it CDSOA disbursementswas contrary to the First Amendment on freedom of expression grounds, contrary to the Fifth Amendment on equal protection grounds and, due to what it views as a retroactive aspect of the CDSOA, also contrary to the Fifth Amendment on due process grounds.

Before the court are motions to dismiss and motions for judgment on the pleadings by Customs, the ITC, and defendant-intervenors, The Timken Company and MPB Corporation (collectively, “Timken”).³ Also before the court is Barden's motion for a judgment on the pleadings. The court determines that plaintiff's claims seeking a CDSOA disbursement for Fiscal Year 2004 are time-barred to the extent that they challenge the ITC's omission of Barden from the list of potential ADPs. We conclude, further, that we must dismiss plaintiff's remaining claims as to Fiscal Year 2004 and all of plaintiff's claims seeking disbursements for Fiscal Years 2005 and 2006, on which Barden cannot obtain relief. We deny all motions seeking dismissal of Barden's claims pertaining to Fiscal Years 2007 through 2009. We also deny Barden's motion for judgment on the pleadings.

I. Background

Barden commenced an action on November 28, 2006, seeking CDSOA disbursements for Fiscal Years 2004 and 2005. Compl. (Nov. 28, 2006), ECF No. 4. On February 23, 2007, the court stayed this action “until final resolution of Pat Huval Restaurant & Oyster Bar, Inc. v. United States International Trade Commission, Consol. Court No. 06–00290, that is, when all appeals have been exhausted.” Order (Feb. 23, 2007), ECF No. 23. Subsequently, Barden brought a separate action seeking a disbursement for Fiscal Year 2006. Compl. (Feb. 26, 2007), ECF No. 2 (Court No. 07–00063) (“Compl. 07–63”). Barden later commenced three separate actions seeking disbursements for Fiscal Years 2007, 2008, and 2009, which the court consolidated under Court No. 06–00435. Order (Feb. 15, 2011), ECF No. 37.

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 (Fed.Cir.2009) (“SKF ”), cert. denied,––– U.S. ––––, 130 S.Ct. 3273, 176 L.Ed.2d 1182 (2010), which addressed certain legal questions similar to those present in this case, the court ordered plaintiff to show cause why this case should not be dismissed. Order (Jan. 3, 2011), ECF No. 31. After plaintiff responded, the court lifted the stay for all purposes. Order (Feb. 9, 2011), ECF No. 34.

II. Discussion

The court exercises subject matter jurisdiction pursuant to section 201 of the Customs Courts Act of 1980, 28 U.S.C. § 1581(i)(4), which grants the Court of International Trade exclusive jurisdiction of any civil action commenced against the United States arising out of any law providing for administration with respect to, inter alia, “tariffs, duties, fees, or other taxes on the importation of merchandise for reasons other than the raising of revenue.” 28 U.S.C. § 1581(i)(2), (4). This action arises out of the CDSOA, which is such a law. See Furniture Brands Int'l, Inc. v. United States, 35 CIT ––––, ––––, 807 F.Supp.2d 1301, 1307–10 (2011).

In 2000, Congress enacted the CDSOA, amending the Tariff Act of 1930 to provide annual distributions to ADPs of antidumping and countervailing duties assessed under orders in effect on January 1, 1999 or thereafter, and orders issued after enactment. 19 U.S.C. § 1675c(b), (d)(1). To qualify as an ADP, a party must meet two criteria relevant here. It must have been “a petitioner or interested party in support of the petition with respect to which an antidumping duty order ... has been entered.” Id. § 1675c(b)(1)(A) ( “petition support requirement”). And it must not have been “acquired by a company or business that is related to a company that opposed the investigation....” Id. § 1675c(b)(1) (“acquisition clause”).

The CDSOA divides administrative responsibilities between the ITC and Customs. Read in pertinent part, the statute requires the ITC to prepare and transmit to Customs “a list of petitioners ... with respect to each order ... and a list of persons that indicate support of the petition by letter or through questionnaire response.” Id. § 1675c(d)(1). The CDSOA directs that Customs publish in the Federal Register lists of ADPs potentially eligible for disbursements of a “continued dumping and subsidy offset” based on the lists obtained from the Commission and that Customs request that potentially eligible parties certify eligibility for such a disbursement. Id. § 1675c(d)(2). The CDSOA also directs Customs to segregate antidumping and countervailing duties according to the relevant antidumping or countervailing duty order, to maintain these duties in special accounts, and to distribute to companies determined to be ADPs annually, as reimbursement for incurred qualifying expenditures, a ratable share of the funds (including all interest earned) from duties assessed on a specific unfairly traded product that were received in the preceding fiscal year. Id. § 1675c(d), (e).

A 1988 antidumping duty petition sought relief from imports of antifriction bearings, other than tapered roller bearings, from France, Germany, Italy, Japan, Romania, Singapore, Sweden, Thailand, and the United Kingdom. During the resulting 1988 ITC injury investigation, Barden expressed its support for the investigation to the ITC. Compl. ¶¶ 10–11. Following an affirmative ITC injury determination, Commerce in 1989 issued antidumping duty orders covering ball bearings and parts thereof from France, Germany, Italy, Japan, Romania, Singapore, Sweden, Thailand, and the United Kingdom; spherical plain bearings and parts thereof from France, Germany, and Japan; and cylindrical roller bearings and parts thereof from France, Germany, Italy, Japan, Sweden, Thailand, and the United Kingdom. Id. ¶ 27; Antidumping Duty Orders: Ball Bearings, Cylindrical Roller Bearings, & Spherical Plain Bearings & Parts Thereof From the Federal Republic of Germany, France, Italy, Japan, Romania, Singapore, Sweden, Thailand, & the United Kingdom, 54 Fed.Reg. 20,900 (May 15, 1989).

Barden states that it was acquired in 1991 by a German company, FAG Kugelfischer George Schaefer KGaA. Compl. ¶ 10. A U.S. affiliate of the acquiring company, FAG Bearings Corporation (“FAG Bearings”), “opposed the AFBs petition.” Id. Barden states, further, that the “FAG companies and Barden were later acquired in 2002 by INA–Schaeffler KG, a bearing producer based in Germany, which likewise did not support the original AFBs investigation.” Id.

Customs published a list of...