Giorgio Foods, Inc. v. United States
785 F.3d 595
Fed. Cir.2015Background
- Coalition filed antidumping petitions (Jan 1998) against preserved mushrooms from Chile, China, India, and Indonesia; Giorgio Foods was a large domestic producer but not a petitioner.
- ITC issued questionnaires to domestic producers; Giorgio’s questionnaire did not check “Support,” “Oppose,” or “Take no position” boxes but stated in narrative: opposed the India petition and “take no position” on Chile, China, Indonesia.
- Commerce initiated investigations and issued antidumping orders; Customs collected duties covered by the Byrd Amendment (CDSOA) for certain entry periods and distributed proceeds to “affected domestic producers” (ADPs) who were petitioners or who “indicate[d] support of the petition by letter or through questionnaire response.”
- Giorgio requested inclusion on the ITC list of ADPs; ITC denied inclusion because Giorgio’s questionnaire responses did not indicate support; Customs denied Giorgio’s distribution claims.
- Giorgio sued in the Court of International Trade, sought to amend to add a statutory claim and alleged an as-applied First Amendment violation; the Trade Court dismissed; on appeal the Federal Circuit affirms.
Issues
| Issue | Plaintiff's Argument (Giorgio) | Defendant's Argument (ITC / Government) | Held |
|---|---|---|---|
| Whether Giorgio’s questionnaire responses and behind-the-scenes actions satisfy CDSOA’s “indicate support … through questionnaire response” requirement | Giorgio: the substantive questionnaire responses (showing injury) plus financial/legal/consultative support amount to an indication of support; questionnaire should be read as a whole | Government: statute requires an affirmative indication of support (by letter or questionnaire response); factual injury data or other assistance do not substitute for an explicit statement of support | Held: Giorgio failed to indicate support as required; factual injury statements and other assistance are insufficient; affirm denial |
| Whether applying the statement-of-support requirement to Giorgio violates the First Amendment (as-applied) | Giorgio: denying distributions based on lack of an explicit public statement impermissibly burdens speech and punishes choice to withhold public support; SKF/PS Chez Sidney support inclusive, substance-based analysis | Government: requirement is constitutional as applied; a public statement has real consequences (affects Commerce/ITC decisions) and the CDSOA rationally rewards those who actively support enforcement | Held: as-applied First Amendment challenge fails; requiring an explicit statement of support does not violate the First Amendment under controlling precedent |
Key Cases Cited
- SKF USA, Inc. v. United States Customs & Border Protection, 556 F.3d 1337 (Fed. Cir. 2009) (upheld Byrd Amendment against facial First Amendment challenge and construed statute to reward active support)
- PS Chez Sidney, L.L.C. v. United States Int’l Trade Comm’n, 684 F.3d 1374 (Fed. Cir. 2012) (preliminary questionnaire expression of support can satisfy CDSOA support requirement when producer never later expressed opposition)
- Ashley Furniture Indus., Inc. v. United States, 734 F.3d 1306 (Fed. Cir. 2013) (a producer who never indicates support via letter or questionnaire response cannot be an ADP; ‘oppose’ or ‘take no position’ insufficient)
- Suramerica de Aleaciones Laminadas, C.A. v. United States, 44 F.3d 978 (Fed. Cir. 1994) (statute requires ITC to consider publicly stated industry views in threat-of-injury determinations)