SKF USA, INC., Plaintiff-Cross Appellant, v. UNITED STATES CUSTOMS AND BORDER PROTECTION, Defendant-Appellant, and United States International Trade Commission, Defendant-Appellant, and Timken U.S. Corporation, Defendant-Appellant, and United States, Robert C. Bonner, Commissioner, United States Customs and Border Protection, and Daniel R. Pearson, Chairman, United States International Trade Commission, Defendants.
Nos. 2008-1005, 2008-1006, 2008-1007, 2008-1008.
United States Court of Appeals, Federal Circuit.
Feb. 19, 2009.
556 F.3d 1337
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 was 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 Indianapolis, IN.
Patrick V. Gallagher, Jr., Attorney, 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.
Douglas W. Kmiec, Pepperdine University School of Law, of Malibu, California, argued for defendant-appellant Timken U.S. Corporation. With him on the brief were Terence P. Stewart, Amy S. Dwyer, and Patrick J. McDonough, Stewart and Stewart, of Washington, DC. Of counsel were Elizabeth J. Drake and Geert M. De Prest.
Joseph W. Dorn, King & Spalding LLP, of Washington, DC, for amicus curiae American Furniture Manufacturers Committee for Legal Trade. With him on the brief was Jeffrey M. Telep.
Gilbert B. Kaplan, King & Spalding LLP, of Washington, DC, for amicus curiae Micron Technology, Inc. With him on the brief were Jeffrey M. Telep and Tina M. Shaughnessy.
Jacques P. Soileau, Soileau Law Offices, of Breaux Bridge, Louisiana, for amicus curiae Pat Huval‘s Restaurant & Oyster Bar, Inc., et al.
John M. Gurley, Arent Fox LLP, of Washington, DC, for amicus curiae Koyo Corporation of U.S.A. With him on the brief was Nancy Noonan.
Michael T. Shor, Arnold & Porter LLP, of Washington, DC, argued for amici curiae Giorgio Foods, Inc., and PS Chez LLP. With him on the brief for amicus curiae PS Chez Sidney LLC was William Brown, of Cordova, Tennessee, and for Giorgio Foods, Inc., was Erum Mirza, Arnold & Porter LLP, of Washington, DC.
Before LINN and DYK, Circuit Judges, and STEARNS, District Judge.*
Opinion for the court filed by Circuit Judge DYK. Dissenting opinion filed by Circuit Judge LINN.
The Continued Dumping and Subsidy Offset Act of 2000 (the “Byrd Amendment“) provides for the distribution of antidumping duties collected by the United States to eligible “affected domestic producers” of the dumped goods.
In 2005 the United States International Trade Commission (“ITC“) and United States Customs and Border Protection (“Customs“) denied SKF USA‘s (“SKF‘s“) request for Byrd Amendment distributions, on the ground that SKF was not an eligible “affected domestic producer” because it had not been a petitioner and had not supported the petition resulting in the relevant antidumping duty order. SKF challenged this determination and the constitutionality of the Byrd Amendment in the Court of International Trade on First Amendment and equal protection grounds. The Court of International Trade held that the requirement that a claimant be a petitioner or “support” an antidumping petition violated “the Equal Protection guarantees under the Fifth Amendment to the Constitution,” and that the statutory language imposing this requirement was severable from the Byrd Amendment, making SKF potentially eligible to receive distributions. SKF USA Inc. v. United States, 451 F.Supp.2d 1355, 1366-67 (Ct. Int‘l Trade 2006).
On remand, the ITC and Customs determined that under the Court of International Trade‘s decision, SKF was eligible for Byrd Amendment distributions of approximately $1.4 million and that SKF‘s claims for additional distributions (made for the first time on remand) were not timely. The Court of International Trade upheld these remand determinations. See SKF USA Inc. v. United States, 502 F.Supp.2d 1325, 1328, 1334 (Ct. Int‘l Trade 2007). We reverse, because we conclude that the Byrd Amendment is constitutional.
BACKGROUND
I
The trade laws of the United States further the government‘s policy against the dumping of goods. The statutory definition of “dumping” is “the sale or likely sale of goods at less than fair value.”
The Department of Commerce (“Commerce“) calculates the “normal value” of the imported goods and compares that price with the price at which the imported goods are sold in the United States. See
The government almost always relies on petitioners to initiate antidumping proceedings. The regulations specifically state that “[t]he Secretary [of Commerce] normally initiates antidumping duty investigations based on petitions filed by a domestic interested party.”
If Commerce makes a final determination that “the subject merchandise is being, or is likely to be, sold in the United States аt less than its fair value,”2 and if the ITC makes a final determination that a U.S. industry has suffered or is threatened with material injury, Commerce issues an antidumping duty order.
The Byrd Amendment, enacted in 2000, requires that antidumping duties collected by Customs be distributed to “affected domestic producers” for “qualifying expenditures.”3 Continued Dumping and Subsi
II
On March 31, 1988, the Torrington Company (“Torrington“), a United States producer of antifriction bearings, filed a petition with Commerce and the ITC requesting the imposition of antidumping duties on imported antifriction bearings. See, e.g., Antifriction Bearings (Other than Tapered Roller Bearings) and Parts Thereof from France, 53 Fed.Reg. 15,074 (Dep‘t of Commerce Apr. 27, 1988) (initiation of antidumping duty investigation). The petition alleged that imported bearings were being sold or were likely to be sold at less than fair value and that these imports materially injured or threatened to materially injure a United States industry. The petition also alleged that imported bearings were being sold at dumping margins ranging from 1% to 355%. See, e.g., Antifriction Bearings (Other than Tapered Roller Bearings) and Parts Thereof from the Federal Republic of Germany, 53 Fed.Reg. 15,073 (Dep‘t of Commerce Apr. 27, 1988) (initiation of antidumping duty investigation); Antifriction Bearings (Other than Tapered Roller Bearings) and Parts Thereof from Japan, 53 Fed.Reg. 15,076 (Dep‘t of Commerce Apr. 27, 1988) (initiation of antidumping duty investigation). The petition was over 200 pages in length and included scores of pages of sales data collected from several countries, product descriptions and comparisons, detailed analysis of the U.S. antifriction bearing industry, and extensive proprietary financial data.
In response to the petition, Commerce and the ITC initiated antidumping duty investigations. See, e.g., Antifriction Bearings from France, 53 Fed.Reg. at 15,074. Commerce sent questionnaires to foreign manufacturers,6 and to domestic
Before making its final dumping determinations, Commerce also held several public hearings in February 1989, in which Torrington and other interested parties filed pre- and post-hearing briefs.8 Each hearing examined imports from a different country. Commerce ultimately determined that imported antifriction bearings were being or were likely to be sold at less than fair value. See, e.g., Antifriction Bearings (Other than Tapered Roller Bearings) and Parts Thereof from the Federal Republic of Germany, 54 Fed.Reg. 18,992 (Dep‘t of Commerce May 3, 1989) (final determinations of sales at less than fair value).
As part of its own investigation of the petition‘s allegations, the ITC sent detailed questionnaires to domestic ball bearing producers, seeking sales, employment, financial, and other data to help the ITC determine whether the domestic antifriction bearing industry had been materially injured (or threatened with material injury) by dumping. Eventually seven domestic companies, in addition to Torrington, supported the antidumping petition. See Distribution of Continued Dumping and Subsidy Offset to Affected Domestic Producers, 73 Fed.Reg. 31,196, 31,220-21 (U.S. Customs and Border Protection May 30, 2008) (notice of intent to distribute) (listing eight companies as affected domestic producers eligible for Byrd Amendment distributions of antifriction bearing antidumping duties). The questionnaire responses of these petition supporters were hundreds of pages long, and several of the supporters prepared responses exceeding 300 pages. The supporters supplied voluminous data in response to the ITC‘s questionnaires, including extensive price and shipment data, product specifications, customer lists, internal company reports, descriptions of competitors, and detailed market analyses. Since it was a domestic producer, SKF also responded to the ITC‘s questionnaire, but stated that it opposed the antidumping petition.
During its investigation of the petition‘s allegations, the ITC held two proceedings. On April 21, 1988, the ITC held a conference at which “all persons who requested
The ITC subsequently made a preliminary determination that there was a “reasonable indication that an industry in the United States is materially injured by reason of imports . . . of antifriction bearings.” Id. at 1-2. On March 30, 1989, the ITC held a public hearing in connection with its final antidumping determination, where again “all persons who requested the opportunity were permitted to appear in person or by counsel.” U.S. Int‘l Trade Comm‘n, Antifriction Bearings (Other than Tapered Roller Bearings) and Parts Thereof from the Federal Republic Of Germany, France, Italy, Japan, Romania, Singapore, Sweden, Thailand, and the United Kingdom: Final Determinations, at 6, Publication 2185 (May 1989). Petitioner Torrington participated in this hearing by submitting pre-hearing and post-hearing briefs, as well as by providing economic testimony during the hearing on March 30, 1989. Petitioner Torrington‘s pre-hearing brief was over 200 pages long, and the brief proposed findings of fact and provided detailed analyses of the data provided in responses to the ITC‘s questionnaires. Much of the ITC‘s preliminary and final determination reports were devoted to analysis of petitioner Torrington‘s arguments. The ITC‘s final determination was that the “industry in the United States is materially injured by reason of imports [of antifriction bearings] . . . which have been found by the Department of Commerce to be [dumped].” Id. at 2.
After the ITC‘s final material injury determination, Commerce issued antidumping duty orders against antifriction bearings imported from several countries, including Japan. These orders covered countries where SKF‘s affiliated companies manufactured antifriction bearings that later were sold in the U.S. for less than fair value. SKF‘s affiliated companies thus were subject to duties. See, e.g., Ball Bearings, Cylindrical Roller Bearings, and Parts Thereof from Sweden, 54 Fed.Reg. 20,907 (Dep‘t of Commerce May 15, 1989) (antidumping duty orders).
III
This case presents no questions concerning the existence of dumping, material injury, or the appropriate antidumping duty rate. Rather, the issue is the constitutionality of the Byrd Amendment. As noted earlier, the Byrd Amendment requires the duties collected under an antidumping duty order to be shared with the petitioner and other “affected domestic producers” that supported the corresponding antidumping petition.
On December 29, 2000, the ITC sent Customs the list of petitioners and petition supporters for еach antidumping duty order in effect on January 1, 1999, as required under
On March 1, 2005, for the first time, SKF asked the ITC to add SKF to its list of affected domestic producers under the antidumping duty order covering antifriction bearings from Japan.10 The ITC denied this request on April 20, 2005, explaining that the Byrd Amendment “allows for adding only those potentially eligible producers that indicated support of the petition by letter or through questionnaire response during the original investigation.” J.A. 66. The list of affected domestic producers under the Byrd Amendment for fiscal year 2005 was later published in the Federal Register, and SKF was not included. See Distribution of Continued Dumping and Subsidy Offset to Affected Domestic Producers, 70 Fed.Reg. 31,566 (U.S. Customs and Border Protection June 1, 2005). On July 13, 2005, SKF submitted a certification to Customs requesting Byrd Amendment distributions for fiscal year 2005. On July 15, 2005, Customs denied SKF‘s request because SKF did not appear on the ITC‘s list of affected domestic producers.
On October 3, 2005, SKF filed a complaint in the U.S. Court of International Trade, alleging that the Byrd Amendment and the determinations by the ITC and Customs that SKF did not qualify for 2005 Byrd Amendment distributions violated the First Amendment and equal protection guarantees of the U.S. Constitution. SKF subsequently moved for summary judgment on the agency record. SKF chal
SKF argued that the Byrd Amendment violates the Constitution‘s equal protection guarantees because, in light of the compensatory purpose of the Byrd Amendment, there is no rational basis for distributing antidumping duties only to domestic producers who supported an antidumping petition, and excluding similarly situated domestic producers who opposed or took no position on a petition. SKF also argued that the Byrd Amendment violates the First Amendment because it discriminates based on the viewpoint expressed by the party seeking to share in the distribution of antidumping duties.
The ITC and Customs (“the government“), supported by Timken U.S. Corporation (“Timken,” the successor to petitioner Torrington),11 urged that the Byrd Amendment was constitutional under both the First Amendment and equal protection. The government asserted that the Byrd Amendment “identifies a group of beneficiaries that are entitled to compensation for unfair trade practices” and therefore had a rational basis. Def.‘s Resp. to Pl.‘s Mot. J. Upon Agency R. 27. The government also asserted that the Byrd Amendment did not unconstitutionally restrict speech. Timken belatedly raised a statute of limitations defense, and the Court of International Trade declined to allow Timken to amend its answer to raise this issue. See SKF USA Inc. v. United States, No. 05-00542 (Ct. Int‘l Trade July 14, 2006) (Order).
On the merits, the Court of International Trade held that the Byrd Amendment‘s restriction of distributions to antidumping petition supporters violated the Constitution‘s equal protection guarantees, applied to the federal government through the Fifth Amendment. See SKF USA Inc., 451 F.Supp.2d at 1366. The court found that because the antidumping laws are designed to benefit entire industries rather than individual companies, and because dumping similarly injures all members of a domestic industry, parties who participate in antidumping investigations are similarly situated whether they support or oppose the antidumping petition being investigated. The court could not “discern a reasonable correlation between an entity‘s decision to support a petition and the gravity of the entity‘s injury.” Id. at 1362. Applying rational basis review, the Court of International Trade concluded that treating supporters and opposers of antidumping petitions differently was “not rationally connected to any legitimate objective” and thus that the Byrd Amendment unconstitutionally denied equal protection to SKF. Id. at 1362-63.
The court also held that the petition support requirement was severable from
The Court of International Trade remanded the case to Customs and the ITC “to review their decisions denying SKF [Byrd Amendment] disbursements.” Id. at 1367. Pursuant to the remand, Customs and the ITC determined that SKF
The parties timely appealed and cross-appealed to this court. The government and Timken appeal the Court of International Trade‘s decision that SKF is eligible to receive Byrd Amendment distributions, and SKF cross-appeals the Court of International Trade‘s decision that SKF did not timely file its amended certification requesting additional 2005 Byrd Amendment distributions.
DISCUSSION
I
We first address whether the Court of International Trade had jurisdiction to hear SKF‘s claims. “[E]very federal appellate court has a special obligation to ‘satisfy itself not only of its own jurisdiction, but also that of the lower courts in a cause under review. . . .‘” Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541, 106 S.Ct. 1326, 89 L.Ed.2d 501 (1986) (quoting Mitchell v. Maurer, 293 U.S. 237, 244, 55 S.Ct. 162, 79 L.Ed. 338 (1934)).
Under
SKF argues that the statute of limitations defense has been waived because it
Recently in John R. Sand & Gravel Co. v. United States, 128 S.Ct. 750, 169 L.Ed.2d 591 (2008), the Supreme Court addressed
We assume, but do not decide, that the statute of limitations in
SKF‘s claim for Byrd Amendment distributions could accrue only when suit could be filed. “A limitations period ordinarily does not begin to run until the plaintiff has a ‘complete and present cause of action.‘” Bay Area Laundry & Dry Cleaning Pension Trust Fund v. Ferbar Corp. of Cal., Inc., 522 U.S. 192, 195, 118 S.Ct. 542, 139 L.Ed.2d 553 (1997) (quoting Rawlings v. Ray, 312 U.S. 96, 98, 61 S.Ct. 473, 85 L.Ed. 605 (1941)) (holding that a cause of action does not accrue under a pension plan statute until the plan‘s trustees calculate payments and the payer then misses a scheduled payment). While SKF could have filed a facial challenge to the Byrd Amendment immediately after its enactment and could have filed suit before 2005 to challenge a pre-2005 fiscal year‘s distributions, here SKF could not file suit to recover fiscal year 2005 Byrd Amendment distributions until it was known whether Byrd Amendment distributions would be available.15 When either
The earliest SKF‘s claim could have accrued was when Customs published its notice of intent to distribute duties under Byrd Amendment for fiscal year 2005 and invited potentially eligible producers to file certifications requesting a share of the distributions. This notice, including the ITC‘s list of affected domestic producers potentially eligible to receive such distributions, was published in the Federal Register on June 1, 2005. See Distribution of Continued Dumping and Subsidy Offset to Affected Domestic Producers, 70 Fed.Reg. 31,566 (June 1, 2005). SKF filed its complaint on October 3, 2005, well within the two-year statute of limitations under
II
We have jurisdiction under
Although the Court of International Trade did not reach SKF‘s First Amendment claims, on appeal SKF urges its First Amendment theory as its primary ground for affirming the Court of International Trade‘s judgment.16 We first consider that question, recognizing in that connection our well established obligation to construe statutes to avoid constitutional difficulties.17 In performing this obligation, “every reasonable construction must be resorted to, in order to save a statute from unconstitutionality.” Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575, 108 S.Ct. 1392, 99 L.Ed.2d 645 (1988) (quoting Hooper v. California, 155 U.S. 648, 657, 15 S.Ct. 207, 39 L.Ed. 297 (1895)). Indeed, courts are obligated to adopt a saving con
In addressing the constitutionality of the Byrd Amendment, it is also important to keep in mind that the statute does not prohibit particular speech. Statutes that are prohibitory in nature are rarely sustained, and cases addressing the constitutionality of such statutes are of little assistance in determining the constitutionality of the far more limited provisions of the Byrd Amendment.
In considering limited provisions that do not ban speech entirely, the purpose of the statute is important. As the Supreme Court noted in Ward v. Rock Against Racism, in many contexts “[t]he government‘s purpose is the controlling consideration.” 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989). This is not to suggest that a benign purpose will necessarily save a statute,19 but a suppressive purpose may render it unconstitutional. Moreover, the legitimacy of a statute‘s purpose is important in a First Amendment analysis whether the appropriate test is strict scrutiny (requiring a determination of the state‘s compelling interest) or some lesser form of scrutiny (requiring a determination of the state‘s substantial interest).20 Thus, purpose is a critical question, and we must first determine the purpose of the Byrd Amendment.
The government contends that the Byrd Amendment was designed to compensate domestic producers injured by dumping. That is correct.21 The problem here is that that appears not to be the Byrd Amendment‘s only purpose. As the Court of International Trade correctly noted, the
The government disagrees, arguing that the statute‘s only purpose was to compensate those who are injured by dumping, and that the statute simply used petition support as a surrogate for injury. In other words, the government argues that the sole purpose of the Byrd Amendment‘s support requirement was to identify those producers suffering the greatest injury, asserting that the Byrd Amendment distributions are “not based upon the viewpoint expressed” in antidumping proceedings. Resp./Reply Br. of Def.-Appellant U.S. Customs & Border Protection at 15, 20. We find this suggestion simply implausible in light of the statute‘s explicit restriction that only “a petitioner or interested party in support of the petition,”
We turn then to the question of whether this subsidiary purpose renders the statute unconstitutional under the First Amendment.
SKF‘s theory is that the Byrd Amendment‘s restriction of distributions to antidumping petition supporters is impermissibly designed to penalize those who oppose antidumping petitions. SKF asserts that the Byrd Amendment “plainly discriminates among participants in an antidumping investigation on the basis of viewpoint by granting a financial benefit only to those domestic producers who publicly indicated support for a particular investigation.” Br. Pl.-Cross Appellant SKF USA Inc. 40 (internal quotation marks omitted). SKF argues that the Byrd Amendment violates the First Amendment because “a manufacturer who opposes an investigation is penalized . . . for expressing its views on the matter.” Id. As the dissent points out, Dissenting Op. at 1364, if this were the purpose of the Byrd Amendment, it might well render the statute unconstitutional under Supreme Court cases such as Speiser v. Randall, 357 U.S. 513, 529, 78 S.Ct. 1332, 2 L.Ed.2d 1460 (1958), Rosenberger v. Rector & Visitors of University of Virginia, 515 U.S. 819, 832, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995), and Legal Services Corp. v. Velazquez, 531 U.S. 533, 548, 121 S.Ct. 1043, 149 L.Ed.2d 63 (2001), each of which held unconstitutional the distribution of a government benefit designed to favor the speech preferred by the government.
However, this construction of the statute is not compelled or even supported by the available evidence. Neither the background of the statute, nor its articulated purpose, nor the sparse legislative history supports a conclusion that the purpose of the Byrd Amendment was to suppress expression.23 Parties who are
An alternative construction also exists that is both more consistent with the available evidence of legislative intent and may save the statute. Under this construction, the purpose of the Byrd Amendment‘s limitation of eligible recipients was to reward injured parties who assisted government enforcement of the antidumping laws by initiating or supporting antidumping proceedings. This interpretation is not only consistent with the statutory language but also is supported by the stated purpose to strengthen enforcement of the trade laws. 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 see that the remedial purpose of those laws is achieved.” Pub.L. No. 106-387, § 1002, 114 Stat. at 1549A-72-73.
The dissent rejects this interpretation, relying primarily on the govеrnment‘s representations at oral argument that the Byrd Amendment is not designed to reward those who assist in enforcement. Dissenting Op. at 1365-66. We disagree. First, the government‘s views that the Byrd Amendment was not designed to reward parties assisting the government is part and parcel of the government‘s unsuccessful effort in this litigation (at odds even with the government‘s position before the World Trade Organization)24 to suggest that the Byrd Amendment compensation scheme is only designed to compensate affected parties, a position which both the majority and the dissent reject.
Second, the views of the government as litigator are simply not binding on the issue of Congressional intent. Indeed, the Supreme Court has repeatedly rejected the government‘s litigation views in construing Congressional statutes. See, e.g., Cherokee Nation of Okla. v. Leavitt, 543 U.S. 631, 646-47, 125 S.Ct. 1172, 161 L.Ed.2d 66 (2005) (recognizing and then rejecting the government‘s interpretation of a statute); United States v. Reorganized CF & I Fabricators of Utah, Inc., 518 U.S. 213, 223-24, 116 S.Ct. 2106, 135 L.Ed.2d 506 (1996) (rejecting the government‘s interpretation of a tax statute).
Third, the government, while rejecting the reward construction, does not remotely support the dissent‘s suppression construction.
Fourth, and most importantly, the government‘s arguments cannot relieve us of our obligation to construe the Byrd Amendment to avoid a finding of unconstitutionality. This obligation extends to the ascertainment of a statute‘s purpose. Thus, for example, in United States ex rel. Attorney Gen. v. Delaware & Hudson Co., 213 U.S. 366, 29 S.Ct. 527, 53 L.Ed. 836 (1909), the Supreme Court rejected the government‘s interpretation of the statutory purpose, concluding that if the Court adopted the government‘s view of the “result intended to be accomplished” by the statute, the Court would need to address several “grave constitutional questions.” 213 U.S. at 404-05, 406 (1909). The Court upheld the statute by adopting a view of the purpose of the statute different from that of the government, noting that “where a statute is susceptible of two constructions, by one of which grave and doubtful constitutional questions arise and by the other of which such questions are avoided, our duty is to adopt the latter.” Id. at 408, 412. So too, in Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001), the Supreme Court upheld an immigration statute‘s civil detention provisions by interpreting them to be limited in scope in order to avoid “a serious constitutional problem.” Id. at 690. The Court concluded that there was no “clear indication of congressional intent” that the statute had only the purposes asserted by the government. Id. at 697. Here too, as we have discussed, the reward construction of the Byrd Amendment is reasonable.25
Finally, if we were to view this case as involving the construction of statutory language rather than an exercise in ascertaining statutory purpose, the result would be the same. The language of the Byrd Amendment is easily susceptible to a construction that rewards actions (litigation support) rather than the expression of particular views. Indeed, in some respects a limiting construction of the statute is necessary to сabin its scope so that it does not reward a mere abstract expression of support.26 The Supreme Court has frequently
We proceed to consider whether the reward construction would make the statute constitutional. To be sure, the reward construction does not render the First Amendment irrelevant. The Supreme Court has held that the First Amendment right to petition includes the right to petition the courts (and administrative agencies) for relief, so long as the petition is not objectively baseless. Thus, in BE & K Construction Co. v. NLRB, the Court held that the National Labor Relations Board could not impose liability on an employer for litigating an unsuccessful lawsuit against a union where the lawsuit was not objectively baseless, because such litigation was protected by the First Amendment. 536 U.S. 516, 529-30, 536-37, 122 S.Ct. 2390, 153 L.Ed.2d 499 (2002). In Professional Real Estate Investors, Inc. v. Columbia Pictures Industries, Inc., the Court held that the First Amendment barred the imposition of antitrust liability for commencing litigation that was not objectively baseless. 508 U.S. 49, 51, 56, 113 S.Ct. 1920, 123 L.Ed.2d 611 (1993); see also Cal. Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 510, 92 S.Ct. 609, 30 L.Ed.2d 642, (1972) (recognizing that the First Amendment right to petition extends to petitioning “administrative agencies . . . and to courts“).
Under that line of cases, we have little doubt that SKF‘s opposition to the antidumping petition here is protected First Amendment activity.27 But as the Supreme Court has made explicitly clear, its holding in BE & K Construction that litigation enjoys First Amendment protection does not suggest that it is unconstitutional to reward prevailing parties. The Court stated that “nothing in our holding today should be read to question . . . the validity of statutory provisions that merely authorize the imposition of attorney‘s fees on a losing plaintiff.” BE & K Constr., 536 U.S. at 537. Nor do the Supreme Court‘s cases suggest that an award of a portion of the government‘s recovery to a party assisting enforcement (while not rewarding those who oppose enforcement) would be unconstitutional. In other words, the First Amendment, at least in some circumstances, does not bar rewarding parties who assist the government in litigation, even if such rewards disadvantage a losing party that asserted an unsuccessful defense that is not objectively baseless.
At the same time, the Supreme Court‘s right to petition cases do not establish a standard for determining when such rewards would be permissible and when, if ever, they would be forbidden by the First Amendment. We think that rewarding those who support government enforcement is at least constitutional if those pro
Under Central Hudson, regulation of lawful and non-misleading commercial speech is permissible if (1) “the asserted governmental interest is substantial,” (2) “the regulation directly advances the governmental interest asserted,” and (3) the regulation “is not more extensive than is necessary to serve that interest.” Id. The Byrd Amendment satisfies this test, even if we view the Byrd Amendment as regulatory in nature.29
First, preventing dumping is a substantial government interest. Congress has broad powers under the Constitution to regulate trade. See
Second, the Byrd Amendment directly advances the government‘s substantial interest in trade law enforcement by rewarding parties who assist in this enforcement. The government has a substantial interest in rewarding those who assist in the enforcement of government policy. We are not aware of any Supreme Court case that rejects the legitimacy of such rewards. Indeed, given its limited resources, it is now common for the government to reward those who assist in enforcing government policies through litigation
The government‘s authority to reward those who assist in enforcement is generally unquestioned, and as discussed above, the Supreme Court‘s decision in BE & K Construction appears to conclude that such awards are generally permissible under the First Amendment. The Supreme Court‘s decision in Legal Services Corp. v. Velazquez is not to the contrary. In Velazquez, the Supreme Court invalidated Congressional restrictions that barred government-funded legal services attorneys “from arguing to a court that a state statute conflicts with a federal statute or that either a state or federal statute by its terms or in its application is violative of the United States Constitution.” 531 U.S. at 537. Velazquez hardly suggests that the government could not reward those who assist in supporting the validity of federal statutes. It rests entirely on the proposition that legal services lawyers did not perform that role. Rather they represented the interests of independent clients (who might or might not support the legislation) and not the interests of the government.32
In contrast, the Byrd Amendment—like qui tam proceedings, monetary awards of a portion of the government‘s recovery, and
The remaining question is whether the Byrd Amendment is overly broad. See Central Hudson, 447 U.S. at 566, 100 S.Ct. 2343. At oral argument SKF agreed that petitioners in antidumping proceedings supply substantial assistance to the government in enforcing the trade laws. While in theory Commerce may itself initiate an antidumping duty investigation under
The general role of an antidumping petitioner is to gather and present information reasonably available to it in order to support its allegations that dumping is occurring and materially injuring a domestic industry. See
However, SKF appears to contend that the government‘s interest does not extend to rewarding those who merely support the petition.36 The support requirement in the Byrd Amendment reflects the ITC‘s practice of asking questionnaire recipients to advise the ITC whether they support, oppose, or take no position on an antidumping petition. This support question is part of the ITC‘s material injury investigation and is not designed solely to determine eligibility for Byrd Amendment distributions. This practice indeed was established many years before the passage of the Byrd Amendment in 2000. See,
While those supporting a petition by completing a questionnaire may supply less assistance than petitioners, the Central Hudson test does not require perfect correspondence of means and ends. As the Supreme Court held in Board of Trustees of the State University of New York v. Fox, 492 U.S. 469, 480, 109 S.Ct. 3028, 106 L.Ed.2d 388 (1989), the “not more extensive than is necessary” portion of the Central Hudson test requires “a fit that is not necessarily perfect, but reasonable” and “leave[s] ... to governmental decisionmakers to judge what manner of regulation may best be employed.” See also Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47, 67, 126 S.Ct. 1297, 164 L.Ed.2d 156 (2006) (upholding a statute‘s “incidental burden on speech” under the First Amendment because “[i]t suffices that the means chosen by Congress add to the effectiveness of” the government‘s substantial interest, applying the expressive conduct test formulated in United States v. O‘Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968)); El Dia, Inc. v. P.R. Dep‘t of Consumer Affairs, 413 F.3d 110, 117 (1st Cir. 2005).
ITC questionnaires in particular are extremely detailed, requesting several years of data on a domestic producer‘s shipments, employment, sales, finances, pricing, customers, and competitors. See, e.g., U.S. Int‘l Trade Comm‘n, Generic U.S. Producer Questionnaire, available at http://www.usitc.gov/trade_remedy/731_ad_701_cvd/investigations/question/USProducerQuestionnaire.pdf. In proceedings before the World Trade Organization, the government has recognized that the costs of responding to such questionnaires are substantial. See Panel Report, United States—Continued Dumping and Subsidy Offset Act of 2000, ¶ 4.834, WT/DS217/R, WT/DS234/R, (Sept. 16, 2002), available at http://www.wto.org/english/tratop_e/dispu_e/217_234r_a_e.pdf (suggesting in a World Trade Organization proceeding that the cost of filing or supporting a U.S. antidumping petition would be “a million plus dollars“). The rеcord here demonstrates that petition supporters in the antifriction bearing antidumping investigation spent substantial sums preparing their questionnaire responses. Indeed, the government has gone so far as to suggest that Byrd Amendment distributions are not of sufficient size to adequately compensate those who support such petitions for their efforts. See id. (“The costs of participating in an investigation for an industry, already materially injured or threatened with material injury, could be far greater than the [potential Byrd Amendment] disbursements received years later.“).
To be sure, domestic industry participants opposing the petition are also required to fill out questionnaires, as SKF did in this case. However, Congress could permissibly conclude that it is not required to reward an opposing party.
Opposing parties’ interests lie in defeating the petition, typically (as is the case here) because the domestic industry participant is owned by a foreign company charged with dumping. Indeed, SKF here undertook a role that was nearly indistinguishable from that played by a defendant in a qui tam or attorney‘s fees
Opponents may equally impede the investigation simply by refusing to cooperate. This is recognized by the statute itself, which recognizes that such failure to cooperate is a serious problem, and allows Commerce and the ITC to use “facts otherwise available” in making antidumping determinations when a party “withholds information that has been requested,” “fails to provide such information,” “significantly impedes a proceeding,” or provides unverifiable information.
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. We emphasize again that Congress rewards only successful enforcement effort. Where the petition is unsuccessful, neither petition supporters nor opposers receive government payments under the Byrd Amendment.
III
Because it serves a substantial government interest, the Byrd Amendment is also clearly not violative of equal protection under the rational basis standard.
SKF‘s equal protection challenge to the Byrd Amendment is based on the Due Process Clause of the Fifth Amendment. See Bolling v. Sharpe, 347 U.S. 497, 498-99, 74 S.Ct. 693, 98 L.Ed. 884 (1954); see also Buckley v. Valeo, 424 U.S. 1, 93, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (“Equal protection analysis in the Fifth Amendment area is the same as that under the Fourteenth Amendment.” (citing Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n. 2, 95 S.Ct. 1225, 43 L.Ed.2d 514 (1975))). The applicable standard is rational basis review. See Hodel v. Indiana, 452 U.S. 314, 331, 101 S.Ct. 2376, 69 L.Ed.2d 40 (1981) (“Social and economic legislation ... that does not employ suspect classifications or impinge on fundamental rights must be upheld against equal protection attack when the legislative means are rationally related to a legitimate governmental purpose.“); see also FCC v. Beach Commc‘ns, Inc., 508 U.S. 307, 314, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993) (“The Constitution presumes that, absent some reason to infer antipathy, even improvident decisions will eventually be rectified by the democratic process and that judicial intervention is generally unwarranted no matter how unwisely we may think a political branch has acted.” (quoting Vance v. Bradley, 440 U.S. 93, 97, 99 S.Ct. 939, 59 L.Ed.2d 171 (1979))). We reject SKF‘s equal protection challenge because we find that the Byrd Amendment is rationally related to the government‘s legitimate purpose of rewarding parties who promote the government‘s policy against dumping. The Byrd Amendment does not violate the equal protection guarantees of the Fifth Amendment.
In light of our disposition of this case, SKF‘s claim that the Court of International Trade improperly denied SKF‘s amended certification is moot.
CONCLUSION
For the foregoing reasons, the decision of the Court of International Trade is reversed.
REVERSED
COSTS
No costs.
LINN, Circuit Judge, dissenting.
The so-called “petition support requirement” of the Byrd Amendment requires that a company publicly express “support of the petition” resulting in an antidumping duty order in order to be eligible to receive any funds collected as a result of the order.
The majority concedes that the petition support requirement implicates the First Amendment, but it concludes that the Byrd Amendment satisfies the test for regulation of commercial speech, because “reward[ing] injured parties who assisted government enforcement of the antidumping laws by initiating or supporting antidumping proceedings” is “similar to commercially contracting with them to assist in the performance of a government function.” Maj. Op. at 1352, 1355. I respectfully disagree.
The Byrd Amendment has nothing to do with rewarding helpfulness during trade investigations as the majority suggests. The majority errs by relying on the statutory construction doctrine of constitutional avoidance to graft its “reward” purpose onto the statute, when that purpose is not apparent in the statutory text or legislative history and has been expressly disclaimed by the government in this case. The majority compounds this error by using its “reward construction” of the petition support requirement to justify evaluating the constitutionality of the requirement under the more lenient commercial speech doctrine, when, in fact, the petition support requirement regulates pure political speech and—by the language of the statute itself—“petition[ing].” See
I
Under
Critically, an antidumping duty order is neither required nor even permitted in every case of dumping. As the majority correctly points out, “dumping” is merely “the sale or likely sale of goods at less than fair value.” Id. § 1677(34). But an antidumping duty order requires an additional finding of material injury to the domestic industry. The companies that make up the domestic industry may reasonably disagree as to whether particular dumping has “materially injured” the domestic industry as a whole. Indeed, recognizing the complex and somewhat subjective nature of the material injury requirement, we have held that the ITC “has broad discretion” in determining whether the domestic industry has been materially injured. Nucor Corp. v. United States, 414 F.3d 1331, 1336-37 (Fed. Cir. 2005) (concluding that ITC‘s methodology in assessing material injury is entitled to Chevron deference). Thus, one member of the domestic industry may honestly believe that the industry is not harmed by particular dumping, while another member may honestly believe that the industry has been harmed. It is the ITC‘s obligation to sort out these conflicting views in an antidumping duty investigation.
During the course of the ITC‘s investigation, the ITC submits questionnaires to domestic producers in the affected industry. As the majority notes, these questionnaires are “extremely detailed, requesting several years of data on a domestic producer‘s shipments, employment, sales, finances, pricing, customers, and competitors” and “the costs of responding to such questionnaires are substantial.” Maj. Op. at 1358. Yet all members of the domestic industry who receive such a questionnaire are required by law to complete it. See
The questionnaire includes various questions related to the harm that the member of the domestic industry has suffered as a result of alleged dumping. Specifically, the questionnaire includes question III-14, which asks whether the domestic company “experienced any actual negative effects on its return on investment or its growth, investment, ability to raise capital, existing development and production efforts (including efforts to develop a derivative or more advanced version of the product), or the scale of capital investments as a result of imports of” the allegedly dumped product. Id. at 13. Likewise, question III-15 asks whether the domestic company “anticipate[s] any negative impact of imports of” the allegedly dumped product. Id. Questions IV-20 and IV-21 also ask for detailed information about any lost revenues or lost sales as a result of dumping. Id. at 24-25.2
In addition to all of these questions about the harm that the alleged dumping has caused each domestic producer, the questionnaire includes, in its “General Information” section, question I-3, which asks simply “Do you support or oppose the petition?” Id. at 2. Question 1-3 offers three possible choices with corresponding checkboxes: “Support,” “Oppose,” and “Take no position.” Id. at 2.3 It is the domestic producer‘s response to this question that the ITC uses to determine wheth-
Notably, Commerce also uses responses to question I-3 to determine whether a petition seeking imposition of an antidumping duty is filed “on behalf of the industry“—as is required by
Under the Byrd Amendment, United States Customs and Border Protection (“Customs“) disburses duties collected pursuant to antidumping duty orders to “affected domestic producers” who submit a certification claiming that they have incurred certain specified types of expenditures. Id. § 1675c. Though the ordinary meaning of “affected domestic producer” would not seem to require that thе producer have taken any particular position in the antidumping duty investigation that resulted in the antidumping duty order, the Byrd Amendment includes a special definition of “affected domestic producer” that imposes just such a requirement:
The term “affected domestic producer” means any manufacturer, producer, farmer, rancher, or worker representative (including associations of such persons) that—
(A) was a petitioner or interested party in support of the petition with respect to which an antidumping duty order, a finding under the Antidumping Act of 1921, or a countervailing duty order has been entered, and
(B) remains in operation.
Id. § 1675c(b)(1) (emphasis added).
SKF participated in the investigation that led to the antidumping order at issue in this case, but SKF opposed the petition on the ground that the domestic industry was not being materially injured by dumping. The ITC disagreed with SKF and found material injury. But even though SKF is a member of the injured industry, SKF is precluded from receiving distributions by operation of the petition support requirement, as a result of expressing its view that an antidumping duty order should not be imposed.
II
The majority begins its First Amendment analysis by reciting the well known doctrine of constitutional avoidance, which holds that “[w]here an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress.” Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575, 108 S.Ct. 1392, 99 L.Ed.2d 645 (1988) (cited in Maj. Op. at 1349). Applying this doctrine, the majority concludes that the purpose of the Byrd Amendment was not, as the government argues, only “to compensate those who are
While the majority opinion is well written, thoughtful, and thorough, I respectfully disagree with several aspects of the majority‘s analysis. First, the majority focuses on the Byrd Amendment as a whole, rather than on the challenged portion of the Byrd Amendment—namely, the petition support requirement in the definition of “affected domеstic producer.” SKF does not challenge the constitutionality of imposing a duty on dumped goods that harm a domestic industry, nor does it challenge the constitutionality of distributing the duties collected as a result of antidumping orders to domestic producers. To the contrary, SKF challenges only the petition support requirement of
Second, in my view, the majority‘s undue focus on “determin[ing] the purpose of the Byrd Amendment,” Id. at 23, is inconsistent with the Supreme Court‘s First Amendment jurisprudence. The Supreme Court has made clear that it is a statute‘s effect on speech that matters, not its intended purpose. See Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 117, 112 S.Ct. 501, 116 L.Ed.2d 476 (1991) (“The Board next argues that discriminatory financial treatment is suspect under the First Amendment only when the legislature intends to suppress certain ideas. This assertion is incorrect; our cases have consistently held that illicit legislative intent is not the sine qua non of a violation of the First Amendment.” (internal quotation marks omitted)). The question is not whether Congress intended the Byrd Amendment to violate the First Amendment. The question is whether it does.
To be sure, determining whether the government interest served by a restric-
Third, I believe that the majority is incorrect in concluding that that purpose is to reward parties that assist the government in antidumping investigations. Id. at 1352 (“[T]he purpose of the Byrd Amendment‘s limitation of eligible recipients was to reward injured parties who assisted government enforcement of the antidumping laws by initiating or supporting antidumping proceedings.“). There is nothing in the statutory text or legislative history of the Byrd Amendment to suggest that its purpose was to reward assistance or cooperation with the government‘s investigation of dumping. To the contrary, the purpose of the Byrd Amendment was to compensate domestic producers injured by dumping. The text and structure of the statute itself makes that clear in specifying that distributions are made to “affected domestic producer[s]“—domestic producers that have been “affected” (i.e., injured) by dumping.
Moreover, the legislative history of the Byrd Amendment supports the view that its purpose was to compensate injured domestic producers: “Current law also does not contain a mechanism to help injured U.S. industries recover from the harmful effects of foreign dumping and subsidization.” 145 Cong. Rec. S497, 497 (1999)
I note further that the majority‘s “reward for assistance” rationale was not argued by either of the two government agencies that are parties to this appeal. To the contrary, the government argued that the purpose of the Byrd Amendment was solely compensation for injury, not reward for assistance: “Simply stated, as a supplement to unfair trade laws already in existence, in the [Byrd Amendment], Congress chose to provide a separate monetary remedy to a subset of domestic producers that were the most seriously injured by foreign unfair trade practices, and it rationally assumed that this subset of most-harmed producers would be those producers that had supported the petition.” Br. of Defendant-Appellant U.S. Customs & Border Protection at 20-21 (emphasis added). At oral argument, the government expressly and repeatedly rejected the court‘s suggestion that the Byrd Amendment was intended to reward parties for assisting the government. See Oral Arg. at 14:25-31, 15:18-23 available at http://oralarguments.cafc.uscourts.gov/mp3/2008-1005.mp3 (government responding to question about purpose of Byrd Amendment “to reward people who bring these antidumping petitions and those who support the petition” by stating that “[t]he purpose of this classification should not really be seen as one of rewarding“); id. at 25:15-31 (“There is nothing in that statute, your honor, that indicates any attempt to reward parties as opposed to provide a subsidy to American manufacturers who have been injured.“); id. at 1:03:42-1:04:36 (“The parties seem to be in agreement that this statute and the classification is really not that similar to the situation of relators in qui tam cases where they are providing a service to the government and receiving some amount by statute as a reward for having brought to the attention of the government fraud, waste, and abuse.“); see also id. at 23:34-24:03 (“It was ... apparent on the face of the findings of Congress that preceded the [Byrd Amendment] and also the floor statements of Senator DeWine and Senator Byrd that this was intended to be a remedial statute that was going to aid members of domestic industry that continue to be injured by dumping....“).
The majority dismisses the government‘s repeated statements rejecting the “reward for assistance” rationale.4 Specifically, the majority argues that “the views of the government as litigator are simply not binding on the issue of Congressional intent.” Maj. Op. at 1352. But—as the majority‘s own parenthetical summaries
In commercial speech cases, then, a four-part analysis has developed. At the outset, we must determine whether the expression is protected by the First Amendment. For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest.
Central Hudson, 447 U.S. at 566, 100 S.Ct. 2343 (emphases added). Thus, it is the government‘s asserted purpose—not the “reward for assistance” purpose expressly rejected by the government—that is relevant to the First Amendment analysis here. It is not the role of the court to substitute its judgment for that of the government and to decide which interest the government should have “asserted.”
The majority also relies heavily on the doctrine of constitutional avoidance, which it suggests “extends to the ascertainment of a statute‘s purpose.” Maj. Op. at 1353. The well-established “canon of constitutional avoidance” holds that “[w]here a possible construction of a statute would render the statute unconstitutional, courts must construe the statute ‘to avoid such problems unless such construction is plainly contrary to the intent of Congress.‘” Consolidation Coal Co. v. United States, 528 F.3d 1344, 1347 (Fed. Cir. 2008) (quot-
The majority, however, reasons that the doctrine of constitutional avoidance “extends to the ascertainment of a statute‘s purpose.” Maj. Op. at 1353. That is, in the majority‘s view, when evaluating whether a statute serves a compelling, substantial, or important government interest, the court should look not to the interest that is clear from the statutory text or legislative history, nor to the interest that the government actually puts forward during litigation, but rather to any interest that “would make the statute constitutional.” Id. at 1354. I respectfully disagree. While it is proper under rational basis review to evaluate whether any hypothetical interest would render a statute constitutional, under the heightened scrutiny required by the First Amendment, we evaluate only the government‘s actual, asserted interest. See, e.g., Thompson v. W. States Med. Ctr., 535 U.S. 357, 373-74, 122 S.Ct. 1497, 152 L.Ed.2d 563 (2002) (“The dissent describes another governmental interest.... Nowhere in its briefs, however, does the Government argue that this interest motivated the advertising ban. Although, for the reasons given by the dissent, Congress conceivably could have enacted the advertising ban to advance this interest, we have generally only sustained statutes on the basis of hypothesized justifications when reviewing statutes merely to determine whether they are rational. The Central Hudson test is significantly stricter than the rational basis test....” (citations omitted)); Edenfield v. Fane, 507 U.S. 761, 768, 113 S.Ct. 1792, 123 L.Ed.2d 543 (1993) (“Unlike rational-basis review, the Central Hudson standard does not permit us to supplant the precise interests put forward by the State with other suppositions.“). I cannot agree that the doctrine of constitutional avoidance allows us to ignore the government‘s asserted purpose and substitute our own when heightened First Amendment scrutiny applies.
Moreover, though the majority cites two cases for its theory that the doctrine of constitutional avoidance extends to the “ascertainment of a statute‘s purpose,” Maj. Op. at 1353, those cases actually involve the interpretation of statutory language—not the government interest served by the statute. In the pre-Lochner Delaware & Hudson case on which the majority principally relies, the Supreme Court did apply the principle of constitutional avoidance and make reference to the government‘s view concerning the “result intended to be accomplished” by the statutory provision at issue, but it did so solely for the purpose of construing disputed statutory language. See U.S. ex rel Attorney Gen. v. Del. & Hudson Co, 213 U.S. 366, 404-05, 29 S.Ct. 527, 53 L.Ed. 836 (1909) (“Let us, as a prelude to an analysis of the [statutory] clause, for the purpose of fixing its true construction, and determining the constitutional power to enact it when its signifi-
It also seems to me that the “reward for assistance” rationale for the Byrd Amendment makes little sense in light of the regulations governing the conduct of antidumping investigations. All members of the domestic industry who receive a questionnaire—whether they support the petition or not—are required to complete the questionnaire and to certify to its accuracy. Moreover, the ITC has the authority to subpoena any additional information that it needs from otherwise unwilling companies. See
The facts of this case illustrate why the purpose of the Byrd Amendment cannot have been the reward for assistance rationale that the majority suggests. The majority details the submissions that petitioner Torrington and petition supporters made during the investigation that led to the antidumping order in this case. See Maj. Op. at 1342 (noting that “the petition was over 200 pages in length“); id. at 1343-44 (“The questionnaire responses of these petition supporters were hundreds of pages long, and several of the supporters prepared responses exceeding 300 pages.“); id. at 11 (“Petitioner Torrington‘s pre-hearing brief was over 200 pages long....“). The majority also notes that “SKF also responded to the ITC‘s questionnaire, but stated that it opposed the antidumping petition,” id. at 1343, but what the majority fails to point out is that SKF‘s questionnaire responses also totaled more than 200 pages. See Preliminary and Final Responses of SKF USA, Inc.
To the extent that the majority recognizes SKF‘s participation in the antidumping investigation, the majority sees it as evidence against SKF, going so far as to suggest that SKF “impede[d] the investigation” by opposing it. See Id. at 39-40. However, SKF did nothing to impede, and merely expressed its view that the domestic industry was not being or about to be materially injured by the alleged dumping. SKF, like other petition opponents, submitted expert analysis and briefing supporting that view to the ITC. The majority does not suggest that SKF withheld any information or submitted any evidence or argument in bad faith. To the contrary, SKF‘s only “fault” was that the ITC ultimately disagreed with it and concluded that the domestic industry was, in fact, harmed—a decision that the ITC had not yet made at the time SKF opposed the petition, and a decision that we have held is firmly committed to the ITC‘s discretion. See Nucor, 414 F.3d at 1336 (noting ITC‘s “broad discretion” in assessing material injury). If taking an opposing view in a proceeding were tantamount to “impeding” an investigation, then every losing party in every action to which the government is a party (not to mention every criminal defense attorney) would be guilty of obstruction. SKF, acting in good faith, assisted in the antidumping investigation by complying with its obligation to submit detailed questionnaire responses, by submitting expert evidence and briefing, and by providing its honest viewpoint to the ITC. The only difference between SKF and the petition supporters was that SKF thought that the ITC should have come to a different conclusion. This illustrates precisely why rewarding petition supporters for their assistance in an investigation cannot have been the Byrd Amendment‘s purpose.
My fourth disagreement with the majority concerns its conclusion that the First Amendment test for commercial speech “seems appropriate” in this case. Citing Central Hudson, the majority concludes that the Supreme Court has “broadly defined ‘commercial speech’ as ‘expression related solely to the economic interest of the speaker and its audience.‘” Maj. Op. at 1355. But Central Hudson did not concern whether the speech at issue—advertising by an electric company—was or was not commercial. The parties agreed that the speech was commercial. Central Hudson, 447 U.S. at 560-61, 100 S.Ct. 2343. The case in which the Supreme Court actually considered the definition of commercial speech came three years later. In Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 62, 65-66, 103 S.Ct. 2875, 77 L.Ed.2d 469 (1983). The Supreme Court recognized that “the core notion of commercial speech [is] speech which does no more than propose a commercial transaction.” Id. at 66, 103 S.Ct. 2875 (internal quotation marks omitted).
The mere fact that these pamphlets are conceded to be advertisements clearly does not compel the conclusion that they are commercial speech. Similarly, the reference to a specific product does not by itself render the pamphlets commercial speech. Finally, the fact that [the manufacturer] has an economic motivation for mailing the pamphlets would clearly be insufficient by itself to turn the materials into commercial speech. The combination of all these characteristics, however, provides strong support for the District Court‘s conclusion that the informational pamphlets are properly characterized as commercial speech.
Id. at 66-67, 103 S.Ct. 2875 (citations omitted). The Court went on to say that “[a] company has the full panoply of protections available to its direct comments on public issues, so there is no reason for providing similar constitutional protection when such statements are made in the context of commercial transactions.” Id. at 68, 103 S.Ct. 2875. Thus, as one commentator has put it, speech is commercial under Bolger if: “(1) [i]t is an advertisement of some form, (2) it refers to a specifiс product, and (3) the speaker has an economic motivation for the speech.” Erwin Chemerinsky, Constitutional Law: Principles and Policies § 11.3.7.2.
The speech affected by the petition support clause is not commercial speech under Bolger. A statement compelled in response to an ITC questionnaire is not an advertisement, nor does it refer to a specific product. SKF may have had “an economic motivation” for answering the questionnaire, but, as Bolger makes clear, “an economic motivation ... would clearly be insufficient by itself to turn [speech] into commercial speech.” Bolger, 463 U.S. at 67, 103 S.Ct. 2875; see also Bigelow v. Virginia, 421 U.S. 809, 818, 95 S.Ct. 2222, 44 L.Ed.2d 600 (1975) (“The State was not free of constitutional restraint merely because appellant‘s motive or the motive of the advertiser may have involved financial gain. The existence of commercial activity, in itself, is no justification for narrowing the protection of expression secured by the First Amendment.” (citations and internal quotation marks omitted)). To the contrary, SKF‘s response to the question “Do you support or oppose the petition?” is precisely the kind of “direct comment[] on public issues” for which it has “the full panoply of protections available” under the First Amendment.5
Moreover, even if the majority were correct that the test for commercial speech is whether the regulated “expression re-
Further, it is noteworthy that the majority‘s view that the commercial speech test “seems appropriate” is not a view shared by any party to this case. Nowhere in any of its briefing does either the government or the ITC argue that the commercial speech doctrine is applicable. Moreover, appellant Timken expressly argues that the commercial speech doctrine is not applicable. See Response-Reply Br. of Defendant-Appellant Timken U.S. Corporation at 41 n. 48 (“Providing factual information to the ITC bears no resemblance to the concept of commercial speech, and, by definition, the [Byrd Amendment] does not involve the regulation of commercial speech, which has generally been defined as ‘speech proposing a commercial transaction.‘“). I agree with the parties that the commercial speech doctrine is inapplicable.
Fifth, even if the majority were correct that Central Hudson‘s test for the constitutionality of commercial speech were the correct test, I cannot agree with the majority that the petition support requirement would survive that test. In Central Hudson, the Supreme Court held that:
At the outset, we must determine whether the expression is protected by the First Amendment. For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest.
Central Hudson, 447 U.S. at 566, 100 S.Ct. 2343. Even assuming that the other elements of the Central Hudson test could be met, the petition support requirement cannot satisfy the final element, because it cannot be said to be “not more extensive than is necessary to serve [the asserted] interest.” Id.
Even if the interest served by the petition support requirement were the interest identified by the government—namely, “provid[ing] a separate monetary remedy to a subset of domestic producers that were the most seriously injured by foreign unfair trade practices,” Br. of Defendant-Appellant U.S. Customs & Border Protection at 20-21—I would still conclude that it fails to satisfy the first element of the Central Hudson test. It may be true that a party that is more seriously injured by dumping is more likely to check the “Support” box in response to question I-3 than a party that is less seriously injured. But Central Hudson requires more: that the regulation be not more extensive than necessary.
If the government interest is to compensate the most seriously injured domestic producers, the ITC could look to the detailed financial data provided in response to the rest of the questionnaire, determine for itself which producers are most seriously injured, and distribute collected duties accordingly. Because these better proxies exist (and, in fact, are already part of the questionnaire), the government is wrong to assert that a company‘s response to question I-3 places a burden on speech that is not more extensive than necessary to accomplish its goal of compensating the most seriously injured producers.
Sixth and finally, the majority‘s analogy to qui tam actions is simply inapposite. The primary federal qui tam statute is the False Claims Act,
The majority analogizes antidumping proceedings to qui tam actions, reasoning
By contrast, when a foreign company improperly dumps goods in the domestic market, the foreign company is the wrongdoer, and its victims are the members of the domestic industry. A petitioner brings an action on behalf of the injured domestic industry. Thus, an antidumping action by petition is an action by a representative (the petitioner) against a wrongdoer (the foreign company), on behalf of victims (the members of the domestic industry). In summary form:
| Representative | Wrongdoer | on behalf of | Victim | ||
|---|---|---|---|---|---|
| Qui tam | Plaintiff | v. | Defendant | on behalf of | Government |
| Antidumping investigation | Petitioner | v. | Foreign company | on behalf of | Domestic industry |
Two obvious distinctions are apparent. First, in qui tam proceedings it is the government—the victim—that willingly elects to share a portion of its compensation with the uninjured plaintiff representative, essentially as a bounty for bringing the action. But in an antidumping investigation, the government is not the injured party. It is the members of the domestic industry—not only including the petitioner and petition supporters, but also including all other domestic producers—that are injured and entitled to compensation for its injury.
Second, the majority is wrong to equate SKF to a defendant in a qui tam action. The defendant in a qui tam action is the wrongdoer—the company that violates the law. In an antidumping investigation, the role of the qui tam defendant is played by the foreign company that does the dumping. SKF was a victim of that dumping as one of the injured members of the domestic industry. In sum, the majority‘s analogy to qui tam proceedings is simply inapposite, and it cannot shield the petition support requirement from First Amendment scrutiny. The government recognized as much at oral argument, remarking that “[t]he parties seem to be in agreement that this statute and the classification is really not that similar to the situation of [plaintiffs] in qui tam cases.” Oral Arg. at 1:03:42-1:04:36.
III
In my view, the petition support requirement should be subjected to strict scrutiny as a content-based restriction on political speech in a public forum. The principles
Taken together, these principles establish—at an absolute minimum—that a regulation is subject to strict scrutiny if it denies a benefit on the basis of expression of a specific viewpoint on a political matter in a public forum. Cf. Lac Vieux Desert Band of Lake Superior Chippewa Indians v. Mich. Gaming Control Bd., 172 F.3d 397, 409-10 (6th Cir. 1999) (holding that ordinance that “grants benefits and imposes burdens according to whether an individual or entity sufficiently supported a particular political issue” was subject to strict scrutiny). I would conclude that the petition support requirement denies a benefit on the basis of expression of a viewpoint on a political matter in a public forum, and is therefore subject to strict scrutiny.
First, in my view, the petition support requirement is viewpoint discriminatory. Under the petition support requirement, a domestic company is ineligible for a distribution unless the company was in “support of the petition,” as indicated by its response to question I-3, “Do you support or oppose the petition?”
Second, the petition support requirement affects political speech. “Political speech, of course, is ‘at the core of what the First Amendment is designed to protect.‘” Morse v. Frederick, 551 U.S. 393, 127 S.Ct. 2618, 2626, 168 L.Ed.2d 290 (2007) (quoting Virginia v. Black, 538 U.S. 343, 365, 123 S.Ct. 1536, 155 L.Ed.2d 535 (2003)). Moreover, political speech is not merely advocacy on behalf of a particular candidate. Rather, it encompasses “the free discussion of governmental affairs. This of course includes discussions of candidates, structures and forms of government, the mаnner in which government is operated or should be operated, and all such matters relating to political processes.” Mills v. Alabama, 384 U.S. 214, 218-19, 86 S.Ct. 1434, 16 L.Ed.2d 484 (1966). In this case, the petition support require-
For the same reasons that it affects political speech, the petition support requirement implicates the First Amendment‘s Petition Clause. As the Supreme Court has explained:
The right to petition is cut from the same cloth as the other guarantees of [the First] Amendment, and is an assurance of a particular freedom of expression. In United States v. Cruikshank, 2 Otto 542, 92 U.S. 542, 23 L.Ed. 588 (1876), the Court declared that this right is implicit in “[t]he very idea of government, republican in form.” Id., at 552. And James Madison made clear in the congressional debate on the proposed amendment that people “may communicate their will” through direct petitions to the legislature and government officials. 1 Annals of Cong. 738 (1789).
McDonald v. Smith, 472 U.S. 479, 482, 105 S.Ct. 2787, 86 L.Ed.2d 384 (1985). By conditioning receipt of a benefit on the expression of a particular view to the governmental agency charged with making a decision, the petition support requirement necessarily impedes companies from “communicat[ing] their will” to the relevant government officials.
Third, the petition support requirement affects speech in a designated public forum. The government creates a designated public forum when it makes a space “generally available to a certain class of speakers.” Ark. Educ. Television Comm‘n v. Forbes, 523 U.S. 666, 679, 118 S.Ct. 1633, 140 L.Ed.2d 875 (1998). The ITC not only creates a designated public forum for domestic producers by inviting them to share their views on a petition, but it in fact requires them to do so. See
We are, of course, not the first court of appeals to consider the constitutionality of a government regulation that provides a benefit to a party as a reward for prior political expression. The closest analogous case in the regional circuits is the Sixth Circuit‘s decision in Lac Vieux Desert Band of Lake Superior Chippewa Indians v. Mich. Gaming Control Bd., 172 F.3d 397 (6th Cir. 1999), cert. denied, 536 U.S. 923, 122 S.Ct. 2589, 153 L.Ed.2d 779 (2002). In that case, two casino developers had spent substantial sums of money to advertise and
The majority dismisses Lac Vieux in a footnote, reasoning that it “did not reward the achievement of the enforcement of government policy through litigation, but instead involved ‘political support’ for legislative efforts.” Maj. Op. at 1356 n. 32. I agree that an ITC investigation is not an election by ballot initiative, but I do not think that this distinction is of any significance. “[T]he free discussion of governmental affairs” protected by the First Amendment encompasses more than merely campaigning. Mills, 384 U.S. at 218. Moreover, because the ITC requires domestic producers to provide their views on a petition and is required to take those views into account, the petition support requirement, like the ordinance in Lac Vieux, does concern a company‘s “political support” for a proposition (as in Lac Vieux) or a petition (as in this case).
I would conclude that because the petition support requirement is viewpoint discriminatory toward political speech in a public forum, it is subject to strict scrutiny. To survive, it must be “necessary to serve a compelling state interest and ... narrowly drawn to achieve that end.” Perry, 460 U.S. at 45, 103 S.Ct. 948. Even assuming that the interests asserted by the majority (reward for assistance) and the government (remedy for the most seriously injured domestic producers) were compelling, I cannot conclude that the petition support requirement is narrowly drawn to achieve either. As discussed in detail above, less restrictive means exist to achieve еither interest. See supra at 23-26. I would therefore conclude that the petition support requirement is unconstitutional.8
IV
Because I would affirm the judgment of the Court of International Trade that the petition support requirement is unconstitutional, I briefly address the remaining issues concerning severance and SKF‘s amended certification.
A. Severance
“[W]henever an act of Congress contains unobjectionable provisions separable from those found to be unconstitutional, it is the duty of this court to so declare, and to maintain the act in so far as it valid.” El Paso & N.E. Ry. Co. v. Gutierrez, 215 U.S. 87, 96, 30 S.Ct. 21, 54 L.Ed. 106 (1909).
There are two problems with Timken‘s proposed approach. First, it would run contrary to Congress‘s intent, clear from the face of the statute, to distribute collected duties to “affected domestic producers.” “[T]he touchstone for any decision about remedy is legislative intent, for a court cannot ‘use its remedial powers to circumvent the intent of the legislature.‘” Ayotte v. Planned Parenthood, 546 U.S. 320, 330, 126 S.Ct. 961, 163 L.Ed.2d 812 (2006) (quoting Califano v. Westcott, 443 U.S. 76, 94, 99 S.Ct. 2655, 61 L.Ed.2d 382 (1979) (Powell, J., concurring in part and dissenting in part)). Here, Congress‘s intent is clear from the overall structure of the Byrd Amendment. The Byrd Amendment authorizes distributions to “affected domestic producers.”
Plainly, Congress intended to distribute funds collected as a result of antidumping duty orders to more “affected domestic producers” than simply the petitioner who initiated the action. If Congress had intended to limit distributions to petitioners, the statute simply would have authorized distributions to “petitioners.” There would be no need for an elaborate definition of “affected domestic producer,” with its various requirements and exclusions. Congress‘s intent therefore must necessarily have been not to reward petitioners for assistance, but to provide a monetary remedy to injured members of the domestic injury, to offset the injuries caused by dumping. In fact, the very title оf the Byrd Amendment—the Continued Dumping and Subsidy Offset Act of 2000—evinces to this purpose. See also 145 Cong. Rec. S497, 497 (1999) (statement of Sen. DeWine) (“Current law also does not contain a mechanism to help injured U.S. industries recover from the harmful effects of foreign dumping and subsidization.“). It would be inconsistent with this intent to remedy the constitutional defects in the Byrd Amendment by limiting recovery to petitioners.
The second problem with Timken‘s approach is that it would not actually cure the First Amendment defect of the petition support requirement. Notably, Timken made its severance argument in the context of a finding by the Court of International Trade that the petition support requirement violated the Equal Protection Clause because it was not rationally related to a legitimate government purpose. While it might be true that limiting distributions to petitioners only—rather than petitioners and parties that supported the petition—might cure any problem that the petition support requirement had overcoming the rational basis test, the statute would still fail strict scrutiny under the First Amendment, even if severed as
B. SKF‘s Cross Appeal
SKF argues on cross appeal that the Court of International Trade was wrong to hold that Customs was not required to accept SKF‘s amended certification for fiscal year 2005 distributions under the Byrd Amendment. Customs rejected SKF‘s amended certification as untimely. “[T]his court reviews the trial court‘s decision de novo, reapplying the same standard utilized by that court“—here, the standard of review under the Administrative Procedure Act. Consol. Bearings Co. v. United States, 348 F.3d 997, 1004 (Fed. Cir. 2003). Under the Administrative Procedure Act:
The reviewing court shall— ... hold unlawful and set aside agency action, findings, and conclusions found to be
(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
(B) contrary to constitutional right, power, privilege, or immunity;
(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;
(D) without observance of procedure required by law; [or]
(E) unsupported by substantial evidence....
The timing of certifications pursuant to the Byrd Amendment is governed by Treasury regulations. “At least 90 days before the end of a fiscal year, Customs will publish in the Federal Register a notice of intention to distribute assessed duties received as the continued dumping and subsidy offset for that fiscal year.”
SKF admits that the certification that it submitted within the sixty-day time frame contained expenditure data only for a one manufacturing facility. It did not seek to amend its certification until after the Court of International Trade held that the petition support requirement was unconstitutional. SKF admits that its amended certification was untimely, but argues in essence that submitting a complete certification would have been futile, because “it was a foregone conclusion that Customs would reject SKF[‘s] certification.” Br. of Plaintiff-Cross Appellant SKF USA Inc.
I disagree. Plainly, SKF‘s certification was not futile, because the Court of International Trade, reviewing Customs‘s rejection of the certification, held that the Byrd Amendment was unconstitutional and, as a result, that Customs should not have rejected SKF‘s certification. If SKF believed when it filed its certification that its challenge to the constitutionality of the Byrd Amendment was worth consideration by Customs, the Court of International Trade, and this court, then SKF should have expended its own time and effort to provide a complete and timely certification for all of its expenses. I would affirm Customs‘s refusal to accept SKF‘s amended certification under the Administrative Procedure Act‘s standard of review.
* * *
For the foregoing reasons, I respectfully dissent.
Notes
(b) Definitions
As used in this section:
(1) Affected domestic producer
The term “affected domestic producer” means any manufacturer, producer, farmer, rancher, or worker representative (inсluding associations of such persons) that—
(A) was a petitioner or interested party in support of the petition with respect to which an antidumping duty order, a finding under the Antidumping Act of 1921, or a countervailing duty order has been entered, and
(B) remains in operation.
Companies, businesses, or persons that have ceased the production of the product covered by the order or finding or who have been acquired by a company or business that is related to a company that opposed the investigation shall not be an affected domestic producer.
. . . .
(4) Qualifying expenditure
The term “qualifying expenditure” means an expenditure incurred after the issuance of the antidumping duty finding or order or countervailing duty order in any of the following categories:
(A) Manufacturing facilities.
(B) Equipment.
(C) Research and development.
(D) Personnel training.
(E) Acquisition of technology.
(F) Health care benefits to employees paid for by the employer.
(G) Pension benefits to employees paid for by the employer.
(H) Environmental equipment, training, or technology.
(I) Acquisition of raw materials and other inputs.
(J) Working capital or other funds needed to maintain production.
(d) Parties eligible for distribution of antidumping and countervailing duties assessed
(1) List of affected domestic producers
The Commission shall forward to the Commissioner within 60 days after the effective date of this section in the case of orders or findings in effect on January 1, 1999, or thereafter, or in any other case, within 60 days after the date an antidumping or countervailing duty order or finding is issued, a list of petitioners and persons with respect to each order and finding and a list of persons that indicate support of the petition by letter or through questionnaire response. In those cases in which a determination of injury was not required or the Commission‘s records do not permit an identification of those in support of a petition, the Commission shall consult with the administering authority to determine the identity of the petitioner and those domestic parties who have entered appearances during administrative reviews conducted by the administering authority under section 1675 of this title.
The equivalent to this question that appeared in the version of the questionnaire that SKF completed in 1989 was question 1.2, which asked “Please indicate, by checking the appropriate box, the position that your firm takes with respect to the petition. (CHECK ONLY ONE)” and offered the choices “Supports the petition,” “Opposes the petition,” and “Does not wish to take a position on the petition.” See Final Questionnaire of SKF USA, Inc. at 6.