Tampa Bay Fisheries, Inc. v. United States, 2012-1419

TAMPA BAY FISHERIES, INC.,SINGLETON FISHERIES, INC., Plaintiffs-Appellants v. UNITED STATES, UNITED STATES CUSTOMS AND BORDER PROTECTION,DAVID V. AGUILAR, ACTING COMMISSIONER, UNITED STATES CUSTOMSAND BORDER PROTECTION, INTERNATIONAL TRADE COMMISSION, IRVING A. WILLIAMSON,CHAIRMAN, U.S. INTERNATIONAL TRADE COMMISSION, Defendants-Appellees

2012-1419

United States Court of Appeals for the Federal Circuit

April 29, 2015

NOTE: This disposition is nonprecedential.

Appeal from the United States Court of International Trade in No. 08-CV-0404, Judge Leo M. Gordon.

JAMES KEVIN HORGAN, DeKieffer & Horgan, PLLC, Washington, DC, argued for plaintiffs-appellants. Also represented by JOHN J. KENKEL.

MARTIN M. TOMLINSON, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for defendants-appellees United States, United States Customs and Border Protection, David V. Aguilar, Acting Commissioner. Also represented by JESSICA R. TOPLIN, STUART F. DELERY, JEANNE E. DAVIDSON, FRANKLIN E. WHITE, JR.; SUZANNA HARTZELL-BAIRD, JESSICA MILLER, Office of Assistant Chief Counsel, United States Customs & Border Protection.

PATRICK VINCENT GALLAGHER, JR., Office of the General Counsel, United States International Trade Commission, Washington, DC, argued for defendants-appellees International Trade Commission, Irving A. Williamson, Chairman. Also represented by DOMINIC L. BIANCHI, ROBIN LYNN TURNER.

Before PROST, Chief Judge, BRYSON, and O'MALLEY, Circuit Judges.

O'MALLEY, Circuit Judge.

Tampa Bay Fisheries, Inc. ("Tampa Bay") and Singleton Fisheries, Inc. ("Singleton") (collectively, "Appellants") appeal the final judgment of the United States Court of International Trade ("Trade Court") dismissing their complaint for failure to state a claim. See Tampa Bay Fisheries, Inc. v United States, 825 F. Supp. 2d 1331 (Ct. Int'l Trade 2012). Because the Trade Court properly determined that the parties failed to allege sufficient facts upon which relief could be granted, we affirm.

BACKGROUND

Following a 2003 petition on behalf of the domestic shrimp industry to the Department of Commerce ("Commerce") regarding the importation of certain frozen and canned warm water shrimp from Brazil, Ecuador, India,China, Vietnam, and Thailand, Commerce instituted an antidumping investigation. Contemporaneously, the International Trade Commission ("Commission") began to examine whether these shrimp imports were threatening the domestic shrimp industry. To determine if the domestic industry was injured, the Commission sent questionnaires to the domestic industry, asking if they supported, opposed, or took no position on the 2003 petition.

After its investigation, the Commission found that the domestic industry was injured by the import of canned frozen shrimp, and Commerce issued its antidumping duty orders on these imports February 1, 2005. See Certain Frozen or Canned Warmwater Shrimp and Prawns from Brazil, China, Ecuador, Thailand, and Vietnam, 70 Fed. Reg. 3943 (Jan. 27, 2005); Notice of Amended Final Determination of Sales at Less Than Fair Value and Antidumping Duty Order: Certain Frozen Warmwater Shrimp from Brazil, 70 Fed. Reg. 5143 (Feb. 1, 2005); Notice of Amended Final Determination of Sales at Less Than Fair Value and Antidumping Duty Order: Certain Frozen Warmwater Shrimp from Thailand, 70 Fed. Reg. 5145 (Feb. 1, 2005); Notice of Amended Final Determination of Sales at Less Than Fair Value and Antidumping Duty Order: Certain Frozen Warmwater Shrimp from India, 70 Fed. Reg. 5147 (Feb. 1, 2005); Notice of Amended Final Determination of Sales at Less Than Fair Value and Antidumping Duty Order: Certain Frozen Warmwater Shrimp from the People's Republic of China, 70 Fed. Reg. 5149 (Feb. 1, 2005); Notice of Amended Final Determination of Sales at Less Than Fair Value and Antidumping Duty Order: Certain Frozen Warmwater Shrimp from the Socialist Republic of Vietnam, 70 Fed. Reg. 5152 (Feb. 1, 2005); Notice of Amended Final Determination of Sales at Less Than Fair Value and Antidumping Duty Order: Certain Frozen Warmwater Shrimp from Ecuador, 70 Fed. Reg. 5156 (Feb. 1, 2005).

Under the statutory scheme at the time, any duties collected by the United States Customs and Border Patrol ("Customs") under these dumping orders were distributed to affected domestic producers. Continued Dumping and Subsidy Offset Act ("CDSOA" or "the Byrd Amendment"), 19 U.S.C. § 1675c(a) (2000), repealed by Deficit Reduction Act of 2005, Pub. L. No. 109-171, § 7601, 120 Stat. 4, 154 (Feb. 8, 2006; effective Oct. 1, 2007). To qualify as an affected domestic producer, one had to demonstrate that it "was a petitioner or interested party [who] supported . . . the petition with respect to which an antidumping duty order . . . ha[d] been enter[ed]." Id. § 1675c(b)(1)(A) ("the support requirement"). Once a duty order issues, the Commission forwards a list of affected domestic producers to Customs, which will distribute all the funds from the assessed duties collected in the prior fiscal year to those affected parties who have certified that they are eligible to receive a CDSOA distribution. Id. § 1675c(d)(1)-(3).

In connection with Commerce's antidumping investigation regarding shrimp imports, the Commission did not list Tampa Bay or Singleton as an affected domestic producer for the relevant years—2006, 2007, and 2008. Tampa Bay and Singleton nevertheless filed certifications with Customs, stating that they were entitled to CDSOA distributions. But, because neither was listed as an affected domestic producer, Customs refused to administer any funds to either party. In November 2008, Tampa Bay and Singleton requested that the Commission amend the list of affected domestic producers to include both parties in November 2008. Without any evidence that either Tampa Bay or Singleton supported the petition during the original investigations, the Commission denied the request in December 2008.

Also during this time, on November 14, 2008, Tampa Bay and Singleton filed suit against the Commission and Customs, challenging the Commission's failure to add Tampa Bay and Singleton to the list of affected domesticproducers and Customs' decision not to make a distribution to Tampa Bay or Singleton for fiscal years 2006, 2007, and 2008. While neither Tampa Bay nor Singleton alleged that they expressed support for the 2003 petition in their questionnaire responses or through a letter, they asserted that they supported the petition in other ways. They also argued that, if the Byrd Amendment is construed to require a show of support via a particular form of expression—i.e., checking a box on a questionnaire or writing a letter—it is unconstitutional. Because these issues were then being considered in other pending cases, the Trade Court stayed the case pending the final resolution of the other litigation. Tampa Bay Fisheries, 825 F. Supp. 2d at 1336. Following this court's decision in SKF USA Inc. v. United States Customs & Border Protection, 556 F.3d 1337 (Fed. Cir. 2009), which both construed the Byrd Amendment to require both a show of support via a questionnaire response or a letter and other affirmative efforts to aid the investigation, and upheld the constitutionality of the Byrd Amendment as so construed, the Trade Court issued an order asking Tampa Bay and Singleton to show cause why their case should not be dismissed in light of SKF. Id. Upon review of their response, the Trade Court lifted the stay, and, on March 18, 2011, Tampa Bay and Singleton filed an amended complaint.

In their amended complaint, Tampa Bay and Singleton raised five separate claims. They alleged that: (1) the agencies' decisions were inconsistent with the CDSOA, were not supported by substantial evidence, and were otherwise not in accordance with law; (2) the support requirement of the CDSOA violates the First Amendment of the Constitution; (3) this same requirement also violates the Equal Protection Clause; (4) the support requirement contravenes the Due Process Clause because it is impermissibly retroactive; and (5) financial evidence of support should be considered when determining whethera party meets the support requirement of the CDSOA. Again, neither Tampa Bay nor Singleton alleged that they indicated support for the investigation in writing. Based in part on this court's ruling in SKF, the Commission and Customs then moved to dismiss the amended complaint for failure to state a claim.

Upon consideration, the Trade Court dismissed Tampa Bay and Singleton's entire complaint. With respect to count one and count five, the Trade Court concluded that both parties had failed to state facts that they qualified for CDSOA distributions because there was no allegation either party supported the petition via letter or questionnaire response, as required by law. Tampa Bay Fisheries, 825 F. Supp. 2d at 1340-42. Regarding Tampa Bay and Singleton's Equal Protection and First Amendment claims, the Trade Court dismissed these claims, finding that this court's decision in SKF foreclosed their requested relief. Id. at 1343-45. Lastly, the Trade Court concluded that both parties lacked standing to raise a due process retroactivity claim because Tampa Bay and Singleton both completed their responses to the Commission's questionnaires after the enactment of the CDSOA; thus, there was no basis to find that the CDSOA was applied retroactively to either party. Id. at 1345.¹

Appellants timely appealed the Trade Court's decision to this court. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(5).

DISCUSSION

Whether a party before the Trade Court has sufficiently stated a claim for relief is a question of law wereview de novo. Sioux Honey Ass'n v. Hartford Fire Ins. Co., 672 F.3d 1041, 1049 (Fed. Cir. 2012) (citing Boyle v. United States, 200 F.3d 1369, 1372 (Fed. Cir. 2000)). Questions of statutory or constitutional interpretations are also questions of law that are reviewed de novo. See Ashley...