2008-1005 | Omnilex

Gesamter Gesetzestext

United States Court of Appeals for the Federal Circuit
2008-1005, -1006, -1007, -1008
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.
Herbert C. Shelley, Steptoe & Johnson LLP, of Washington, DC, argued for plaintiff-
cross appellant. With him on the brief were Alice A. Kipel and Susan R. Gihring.
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 Custom 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 Custom and Border Protection, of Indianapolis, Indiana.

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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.
Appealed from: United States Court of International Trade
Senior Judge Nicholas Tsoucalas

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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.
DYK, Circuit Judge.
* Honorable Richard G. Stearns, District Judge, United States District Court
for the District of Massachusetts, sitting by designation.
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. 19 U.S.C. § 1675c(a)
(2000). An “affected domestic producer” must be “a petitioner or interested party in
support of the petition with respect to which an antidumping duty order . . . has been
entered.” Id. § 1675c(b)(1)(A).
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

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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.” 19 U.S.C. § 1677(34).
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 id. §§ 1677(1), 1677b(a). If the sales price is below the
normal value, dumping has occurred. In turn, the ITC determines whether such
dumping has “materially injured” or threatened material injury to a United States
industry. Id. § 1673d(b)(1).
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
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domestic interested party.” 19 C.F.R. § 351.202(a). A petition must satisfy certain
requirements and be filed “by or on behalf of the industry.” 19 U.S.C. § 1673a(c)(1)(A).1
After the filing of a petition, Commerce sends questionnaires to foreign producers and
exporters to determine whether dumping has occurred. If there is a question as to the
adequacy of the petition, Commerce sends questionnaires to domestic industry
members as well. The ITC sends questionnaires to domestic producers, requesting
production and other data in order to assist it in determining whether the dumping
alleged in the petition has materially injured a domestic industry or has threatened it
with material injury. At least since 1988, the ITC questionnaires have asked whether
the recipient of the questionnaire supported, opposed, or took no position on the
petition. Commerce and the ITC rely heavily on information gleaned from responses to
their questionnaires.
If Commerce makes a final determination that “the subject merchandise is being,
or is likely to be, sold in the United States at 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. Id. § 1673d(a)(1), (b)(1),
(c)(2); see also 19 C.F.R. pt. 207; 19 C.F.R. §§ 351.205(a), 351.210(a). Such an order
1 This requires that “the domestic producers or workers who support the
petition account for at least 25 percent of the total production of the domestic like
product” and that “the domestic producers or workers who support the petition account
for more than 50 percent of the production of the domestic like product produced by that
portion of the industry expressing support for or opposition to the petition.” 19 U.S.C. §
1673a(c)(4)(A).
2 “Normal value” and “fair value” are for the most part synonymous.
Commerce regulations state that “‘[f]air value’ is a term used during an antidumping
investigation, and is an estimate of normal value.” 19 C.F.R. § 351.102(b)(22).
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imposes a duty “in an amount equal to the amount by which the normal value exceeds
the export price (or the constructed export price) for the merchandise.” 19 U.S.C.
§ 1673. Such duties are collected by Customs.
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 Subsidy Offset Act of 2000, Pub. L. No. 106-
3 The relevant portion of the Byrd Amendment, 19 U.S.C. § 1675c, reads:
(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 (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.
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.
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387, § 1001-1003, 114 Stat. 1549, 1549A-72–75 (codified at 19 U.S.C. § 1675c (2000)),
repealed by Deficit Reduction Act of 2005, Pub. L. 109-171, § 7601(a), 120 Stat. 4, 154
(Feb. 8, 2006; effective October 1, 2007).4 Under the Byrd Amendment, in order to
(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.
4 The Byrd Amendment was repealed in February 2006, but the repeal was
not retroactive. The repeal provisions stated that “[a]ll duties on entries of goods made
and filed before October 1, 2007 . . . shall be distributed as if [the Byrd Amendment] had
not been repealed.” Deficit Reduction Act of 2005, Pub. L. 109-171, § 7601(b), 120
Stat. 4, 154 (Feb. 8, 2006).
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qualify for distributions, a party must have been “a petitioner or interested party in
support of the petition,” and an interested party must have indicated that it supported a
particular antidumping petition “by letter or through questionnaire response” to the ITC.5
19 U.S.C. § 1675c(b)(1)(A), (d)(1).
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
5 The Byrd Amendment requires the ITC to prepare a “list of affected
domestic producers,” defined as “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.” 19 U.S.C. § 1675c(d)(1).
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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 industry
members as well “[i]n order to determine whether a major proponent of the domestic
industry opposes the petition.” Antifriction Bearings (Other than Tapered Roller
Bearings) and Parts Thereof from Italy, 53 Fed. Reg. 45,361, 45,362 (Dep’t of
Commerce Nov. 9, 1988) (prelim. determinations of sales at less than fair value).
Commerce subsequently determined that the majority of the domestic antifriction
bearing industry supported the petition.7
Before making its final dumping determinations, Commerce also held several
public hearings in February 1989, in which Torrington and other interested parties filed
6 The foreign manufacturers included, for example, SKF’s affiliated
companies such as SKF UK Limited in the United Kingdom and Aktiebolaget SKF in
Sweden. See, e.g., Antifriction Bearings (Other than Tapered Roller Bearings) and
Parts Thereof from the United Kingdom, 53 Fed. Reg. 45,312 (Dep’t of Commerce Nov.
9, 1988) (prelim. determinations of sales at less than fair value); Antifriction Bearings
(Other than Tapered Roller Bearings) and Parts Thereof from Sweden, 53 Fed. Reg.
45,319 (Dep’t of Commerce Nov. 9, 1988) (prelim. determinations of sales at less than
fair value).
7 See, e.g., Antifriction Bearings (Other than Spherical Plain and Tapered
Roller Bearings) and Parts Thereof from Italy and Spherical Plain Bearings and Parts
Thereof, from Italy, 54 Fed. Reg. 19,096, 19,097 (Dep’t of Commerce May 3, 1989)
(final determinations of sales at less than and not less than fair value) (determining that
petitioner had standing).
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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
8 See, e.g., Antifriction Bearings (Other than Spherical Plain Bearings and
Tapered Roller Bearings) and Parts Thereof from the United Kingdom and Spherical
Plain Bearings Parts Thereof from the United Kingdom, 54 Fed. Reg. 19,120, 19,121
(Dep’t of Commerce May 3, 1989) (final determinations of sales at less than and not
less than fair value) (“A public hearing was held on February 14, 1989.”); Antifriction
Bearings (Other than Needle Roller Bearings, Spherical Plain Bearings, and Tapered
Roller Bearings) and Parts Thereof from Sweden and Needle Roller Bearings and
Spherical Plain Bearings, and Parts Thereof, from Sweden, 54 Fed. Reg. 19,114 (Dep’t
of Commerce May 3, 1989) (final determinations of sales at less than and not less than
fair value) (“A public hearing was held on February 9, 1989.”).
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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
opportunity were permitted to appear in person or by counsel.” See 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: Preliminary Determinations, at 3,
Publication 2083 (May 1988). The ITC’s report indicates that Torrington, the petitioner,
appeared at the conference through counsel, assisted in the investigation, and
submitted a post-conference brief providing over 120 pages of arguments, rebuttal, and
analysis of the issues raised at the conference. See id. at A-62 n.1 (“The petitioner . . .
identified about 20 specific bearing products for which it reportedly encounters
significant import competition. . . . With the help of the petitioner, the [ITC] staff selected
6 of these products to request pricing data.”).
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
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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
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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.
19 U.S.C. § 1675c(a), (b)(1). The Byrd Amendment requires the ITC to prepare a list of
the affected domestic producers that petitioned for or supported each existing
antidumping duty order, and directs Customs to pay qualifying producers a pro rata
share of the collected antidumping duties each year to the extent of their qualifying
expenditures. See id. § 1675c(d).9
On December 29, 2000, the ITC sent Customs the list of petitioners and petition
supporters for each antidumping duty order in effect on January 1, 1999, as required
under § 1675c(d)(1) of the Byrd Amendment. In August 2001, Customs published a
notice of intent to distribute fiscal year 2001 Byrd Amendment funds that included the
current list of these eligible affected domestic producers and invited them to file
certifications to obtain distributions. See Distribution of Continued Dumping and
Subsidy Offset to Affected Domestic Producers, 66 Fed. Reg. 40,782 (U.S. Customs
and Border Protection Aug. 3, 2001). SKF did not appear on the list and did not request
to be added to the list. In July 2002, Customs published a similar notice and list for
distributions of fiscal year 2002 Byrd Amendment funds. See Distribution of Continued
Dumping and Subsidy Offset to Affected Domestic Producers, 67 Fed. Reg. 44,722
9 Producers who did not appear on the ITC’s original list of an antidumping
duty order’s affected domestic producers can join the list under limited circumstances,
such as by acquiring a company that was on the original list or by waiving the
confidentiality of their support of the original petition. See 19 C.F.R. § 159.61(b)(1)(i);
Cathedral Candle v. U.S. Int’l Trade Comm’n, 400 F.3d 1352, 1358-59 (Fed. Cir. 2005)
(noting that producers were added to a Byrd Amendment distribution list after waiving
the confidentiality of their support for the original antidumping petition).
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(U.S. Customs and Border Protection July 3, 2002). SKF did not appear on or
challenge this list. In July 2003, Customs published the notice and eligibility list for
distributions of fiscal year 2003 Byrd Amendment funds. See Distribution of Continued
Dumping and Subsidy Offset to Affected Domestic Producers, 68 Fed. Reg. 41,597
(U.S. Customs and Border Protection July 14, 2003). Again, SKF did not appear on or
challenge this list.
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.
10 Since that time, SKF has claimed that it is entitled to 2004 distributions.
On September 29, 2006, SKF filed a complaint against Customs and the ITC in the
Court of International Trade seeking 2004 Byrd Amendment distributions. Compl.,
Court No. 06-00328 (Ct. Int’l Trade September 29, 2004) (later consolidated into
Consol. Court No. 06-00290). The government urges this claim is untimely. SKF also
is seeking 2006 distributions. Compl., Court No. 07-000035 (Ct. Int’l Trade February 5,
2007).
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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 challenged the
distribution of duties collected pursuant to the antidumping orders covering ball bearings
from several countries, or, in the alternative, of only the duties collected pursuant to the
antidumping order covering ball bearings from Japan.
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
11 When Timken acquired Torrington in 2003, Timken became an affected
domestic producer eligible to receive antifriction bearing Byrd Amendment distributions.
See SKF USA Inc., 451 F. Supp.2d at 1363.
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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
§ 1675c(b)(1) of the Byrd Amendment. The effect was to replace the words “in support
of the petition” with the words “in a petition” in § 1675c(b)(1)(A), and thus to define an
“affected domestic producer” as “a petitioner or interested party in a petition with respect
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to which an antidumping duty order, a finding under the Antidumping Act of 1921, or a
countervailing duty order has been entered.” Id. at 1365.
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 was eligible to
receive over $1.4 million in 2005 Byrd Amendment distributions under the antidumping
duty order covering antifriction bearings from Japan. On review of these remand
determinations, SKF argued that it was entitled to additional 2005 distributions, including
distributions from antidumping duty orders involving antifriction bearings imported from
additional countries. The Court of International Trade held that Customs and the ITC
had complied with the remand. The court also held that SKF’s certifications requesting
additional 2005 distributions were untimely, because 19 C.F.R. § 159.63(a) requires
certifications to be filed within sixty days of Customs’ notice of intent to distribute Byrd
Amendment funds for a particular fiscal year, and SKF’s additional certifications were
filed more than a year after Customs’ July 2005 notice. See SKF USA Inc., 502 F.
Supp. 2d at 1334.
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.
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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 (1986) (quoting Mitchell
v. Maurer, 293 U.S. 237, 244 (1934)).
Under 28 U.S.C. § 1581(i), “the Court of International Trade shall have exclusive
jurisdiction of any civil action commenced against the United States” arising from “tariffs,
duties, fees, or other taxes on the importation of merchandise for reasons other than the
raising of revenue” and their “administration and enforcement.” However, an action
under 28 U.S.C. § 2636(i) is “barred unless commenced in accordance with the rules of
the court within two years after the cause of action first accrues.” The government and
Timken both argue that SKF’s challenge was untimely but on different theories. The
government asserts that SKF’s cause of action accrued either in December 2000 when
the ITC sent to Customs the list of affected domestic producers, or in August 2001 when
Customs published the list of affected domestic producers. Timken, in contrast,
contends that SKF’s cause of action accrued either when the Byrd Amendment was
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enacted on October 28, 2000, or in August 2001 when the ITC’s list of affected
domestic producers was published.12
SKF argues that the statute of limitations defense has been waived because it
was not timely raised in the Court of International Trade.13 The ITC and Timken argue
that the statute of limitations is jurisdictional rather than an affirmative defense and thus
can be raised for the first time on review.
Recently in John R. Sand & Gravel Co. v. United States, the Supreme Court
addressed 28 U.S.C. § 2501, the statute of limitations for bringing claims in the Court of
Federal Claims. 128 S. Ct. 750 (2008). The Supreme Court held that because § 2501
is jurisdictional, it requires “sua sponte consideration” by courts even when a party
waives the issue of timeliness. Id. at 752. In holding § 2501 to be jurisdictional, the
Supreme Court distinguished between statutes of limitations that are affirmative
12 The parties devote considerable attention to debating whether SKF’s
cause of action falls under the continuing claim doctrine, which recognizes that under
some circumstances a new cause of action accrues each time a periodic payment is
denied, even though some antecedent event determined the right to the payment. See,
e.g., Hatter v. United States, 203 F.3d 795, 797-98, 800 (Fed. Cir. 2000) (en banc), aff’d
in part, rev’d in part 532 U.S. 557 (2001) (holding that where pursuant to statute taxes
were withheld from judicial paychecks, a separate cause of action accrued with each
individual paycheck under the continuing claim doctrine); Brown Park Estates-Fairfield
Dev. Co. v. United States, 127 F.3d 1449, 1455-58 (Fed. Cir. 1997) (holding that a claim
was untimely because the cause of action accrued when the government
administratively made an allegedly improper rent adjustment, and that later payments
based on the earlier adjustment did not create separate causes of action under the
continuing claim doctrine). The continuing claim cases are not, however, concerned
with the question here—namely, whether a claim can accrue before the amount of the
recovery can be calculated.
13 Rule 8(d) of the Rules of the Court of International Trade requires a party
to raise any statute of limitations defense in its answer. See Ct. Int’l Trade R. 8(d)
(2002) (amended November 25, 2008; effective January 1, 2009) (“In pleading to a
preceding pleading, a party shall set forth affirmatively . . . statute of limitations . . . and
any other matter constituting an avoidance or affirmative defense.”).
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defenses and those that are jurisdictional, describing jurisdictional statutes of limitations
as “seek[ing] not so much to protect a defendant’s case-specific interest in timeliness as
to achieve a broader system-related goal.” Id. at 753.
We assume, but do not decide, that the statute of limitations in § 2636(i) is
jurisdictional under John R. Sand & Gravel Co. We hold that the filing of SKF’s
complaint was timely in any event because the cause of action did not accrue until June
1, 2005.14
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 (1997) (quoting Rawlings v.
Ray, 312 U.S. 96, 98 (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
14 While the two-year statute of limitations applies to constitutional claims for
monetary recovery, see Stone Container Corp. v. United States, 229 F.3d 1345, 1349-
50 (Fed. Cir. 2000), we also need not decide whether the statute of limitations here
applies to facial constitutional claims. Some cases have suggested that a limitations
period could not apply to facial First Amendment claims. See Maldonado v. Harris, 370
F.3d 945, 955 (9th Cir. 2004), cert. denied 544 U.S. 968 (2005) (“We join the Fourth
Circuit in expressing serious doubts that a facial challenge under the First Amendment
can ever be barred by a statute of limitations.” (citing Nat’l Adver. Co. v. City of Raleigh,
947 F.2d 1158, 1168 (4th Cir. 1991))).
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Amendment distributions would be available.15 When either the Byrd Amendment was
passed in 2000 or when the list of eligible affected domestic producers was prepared or
published in 2000 or 2001, it was not known whether there would be Byrd Amendment
distributions available in 2005. For instance, Commerce could have reviewed and
revoked the antidumping duty order, and then there would have been no collected
duties to distribute. There might have been no imports of antifriction bearings in 2005
subject to the order, and thus no duties would have been collected. SKF also could not
file suit to recover fiscal year 2005 Byrd Amendment distributions until SKF knew it had
incurred qualifying expenditures during that fiscal year.
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
§ 2636(i). Thus the Court of International Trade’s jurisdiction over SKF’s claims was not
time-barred.
15 See also Bianchi v. United States, 475 F.3d 1268, 1274 (Fed. Cir. 2007)
(determining that a cause of action seeking royalties had accrued when the amount of
royalties was calculated); Hopland Band of Pomo Indians v. United States, 855 F.2d
1573, 1577 (Fed. Cir. 1988) (“It is generally stated that a claim ‘first accrues’ when all
the events have occurred which fix the alleged liability of the defendant and entitle the
plaintiff to institute an action.” (citing Japanese War Notes Claimants Assoc. of the Phil.,
Inc. v. United States, 373 F.2d 356, 358 (1967), cert. denied, 389 U.S. 971 (1967))).
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II
We have jurisdiction under 28 U.S.C. § 1295(a)(5), and our review of statutory
and constitutional issues is de novo. See U.S. Shoe Corp. v. United States, 296 F.3d
1378, 1381 (Fed. Cir. 2002).
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 (1988) (quoting Hooper v. California, 155 U.S. 648, 657 (1895)). Indeed,
courts are obligated to adopt a saving construction even when the interpretation finds
16 We also note that another decision of the Court of International Trade held
that the support requirement of the Byrd Amendment violates the First Amendment.
See PS Chez Sidney, LLC v. U.S. Int’l Trade Comm’n, 442 F. Supp. 2d 1329, 1358-59
(Ct. Int’l Trade 2006). Appeals to our court from that decision have been stayed
pending the outcome of this case.
17 See United States ex rel. Attorney Gen. v. Del. & Hudson Co., 213 U.S.
366, 408 (1909) (“[W]here 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.”); see also Edward J. DeBartolo
Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988)
(“[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.”).
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little support in the literal language of the statute.18 While we need not go so far to
sustain the statute here, contrary to the dissent, the doctrine of constitutional avoidance
is not “irrelevant,” Dissenting Op. at 15, but lies at the heart of our obligation as a
reviewing court.
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 (1989). This is not to suggest that a benign purpose will necessarily save a
18 For example, in United States v. X-Citement Video, Inc., 513 U.S. 64
(1994), the Supreme Court construed the Protection of Children Against Sexual
Exploitation Act of 1977 to require scienter regarding the age of performers, despite the
lack of support for this construction given by a grammatical reading of the statute, in
order to avoid “serious constitutional doubts.” Id. at 78. In NLRB v. Catholic Bishop of
Chicago, 440 U.S. 490, (1979), the Supreme Court avoided constitutional questions by
construing the National Labor Relations Act not to confer Board jurisdiction over
teachers in church-operated schools, in light of “the absence of a clear expression of
Congress’ intent” to do so, id. at 507, and despite the “[a]dmittedly . . . very broad terms”
of the statute, id. at 504. Also, in International Association of Machinists v. Street, 367
U.S. 740 (1961) the Court construed the Railway Labor Act as not giving unions the
power to use a member’s dues to support political causes over the member’s objection,
in order to “avoid serious doubt” about the statute’s constitutionality, without any basis in
the statute’s text. Id. at 749, 768-69.
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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 statute did not compensate all injured domestic
producers, but only those who filed an antidumping petition and those who supported it.
See SKF USA Inc., 451 F. Supp. 2d at 1361-62.
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
19 See Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd.,
502 U.S. 105, 117 (1991) (“[O]ur 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)).
20 See, e.g., Simon & Schuster, 502 U.S. at 118-19, 123 (addressing
compelling interests).
21 See Huaiyin Foreign Trade Corp. (30) v. United States, 322 F.3d 1369,
1380 (Fed. Cir. 2003) (noting that under the Byrd Amendment antidumping duties “bear
less resemblance to a fine payable to the government, and look more like compensation
to victims of anticompetitive behaviors”); 146 Cong. Rec. 23,117 (2000) (statement of
Sen. Byrd) (describing the Byrd Amendment as designed in part for “compensation to
U.S. industries” and providing a way for U.S. industries “to recover monetarily” from
“losses sustained as a result of unfair foreign trade practices”).
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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,” 19 U.S.C. § 1675c(1)(A), may receive Byrd
Amendment distributions, the absence of any evidence in the legislative history that the
support requirement was designed as a proxy for injury, and the availability of far more
direct and accurate methods of measuring injury.22
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
22 Indeed, the ITC itself determines that parties may suffer material injury
even though they have not supported a petition. See U.S. Int’l Trade Comm’n, Certain
Bearings From China, France, Germany, Hungary, Italy, Japan, Romania, Singapore,
Sweden, and the United Kingdom (Review), at 46, Publication 3309 (June 2000) (“The
level or extent of industry support for continuation of an [antidumping] order alone
cannot be dispositive, for we . . . are required to assess independently whether
revocation [of the order] is likely to result in the continuation or recurrence of material
injury.”).
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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 9, 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 (1958), Rosenberger v. Rector & Visitors of University of
Virginia, 515 U.S. 819, 832 (1995), and Legal Services Corp. v. Velazquez, 531 U.S.
533, 548 (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 awarded antidumping
distributions under the Byrd Amendment may say whatever they want about the
government’s trade policies generally or about the particular antidumping investigation,
provided they do so outside the context of the proceeding itself. Even within the
proceeding, the Byrd Amendment does not prohibit opposing views but merely
promotes the efforts of those who support enforcement.
An alternative construction also exists that is both more consistent with the
available evidence of legislative intent and may save the statute. Under this
23 There is nothing in the legislative history of the Byrd Amendment to
suggest that its purpose was to suppress expression. The legislative history addresses
the primary purpose of the Byrd Amendment, to compensate injured parties. See 146
Cong. Rec. 23,117 (2000) (statement of Sen. Byrd) (referring to “our injured domestic
industries” and describing the Byrd Amendment as designed in part to “help injured U.S.
industries recover”).
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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 government’s
representations at oral argument that the Byrd Amendment is not designed to reward
those who assist in enforcement. Dissenting Op. at 11-12. 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
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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 (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 (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 General v. Delaware & Hudson Co., 213 U.S. 366
(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
24 See Panel Report, United States—Continued Dumping and Subsidy Offset
Act of 2000, ¶ 4.502, 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 (stating as the United
States position in a World Trade Organization proceeding that the Byrd Amendment
“has nothing to do with the administration of the anti-dumping and countervailing duty
laws” and that “[t]he amount of the [Byrd Amendment] distributions have [sic] nothing to
do with the injury to the domestic producer or the recovery of ‘damages’ by the domestic
producer”).
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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 (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.
25 Relying on Thompson v. Western States Medical Center, 535 U.S. 357
(2002), the dissent suggests that only interests asserted by the government in litigation
may be considered. Dissenting Op. at 15-16. Western States stands for no such
proposition. There the statute was on its face designed to (and did) prohibit speech.
The Court declined to consider a justification for the prohibition that was not supported
by the legislative history or the government in argument. See Western States, 535 U.S.
at 373-74. Here there is no prohibition, and in addressing the constitutional question we
are left to choose between two constructions, neither of which is urged by the
government: a purpose to suppress expression, or a purpose to reward assistance.
Nothing in Western States remotely suggests that we can or should adopt the
construction that renders the statute unconstitutional and that is less likely in light of the
statute’s history.
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Indeed, in some respects a limiting construction of the statute is necessary to cabin its
scope so that it does not reward a mere abstract expression of support.26 The Supreme
Court has frequently adopted limiting constructions of statutory language not suggested
by the government. For example, the Court in DeBartolo adopted a limiting construction
of a provision of the National Labor Relations Act despite the broad construction urged
by the Board. See DeBartolo, 485 U.S. at 575; see also United States v. Int’l Bus.
Machs. Corp., 517 U.S. 843, 868 (1996) (Kennedy, J., dissenting) (“We have not
considered ourselves foreclosed from adopting saving constructions the parties failed to
suggest.”).
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 (2002). In Professional Real Estate
26 Thus, we construe the Byrd Amendment’s language providing for
payments to a “petitioner or interested party in support of the petition” to only permit
distributions to those who actively supported the petition (i.e., a party that did no more
than submit a bare statement that it was a supporter without answering questionnaires
or otherwise actively participating would not receive distributions). In other words, we
agree with the Court of International Trade to the extent that it construed the Byrd
Amendment to permit distributions to those who “participated.” SKF USA Inc., 451 F.
Supp. 2d at 1365. Each of the supporters in this case responded to an ITC
questionnaire and thus participated actively in the proceeding.
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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 (1993); see also Cal. Motor Transp. Co. v.
Trucking Unlimited, 404 U.S. 508, 510, (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.
27 See, e.g., Globetrotter Software, Inc. v. Elan Computer Group, Inc., 362
F.3d 1367, 1377 (Fed. Cir. 2004) (applying Professional Real Estate Investors to state-
law tort claims and noting that “[a] plaintiff claiming that a patent holder has engaged in
wrongful conduct by asserting claims of patent infringement must establish that the
claims of infringement were objectively baseless”); C.R. Bard, Inc. v. M3 Sys., Inc., 157
F.3d 1340, 1369 (Fed. Cir. 1998) (“[S]ham litigation requires more than a failed legal
theory.” (citing Prof’l Real Estate Investors, 508 U.S. at 60-61 & n. 5)).
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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 provisions satisfy the
standards governing commercial speech. While the commercial speech doctrine
typically applies to speech proposing a commercial transaction, it has been applied as
well to regulation of other activities of a commercial nature. See, e.g., IMS Health Inc.
v. Ayotte, 550 F.3d 42, 54-55 (1st Cir. 2008) (upholding a statute regulating the data
mining of physician prescription histories as commercial speech). In Central Hudson
Gas & Electric Corp. v. Public Service Commission of New York itself, the Supreme
Court broadly defined “commercial speech” as “expression related solely to the
economic interests of the speaker and its audience.” 447 U.S. 557, 561 (1980).
Rewarding parties under the circumstances here is similar to commercially contracting
with them to assist in the performance of a government function, in this particular
context assisting in the enforcement of government policy in litigation. The well
established Central Hudson test seems appropriate.28 See Central Hudson, 447 U.S. at
566.
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
28 Even if we apply the test for speech combined with conduct in United
States v. O’Brien, 391 U.S. 367, 377 (1968), for reasons that are clear from the text the
Byrd Amendment would still be constitutional.
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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 U.S. Const., Art. I, § 8, cl. 3;
see also Bd. of Trustees of Univ. of Ill. v. United States, 289 U.S. 48, 56 (1933)
(Congress has “plenary” power to regulate foreign commerce); Gibbons v. Ogden, 22
U.S. (9 Wheat.) 1, 193 (1824). In addition, “[s]o long as legislation does not infringe on
other constitutionally protected rights, Congress has wide latitude to set spending
priorities.” Nat’l Endowment for the Arts v. Finley, 524 U.S. 569, 588 (1998) (citing
Regan v. Taxation with Representation, 461 U.S. 540, 549 (1983)). No party here
questions the authority of the government to ban dumping or to spend money to enforce
the antidumping laws.
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 or administrative proceedings. Such rewards may take a
29 There is a serious question as to whether the Byrd Amendment should be
treated as regulatory at all, since it merely rewards successful applicants. Alternatively,
it might also be possible to view the Byrd Amendment as legitimately promoting the
government’s viewpoint. See Rust v. Sullivan, 500 U.S. 173, 193 (1991); Regan v.
Taxation with Representation, 461 U.S. 540, 546 (1983). We need not reach that
question here.
2008-1005, -1006, -1007, -1008 32

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variety of forms. For example, qui tam actions reward private parties for successfully
bringing suit on behalf of the government.30 Such rewards have a long history. See
Vermont Agency of Natural Res. v. United States ex rel. Stevens, 529 U.S. 765, 776-77,
and nn.5-7 (2000) (describing the history of qui tam and informer statutes in England
and the United States). Other statutes do not authorize private parties to commence
the actions but allow the private parties a portion of the government’s recovery or
otherwise reward the private parties’ assistance to the government. See 26 U.S.C. §
7623 (awarding a portion of the collected proceeds to whistleblowers who assist the
Internal Revenue Service in detecting tax underpayments); 19 U.S.C. § 1619 (allowing
compensation of informers who help enforce the customs laws). The government also
rewards parties who vindicate government policy through the award of attorney’s fees to
successful plaintiffs, for example, in actions under Title VII of the Civil Rights Act of
1964 and other statutes.31
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
30 See 31 U.S.C. § 3730(b) (permitting private parties to sue as qui tam
relators on behalf of the government under the False Claims Act, 31 U.S.C. § 3729,
which provides penalties and damages for presenting false or fraudulent monetary
claims to the government); Id. § 3730(d) (rewarding False Claims Act qui tam relators
with between 10 and 30 percent of the government’s recovery).
31 See, e.g., S. Rep. No. 94-1011, at 2 (1976), reprinted in 1976
U.S.C.C.A.N. 5908, 5910 (discussing the Civil Rights Attorney’s Fees Awards Act of
1976: “All of these civil rights laws depend heavily upon private enforcement, and fee
awards have proved an essential remedy if private citizens are to have a meaningful
opportunity to vindicate the important Congressional policies which these laws
contain.”); 42 U.S.C. § 1973l(e) (allowing attorney’s fees to be awarded to prevailing
parties other than the United States in the enforcement of voting rights).
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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 awards of attorney’s fees—shifts money to
parties who successfully enforce government policy. It is significant here that those who
bring and support antidumping petitions receive Byrd Amendment distributions only if
the antidumping petition is successful. The Byrd Amendment does not reward
32 The Byrd Amendment is also unlike the city ordinance granting casino
development preferences only to developers promoting the passage of gambling
legislation. See 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 the ordinance
was “content-based” and thus subject to strict scrutiny review under the First
Amendment). The ordinance at issue in Lac Vieux did not reward the achievement of
the enforcement of government policy through litigation, but instead involved “political
support” for legislative efforts. Id. at 408.
2008-1005, -1006, -1007, -1008 34

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unsuccessful efforts.33 At bottom, neither SKF nor its supporting amici appear to
contend that parties providing significant assistance to the government in enforcing the
antidumping laws may not be rewarded.
The remaining question is whether the Byrd Amendment is overly broad. See
Central Hudson, 447 U.S. at 566. 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 19 U.S.C. § 1673a(a), it is common for the government to rely on
the filing of a private party petition with Commerce for an antidumping duty investigation
under 19 U.S.C. § 1673a(b).34 Not only do petitioners call the government’s attention to
the existence of a violation (similar to an informer), they provide substantial assistance
during the course of investigations. 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
19 U.S.C. § 1673a(b)(1); 19 C.F.R. § 351.202(b); 19 C.F.R. § 207.11. In the antifriction
bearing petition underlying this case, petitioner Torrington prepared and submitted the
petition and then at two ITC proceedings appeared through counsel and submitted
33 Fewer than half of the antidumping petitions brought from 1980 to 2006
were successful. Of the 1,110 antidumping cases, 469 or 42.3% received a final
affirmative ITC determination. See U.S. Int’l Trade Comm’n, Import Injury Investigations
Case Statistics (FY 1980-2006), at 3 n.6 (January 2008), available at www.usitc.gov/
trade_remedy/Report-01-08-PUB.pdf).
34 See 19 C.F.R. § 351.202(a) (“The Secretary [of Commerce] normally
initiates antidumping and countervailing duty investigations based on petitions filed by a
domestic interested party.”).
2008-1005, -1006, -1007, -1008 35

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briefs to support its arguments. The Byrd Amendment’s reward of such assistance
serves to advance the government’s interest in enforcing its trade laws.35
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, e.g., J.A. 73 (Producers’ Questionnaire in the ITC’s antifriction bearings
antidumping duty investigation in 1989); Suramerica de Aleaciones Laminadas, C.A. v.
United States, 44 F.3d 978, 981 (Fed. Cir. 1994) (referring to the support question in a
1987 ITC antidumping investigation questionnaire). Those who support antidumping
petitions typically fill out questionnaires from the ITC. Each of the successful Byrd
Amendment claimants here did so.
While those supporting a petition by completing a questionnaire may supply less
assistance than petitioners, the Central Hudson test does not require perfect
35 The dissent rejects the view that rewarding petition supporters satisfies
this third prong of the Central Hudson test. Dissenting op. at 24-26. For the reasons
stated in the text, we disagree. Notably, the dissent fails to explain why an even
narrower construction of the statute—urged by Timken—limiting the rewards to
petitioners alone would not render the statute constitutional.
36 However, SKF itself recognizes the contribution made by petition
supporters: “[i]t is based on the information supplied by the domestic producers that
participate in an investigation that the ITC reaches an injury determination, which leads
to the issuance of an order.” Br. Pl.-Cross Appellant SKF USA Inc. at 48.
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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 (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 (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 (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 record
here demonstrates that petition supporters in the antifriction bearing antidumping
2008-1005, -1006, -1007, -1008 37

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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 award case. At the ITC’s
April 21, 1988, preliminary determination conference, SKF urged through counsel that
Torrington’s petition be denied, and provided an analysis of data to refute Torrington’s
assertion that the U.S. antifriction bearing industry was being or was about to be
materially injured by dumping. At the ITC’s March 30, 1989, final determination hearing,
SKF urged through counsel that the domestic antifriction bearing industry was not being
materially injured by dumping and was not threatened with material injury. To support
this argument, SKF’s president testified that the history of the production capacity,
capital investments, and sales prices of the domestic antifriction bearing industry
demonstrated that it was not being materially injured. SKF submitted an economic
analysis brief, and at the hearing SKF’s economic expert, Dr. Peter Linneman, a
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professor at the Wharton School of the University of Pennsylvania, testified about how
his pricing analysis of the antifriction bearing industry showed no evidence of actual or
threatened material injury. SKF’s counsel also introduced testimony from the
executives and counsel of several foreign antifriction bearing producers that opposed
Torrington’s petition.
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. 19 U.S.C. § 1677e(a). The statute
further allows Commerce and the ITC to find that a party has “failed to cooperate by not
acting to the best of its ability to comply with a request for information,” and to subject
such an uncooperative party to “an inference that is adverse to the interests of that party
in selecting from among the facts otherwise available” when Commerce and the ITC
make antidumping determinations. 19 U.S.C. § 1677e(b); see also H.R. Rep. No. 103-
826 (Part I), at 105 (1994), reprinted in 1994 U.S.C.C.A.N. 3773, 3877. At various times
we have upheld the efforts of Commerce and the ITC to compel a response from
recalcitrant respondents or use the “facts available” mechanism.37
37 See, e.g., Nippon Steel Corp. v. United States, 337 F.3d 1373, 1382 (Fed.
Cir. 2003) (“[T]he statutory mandate that a respondent act to ‘the best of its ability’
requires the respondent to do the maximum it is able to do.”); F. lli De Cecco Di Filippo
Fara S. Martino S.p.A. v. United States, 216 F.3d 1027, 1032 (Fed. Cir. 2000) (“[I]t is
within Commerce's discretion to choose which sources and facts it will rely on to support
an adverse inference when a respondent has been shown to be uncooperative.”).
2008-1005, -1006, -1007, -1008 39

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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.
In summary, the Byrd Amendment is within the constitutional power of Congress
to enact, furthers the government’s substantial interest in enforcing the trade laws, and
is not overly broad. We hold that the Byrd Amendment is valid under the First
Amendment.38
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
(1954); see also Buckley v. Valeo, 424 U.S. 1, 93 (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 (1975))). The applicable
38 For the same reason, the Byrd Amendment does not fail the equal
protection review applicable to statutes that disadvantage protected speech.
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2008-1005, -1006, -1007, -1008 41
standard is rational basis review. See Hodel v. Indiana, 452 U.S. 314, 331 (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 (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 (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.

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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.
19 U.S.C. § 1675c(b)(1)(A) (2000) (repealed 2006). Put simply, under the petition
support requirement, if a domestic company publicly expresses the viewpoint that the
government should impose a tariff on an importer, then the domestic company is eligible
to receive some part of that tariff. If the domestic company either expresses the
viewpoint that a tariff should not be imposed or takes no public position, it is not eligible.
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 26, 31. 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—
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“petition[ing].” See U.S. Const. amend. 1 (“Congress shall make no law . . .
abridging . . . the right . . . to petition the Government for a redress of grievances”).
Because I would conclude that the petition support requirement is an unconstitutional
viewpoint discriminatory restriction on political speech and petitioning activity that
cannot survive strict scrutiny, I respectfully dissent.1
I
Under 19 U.S.C. § 1673, an antidumping duty can only be imposed if the
Department of Commerce (“Commerce”) first determines that “foreign merchandise is
being, or is likely to be, sold in the United States at less than its fair value” and the
International Trade Commission (“ITC”) then determines that a domestic industry “is
materially injured, or . . . is threatened with material injury.” The purpose of an
antidumping investigation is to determine whether these two criteria have been satisfied.
See, e.g., 19 U.S.C. § 1673a(a)(1) (“An antidumping duty investigation shall be initiated
whenever the administering authority determines, from information available to it, that a
formal investigation is warranted into the question of whether the elements necessary
for the imposition of a duty under section 1673 of this title exist.”).
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,
1 While I disagree with section II of the majority’s opinion, I agree with the
majority’s analysis of the Court of International Trade’s jurisdiction as set forth in section
I of its opinion. See Maj. Op. § I.
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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 37. Yet all members of the domestic industry who receive such a questionnaire
are required by law to complete it. See 19 U.S.C. § 1333(a), (f) (authorizing ITC to
request information, issue subpoenas, and demand statements under oath); see also
U.S. Int’l Trade Comm’n, Generic U.S. Producer Questionnaire (“Producers’
Questionnaire”), at 1, available at
http://www.usitc.gov/trade_remedy/731_ad_701_cvd/investigations/
question/USProducerQuestionnaire.pdf (“This report is mandatory and failure to reply as
directed can result in a subpoena or other order to compel the submission of records or
information in your possession . . . .”). Moreover, each questionnaire requires that an
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authorized company official certify the correctness of all responses. Producers’
Questionnaire at 1.
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 I-3 offers three possible choices with corresponding checkboxes:
“Support,” “Oppose,” and “Take no position.” Id. at 2.3 It is the domestic producer’s
2 Similar questions appeared on the version of the questionnaire that SKF
completed in 1989. See Final Questionnaire of SKF USA, Inc. at 106-07.
3 The equivalent to this question that appeared in the version of the
questionnaire that SKF completed in 1989 was question I.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.
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response to this question that the ITC uses to determine whether the “petition support
requirement” of the Byrd Amendment has been satisfied.
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 19 U.S.C. § 1673a. For a petition to meet this requirement, “domestic
producers or workers who support the petition [must] account for at least 25 percent of
the total production of the domestic like product” and “domestic producers or workers
who support the petition [must] account for more than 50 percent of the production of
the domestic like product produced by that portion of the industry expressing support for
or opposition to the petition.” Id. § 1673a(c)(4)(A)(i)-(ii). In other words, question I-3 is
an opportunity for each member of the domestic industry to vote on whether a petition
should or should not go forward. To go forward, the petition needs the votes of at least
25% of the domestic industry by production, and no more than 50% in opposition.
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 the 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—
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(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 (1988) (cited in Maj. Op. at 21). 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 injured by dumping,” Maj.
Op. at 23, but rather “to reward injured parties who assisted government enforcement of
the antidumping laws by initiating or supporting antidumping proceedings,” id. at 26.
From this conclusion, the majority reasons that evaluating the petition support
requirement under the commercial speech doctrine “seems appropriate,” because
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“[r]ewarding parties under the circumstances here is similar to commercially contracting
with them to assist in the performance of a government function.” id. at 31. Applying
the Central Hudson test for commercial speech, the majority concludes that the petition
support requirement survives First Amendment scrutiny, and that the petition support
requirement “is not more extensive than is necessary to serve [the government’s]
interest” in rewarding injured parties who assist in antidumping investigations. Id. at 31
(quoting Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n, 447 U.S. 557, 566
(1980)).
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
domestic 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 19
U.S.C. § 1675c(b)(1)(A). That is, SKF challenges only the aspect of the Byrd
Amendment that precludes it from receiving duties solely because it answered “Oppose”
to question I-3 of the investigation questionnaire. Thus, the issue is whether the petition
support requirement—not the Byrd Amendment as a whole—survives First Amendment
scrutiny. See, e.g., Republican Party of Minn. v. White, 536 U.S. 765, 774-75 (2002)
(focusing on specific challenged clause of statute and holding that “[u]nder the strict-
scrutiny test, respondents have the burden to prove that the [challenged] clause is (1)
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narrowly tailored, to serve (2) a compelling state interest”). Thus, it is not, as the
majority suggests, the government’s “interest in trade law enforcement” that matters.
Maj. Op. at 32. The relevant interest is the government’s more limited interest in
conditioning receipt of distributions on public support for an antidumping position.
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 (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 restriction
on speech is “compelling”—or, in some cases, “important” or “substantial”—is a part of
the First Amendment analysis. See, e.g., Boos v. Barry, 485 U.S. 312, 322 (1988)
(holding that content-based restrictions on political speech in public forum must be
“necessary to serve a compelling state interest and . . . narrowly drawn to achieve that
end” (quoting Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45
(1983))); Central Hudson, 447 U.S. at 566 (assessing whether “the asserted
governmental interest is substantial”); United States v. O’Brien, 391 U.S. 367, 377
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(1968) (assessing whether regulation “furthers an important or substantial governmental
interest”). But the Byrd Amendment’s purpose plays a much greater role in the
majority’s analysis than serving an important government interest. The majority uses its
view of the purpose of the Byrd Amendment to shield the petition support clause from
strict scrutiny under the First Amendment entirely. Specifically, the majority reasons
that because the purpose of the Byrd Amendment was to reward injured parties who
assisted government enforcement of the antidumping laws, then the petition support
requirement is “similar to commercially contracting with [parties] to assist in the
performance of a government function, in this particular context assisting in the
enforcement of government policy in litigation.” Maj. Op. at 31. Thus, the majority uses
the purpose of the Byrd Amendment as justification for applying the more lenient
Central Hudson test, rather than strict scrutiny. I know of no case—and the majority has
cited none—in which an unambiguous statute that would otherwise be subject to strict
constitutional scrutiny receives more lenient scrutiny because of its perceived purpose.
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 26
(“[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
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specifying that distributions are made to “affected domestic producer[s]”—domestic
producers that have been “affected” (i.e., injured) by dumping. 19 U.S.C. § 1675c. The
majority relies on general statements in the Congressional findings 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.” Maj. Op. at 26. But neither these
statements nor anything else in the statutory text says anything at all about rewarding
parties for “assist[ing] government enforcement” in antidumping proceedings.
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) (statement of
Sen. DeWine). The majority’s reliance on general statements in the legislative history—
e.g., that the Byrd Amendment is necessary to “deter unfair trade practices” and that
“United States trade laws should be strengthened to see that the remedial purpose of
those laws is achieved”—is to no avail, because none of these statements says
anything about rewarding parties for helping to enforce trade laws. Maj. Op. at 26.
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
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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 statue that
was going to aid members of domestic industry that continue to be injured by
dumping . . . .”).
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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 27. But—as the majority’s own parenthetical summaries make clear—the
cases that the majority cites for that proposition all address the views of the government
as to the proper interpretation of ambiguous statutory language, not to the asserted
purpose of a statute for purposes of constitutional scrutiny. See Id. (“Cherokee Nation
of Okla. v. Leavitt, 543 U.S. 631, 646-57 (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 (1996) (rejecting the government’s
interpretation of a tax statute)” (emphases added)). The Supreme Court has recognized
that it is the government’s “asserted” purpose that is relevant in assessing the
constitutionality of a statute—i.e., the purpose that the government as litigator asserts to
justify the statute in the face of a constitutional challenge. See, e.g., City of Erie v.
Pap’s A.M., 529 U.S. 277, 296 (2000) (“The asserted interests . . . are undeniably
important”); Texas v. Johnson, 491 U.S. 397, 407 (1989) (“[W]e must decide whether
Texas has asserted an interest in support of Johnson’s conviction that is unrelated to
the suppression of expression. . . . The State offers two separate interests to justify this
4 The majority states that I “rely[] primarily on the government’s
representations at oral argument” to conclude that the purpose of the Byrd Amendment
is not the “reward for assistance” rationale that the majority advances. Maj. Op. at 26.
As discussed in detail, the statutory text of the Byrd Amendment, its legislative history,
the conduct of antidumping investigations in practice, and the example of this very case
all make clear that the purpose of the Byrd Amendment was not to reward companies
for assisting the government in antidumping investigations. The fact that the
government agrees that “reward for assistance” was not the purpose of the Byrd
Amendment is only one of many reasons that I would reject it.
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conviction . . . .). Thus, the burden is on the government—in litigation—to identify the
interest served by the regulation and to prove that it is “compelling,” “substantial,” or
“important.” See, e.g., Boos, 485 U.S. at 321 (“[W]e have required the State to show
that the regulation is necessary to serve a compelling state interest and that it is
narrowly drawn to achieve that end.” (internal quotation marks omitted and emphasis
added)). In fact, in Central Hudson—the very case that establishes the commercial
speech test that the majority applies—the Supreme Court made clear that it is the
interest that the government asserts in litigation challenging a regulation that is relevant
for the constitutional inquiry:
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 (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 27. 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
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intent of Congress.’” Consolidation Coal Co. v. United States, 528 F.3d 1344, 1347
(Fed. Cir. 2008) (quoting Edward J. DeBartolo Corp., 485 U.S. at 575). The doctrine of
constitutional avoidance is a doctrine of statutory interpretation—that is, it is relevant
when the court is construing disputed statutory language. See, e.g., Fisherman’s
Harvest, Inc. v. PBS&J, 490 F.3d 1371, 1377 (Fed. Cir. 2007) (discussing “canon of
constitutional avoidance in statutory interpretation”). In this case, there is no statutory
construction to be performed. The parties do not dispute the meaning of the petition
support requirement, and the parties do not dispute that, if the petition support
requirement is constitutional, it was correctly applied to SKF. There is therefore no
statutory construction dispute, and the doctrine of constitutional avoidance is irrelevant.
The majority, however, reasons that the doctrine of constitutional avoidance
“extends to the ascertainment of a statute’s purpose.” Maj. Op. at 27. 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 29. 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 (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
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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 (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 27, 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. 404, 405 (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 significance shall have been
rightly defined, point out the questions of constitutional power which will require to be
decided if the construction relied upon by the government is a correct one.”). Likewise,
the Zadvydas case on which the majority relies considered the doctrine of constitutional
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avoidance solely for the purpose of statutory construction. See Zadvydas v. Davis, 533
U.S. 678, 689-90 (2001) (“[W]e read an implicit limitation into the statute before us. In
our view, the statute, read in light of the Constitution’s demands, limits an alien’s post-
removal-period detention to a period reasonably necessary to bring about that alien’s
removal from the United States. . . . A statute permitting indefinite detention of an alien
would raise a serious constitutional problem.”). I am aware of no case in which the
Supreme Court has applied the doctrine of constitutional avoidance—as the majority
does here—to determine the asserted purpose of an unambiguous statute in a
constitutional challenge.
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 19 U.S.C. § 1333(a), (f); Producers’ Questionnaire at 1. This explains why the
government admitted at oral argument that petition supporters and petition opponents
provide exactly the same assistance to the government in antidumping investigations.
See Oral Arg. 22:41-23:07 (“[W]hat the government obtains form the questionnaire
responses is the same for those who supported and thereby are eligible under the
classification the [Byrd Amendment] to receive these funds and for those who opposed
or took no position. So, they are also aiding the government in a government function in
that respect. Certainly that is true.” (emphasis added)); see also id. at 18:50-19:10
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(“[Companies that do not support the petition] are required by law to respond to the
questionnaire in the same way that those who have answered the question checking
support are required to do so.”); id. at 20:10-28 (“[The Court:] Is there something
different that parties who support the petition provide to the government as compared to
parties that don’t support the petition? [The government:] Not that I’m aware of. I don’t
think that that is an important distinction . . . .”).
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 7
(noting that “the petition was over 200 pages in length”); id. at 9-10 (“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 10, 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. (242 pages). In fact, if, as the majority’s analysis
suggests, assistance in an antidumping investigation can be measured in part by the
page length of questionnaire responses, SKF was actually more helpful that several
supporters of the petition that have received distributions under the Byrd Amendment.
See, e.g., Response of Emerson Power Transmission Co. (122 pages). Likewise, while
the majority claims that Torrington’s briefing “assisted in the investigation,” Maj. Op. at
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10, it fails to acknowledge that SKF also submitted briefing—totaling 163 pages—during
the investigation.
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.
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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 31. 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. 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., the Supreme Court considered whether informational pamphlets distributed by a
contraceptive manufacturer and promoting the use of prophylactics were commercial
speech. 463 U.S. 60, 62, 65-66 (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 (internal quotation marks omitted). Nevertheless, the
Supreme Court concluded that the pamphlets were commercial speech:
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 (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
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the context of commercial transactions.” Id. at 68. 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 specific 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; see also Bigelow v. Virginia, 421 U.S. 809, 818 (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
5 The majority also relies on a recent case from the First Circuit that, as an
alternative ground for its decision, reasoned that the transfer of data that identified
which physicians had prescribed specific pharmaceuticals was commercial speech.
See Maj. Op. at 31 (citing IMS Health Inc. v. Ayotte, 550 F.3d 42, 54-55 (1st Cir. 2008)).
In that case, the First Circuit rejected a “narrower definition of commercial speech
limited to activities ‘propos[ing] a commercial transaction,’” and instead reasoned that
the data transfer at issue “at most embod[ied] expression related solely to the economic
interest of the speaker and its audience.” IMS, 550 F.3d. at 54. The IMS case plainly
involved the sale of data—i.e., a commercial transaction that involved payment for the
supposed “speech,” which the court reasoned was actually not speech at all, but rather
conduct. Id. To the extent that the majority concludes that IMS stands for the broader
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Moreover, even if the majority were correct that the test for commercial speech is
whether the regulated “expression relate[s] solely to the economic interests of the
speaker and its audience,” Maj. Op. at 31, I cannot agree that this test is satisfied here.
The majority reasons that “[r]ewarding parties under the circumstances here is similar to
commercially contracting with them to assist in the performance of a government
function, in this particular context assisting in the enforcement of government policy in
litigation.” Id. The majority’s analysis, however, does not actually address the speech
at issue. The petition support clause conditions receipt of funds on expressing support
for an antidumping petition. The question is whether that regulated expression—
namely, expressing support for an antidumping petition—“relate[s] solely to the
economic interests of the speaker and its audience.” The majority’s view that
companies who support a petition are more likely to provide assistance to the
government and therefore enter into a quasi-contractual relationship is immaterial. The
issue is simply whether the expression of support itself relates solely to the economic
interests of the company and the audience. Even setting aside whether a statement of
support for a petition reflects the economic interests of the company making a
statement, it cannot be said that the petition support requirement relates solely to the
economic interest of the audience—here, the ITC. The ITC had no economic interest in
whether SKF expressed support for the petition or did not. Thus, I cannot agree that the
majority’s “commercial contract” analogy, even if correct, would support application of
the commercial speech doctrine under Central Hudson.
proposition that any speech that involves the “economic interests of the speaker” is
commercial speech, I respectfully submit that either the majority’s reading of IMS is
incorrect, or IMS was incorrectly decided.
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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 US 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. 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.
If, as the majority reasons, the government interest furthered by the petition
support requirement is “to reward injured parties who assisted government
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enforcement” in antidumping investigations, Maj. Op. at 26, then the petition support
requirement is far more extensive than is necessary to serve that interest. A much
more straightforward method of ensuring the cooperation of private parties in
antidumping investigations would be simply for the ITC to compel the cooperation of
uncooperative parties through the subpoena process—as it already has the authority to
do. See 19 U.S.C. § 1333(a), (f). Moreover, to the extent that Congress intended to
compensate parties for the expense of preparing petitions or questionnaire responses
as the majority suggests, see Maj. Op. at 37-38, it could simply authorize
reimbursement of reasonably incurred expenses to parties that cooperate willingly—a
far less restrictive measure than precluding petition opponents from receiving any
remedial duties. Reasoning that Central Hudson does not require a perfect fit between
means and ends, the majority argues that “[t]hose who support antidumping petitions
typically fill out questionnaires from the ITC.” Id. at 36. But the majority ignores that all
recipients of questionnaires are required to complete them—whether they support or
oppose the petition. Indeed, by definition, a party excluded from receiving
disbursements as a result of checking the “Oppose” box in response to questionnaire
question I-3 has necessarily filled out the questionnaire. While Central Hudson may not
require a perfect correspondence of means and ends, I cannot agree that the petition
support requirement places is “not more extensive than necessary” to the furtherance of
an alleged interest in rewarding cooperation in an antidumping investigation.6
6 The majority questions my seeming failure to explain why an even
narrower construction of the Byrd Amendment—“limiting the rewards to petitioners
alone”—would not meet the final requirement of the Central Hudson test. See Maj. Op.
at 36 n.35. Because the majority does not adopt this narrower construction, the
significance of the majority’s criticism is not clear. In any event, as discussed in detail
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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 final 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.
Not only is the petition support requirement not the best proxy for injury, it is not
even a particularly good one. As the Court of International Trade found, “there are a
multitude of reasons why an entity might decide to support, oppose, or take no position
in an antidumping investigation” that are unrelated to the seriousness of its injury. SKF
USA Inc. v. United States, 451 F. Supp. 2d 1355, 1362 (Ct. Int’l Trade 2006). A
below, I disagree that limiting distributions to petitioners alone would cure the First
Amendment problem. See infra at 35-36.
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domestic company, like SKF, that is a subsidiary of a foreign importer, might oppose a
petition because it concludes that the worldwide injury caused to its parent by an
antidumping duty order would be greater that the injury that the subsidiary suffers
domestically as a result of dumping. More altruistically, a company might simply have
the ideological view that any restrictions on trade—including restrictions on dumping—
are bad. It might be willing to endure serious injury resulting from dumping, rather than
support a petition that would, in its view, restrict free trade. Finally, as was the case
with amicus Giorgio Foods, Inc., a domestic producer might oppose a petition to protect
business relationships in foreign countries having nothing to do with the domestic
market, or it might decline to support a petition for fear of retaliation in export markets.
See Br. of Amicus Curiae Giorgio Foods, Inc. & PS Chez Sidney LLC at 2, 9-10. To
conclude summarily, as the government does, that the petition support requirement
identifies the most seriously injured domestic producers evinces a naive view of the
economics of international trade. Thus, I cannot conclude that the final element of the
Central Hudson test would be met, applying either the majority’s or the government’s
asserted government interest.7
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, 31 U.S.C. §§ 3729-33.
7 In a footnote, the majority asserts an alternative basis for affirmance:
“[e]ven if we apply the test for speech combined with conduct in United States v.
O’Brien, 391 U.S. 367, 377 (1968), for reasons that are clear from the text the Byrd
Amendment would still be constitutional.” Maj. Op. at 31 n.28. I respectfully disagree.
For the same reasons that it cannot satisfy Central Hudson’s “not more extensive than
is necessary” requirement, the Byrd Amendment cannot meet O’Brien’s requirement
that any “incidental restriction on alleged First Amendment freedoms [be] no greater
than essential to the furtherance of [the government’s asserted] interest.” O’Brien, 391
U.S. at 377.
2008-1005, -1006, -1007, -1008 26

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Under § 3730(b) of the False Claims Act, a private person may bring an action in the
name of the government against a defendant believed to have knowingly presented a
false or fraudulent claim for payment to the government. If the defendant is proven to
have presented a false claim, the defendant is liable to the government, and the private
party who initiated the action may receive up to a thirty percent share of the proceeds of
the action or settlement, and reasonable expenses, costs, and attorneys fees. Id.
§ 3730(d). See generally Cook County, Ill. v. United States ex rel. Chandler, 538 U.S.
119, 122-23 (2003) (describing qui tam provisions of False Claims Act). Qui tam
actions for false patent marking work in the same way. See 35 U.S.C. § 292(b) (“Any
person may sue for the penalty [of $500 per offense for falsely marking an article as
patented or ‘patent pending’], in which event one-half shall go to the person suing and
the other to the use of the United States.”).
The majority analogizes antidumping proceedings to qui tam actions, reasoning
that the operation of the Byrd Amendment, like a qui tam proceeding, “reward[s] private
parties for successfully bringing suit on behalf of the government.” Maj. Op. at 33. It
carries this analogy further, arguing that “SKF here undertook a role that was nearly
indistinguishable from that played by a defendant in a qui tam or attorney’s fees award
case” by opposing the antidumping petition. Id. at 38. To be sure, Commerce and the
ITC rely on private companies—namely, members of the domestic industry that have
been harmed by dumping—to bring dumping to its attention through the petition
process. But beyond that, the analogy to qui tam proceedings fails. In a qui tam case,
the defendant has committed a violation of the law that causes harm to the government,
and the government shares its recovery with the plaintiff—an uninjured third party. In
2008-1005, -1006, -1007, -1008 27

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other words, a qui tam action is an action by a representative (the plaintiff) against a
wrongdoer (the defendant), on behalf of a victim (the government).
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 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
2008-1005, -1006, -1007, -1008 28

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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 that
control the outcome of this case are beyond serious dispute. First, “a content-based
restriction on political speech in a public forum . . . must be subjected to the most
exacting scrutiny. Thus, [the government must] show that the ‘regulation is necessary
to serve a compelling state interest and that it is narrowly drawn to achieve that end.’”
Boos v. Barry, 485 U.S. 312, 321 (1988) (quoting Perry Educ. Ass’n v. Perry Local
Educators Ass’n, 460 U.S. 37, 45 (1983)). Second, “[w]hen the government targets not
subject matter, but particular views taken by speakers on a subject, the violation of the
First Amendment is all the more blatant. Viewpoint discrimination is thus an egregious
form of content discrimination.” Rosenberger v. Rector of Univ. of Va., 515 U.S. 819,
829 (1994) (citation omitted). Third, under the so-called “unconstitutional conditions”
doctrine, the government “may not deny a benefit to a person on a basis that infringes
his constitutionally protected interests—especially, his interest in freedom of speech.”
Perry v. Sindermann, 408 U.S. 593, 597 (1972).
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
2008-1005, -1006, -1007, -1008 29

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(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?” 19 U.S.C.
§ 1675c(b)(1)(A); Producers’ Questionnaire at 2. Domestic companies who express the
viewpoint that an antidumping order should issue are eligible; companies who do not
express that viewpoint are not. This is classic viewpoint discrimination. As discussed in
detail above, see supra at 9, it is immaterial that the government does not intend to
suppress a particular viewpoint. It is the viewpoint-discriminatory effect of the statute
that offends the First Amendment.
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, 127 S. Ct. 2618, 2626 (2007) (quoting Virginia v. Black, 538 U.S.
343, 365 (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 manner 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
2008-1005, -1006, -1007, -1008 30

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(1966). In this case, the petition support requirement requires that a domestic company
have expressed the view that a duty should be imposed on a specific class of foreign
goods, based in part on whether the domestic industry has been or will be “materially
injured.” See 19 U.S.C. § 1673. Notably, not only does the ITC consider the views of
opponents when deciding whether the material injury requirement has been met, but
§ 1673 actually precludes a petition from going forward unless it has support from 25%
of the domestic industry by production, and no more than 50% in opposition. See 19
U.S.C. § 1673 a(c)(4)(A)(i)-(ii). Taking a position on this question before the ITC—the
body charged with determining whether there has been or will be material injury—is
therefore not only political speech on an issue of public concern, but effectively a vote
on whether the petition should go forward. It is therefore plainly political speech at the
core of the First Amendment’s protection.
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 (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.
2008-1005, -1006, -1007, -1008 31

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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 (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 19 U.S.C. § 1333(a), (f); Producers’ Questionnaire at 1.
Moreover, the petition support requirement requires both that the domestic producer
support the petition, and that it allow its support to be publicly known. See 19 U.S.C.
§ 1675c(d) (requiring publication of qualified recipients of distributions). I would
conclude in these circumstances that an ITC proceeding is a limited public forum for
speech by domestic producers.
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, 172 F.3d 397, appeal after remand 276 F.3d 876 (6th Cir. 2002),
cert. denied, 122 S. Ct. 2589 (2002). In that case, two casino developers had spent
substantial sums of money to advertise and promote the passage of a ballot initiative to
legalize casino gambling in Detroit, Michigan. Id. at 400. After the ballot measure
passed, the Detroit City Council adopted an ordinance giving preference for casino
licenses to developers who had actively promoted the ballot initiative. Id. at 401. The
Lac Vieux Desert Band of Lake Superior Chippewa Indians—a potential casino
developer that had not lobbied for passage of the ballot initiative but wanted a casino
license—challenged the ordinance on First Amendment grounds. Id. at 402. The Sixth
2008-1005, -1006, -1007, -1008 32

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Circuit held that the ordinance “impose[d] a burden based on the content of political
speech” and that the ordinance was content based and therefore subject to strict
scrutiny. Id. at 409-10.
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 34 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. 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 either interest. See supra at 23-26. I
would therefore conclude that the petition support requirement is unconstitutional.
2008-1005, -1006, -1007, -1008 33

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IV
Because I would affirm the judgment of the Court of International Trade that the
petition support requirement is unconstitutional,8 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 (1909). Timken argues that even if the petition support requirement is
unconstitutional, the Court of International Trade erred by severing the statute so that
opponents of a petition were eligible for benefits. Instead, Timken contends that the
statute should be severed so that only petitioners—not any other “interested part[ies] in
support of the petition”—would be eligible for distributions.
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 (2006)
(quoting Califano v. Westcott, 443 U.S. 76, 94 (1979) (Powell, J., concurring in part and
dissenting in part)). Here, Congress’s intent is clear from the overall structure of the
8 I agree with the majority’s conclusion that, if the Byrd Amendment were
subject to rational basis review under the Equal Protection Clause, it would survive—
though I do so for different reasons. Though the petition support requirement is not a
good proxy for the seriousness of a domestic producer’s injury, I would not conclude, as
the Court of International Trade did, that it is an irrational proxy. I would therefore affirm
the judgment of the Court of International Trade solely on the alternative basis that the
petition support requirement violates the First Amendment.
2008-1005, -1006, -1007, -1008 34

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Byrd Amendment. The Byrd Amendment authorizes distributions to “affected domestic
producers.” 19 U.S.C. §§ 1675c(b)-(d). The petition support requirement is only one of
several parts of the definition of “affected domestic producers”—an “affected domestic
producer” must also be a “manufacturer, producer, farmer, rancher or worker
representative (including associations of such person)” and must “remain[] in operation.”
Id. § 1675c(b)(1). Additionally, a producer that has “ceased the production of the
product covered by the order or finding” is excluded from the statutory definition of
“affected domestic producer.” Id.
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 of 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.
2008-1005, -1006, -1007, -1008 35

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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 Timken proposed, because it would still condition
the receipt of funds on expression of a political viewpoint and petitioning activity—
namely, filing a petition that argues that an antidumping duty order should enter.
Moreover, the statute would still fail strict scrutiny, because less restrictive means are
available to serve the interests identified by the majority (reward for assistance) and the
government (remedy for the most seriously injured domestic producers). Thus, I would
conclude that the Court of International Trade properly severed the Byrd Amendment by
removing the petition support requirement.
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:
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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 . . . .
5 U.S.C. § 706 (2006).
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.” 19 C.F.R.
§ 159.62(a). That notice contains instructions for filing a certification to claim a
distribution. Id. § 159.62(b)(2). “In order to obtain a distribution of the offset, each
affected domestic producer must submit a certification . . . that must be received within
60 days after the date of publication of the notice in the Federal Register, indicating that
the affected domestic producer desires to receive a distribution. The certification must
enumerate the qualifying expenditures incurred by the domestic producer since the
issuance of an order or finding for which a distribution has not previously been
made . . . .” Id. § 159.63(a) (emphasis added).
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
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2008-1005, -1006, -1007, -1008 38
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. at 67. It further argues that
its failure to submit a complete certification was harmless.
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.

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1006, -1007, -1008 Skf USA, Inc. v. United States Customs and Border Protection

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