Opinion & Order
Plaintiffs
1
assert various claims, including constitutional claims, arising out of the Continued Dumping and Subsidies Offset Act of 2000 (“CDSOA”), commonly known as the “Byrd Amendment.” Defendants, United States International Trade Commission and Daniel R. Pearson (collectively, the “ITC”) and United States Customs and Border Protection and W. Ralph Bas-ham (collectively, “Customs”), and Defendants-Intervenor, MPB Corporation and Timken U.S. Corporation (collectively, “Timken”),
2
move pursuant to USCIT Rs.
Statutory Background
In 2000, Congress enacted the Byrd Amendment. See Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Appropriations Act of 2001, Pub.L. No. 106-387, §§ 1001-03, 19 U.S.C. § 1675c (2000) (repealed 2006). Under the Byrd Amendment, Customs distributes on an annual basis antidumping and countervailing duties collected from foreign producers to certain members of the competing domestic industry as reimbursement for specified qualifying expenditures. Under the “support requirement” of the Byrd Amendment, eligibility for Byrd distributions is limited to “affected domestic producer[s]” (“ADPs”), who are defined as petitioners or those who supported a petition that led to an antidump-ing or countervailing duty order. Id. at § 1675c(b)(l).
The Byrd Amendment is implemented as follows: for every antidumping or countervailing duty order in effect, the ITC must compile and forward to Customs a list of parties who satisfy the support requirement (“ADP list”).
Id.
at § 1675c(d)(l);
cf. Cathedral Candle Co. v. U.S. Int’l Trade Comm’n,
Factual Background
All Plaintiffs are domestic producers of a product for which an antidumping duty order is in place.
3
Because the antidump-ing duty orders on the relevant products, crawfish tail meat and bearings, predate passage of the Byrd Amendment, the ITC was required to forward to Customs the ADP lists for those orders within 60 days
Customs published the ADP lists for the first time on August 3, 2001, in the notice of intent to distribute funds collected for fiscal year 2001. Distribution of Continued Dumping and Subsidy Offset to Affected Domestic Producers, 66 Fed.Reg. 40,782, 40,788, 40,796 (U.S. Customs Service Aug. 3, 2001) {“2001 Notice of Intent to Distribute”). Subsequently, Customs received certifications from, and distributed the fiscal year 2001 funds to, certain members of the domestic crawfish tail meat and bearings industries who were eligible ADPs. Customs has repeated this process every year since 2001. 4
Most of the Plaintiffs, at points between 2001 and 2006, requested that the ITC add them to the ADP lists for their respective antidumping duty orders.
5
In addition, several Plaintiffs filed certifications with Customs in attempts to receive distributions for various years.
6
The ITC denied Plaintiffs’ requests to be added to the ADP lists.
7
Customs, in turn, excluded Plaintiffs from Byrd distributions. Subsequent
Jurisdiction
This Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1581(f)(2) and (4) (2000) in that Plaintiffs’ claims arise out of a law providing for administration and enforcement of the antidumping statute, which is a law “providing for ... tariffs, duties, fees, or other taxes on the importation of merchandise for reasons other than the raising of revenue.” Id. at § 1581(i)(2).
Standard of Review
In deciding a USCIT R. 12(b)(1) motion that does not challenge the factual basis for the complainant’s allegations, and when deciding a USCIT R. 12(b)(5) motion to dismiss for failure to state a claim upon which relief can be granted, the Court assumes all factual allegations to be true and draws all reasonable inferences in the plaintiffs favor.
Cedars-Sinai Med. Ctr. v. Watkins,
Discussion
Two recent decisions of this Court holding the Byrd Amendment’s support requirement unconstitutional provide the background to this action.
See SKF USA Inc. v. United States,
30 CIT-,-,
First, all Plaintiffs claim that the Byrd Amendment violates First Amendment guarantees of free speech and the right to petition the government for redress of grievances because it conditions Byrd distributions on the expression of a specific viewpoint, thereby constituting viewpoint discrimination and resulting in compelled speech. (Pis.’ Second Supp’l
&
Amended Compl. (“Crawfish Producers’ Compl.”) ¶¶ 38-39; SKF’s Compl. ¶¶ 44-46; Koyo’s Compl. ¶¶ 53-56.) Second, all Plaintiffs claim that the Byrd Amendment violates the Equal Protection Clause of the Fifth and Fourteenth Amendments because it impairs Plaintiffs’ right to fair treatment
Additionally, the Crawfish Producers contend that the Byrd Amendment is an unconstitutional bill of attainder because it retroactively penalizes certain domestic producers for actions taken prior to enactment of the statute. (Crawfish Producers’ Compl. ¶¶ 40-42.) They also maintain that the implementation of the Byrd Amendment by the ITC and Customs was arbitrary, capricious, and an abuse of discretion because such implementation adjudicated a right bestowed on the Crawfish Producers by Congress in 2000 based on a proceeding that took place in 1996 (when the antidumping petition on crawfish tail meat from China was filed). (Id. at ¶¶ 31-34.)
The ITC moves under USCIT R. 12(b)(1) to dismiss Plaintiffs’ claims as time-barred because these claims were not asserted within two years of the publication of the initial ADP lists in January 2001. Similarly, Timken moves to dismiss SKF’s and Koyo’s claims on the grounds that these claims are time-barred because they accrued when Congress enacted the Byrd Amendment in October 2000. The ITC also moves to dismiss Koyo’s claims as premature. Customs, the ITC, and Timken move under USCIT R. 12(b)(5) to dismiss Plaintiffs’ claims insofar as Plaintiffs seek a share of past Byrd distributions on the grounds that Plaintiffs were required to file timely certifications with Customs to be eligible to receive Byrd distributions.
The Court grants in part, and denies in part, the USCIT R. 12(b)(1) motions of the ITC and Timken to dismiss Plaintiffs’ claims as time-barred for the reasons discussed in Section I of the Discussion. The Court denies the USCIT R. 12(b)(5) motions of Customs, the ITC, and Timken for the reasons discussed in Section II.
I. USCIT R 12(b) (1) Motions
The jurisdictional challenges present two questions: (1) when did the causes of action accrue, and (2) is Koyo’s action premature?
A. Accrual of Causes of Action
Actions brought pursuant to 28 U.S.C. § 1581(i) are subject to a two-year statute of limitations. 28 U.S.C. § 2636(i) (2000);
Mitsubishi Elecs. Am., Inc. v. United States,
Koyo argues that statutes of limitations do not apply to “facial free speech and equal protection claims.” (PI. Koyo Corp. of U.S.A.’s Opp’n to Defs.’ & Defs.-Intervenor’s Mot. to Dismiss (“Koyo’s Opp’n”) 9.) The Ninth and Fourth Circuit Courts of Appeals have questioned in
dicta
whether statutes of limitations can bar facial constitutional challenges on First Amendment grounds.
See Maldonado v. Harris,
Timken argues that congressional enactment of the Byrd Amendment, on October 28, 2000, started the clock on the statute of limitations period (Timken U.S. Corp.
&
MPB Corp.’s Mot. to Dismiss (“Timken’s Mot. to Dismiss”) 11-13); the ITC argues that the trigger was Customs’ publication of the initial ADP lists, on August 3, 2001 (ITC’s Mot. to Dismiss 17).
10
Accordingly, Timken and the ITC maintain that the period for Plaintiffs to have filed suit expired on October 28, 2002, and August 3, 2003, respectively, and they move to dismiss Plaintiffs’ claims as time-barred. Contrary to Timken’s and the ITC’s arguments that a single cause of action ac
As a general matter “[a] cause of action accrues when ‘all events’ necessary to state the claim, or fix the liability of the Government, have occurred.”
Mitsubishi Elecs. Am. Inc.,
According to the continuing violation doctrine (sometimes referred to as the “continuing claim doctrine”) alluded to by Plaintiffs, “each time a plaintiff is injured by an act of the defendant a cause of action accrues to him to recover damages caused by that act and ..., as to those damages, the statute of limitations runs from the commission of the act.”
Zenith Radio Corp. v. Hazeltine Research, Inc.,
We conclude that for those of Plaintiffs’ claims that make facial challenges to the Byrd Amendment on constitutional grounds, Plaintiffs in effect have alleged a series of violations that occurred each year in which payments were made to ADPs. The Byrd Amendment takes anti-dumping duties collected under an anti-dumping duty order and pays them to certain domestic producers who satisfied the support requirement. Plaintiffs essentially challenge the discriminatory aspect of the Byrd Amendment. They argue that the Byrd Amendment on its face discriminates against Plaintiffs by excluding them from the class of payees. Further, they contend that the Byrd Amendment continues to discriminate against Plaintiffs because the annual payments are made to certain of Plaintiffs’ domestic competitors, and not to Plaintiffs, for the life of the antidumping duty order.
Plaintiffs argue that the reason for the discrimination is not constitutionally permissible. Distribution of the payments is conditioned on the recipient’s expressed
Plaintiffs allege a two-fold injury — injury caused by their exclusion from the class of payees, and injury caused by the payments made to their direct domestic competitors. The arguments of the ITC and Timken focus more on the former than the latter. The ITC and Timken argue that the injury — the alleged “compelled speech” or the events resulting in the discriminatory exclusion of Plaintiffs from the class of payees — occurred prior to enactment of the Byrd Amendment, when Plaintiffs failed to indicate support for the underlying petitions. But that overly narrow focus largely ignores the injury to Plaintiffs from the continued payment of benefits to their direct domestic competitors, which occurred annually. The alleged two-fold injury persisted for as long as the agencies continued to implement the allegedly-discriminatory statutory scheme.
Timken argues that the Supreme Court’s decision in
Ledbetter v. Goodyear Tire & Rubber Co., Inc.,
550 U.S. -, -,
The
Ledbetter
Court distinguished the case before it from
Bazemore v. Friday,
Timken also points to a number of government takings cases holding that a statute of limitations begins to run with the enactment of the statute or ordinance at issue.
(See
Timken’s Mot. to Dismiss 8-10.) However, we do not consider takings cases to be analogous to this case. In a takings case, a single, discrete act
(e.g.,
passage of a statute or ordinance) is alleged to reduce the value of the property or impair the use of the property, from the time the act occurs. Here, in contrast, Plaintiffs allege that a distinct constitutional violation occurred each time they were denied Byrd distributions while their competitors received them. Although acts taken outside the statute of limitations period
(ie.,
passage of the Byrd Amendment and the ITC’s initial compilation of the ADP lists) may have been independently actionable, those earlier acts do not insulate from judicial scrutiny later developments by which the Byrd Amendment deprived Plaintiffs of Byrd distributions while paying them to competitors. “A series of wrongful acts ... creates a series of claims.... [T]he fact that [a defendant] has been violating the Constitution for a generation does not permit it to commit fresh violations.”
Palmer,
In summary, the Court concludes that Plaintiffs’ claims arising under the Constitution that make facial challenges to the Byrd Amendment are not time-barred to the extent that they seek relief for Byrd distributions made during the two-year periods ending with commencement of their respective suits.
See Brown Park Estates,
The Crawfish Producers, pursuant to the Administrative Procedure Act, 5 U.S.C. § 706 (2000) (“APA”), contest specific administrative actions taken by the agencies in effectuating the Byrd Amendment. (Crawfish Producers’ Compl. ¶ 32.) An APA cause of action accrues at the time of the individual agency action being challenged.
Preminger v. Sec’y of Veterans Affairs,
B. Koyo’s Claims
The ITC argues that Koyo’s claims should be dismissed as premature because, at the time Koyo brought suit, the ITC had not taken “final agency action” on Koyo’s August 11, 2006 request to be added to the relevant ADP lists, and Customs had not rejected Koyo’s certification for fiscal year 2006 distributions. (ITC’s Mot. to Dismiss 21-23.) As a general rule, a party filing suit under 28 U.S.C. § 1581(i) may appeal only final agency action.
See
5 U.S.C. §§ 702, 704 (2000). However, in some instances, a party challenging the constitutionality of a statute need not await final agency action because an agency does not have authority to address the constitutionality of a statute it is charged with administering.
See McCarthy v. Madigan,
II. USCIT R. 12(b) (5) Motions
Customs, the ITC, and Timken move to dismiss Plaintiffs’ claims in part, pursuant to USCIT R. 12(b)(5). They contend that, to the extent that Plaintiffs seek a share of past Byrd distributions, Plaintiffs have failed to state claims upon which relief can be granted. (Def.’s Mot. to Dismiss (“Customs’ Mot. to Dismiss”) 2; ITC’s Mot. to Dismiss 19-21; Timken’s Mot. to Dismiss 24.) They argue that parties seeking Byrd distributions are required to file timely certifications with Customs. (Customs’ Mot. to Dismiss 3; ITC’s Mot. to Dismiss 19; Timken’s Mot. to Dismiss 24.) The Crawfish Producers did not file certifications with Customs for any Byrd distributions made within the two-year statute of limitations period (although Pat Huval filed a timely certification for the fiscal year 2002 distribution, which was rejected by Customs because Pat Huval was not on the ADP list). SKF filed a certification for the 2004 distribution, but not until September 28, 2006, two years after the deadline passed for ADPs to file certifications for fiscal year 2004 distributions. Koyo timely filed a certification for the fiscal year 2006 distribution, but not for any other distributions. Customs, the ITC, and Timken argue that Plaintiffs are not eligible to receive a share of past Byrd distributions for which they did not file timely certifications.
We reject the argument that the failure of Plaintiffs to file timely certifications with Customs requires dismissal for failure to state a claim upon which relief can be granted. Because they were not ADPs, Plaintiffs were ineligible to file the certifications that were contemplated by the statute and that were specifically required by Customs regulations implementing the Byrd Amendment. Moreover, their filing of any certification, even a qualified certification, would have been an act of futility.
The statutory requirements of the Byrd Amendment and the regulations promulgated thereunder apply only to ADPs.
See
19 U.S.C. § 1675e(d)(2) (Customs “shall request a certification from each
potentially eligible affected domestic producer
...” (emphasis added)); 19 C.F.R. § 159.63(a) (“In order to obtain a distribution of the offset, each
affected domestic producer
must submit a certification ... that must be received within 60 days after the date of publication of the notice in the Federal Register.” (emphasis added)). Plaintiffs are not ADPs, as the Byrd Amendment restricts ADP status to those who satisfied the support requirement. Nor are they arguing that they qualify as ADPs under the statute as written.
Cf. Cathedral Candle,
Customs cites
Cathedral Candle
for the proposition that a party must file timely
That Plaintiffs could not have complied with the certification requirement is clear from the Customs regulations, which require: (1) that the submitting party certify that the party “is eligible to receive a distribution as an affected domestic producer” and (2) that “the information contained in the certification is true and accurate to the best of the certifier’s knowledge and belief under penalty of law.” 19 C.F.R. § 159.63(a) & (b). Plaintiffs would not have been able to certify truthfully that they were eligible to receive distributions; they knew that they were
not
eligible to receive distributions under the Byrd Amendment because they did not satisfy the support requirement.
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Because it would have been impossible for Plaintiffs to satisfy the obligation to certify truthfully their eligibility to receive distributions under the Byrd Amendment as enacted, the Court will not impose this obligation on them.
See United States v. Rylander,
Similarly, the Court rejects the argument that Plaintiffs should have submitted certifications with a qualification or caveat. According to this argument, such a qualification or caveat could have stated Plaintiffs’ position that the support requirement should be excised from the statute as unconstitutional, and that if it were so excised, Plaintiffs would qualify as ADPs. {See Mot. to Dismiss Hr’g Tr. 31:6-19.) It would have been futile for Plaintiffs to file such “certifications” with Customs. The statute is clear that Plaintiffs are not eligible to receive Byrd distributions. See 19 U.S.C. § 1675c(a) & (b) (limiting eligibility to receive distributions to those members of the domestic industry that were petitioners or supported the petition). If Plaintiffs had filed such “certifications,” Customs could have done nothing except reject them. The Court will not require Plaintiffs, who could not qualify for Byrd distributions under the statute, to have engaged in a meaningless act before seeking relief on their claims. Accordingly, the Court denies the USCIT R. 12(b)(5) motions to dismiss Plaintiffs’ claims in part for failure to state a claim upon which relief can be granted.
Conclusion
For the foregoing reasons, it is hereby
ORDERED that Plaintiffs’ claims bringing facial constitutional challenges to the Byrd Amendment are dismissed to the extent that they seek relief for Byrd distributions that occurred prior to the two-year periods ending with commencement of their respective suits; and it is further
ORDERED that Count Two of the Crawfish Producers’ complaint is dismissed insofar as the Crawfish Producers challenge agency actions that occurred pri- or to February 27, 2004; and it is further
ORDERED that the USCIT R. 12(b)(5) motions of Customs, the ITC, and Timken to dismiss Plaintiffs’ claims in part for failure to state a claim upon which relief can be granted are denied.
Notes
. The plaintiffs to this action are a group of eight Louisiana crawfish producers: Pat Hu-val Restaurant & Oyster Bar ("Pat Huval”); Jim Fruge d/b/a Fisherman's Cove; Catfish Wholesale, Inc; Frank Melancon d/b/a French’s Enterprises Seafood Peeling Plant; Aqua Farms Crawfish, Inc.; Andre Leger d/b/a Chez Francois; Charles Bernard d/b/a Charles' Crawfish Pad; and J. Bernard Seafood Processing, Inc. (collectively, the "Craw-fish Producers”), and two domestic bearings producers, SKF USA Inc. ("SKF”) and Koyo Corporation of USA ("Koyo”).
. MPB and Timken intervened in
Koyo Corp. of U.S.A. v. United States,
Ct. No. 06-324, and
SKF USA Inc. v. United States,
Ct. No. 06-
. The Crawfish Producers process crawfish tail meat. Commerce entered an antidump-ing duty order on crawfish tail meat from China on September 15, 1997. Freshwater Crawfish Tail Meat From the People’s Republic of China, 62 Fed.Reg. 48,218 (Dep’t Commerce Sept. 15, 1997) (notice of amendment to final determination of sales at less than fair value and antidumping duty order). SKF and Koyo both manufacture bearings. Antidump-ing duty orders are in place on bearings from multiple countries. See, e.g., Ball Bearings, Cylindrical Roller Bearings, and Spherical Plain Bearings and Parts Thereof From the Federal Republic of Germany, 54 Fed.Reg. 20,900 (Dep’t Commerce May 15, 1989) (anti-dumping duty order); Ball Bearings, Cylindrical Roller Bearings, and Spherical Plain Bearings, and Parts Thereof From Japan, 54 Fed. Reg. 20,904 (Dep’t Commerce May 15, 1989) (same); Tapered Roller Bearings and Certain Components, From Japan, 41 Fed.Reg. 34,974 (Dep't Commerce Aug. 18, 1976) (same).
. The Byrd Amendment was repealed on February 8, 2006, subsequent to a ruling in a dispute settlement proceeding conducted by the World Trade Organization. Appellate Body Report, United States — Continued Dumping and Subsidies Offset Act of 2000, WT/DS217/AB/R, WT/DS234/AB/R (Jan. 16, 2003). However, the repeal did not affect distribution of duties paid on goods that entered the United States before October 1, 2007, Deficit Reduction Act of 2005, Pub.L. No. 109-171, § 7601(b), 120 Stat. 4, 154 (2006), and the last Byrd distribution was made in 2007.
. Pat Huval filed a written request with the ITC to be placed on the ADP list for the antidumping order on crawfish tail meat from China on August 24, 2002. (ITC's Admin. R. for Pat Huval, Doc. 15.) Pat Huval filed a second request on January 6, 2006 {id. at Doc. 23), and a third request on March 17, 2006 {id. at Doc. 26). Of the remaining Crawfish Producers, Catfish Wholesale on August 21, 2002 {id. at Doc. 8), and Aqua Farms on August 27, 2002 {id. at Doc. 12), filed requests with the ITC to be placed on the relevant ADP list. Another Crawfish Producer, French’s Enterprise, made inquiries through its congressional representative as to why the company was not included on the ADP list. {Id. at Docs. 18, 19, 21.) The remaining Crawfish Producers did not file written requests to be added to the ADP list, although two of them, Charles Bernard of Charles' Crawfish Pad and J. Bernard Seafood Processing, Inc., claimed that they made oral requests to the ITC and Customs for fiscal year 2002 distributions. (Br. in Supp. of Pis.' Mot. for Summ. J. 8 (Jan. 13, 2007) (withdrawn Feb. 23, 2007).)
SKF filed a written request with the ITC to be placed on the ADP list for all the bearings orders on September 22, 2006. (ITC's Admin. R. for SKF, Doc. 14.) Koyo filed a similar request on August 11, 2006. (ITC’s Admin. R. for Koyo, Doc. 11.)
. Pat Huval timely filed a certification for fiscal year 2002 on August 24, 2002. (Customs’ Admin. R. for Pat Huval, Doc. 9.) SKF filed a certification with Customs for fiscal year 2004 on September 28, 2006. (Customs' Admin. R. for SKF, Doc. 5.) Koyo timely filed a certification with Customs for fiscal year 2006 on July 31, 2006. (Customs' Admin. R. for Koyo, Docs. 2, 4.)
. As of the date of filing of SKF’s and Koyo’s complaints, the ITC had not yet responded to SKF’s and Koyo's requests to be added to the ADP lists. However, in the case of each request by Plaintiffs to which the ITC has responded, the ITC has denied the request on the grounds that Plaintiffs were neither petitioners nor supporters of the underlying petition. {See ITC's Admin. R. for Pat Huval, Docs. 10, 11, 15.)
. Pat Huval initially filed suit in federal district court for the Western District of Louisiana. The district court transferred Pat Hu-val’s suit to this Court on August 22, 2006. (Order dated Aug. 22, 2006, Ct. Doc. 46.) Subsequent to the transfer, Pat Huval filed a motion to amend its complaint and name seven additional crawfish producers as parties-plaintiff, which was granted by the Court. (Order dated Nov. 7, 2007, Ct. Doc. 71.)
. The Crawfish Producers’ complaint is deemed filed on February 27, 2006. Customs argues that the date of filing should be October 2, 2006, the date Pat Huval filed its second supplemental and amended complaint, which added seven additional crawfish producers as parties-plaintiff and amended the claims. (See Customs' Mot. to Dismiss 6.) However, USCIT R. 15(c) provides that ''[a]n amendment of a pleading relates back to the date of the original pleading when ... the claim or defense asserted in the amendment arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading.” Here, the claims in the second supplemental and amended complaint arise out of the same conduct as the original complaint — implementation of the Byrd Amendment in the context of the anti-dumping duty order on crawfish tail meat from China. Therefore, the Crawfish Producers' amended complaint relates back to the date of the original complaint, February 27, 2006. Accordingly, the two-year period of limitations for the Crawfish Producers covers February 27, 2004 to February 27, 2006.
SKF filed its complaint on September 29, 2006, and Koyo on September 25, 2006. Their two-year periods of limitations cover September 29, 2004 to September 29, 2006, and September 25, 2004 to September 25, 2006, respectively.
. In its brief, the ITC lists the date that Customs published the initial ADP lists in the Federal Register as August 1, 2001. (See ITC’s Mot. to Dismiss 17.) However, Customs actually published the ADP lists on August 3, 2001. 2001 Notice of Intent to Distribute, 66 Fed.Reg. at 40,782.
. At oral argument, Customs acknowledged that the Crawfish Producers and SKF could not meet the Byrd Amendment’s certification requirements.
Judge Stanceu: ... Now, could someone who is not an ADP under the statute even make a certification?
Mr. Hughes [Customs’ attorney]: They can't make a certification that they are on the list.
Judge Stanceu: They can’t even make a certification that they are an ADP because they're not.
(Mot. to Dismiss Hr'g Tr. 30:24-31:5.)