PS CHEZ SIDNEY, L.L.C., Plaintiff-Appellee, v. UNITED STATES INTERNATIONAL TRADE COMMISSION, Defendant-Appellant, and UNITED STATES CUSTOMS SERVICE, Defendant-Appellant, and CRAWFISH PROCESSORS ALLIANCE, Defendant-Appellant, and COMMISSIONER BOB ODOM AND LOUISIANA DEPARTMENT OF AGRICULTURE AND FORESTRY, Defendants.
2008-1526, -1527, -1534
United States Court of Appeals for the Federal Circuit
Decided: July 13, 2012
Appeal from the United States Court of International Trade in case no. 02-00635, Judge Evan J. Wallach.
PATRICK V. GALLAGHER, JR., Office of the General Counsel, United States International Trade Commission, of Washington, DC, argued for defendant-appellant United States International Trade Commission. With him on the brief were JAMES M. LYONS, General Counsel, and NEAL J. REYNOLDS, Assistant General Counsel for Litigation.
FRANKLIN E. WHITE, JR., Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for defendant-appellant United States Customs and Border Protection. With him on the brief were TONY WEST, Assistant Attorney General, and JEANNE E. DAVIDSON, Director. Of counsel on the brief was ANDREW G. JONES, Office of Assistant Chief Counsel, United States Customs and Border Protection, of Washington, DC.
JOHN C. STEINBERGER, Adduci, Mastriani, & Schaumberg, L.L.P., of Washington, DC, argued for defendant-appellant Crawfish Processors Alliance. With him on the brief was WILL E. LEONARD.
Before RADER, Chief Judge, NEWMAN and REYNA, Circuit Judges.
REYNA, Circuit Judge.
I. BACKGROUND
This case arises out of Chez Sidney‘s attempt to obtain Byrd Amendment distributions under an antidumping duty order related to crawfish tail meat. The Byrd Amendment requires the ITC to send Customs an initial list of ADPs within 60 days after the issuance of an antidumping duty order. See
On September 20, 1996, the Crawfish Processors Alliance (“Alliance“) filed a petition with the Department of Commerce (“Commerce“) alleging dumping of crawfish tail meat from China.1 The ITC issued questionnaires to domestic crawfish producers, including Chez Sidney, during the preliminary phase of the investigation. In its completed response, Chez Sidney indicated that it supported the petition by checking the box labeled “support.” Although the record contains only two pages of the response, it is evident that missing portions of the response contained substantial information about the U.S. and Chez Sidney‘s crawfish production, as the ITC asks producers to supply detailed production, financial, and other information. After preliminarily determining that there was an indication of material injury to the domestic crawfish industry, the ITC sent final questionnaires to 47 firms identified as possible producers, including Chez Sidney. In its response to the final questionnaire, Chez
In October 2000, Congress enacted the Byrd Amendment. Pursuant to
The Commission has reconsidered your request to add PS Chez Sidney, LLC to the list of petitioners and other entities supporting petitions in the subject investigation and again finds that it is inappropriate to do so. Chez Sidney provided conflicting statements on its position with respect to the petition by indicating support for the petition in the preliminary phase of the investigation but changing its position to expressly “take no position” in the final phase of the investigation. Further, as the latter is the latest expressed position during the original investigation, under these circumstances the Commission does not find it to be appropriate to add Chez Sidney Seafood, Inc. (the company‘s name at the time) to the list.
J.A. 98. Customs likewise denied Chez Sidney‘s request for a Byrd Amendment distribution because the ITC had not added Chez Sidney to the list of eligible ADPs.
On October 2, 2002, pursuant to
Chez Sidney also moved for summary judgment on the grounds that the “support” requirement of the Byrd Amendment violated the First Amendment or, in the alternative, that the ITC had misinterpreted the Byrd Amendment when it found that Chez Sidney had failed to satisfy the support requirement. See id. at 1337-38. The Court of International Trade granted the motion, concluding that the Byrd Amendment violated the First Amendment. Id. at 1359-60. It declined to resolve the statutory argument, stating that it would not substitute its judgment for the ITC‘s regarding “the factual question of whether Chez Sidney indicated support for the subject petition.” Id. at 1332. The court certified the issue for immediate review and reserved the questions of severability and damages. Id. at 1359.
In July 2007, the Court of International Trade addressed the issues of severability and damages. PS Chez Sidney, L.L.C. v. U.S. Int‘l Trade Comm‘n (Chez II), 502 F. Supp. 2d 1318, 1320 (Ct. Int‘l Trade 2007). It determined that the unconstitutional sections of the Byrd Amendment were severable, id. at 1323, and struck the support requirement from the definition of an ADP in
Chez Sidney again appealed to the Court of International Trade, challenging Customs’ remand determination on three grounds: (1) that the proposed remedy was inadequate; (2) that Chez Sidney was entitled to pre- and post-adjustment interest on its pro rata shares; and (3) that Chez Sidney was entitled to post-2003 fiscal year Byrd Amendment distributions. The Court of International Trade affirmed, explaining that “Customs’ decision to . . . follow its internal administrative process to secure the funds with which to [pay Chez Sidney] is neither inconsistent with the court‘s remand instructions nor arbitrary and capricious.” Id. at 1375.
II. DISCUSSION
A.
When reviewing a Court of International Trade decision in an action initiated under
B.
We must examine whether Chez Sidney was an eligible ADP given that it filed preliminary and final questionnaire responses, indicating in its preliminary questionnaire response that it supported the petition but stating that it took no position in its final questionnaire response. Although the Court of International Trade treated the ITC‘s determination of Chez Sidney‘s ADP status as a question of fact, the issue before us—whether the ITC‘s determination was based on a proper interpretation of the Byrd Amendment—is a question of law which we review de novo. Cf. Bayer AG v. Schein Pharm., Inc., 301 F.3d 1306, 1312 (Fed. Cir. 2002). In light of SKF, we conclude that the ITC‘s original determination that Chez Sidney was not an ADP was contrary to law.
In our review of the ITC‘s interpretation of the Byrd Amendment, we are guided by the Supreme Court‘s decision in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). See Ad Hoc Shrimp Trade Action Comm. v. United States, 596 F.3d 1365, 1368 (Fed. Cir. 2010). The Chevron analysis has two steps. First, we must determine if there is an ambiguity in the statute such that an agency has room to interpret. If so, then we must determine whether the agency‘s action is a reasonable interpretation of Congress‘s intent. Chevron, 467 U.S. at 842-43.
We begin with the question of whether the language of
In this case, Chez Sidney submitted its response as a U.S. producer of crawfish tail meat in the preliminary stage of the investigation. Its response provided information sought by the ITC for use in making critical determinations, including standing and “like-product” determinations. Information provided by Chez Sidney was used along with other domestic producer information, such as that of the Alliance, to prepare the ITC staff report and the ITC‘s preliminary injury determination. In addition, Chez Sidney filed a response in the final phase of the investigation, providing information used by the ITC as a basis for its final injury determination. Such participation by domestic producers is essential to allow the ITC to successfully complete its investigations.
To the extent that any ambiguity existed in
On appeal, this court focused on SKF‘s contention that “the Byrd Amendment violate[d] the First Amendment because ‘a manufacturer who opposes an investigation is penalized . . . for expressing its views on the matter.‘” Id. at 1351. We noted that “if this were the purpose of the Byrd Amendment, it might well render the statute unconstitutional.” Id. To avoid this result, we concluded that the Byrd Amendment‘s purpose was not to prohibit opposing views but “to reward injured parties who assisted government enforcement of the antidumping laws by initiating or supporting antidumping proceedings.” Id. at 1352, 1353 n.25. This purpose had the additional benefit of furthering the statute‘s stated goals of strengthening the remedial purpose of the law by deterring continued dumping after the issuance of antidumping orders. See id.
Under this reading, it was necessary to limit the meaning of the term “support” so that it would not include the mere abstract expression of support. This raised the question of whether SKF, which had expressed its opposition to the petition, was nevertheless a supporter because it assisted the ITC‘s investigation by responding to questionnaires. We acknowledged that “those supporting a petition by completing a questionnaire may supply less assistance than petitioners.” Id. at 1358. However, focusing on the purpose of the statute to reward assistance to the government, we noted that “ITC questionnaires . . . are extremely detailed,” and that “the costs of responding to such questionnaires are substantial.” Id. Thus, in SKF, we “agree[d] with the Court of International Trade to the extent that it construed the Byrd Amendment to permit distributions to those who ‘participated‘,” noting that “[e]ach of the supporters in this case responded to an
Both the ITC and Customs contend that under SKF, a neutral party cannot be considered a supporter of a petition:
At best the role of parties opposing (or not supporting) the petition in responding to questionnaires is similar to the role of opposing or neutral parties in litigation who must reluctantly respond to interrogatories or other discovery. There is no suggestion that such parties must be favored by an award of attorney‘s fees or other compensation similar to that given to prevailing plaintiffs who successfully enforce government policy. It was thus rational for Congress to conclude that those who did not support the petition should not be rewarded.
Id. We are not persuaded. SKF did not address the proper result when, as here, a producer actively supports a petition by responding to questionnaires but, by checking a box, expresses in one of its responses that it supports the petition but in the other that it takes no
The legislative history of the Byrd Amendment supports an inclusive determination of ADPs. As we observed in SKF,
Congressional findings supporting the Byrd Amendment state that “United States unfair trade laws have as their purpose the restoration of conditions of fair trade” and that “injurious dumping is to be condemned.”
Pub. L. No. 106-387, § 1002, 114 Stat. at 1549A-72 ; see also 146 Cong. Rec. 23,117 (2000) (statement of Sen. Byrd) (describing the Byrd Amendment as necessary to “deter unfair trade practices“). These findings also state that “continued dumping . . . after the issuance of antidumping orders . . . can frustrate the remedial purpose of the laws” to the detriment of “domestic producers . . . small businesses and American farmers and ranchers” and that the “United States trade laws should be strengthened to seethat the remedial purpose of those laws is achieved.” Pub. L. No. 106-387, § 1002, 114 Stat. at 1549A-72-73 .
Id. at 1352. We agree with the Court of International Trade that the Byrd Amendment‘s legislative history generally “expresses Congressional intent to assist domestic U.S. industries injured by foreign dumping and subsidization.” Chez I, 442 F. Supp. 2d at 1338. Here, Chez Sidney is a U.S. producer of a like product under investigation and as such formed part of the U.S. industry found to be materially injured by import of dumped crawfish tail meat. There is no language within the legislative history to imply that the ITC should minimize the number of such domestic producers on its list. Rather, Congress emphasized the need to assist domestic producers. An inclusive reading of the Byrd Amendment furthers that goal.
We hold that when a U.S. producer assists investigation by responding to questionnaires but takes no other action probative of support or opposition, the producer has supported the petition under
We reject as unreasonable the ITC‘s interpretation of the “support” term in
With the foregoing in mind, we turn to the ITC‘s determination that Chez Sidney did not support the petition. The ITC based its denial of Chez Sidney‘s request to be added to the list of ADPs on the fact that Chez Sidney‘s “latest expressed position” was not in support of the petition. J.A. 98. It is evident that the ITC considered only the boxes Chez Sidney had checked in making its decision. As our discussion above illustrates, however, such an approach is unreasonable.
When asked what would have happened if Chez Sidney had not checked any box on the final questionnaire, the ITC stated that Chez Sidney‘s status as an ADP would “depend on the surrounding circumstances.” Oral Argument at 18:45. This is correct because it is the surrounding circumstances, not abstract statements of support alone, upon which an appropriate support determination depends. One such important circumstance is whether the producer has participated in the investigation by providing supporting information or arguments in a questionnaire response. Here, Chez Sidney provided sales, production, and other data to the ITC in both phases of the investigation. It also expressed abstract support in the preliminary response and took no position in its final response. Significantly, Chez Sidney did not fail to file responses to the questionnaires, it did not engage in activity in opposition to the petition, and it never expressed that it opposed the petition. Under these
C.
We turn next to the question of damages. Chez Sidney originally requested an injunction to prohibit Customs from distributing payments pending resolution of its case. See Chez I, 442 F. Supp. 2d at 1335. The injunction was denied, the funds were distributed, and Chez Sidney amended its complaint to request money damages.
As a preliminary matter, we must address an issue arising out of the somewhat unusual procedural posture of this case. After SKF was decided, we summarily reversed the Court of International Trade with respect to the constitutional issues in this case but allowed the parties to brief the non-constitutional issues. See PS Chez Sidney, L.L.C., 409 F. App‘x at 329. The issue of damages does not involve a constitutional question and was originally addressed in Chez Sidney‘s cross-appeal. Our order dismissed the cross-appeal, and we deemed it appropriate to reverse the order of the briefs, effectively placing Chez Sidney in the role of an appellant despite its status as an appellee. See id. Customs now argues that Chez Sidney cannot raise the issue of money damages because doing so would enlarge its rights as an appellee without having a cross-appeal before this court. See Bailey v. Dart Container Corp. of Mich., 292 F.3d 1360, 1362 (Fed. Cir. 2002). Under these circumstances, we do not believe that Chez Sidney‘s status as an appellee should preclude it from arguing for increased money damages.
Here, the question of entitlement to money damages is not focused on whether Chez Sidney should be awarded such damages, but on whether Customs’ conditional award of damages was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”
However, the cited regulation applies not to an ADP‘s recovery of funds from Customs, but to Customs’ recovery of funds from ADPs. To be sure,
III. CONCLUSION
For the foregoing reasons, the decision of the Court of International Trade is hereby
REVERSED-IN-PART, VACATED-IN-PART, AND REMANDED
COSTS
Each party shall bear its own costs.