Giorgio Foods, Inc. v. United States , 785 F.3d 595 ( 2015 )

United States Court of Appeals
for the Federal Circuit
______________________
GIORGIO FOODS, INC.,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
UNITED STATES INTERNATIONAL TRADE
COMMISSION,
Defendant-Appellee
MONTEREY MUSHROOMS, INC.,
Defendant-Appellee
L.K. BOWMAN COMPANY, MUSHROOM CANNING
COMPANY,
Defendants
______________________
2013-1304
______________________
Appeal from the United States Court of International
Trade in No. 03-CV-0286, Chief Judge Timothy C.
Stanceu.
______________________
Decided: April 24, 2015
______________________
2 GIORGIO FOODS, INC. v. US
MICHAEL TOD SHOR, Arnold & Porter LLP, Washing-
ton, DC, argued for plaintiff-appellant. Also represented
by SARAH BRACKNEY ARNI.
MARTIN M. TOMLINSON, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, argued for defendant-appellee
United States. Also represented by STUART F. DELERY,
JEANNE E. DAVIDSON, FRANKLIN E. WHITE, JR.
PATRICK VINCENT GALLAGHER, JR., Office of the Gen-
eral Counsel, United States International Trade Commis-
sion, Washington, DC, argued for defendant-appellee
United States International Trade Commission. Also
represented by NEAL J. REYNOLDS, ROBIN LYNN TURNER,
DOMINIC L. BIANCHI.
MICHAEL J. COURSEY, Kelley Drye & Warren, LLP,
Washington, DC, argued for defendant-appellee Monterey
Mushrooms, Inc. Also represented by ROBERT ALAN
LUBERDA.
______________________
Before DYK, REYNA, and CHEN, Circuit Judges.
Opinion for the court filed by Circuit Judge DYK.
Dissenting opinion filed by Circuit Judge REYNA.
DYK, Circuit Judge.
Giorgio Foods, Inc. (“Giorgio”) appeals a judgment of
the Court of International Trade (“Trade Court”) dismiss-
ing its claims for compensation under the Continued
Dumping and Subsidy Offset Act (“the Byrd Amend-
ment”). Because Giorgio failed to indicate support for the
antidumping petition as required by the Byrd Amend-
ment, we affirm.
GIORGIO FOODS, INC. v. US 3
BACKGROUND
We limit the description in the background section to
the claims currently on appeal. On January 6, 1998, the
Coalition for Fair Preserved Mushroom Trade (“the Coali-
tion”) filed an antidumping petition (“the petition”) alleg-
ing that domestic producers of preserved mushrooms were
being injured by imports of certain preserved mushrooms
from Chile, China, Indonesia, and India (collectively, “the
subject countries”) that were being sold in the United
States at less than fair value. See 19 U.S.C. § 1673. At
the time of the petition, Giorgio was the largest domestic
producer of preserved mushrooms, accounting for approx-
imately one half of total United States production, but
was neither a member of the Coalition nor a petitioner.
On January 16, 1998, the International Trade Com-
mission (“ITC”) initiated a material injury investigation
concerning imports from the subject countries. See Cer-
tain Preserved Mushrooms From Chile, China, India, and
Indonesia; Institution of Antidumping Investigations and
Scheduling of Preliminary Phase Investigations, 63 Fed.
Reg. 2693 (USITC Jan. 16, 1998). As part of that investi-
gation, the ITC issued questionnaires to domestic produc-
ers of preserved mushrooms, including Giorgio. Giorgio
filed its preliminary response on January 22, 1998. 1 The
second page of the ITC questionnaire asked, “Do you
support or oppose the petition? Please explain” (the
“support question”). J.A. 152. It contained three check-
boxes for responses: “Support,” “Oppose,” and “Take no
position.” Id. Giorgio’s response to the support question
1 Giorgio’s preliminary and final responses to the
questionnaire are substantively identical. Compare J.A.
151–87 (preliminary), with J.A. 188–227 (final). Citations
in this opinion will be to Giorgio’s preliminary question-
naire.
4 GIORGIO FOODS, INC. v. US
did not check any of the boxes, but responded in narrative
form as follows: “We take no position on Chile, China and
Indonesia[.] We oppose the petition against India.” Id.In response to the petition, on February 2, 1998, the
Department of Commerce (“Commerce”) initiated an
antidumping investigation, “determin[ing] that the peti-
tion [wa]s filed on behalf of the domestic industry.”
Initiation of Antidumping Investigations: Certain Pre-
served Mushrooms From Chile, India, Indonesia, and the
People’s Republic of China, 63 Fed. Reg. 5360, 5361 (Dep’t
of Commerce Feb. 2, 1998) (citing 19 U.S.C.
§ 1673a(b)(1)). A petition is only filed
on behalf of the industry, if—
(i) the domestic producers or workers who
support the petition account for at least 25
percent of the total production of the do-
mestic like product, and
(ii) the domestic producers or workers who
support the petition account for more than
50 percent of the production of the domes-
tic like product produced by that portion of
the industry expressing support for or op-
position to the petition.
19 U.S.C. § 1673a(c)(4)(A)(i)–(ii). Commerce noted that
“supporters of the petition account[ed] for over 50 percent
of production of the domestic producers who ha[d] ex-
pressed an opinion even if Giorgio’s position [was] not
disregard[ed],” i.e., even if Giorgio were included in the
category of domestic producers not supporting the peti-
tion. 63 Fed. Reg. at 5362.
On October 22, 1998, and December 31, 1998, Com-
merce published final determinations in the four pre-
served mushroom antidumping investigations, finding
that dumping had occurred with respect to each of the
GIORGIO FOODS, INC. v. US 5
subject countries. 2 Between December 1998 and Febru-
ary 1999, the ITC determined that the domestic mush-
room industry was materially injured by the import of
mushrooms from the subject countries, 3 and Commerce
issued corresponding antidumping orders. 4 Pursuant to
2 See Notice of Final Determination of Sales at Less
Than Fair Value: Certain Preserved Mushrooms from
Chile, 63 Fed. Reg. 56,613 (Dep’t of Commerce Oct. 22,
1998); Notice of Final Determination of Sales at Less
Than Fair Value: Certain Preserved Mushrooms from
India, 63 Fed. Reg. 72,246 (Dep’t of Commerce Dec. 31,
1998); Notice of Final Determination of Sales at Less
Than Fair Value: Certain Preserved Mushrooms from the
People’s Republic of China, 63 Fed. Reg. 72,255 (Dep’t of
Commerce Dec. 31, 1998); Notice of Final Determination
of Sales at Less Than Fair Value: Certain Preserved
Mushrooms from Indonesia, 63 Fed Reg. 72,268 (Dep’t of
Commerce Dec. 31, 1998).
3 See Certain Preserved Mushrooms from Chile, 63
Fed. Reg. 66,575 (USITC Dec. 2, 1998); Certain Preserved
Mushrooms from China, India, and Indonesia, 64 Fed.
Reg. 9,178 (USITC Feb. 24, 1999).
4 See Notice of Antidumping Duty Order: Certain Pre-
served Mushrooms from Chile, 63 Fed. Reg. 66,529 (Dep’t
of Commerce Dec. 2, 1998); Notice of Amendment of Final
Determination of Sales at Less than Fair Value and
Antidumping Duty Order: Certain Preserved Mushrooms
from the People’s Republic of China, 64 Fed. Reg. 8308(Dep’t of Commerce Feb. 19, 1999); Notice of Antidumping
Duty Order: Certain Preserved Mushrooms from Indone-
sia, 64 Fed. Reg. 8310 (Dep’t of Commerce Feb. 19, 1999);
Notice of Amendment of Final Determination of Sales at
Less than Fair Value and Antidumping Duty Order:
Certain Preserved Mushrooms from India, 64 Fed. Reg.
8311 (Dep’t of Commerce Feb. 19, 1999).
6 GIORGIO FOODS, INC. v. US
these antidumping orders, the U.S. Customs and Border
Patrol (“Customs”) collected final antidumping duties for
imports from the subject countries. See, e.g., Distribution
of Continued Dumping and Subsidy Offset to Affected
Domestic Producers, 66 Fed. Reg. 40,782 (Customs Aug.
3, 2001).
For entries filed between October 1, 2000, and Octo-
ber 1, 2007, the Byrd Amendment required that Customs
collect final duties under antidumping duty orders for
distribution to “affected domestic producers.” 19 U.S.C.
§ 1675c(a) (2000). 5 To qualify as an affected domestic
producer under the Byrd Amendment, an entity was
required to demonstrate that it “was 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) (hereinafter, “the support require-
ment”). The Byrd Amendment directed the ITC to pro-
vide Customs with a list of affected domestic producers,
which includes “a list of petitioners” and “a list of persons
that indicate support of the petition by letter or through
questionnaire response.” Id. § 1675c(d)(1). Those entities
would receive Byrd Amendment distributions.
On October 2, 2001, Giorgio requested that the ITC
place it on the list of affected domestic producers. 6 The
5 The Byrd Amendment was repealed in February
2006, but the repeal did not affect duties on entries of
goods made prior to October 1, 2007. Deficit Reduction
Act of 2005, Pub. L. No. 109-171, § 7601, 120 Stat. 4, 154
(2006).
6 Giorgio’s initial request was limited to Chile, China,
and Indonesia, and did not include India. According to
Giorgio’s second amended complaint, it did not file for
Byrd Amendment distributions with respect to India for
2001 “because it would have been futile for it to do so.”
GIORGIO FOODS, INC. v. US 7
ITC denied Giorgio’s request on the basis that “Giorgio’s
questionnaire responses in the original investigations do
not indicate support for the petition . . . .” J.A. 244.
Because Giorgio was not on the ITC list, Customs denied
Giorgio’s claims for Byrd Amendment distributions.
Giorgio brought suit in the Trade Court on May 23,
2003, challenging the ITC’s refusal to include it on the list
of affected domestic producers for the preserved mush-
room antidumping orders and alleging that the ITC’s
refusal to include it on the list violated the First Amend-
ment. The case was stayed pending this court’s decisions
in SKF USA, Inc. v. United States Customs & Border
Protection, 556 F.3d 1337 (Fed. Cir. 2009), and PS Chez
Sidney, L.L.C. v. United States International Trade Com-
mission, 684 F.3d 1374 (Fed. Cir. 2012).
Thereafter, in SKF, we upheld the Byrd Amendment
against a facial First Amendment challenge. 556 F.3d at
1349, 1360. We employed a saving construction to the
Byrd Amendment to avoid constitutional questions by
construing it to provide “distributions to those who active-
ly 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).” Id. at
1353 n.26. Under this construction, the court found the
support requirement constitutional under the standards
governing commercial speech because it directly advanced
the government’s substantial interest in preventing
dumping by rewarding parties who assist in trade law
enforcement. Id. at 1354–55. We analogized the Byrd
Amendment to qui tam actions and attorney’s fee-shifting
statutes. Id. at 1359.
J.A. 84. Beginning in 2003, however, Giorgio sought
distributions for India as well.
8 GIORGIO FOODS, INC. v. US
On June 7, 2011, following our decision in SKF, Gior-
gio moved to file a second amended complaint, seeking to
add a statutory claim that the ITC had violated the Byrd
Amendment by relying solely on Giorgio’s response to the
support question in determining whether to include
Giorgio on the list of affected domestic producers. Accord-
ing to the second amended complaint, Giorgio “agreed
[with the petitioners] to provide support for [the anti-
dumping petition] without publicly identifying itself as a
petitioner.” J.A. 73. Instead, the complaint alleged that
Giorgio supported petitioners’ efforts in other ways,
including responding to the ITC questionnaire, contrib-
uting to petitioners’ legal fees, providing confidential
commercial information to petitioners, and accompanying
ITC investigators and petitioners’ counsel on a site visit of
Giorgio’s facilities. Giorgio continued to assert an as-
applied First Amendment challenge, alleging that denial
of payments under the circumstances violated the First
Amendment.
On November 17, 2011, the Trade Court denied Gior-
gio’s motion to add its statutory claim as futile because it
failed to state a claim in light of SKF. Giorgio Foods, Inc.
v. United States, 804 F. Supp. 2d 1315, 1321–22 (Ct. Int’l
Trade 2011). And on March 6, 2013, the Trade Court
granted motions to dismiss all of Giorgio’s claims. Giorgio
Foods, Inc. v. United States, 898 F. Supp. 2d 1370, 1382
(Ct. Int’l Trade 2013). If Giorgio lost this case, its share of
Byrd Amendment distributions would go to other domes-
tic producers. Giorgio appeals the denial of its motion for
leave to amend its complaint to add its statutory claim
and the dismissal of its second amended complaint, alleg-
ing a First Amendment violation.
We have jurisdiction pursuant to 28 U.S.C.
§ 1295(a)(5). We review de novo both the Trade Court’s
dismissal for failure to state a claim and its denial of
leave to amend on grounds of futility. See Ashley Furni-
GIORGIO FOODS, INC. v. US 9
ture Indus., Inc. v. United States, 734 F.3d 1306, 1309
(Fed. Cir. 2013), cert. denied, 135 S. Ct. 72 (2014). We
also exercise de novo review over questions of statutory or
constitutional interpretation. Id.DISCUSSION
I
Giorgio argues that, although it stated in its ques-
tionnaire response that it opposed the petition against
India and took no position with respect to Chile, China,
and Indonesia, its petition response “as a whole,” com-
bined with its other actions in support of the petition,
satisfied the Byrd Amendment’s support requirement.
Appellant’s Br. 31–33. Giorgio argues that because it
provided support for the petition “behind the scenes,” it
should be treated as a “latent petitioner.” Appellant’s Br.
5. Thus, the question here is whether a statement of
support is necessary to secure compensation under the
Byrd Amendment. On that question, we do not write on a
blank slate; three prior decisions of this court have ad-
dressed the support requirement.
In SKF, SKF USA (“SKF”), a domestic producer of
goods that were subject to an antidumping duty order,
was denied distributions under the Byrd Amendment
because the ITC and Customs determined that SKF had
neither been a petitioner nor supported the petition at
issue. 556 F.3d at 1340. In response to the ITC’s ques-
tionnaire, SKF had stated that it opposed the petition. Id.
at 1343. Under these circumstances, we found that SKF
had not met the support requirement and was therefore
not entitled to Byrd Amendment distributions because
“Congress could permissibly conclude that it is not re-
quired to reward an opposing party.” Id. at 1358. We
found that the Byrd Amendment “did not compensate all
injured domestic producers, but only those who filed an
antidumping petition and those who supported it.” Id. at
10 GIORGIO FOODS, INC. v. US
1351. We made clear that merely responding to a ques-
tionnaire did not constitute the necessary support: “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.”
Id. at 1359. Indeed, under ITC regulations, “[a]ny ques-
tionnaire issued by the Commission in connection with
any investigation . . . may be issued as a subpoena . . . .”
19 C.F.R. § 207.8. This provision further allows the ITC
to—among other things—pursue judicial enforcement, if
the ITC determines that a party has failed to “respond
adequately.” Id.In Chez Sidney, the plaintiff checked the “support”
box in its preliminary response, which Commerce may
rely on in order to determine whether the requirements of
19 U.S.C. § 1673a(b)(1) are satisfied for purposes of initi-
ating an investigation, but checked the “take no position”
box in its final response. See 684 F.3d at 1377, 1382. The
ITC denied a distribution, id. at 1377–78, but we held
that the producer qualified for distributions because it
“indicat[ed] in its preliminary questionnaire response that
it supported the petition . . . .” Id. at 1379. In holding
that the producer had satisfied the support requirement,
we specifically relied on the fact that it “expressed ab-
stract support in the preliminary response” and “never
expressed that it opposed the petition.” Id. at 1383. We
found that checking the “support” box in the preliminary
questionnaire was sufficient to constitute “active support”
under SKF. Id. at 1381 (citing SKF, 556 F.3d at 1353
n.26).
Finally, in Ashley, Ashley Furniture, Inc. (“Ashley
Furniture”) checked the “oppose” box on its questionnaire
response, whereas Ethan Allen Global, Inc. and Ethan
Allen Operations, Inc. (collectively, “Ethan Allen”)
checked the “take no position” box. 734 F.3d at 1308. The
GIORGIO FOODS, INC. v. US 11
ITC denied distributions. Id. at 1309. We held that
neither producer satisfied the support requirement. With
respect to Ashley Furniture, we explained that a finding
that a producer that checked “oppose” was an affected
domestic producer would “lead to the incongruous conclu-
sion that a producer who indicates only opposition to the
petition in questionnaires—the polar opposite of sup-
port—is nevertheless a supporter.” Id. at 1311. And with
respect to Ethan Allen, we explained that “[t]he conclu-
sion that a producer who indicates that it ‘takes no posi-
tion’ in a questionnaire is a supporter is also incongruous
because such a producer has not ‘indicated support.’” Id.
We held that “a producer who never indicates support
for the petition by letter or through questionnaire re-
sponse cannot be an [affected domestic producer]” because
“a producer’s ‘bare statement that it was a supporter’ is a
necessary (though not a sufficient) condition to obtain
[affected domestic producer] status.” Id. (quoting SKF,
556 F.3d at 1353 n.26). Notably, both producers in Ashley
failed to satisfy the support requirement despite the fact
that they too assisted the ITC investigation by providing
information. See id. at 1314 (Clevenger, J., dissenting)
(“Ethan Allen provided supporting data to the ITC in the
form of sales and production data . . . . Ashley Furniture
provided important sales and production data to the ITC,
assisting the ITC in determining if the wooden bedroom
furniture industry was injured by dumping.”).
In this case, Giorgio’s arguments are foreclosed by
Ashley, because Giorgio failed to satisfy the statutory
support requirement by indicating support “by letter or
through questionnaire response.” 19 U.S.C. § 1675c(d)(1).
There are no statements of explicit support in Giorgio’s
responses, but Giorgio argues that its answers to the
questions concerning injury “are not statements that
would be made by one opposing a petition.” Appellant’s
Br. 9 (quoting J.A. 78). In this connection, Giorgio points
12 GIORGIO FOODS, INC. v. US
to statements in its responses such as, “[d]ue to the ex-
tremely low and prevailing depressed prices for preserved
mushrooms caused by imported preserved mushrooms,
[Giorgio] was forced to discontinue production of its line of
68 oz. preserved mushrooms,” J.A. 154, and that “eroding
profits due to extremely low and depressed prices caused
by imported mushrooms[] will make future plans for
expansion and banking requests more difficult to obtain,”
J.A. 163. But those statements do not indicate support.
Factual statements that indicate injury, helpful as those
may be in making the final dumping determination, are
not the same as statements that indicate support for the
petition. See SKF, 556 F.3d at 1351 & n.22.
Although the statute focuses exclusively on parties
who “indicate support of the petition by letter or through
questionnaire response,” 19 U.S.C. § 1675c(d)(1), Giorgio
further relies on “other actions it took during the ITC’s
underlying investigation,” including the payment of
petitioners’ legal fees and providing confidential infor-
mation to petitioners, to satisfy the support requirement.
Appellant’s Br. 31. Even accepting Giorgio’s allegations
in the complaint as true, financial and other forms of
support for the petitioners are not the same as “in-
dicat[ing] support of the petition by letter or through
questionnaire response.” 19 U.S.C. § 1675c(d)(1) (empha-
sis added). As Ashley held, forms of support other than
explicit statements of support in the petition are irrele-
vant in determining whether a producer satisfied the
support requirement. See Ashley, 734 F.3d at 1311.
There is nothing in the Byrd Amendment, or its legisla-
tive history, that indicates congressional intent to com-
pensate all parties, including those who did not make an
explicit statement of support for the petition. See SKF,
556 F.3d at 1350–51.
Unlike the producer in Chez Sidney, 684 F.3d at 1383,
Giorgio never expressed affirmative support for the peti-
GIORGIO FOODS, INC. v. US 13
tion. See Ashley, 734 F.3d at 1311–12 (“Chez Sidney
repeatedly referred to the fact that the producer ex-
pressed affirmative support for the petition at one point—
i.e., in the preliminary questionnaire.”). With respect to
India, Giorgio’s position is the same as that of Ashley
Furniture, which also answered “oppose” on its response
to the ITC questionnaire. Id. at 1308. With respect to
Chile, China, and Indonesia, Giorgio’s position is the
same as that of Ethan Allen, which also answered “take
no position” in its response to the ITC questionnaire. Id.
Ashley held that neither position taken by Giorgio in this
case—opposition or the lack of a position—satisfied the
support requirement for Byrd Amendment distributions.
Id. at 1311.
II
Giorgio also argues that requiring a statement of sup-
port violates the First Amendment as applied to Giorgio.
This argument is also foreclosed by Ashley, which correct-
ly held that such a requirement does not violate the First
Amendment as applied to a producer that failed to indi-
cate support. 734 F.3d at 1310–11. A statement of sup-
port is not an abstract statement of viewpoint, but rather
one that has consequences. Those consequences are of
two types.
First, statements of support for the petition or the
lack of such statements can be, and in this case were,
taken into account by Commerce in determining whether
the statutory support requirements for the petition were
satisfied. The statute imposes a requirement of state-
ments of industry support amounting to 25% of the do-
mestic producers in the relevant industry before
Commerce can initiate an antidumping investigation. See
19 U.S.C. § 1673a(c)(4)(A)(i)–(ii). Here, Giorgio filed its
preliminary response to the ITC questionnaire on Janu-
ary 22, 1998, prior to Commerce’s February 2, 1998,
14 GIORGIO FOODS, INC. v. US
industry support determination. Commerce considered
Giorgio’s questionnaire response in determining that a
sufficient percentage of the domestic industry neverthe-
less supported the petition. 63 Fed. Reg. at 5362.
Second, in applying the threat of material injury
standard, the ITC is required in every case to take ac-
count of the publicly stated support, opposition, or no
position responses in the ITC questionnaire, as we explic-
itly held in Suramerica de Aleaciones Laminadas, C.A. v.
United States, 44 F.3d 978, 984 (Fed. Cir. 1994). 7 In
Suramerica, none of the industry members checked the
support box, one industry member expressed opposition,
and the rest did not take a position. Id. at 981. We held
that “domestic industry support for the petitions” was a
factor “required by the statute” in determining whether
there was a threat of material injury to the industry. Id.
at 984. We explained that “[t]he industry best knows its
own economic interests and, therefore, its views can be
considered an economic factor. Indeed an industry’s
failure to acknowledge an affirmative threat has direct
7 As the dissent points out, in making a “material
injury” determination as opposed to a “threat of material
injury” determination, the statute provides only that the
ITC “may consider such other economic factors as are
relevant to the determination.” 19 U.S.C. § 1677(7)(B)(ii).
The fact that the ITC might not consider the question-
naire responses in making a material injury determina-
tion hardly diminishes their significance to the threat of
material injury determination. Here, as in Suramerica,
44 F.3d at 981, the ITC was asked to consider both possi-
bilities, “whether there is a reasonable indication that
imports” from each of the subject countries “are causing
material injury, or threatening to cause material injury,
to a U.S. industry.” 63 Fed. Reg. at 5363.
GIORGIO FOODS, INC. v. US 15
significance.” Id. “Moreover, publicly expressed industry
support for the petition, or lack of it, is probative evidence
of those views.” Id. Thus, “[i]n making a determination
of threat of material injury, ITC must weigh industry
views and views of other interested parties . . . .” Id.
Significantly, in Suramerica, “[s]ome industry mem-
bers expressed additional views on the petitions in private
statements,” which in some instances “clarified a produc-
er’s reasons for withholding support from the petitions.”
Id. at 982. These private indications that may contradict
the public position do not eliminate the significance of the
public position. As we said, “[t]hat the industry is not
willing to express public support is evidence that it does
not perceive a real threat of immediate harm. Private
statements of support, but for other interests, can dimin-
ish but not eliminate the probative value of this relevant
evidence.” Id. at 984 n.2.
Given the real world consequences of a statement of
public support (or the lack thereof) Congress is clearly not
relying on an abstract expression of views. 8 Here, as in
8 See Ashley, 734 F.3d at 1311 (“As SKF explained,
the Byrd Amendment does not reward neutral or opposing
parties because filling out the questionnaire without
indicating support for the petition can contribute to the
petition’s defeat. Indeed, the ITC takes the level of sup-
port of the petition into account in its determination of
material injury, and the petition cannot be considered as
filed ‘on behalf of the industry’ unless at least 25% of the
domestic producers in the relevant industry sector indi-
cate support.” (citations omitted)); Chez Sidney, 684 F.3d
at 1382 (“[A] producer’s expression of support in the
response to the preliminary questionnaire is critical to the
determination of whether to commence an investigation of
an antidumping petition.”); SKF, 556 F.3d at 1340 n.1.
16 GIORGIO FOODS, INC. v. US
Ashley, Giorgio’s as-applied First Amendment challenge
fails because “the government did not deny Byrd Amend-
ment distributions to [Giorgio] solely on the basis of
abstract expression.” 734 F.3d at 1310.
In an analogous context, it could hardly be contended
that False Claims Act payments and attorney’s fees (31
U.S.C. § 3730(d)) would be available to a party, such as
Giorgio, that sat on the sidelines and refused to take an
open and active role in support of the government. See
SKF, 556 F.3d at 1356–57 (“[T]he 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 govern-
ment policy.”). There is nothing in the First Amendment
that requires the government to accommodate Giorgio’s
“business reasons” for not making a public statement in
support of the petition. Appellant’s Br. 10.
For these reasons, we affirm both the denial-in-part of
Giorgio’s motion to amend the complaint and the dismis-
sal of Giorgio’s complaint for failure to state a claim.
AFFIRMED
COSTS
Costs to appellees.
United States Court of Appeals
for the Federal Circuit
______________________
GIORGIO FOODS, INC.,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
UNITED STATES INTERNATIONAL TRADE
COMMISSION,
Defendant-Appellee
MONTEREY MUSHROOMS, INC.,
Defendant-Appellee
L.K. BOWMAN COMPANY, MUSHROOM CANNING
COMPANY,
Defendants
______________________
2013-1304
______________________
Appeal from the United States Court of International
Trade in No. 03-CV-0286, Chief Judge Timothy C.
Stanceu.
______________________
2 GIORGIO FOODS, INC. v. US
REYNA, Circuit Judge, dissenting.
Appellant appeals the decision of the Court of Inter-
national Trade that found it ineligible to qualify for a
distribution share under the Continued Dumping and
Subsidy Offset Act. The majority affirms the trial court
while I conclude that Appellant has established a plausi-
ble claim that it is an affected domestic producer eligible
to receive such a distribution. The majority’s approach
evidences a fundamental misunderstanding concerning
initiation of antidumping investigations and improperly
rewrites the statute to reach an outcome that is contrary
to the Congressional purpose of the Continued Dumping
and Subsidy Offset Act, the precedent of this court, and
the freedoms of expression guaranteed under the First
Amendment.
The trial court dismissed Appellant’s statutory and
First Amendment claims for failure to state a claim
pursuant to Rule 12 of the Rules of the Court of Interna-
tional Trade. At this stage, Giorgio is only required to
allege sufficient facts to establish a plausible claim that it
is an ADP under the CDSOA. Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). A significant problem is that the majority
consistently seeks to address the merits of the case, i.e.,
whether Giorgio is entitled to disbursements, not whether
Giorgio makes a plausible claim for relief. As I describe
below, I conclude that Giorgio has established a plausible
claim for relief, not that Giorgio is necessarily entitled to
disbursements. For these reasons, I respectfully dissent.
I. INDICATING INDUSTRY SUPPORT
Congress enacted the Continued Dumping and Subsi-
dy Offset Act 1 (“CDSOA” or the “Byrd Amendment”) to
1 See Pub.L. No. 106–387, §§ 1001–1003, 114 Stat.
1549, 1549A–72 to –75 (codified at 19 U.S.C. § 1675c
GIORGIO FOODS, INC. v. US 3
ameliorate the injurious effects of dumping and illegal
subsidies by distributing portions of collected antidump-
ing and countervailing duties to U.S. producers of the
affected industry. See Pub. L. No. 106-387, § 1002. To be
sure, Congress intended that the remedial effect of
CDSOA distributions would be distinct from the remedial
trade relief afforded under U.S. trade laws. 2 The former
provides company-specific relief by assisting U.S. produc-
ers affected by dumping to rebuild, while the latter pro-
vides relief to the affected industry as a whole by raising
the price of imports found to have been dumped.
Specifically, the CDSOA provides that “[d]uties as-
sessed pursuant to a countervailing duty order, an anti-
dumping duty order, or a finding under the Antidumping
Act of 1921 shall be distributed on an annual basis under
this section to the affected domestic producers for qualify-
ing expenditures.” 19 U.S.C. § 1675c(a). The statute is
clear on its face that to receive distributions, a producer
must first be an “affected domestic producer” and must
certify that it desires to receive distributions, that it has
not previously requested distributions for the qualifying
expenditures it now seeks, and that it is eligible to receive
distributions as an “affected domestic producer.” 19
U.S.C. § 1675c(d)(2). This case, like its predecessors,
focuses on the interpretation of “affected domestic produc-
er” (ADP). The precise question on appeal is whether
Giorgio has established a plausible claim that it is an
ADP under the CDSOA
(2000)), repealed by Deficit Reduction Act of 2005, Pub.L.
No. 109–171, § 7601, 120 Stat. 4, 154 (Feb. 8, 2006) (effec-
tive Oct. 1, 2007).
2 The CDSOA addresses antidumping and counter-
vailing investigations. 19 U.S.C. §§ 1671, 1673. For the
most part, this opinion refers to both by its reference to
“antidumping.”
4 GIORGIO FOODS, INC. v. US
To qualify as an ADP, a producer must have been a
“petitioner or interested party in support of the petition.”
19 U.S.C. § 1675c(b)(1)(A). The CDSOA directs the United
States International Trade Commission (“ITC” or “Com-
mission”) to forward to U.S. Customs and Border Protec-
tion (“Customs”) a list of ADPs. 19 U.S.C. § 1675c(d)(1).
Customs then distributes the collected antidumping
duties to listed ADPs who have provided the requisite
certifications. 19 U.S.C. § 1675c(d)(3). For non-petitioners
to be on this list, the CDSOA requires that the producer
be an interested party and “indicate support of the peti-
tion” by letter or, as is relevant here, “through question-
naire response.” 19 U.S.C. § 1675c(d)(1).
The generality of this provision is notable; Congress
only required that an interested party “indicate” support. 3
During an antidumping investigation, both the ITC and
the Department of Commerce (“Commerce”) send ques-
tionnaires to domestic producers at the preliminary and
final stages of their respective investigations. The CDSOA
does not specify which agency’s questionnaire responses
must include the indication of support. Nor does it specify
whether the questionnaire is the preliminary question-
naire or the final questionnaire. Most important, the
CDSOA does not specify how a producer must indicate
support—it only requires that the producer “indicate”
support through the questionnaire response. 4
3 An interested party is, for the purposes of this ap-
peal, a U.S. producer of the like product subject to the
antidumping investigation. 19 U.S.C. §1677c. There is no
dispute that Giorgio is an “interested party.”
4 “Indicate” means to “point out,” “show indirectly,”
or “state briefly.” The Merriam-Webster Dictionary 386
(2004).
GIORGIO FOODS, INC. v. US 5
For decades, the ITC’s questionnaires have contained
a petition support question that asks “Do you support or
oppose the petition? Please explain.” See J.A. 152, 189
(Giorgio’s ITC questionnaire responses). The question-
naire provides boxes next to “Support,” “Oppose,” or “Take
no position,” as well as three lines where a producer can
provide statement(s). To provide an example, I set out
below the petition support question from Giorgio’s re-
sponse to the preliminary questionnaire. 5
In passing the CDSOA, Congress did not refer to the
ITC questionnaire, much less the ITC support boxes. Nor
did Congress provide any guidance, for example, as to
what happens if a U.S. producer checks the take no posi-
tion box and then writes “please issue an antidumping
order.” This is important because the majority opinion
focuses on whether a box was checked or not. It is clear,
however, that Congress could not have intended that the
petition support requirement would hinge one way or
another on the boxes. The ITC has used generally the
same questionnaires at least as far back as the 1980s,
well before the passage of the CDSOA in 2000. SKF USA,
Inc. v. U.S. Customs & Border Prot., 556 F.3d 1337, 1357–
58 (Fed. Cir. 2009). Stated differently, the support boxes
5 Giorgio’s answer to the petition support question
in the final questionnaire was identical. J.A. 189. Giorgio
did not check any of the boxes.
6 GIORGIO FOODS, INC. v. US
existed over 15 years before the passage of the CDSOA.
The boxes were not created for or by the CDSOA, nor did
Congress designate the boxes as the place for indication of
support of a petition. Indeed, the boxes are but a small,
insignificant part of what is otherwise a questionnaire
that calls for highly technical, complex, company-specific
data that is often business proprietary information, as
well as general industry, publically-available trade data
and private market research data.
On the other hand, the boxes alone provide no mean-
ingful data or measurement towards a finding of material
injury, the goal of any worthy antidumping petition. Had
Congress wanted to make the ITC petition support ques-
tion determinative of support for CDSOA purposes, it
would have explicitly done so. But it did not. There is no
indication in the statute or the legislative history that
Congress intended that checking a box would determine
whether one was an ADP.
It is unjust to penalize a U.S. producer like Giorgio
who submitted its questionnaire response two years
before the CDSOA was enacted and had no clue that its
answer to that one question would cost it CDSOA distri-
butions. 6 Congress could not have intended such a result. 7
Yet, that is the result mandated by the majority.
6 In a trade case, there are a number of factors that
U.S. producers consider as to whether they should publi-
cally or privately express support for a dumping petition.
Thus, while a producer can lend economic and evidentiary
support for the petition, it may choose, for commercial
purposes having nothing to do with its support, not to
publically support the petition out of fear of losing U.S.,
foreign, or downstream customers. See e.g., Oral Argu-
ment at 5:20–6:10. Stated differently, the answer to the
ITC support question may be based entirely on business
GIORGIO FOODS, INC. v. US 7
II. REWRITING THE STATUTE
The majority holds that to meet the support require-
ment, a producer’s ITC questionnaire responses must
include a statement of “explicit” support. Maj. Op. at p.
11. The majority is careful not to hinge support on wheth-
er a specific box is checked or to explain what constitutes
a statement of explicit support. The explicit support rule
instead suggests that statements of explicit support may
be found somewhere in the ITC questionnaire responses.
I respectfully dissent from my colleagues’ rewriting of
the statute to require a statement of “explicit” support.
The statute does not contain such a requirement, just as
the statute does not mandate that a specific box be
checked. To the contrary, the plain language of the stat-
ute on its face requires the producer to “indicate” support
through questionnaire response. The Supreme Court has
repeatedly cautioned against departing from the plain
language of a statute. Schindler Elevator Corp. v. U.S. ex
rel. Kirk, 131 S. Ct. 1885, 1891 (2011); Tennessee Valley
Auth. v. Hill, 437 U.S. 153, 193–94 (1978). Under the
majority opinion, the legal issue of whether a U.S. pro-
ducer has indicated support through a questionnaire
or litigation strategy and have nothing to do with whether
a company supports the petition.
7 Indeed, Congress’s findings included in the stat-
ute strongly suggest that Congress intended that U.S.
producers like Giorgio would receive distributions. Con-
gress feared that domestic producers would lay off work-
ers and would be reluctant to reinvest or rehire. See Pub.
L. No. 106-387, §§ 1002. As described below, that is pre-
cisely what Giorgio alleges occurred here: the dumped
imports forced it to lay off workers and threatened to put
it out of business.
8 GIORGIO FOODS, INC. v. US
turns on whether a statement of support is “explicit.”
This new rule is nowhere in the statute.
III. EVIDENCE INDICATING SUPPORT
The question here is whether Giorgio indicates sup-
port for the petition through its questionnaire response(s).
The answer is yes. As this Court noted in PS Chez Sidney,
whether a questionnaire response indicates support is
determined by the substance of the response as a whole,
i.e., through the questionnaire. PS Chez Sidney, L.L.C. v.
U.S. Int’l Trade Comm’n, 684 F.3d 1374, 1379, 1382–83
(Fed. Cir. 2012).
Giorgio’s questionnaire responses provide data and
argument that supports a finding of material injury, or
threat thereof, which leads to the issuance of an anti-
dumping duty order. Giorgio submitted detailed, compa-
ny-specific financial data concretely showing the
decreasing value of its shipments, decreased wages,
increased inventories, and decreased net income and
profits. J.A. 155, 162, 165–66, 194, 200, 204–06. Giorgio
explained that its net sales decreased from about $ 74.9
million in fiscal year (FY) 1995 to about $ 48 million in FY
1997, a decrease of $ 26.9 million or about thirty-six
percent (36%). J.A. 162, 200. During this time, its total
cost of goods sold fell from about $ 60.5 million to about
$ 40 million and gross profits shrunk from about $ 14.4
million to about $ 8 million, or a loss of about forty-four
percent (44 %). J.A. 162, 200. These are precisely the type
of data that prove material injury during an investigation.
The majority dismisses these data as being merely
“factual statements,” and not statements that indicate
support for the petition. Maj. Op. at pp. 11–12. However,
there is no reason why empirical data, factual infor-
mation, and legal argument cannot indicate support. This
remarkable position defies a fundamental tenet of U.S.
law that recognizes that facts speak louder than words.
GIORGIO FOODS, INC. v. US 9
Cf. Ashcroft v. Iqbal, 556 U.S. 662, 678, (2009) citing Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007). In
trade law, the game is in the data. Factual statements
corroborated by data are evidence that carry determina-
tive weight. One could even say that the data in a pro-
ducer’s questionnaire responses speaks so loud, one
cannot hear what the producer is saying.
The majority is incorrect that Giorgio’s questionnaire
response does not indicate support. Indeed, Giorgio’s
questionnaire response can reasonably and fairly be said
to constitute, in its entirety, a statement of “explicit
support” for the petition. Giorgio states that the investi-
gated imports “diminish or extinguish our ability to
remain in business.” J.A. 164, 202. Giorgio was forced to
discontinue a product line and decrease production at
numerous facilities because of the “extremely low” and
“prevailing depressed” prices caused by the subject im-
ports, thereby forcing Giorgio to “layoff numerous employ-
ees.” J.A. 154, 191. These layoffs were needed in light of
the “depressed times in the domestic preserved mushroom
industry” caused by the dumped imports. J.A. 154, 191.
Even after layoffs, “if the downward trend [in net sales]
continues or does not show any improvement Giorgio
Foods, Inc. could be forced to close its operations.” J.A.
154, 191.
These are explicit statements of material injury and
demonstrate open, explicit support of the petition by a
domestic producer of the like product. When one considers
that the statements were made two years prior to the
enactment of the CDSOA, logic dictates that these sub-
stantive statements constitute a plausible indication of
support. That the majority turns a blind eye to these
explicit statements shows that it focused exclusively on
the petition support question boxes. The majority’s ap-
proach, relying on abstract expressions of support, is
contrary to our precedent.
10 GIORGIO FOODS, INC. v. US
IV. IGNORING PRECEDENT
Our precedent emphasizes an inclusive reading of the
petition support requirement that assesses support based
on actions, not specific words. In SKF, we considered a
First Amendment constitutional challenge to the
CDSOA’s support requirement. SKF USA, Inc. v. U.S.
Customs & Border Protection, 556 F.3d 1337 (Fed. Cir.
2009). We recognized that a statute is likely unconstitu-
tional if its purpose is to penalize viewpoint expression.
As a result, we held that the CDSOA rewards actions in
support of litigation, not “abstract expression of sup-
port”—essentially focusing on the substance of the pro-
ducer’s responses, not their form. Id. at 1353. Thus, the
Court in SKF sidestepped the constitutional issues con-
cerning requiring viewpoint expression by focusing on
action in support of litigation. SKF, 556 F.3d at 1353. Yet,
in this case, the majority sidesteps “action in support of
litigation,” and instead imposes a viewpoint-based expres-
sion of support requirement.
The majority’s opinion prizes form over substance; it
prefers nonfactual (i.e., abstract) expressions of support
over actions that support litigation. Whether to label a
statement as explicit support or as a statement that
indicates support is immaterial where both depend entire-
ly on the abstract form of the expression. Here, the major-
ity determines that action that supports litigation is not
an explicit statement of support. As a result, the SKF
case and the majority opinion are in direct conflict and
irreconcilable.
Today’s “statement of explicit support” holding also
contravenes this Court’s holding in PS Chez Sidney. In PS
Chez Sidney, we held that a producer may qualify as an
ADP even though it answered “Take no position” to the
petition support question in its final ITC questionnaire
response. PS Chez Sidney, L.L.C. v. U.S. Int’l Trade
GIORGIO FOODS, INC. v. US 11
Comm’n, 684 F.3d 1374, 1379, 1383 (Fed. Cir. 2012). To
ensure that the CSDOA furthered its goal of “assist[ing]
domestic producers,” we stressed an “inclusive reading” of
the statute. Id. at 1382. We explained in PS Chez Sidney
that “it is the surrounding circumstances, not abstract
statements of support alone, upon which an appropriate
support determination depends.” Id. at 1382–83. Here,
the majority ignores the significant evidence of Giorgio’s
actions that supported the petition and instead seeks out
explicit statements of support. 8 As a result, the majority
opinion is in direct and irreconcilable conflict with this
Court’s decision in PS Chez Sidney.
In Ashley Furniture, we considered statutory and con-
stitutional challenges by two domestic producers, Ashley
and Ethan Allen, which answered the petition support
question “Take no position” and “Oppose,” respectively.
Ashley Furniture Indus., Inc. v. United States, 734 F.3d
1306, 1308 (Fed. Cir. 2013), cert. denied, 135 S. Ct. 72(2014). Upon noting that the producer in PS Chez Sidney
checked the support box in its preliminary questionnaire
response (but not in the final questionnaire), this Court in
Ashley Furniture held that a producer who “never indi-
cates support for the petition by letter or through ques-
tionnaire response cannot be an ADP.” Id. at 1311–12
(internal citations omitted).
8 Giorgio’s support of the petition is further con-
firmed by other supporting actions, including contributing
legal fees incurred by the petitioners in the antidumping
proceedings (J.A. 74, ¶ 34); providing confidential busi-
ness information that was included in the petition (J.A.
76, ¶ 42); participating in pre-initiation meetings with the
petitioners (J.A. 76, ¶ 41); and hosting ITC staffers for a
plant field visit and tour (J.A. 77, ¶ 43).
12 GIORGIO FOODS, INC. v. US
The majority bases much of its holding on Ashley
Furniture, concluding that it “foreclose[es]” Giorgio’s
arguments. Maj. Op. 11. Ashley Furniture, however,
presented wholly different facts than those of this case.
Notably, there was no showing in Ashley Furniture of
actions taken in support of the petition. Nor did the Court
provide any analysis of Ashley’s and Ethan Allen’s ques-
tionnaire responses beyond the petition support question.
Instead, Ashely Furniture concluded that the question-
naire response must at least include “a bare statement” of
support. Ashley Furniture, 734 F.3d at 1311. Here, the
majority alters the “bare statement of support” require-
ment to achieve statement of “explicit support,” thereby
rendering the holding in this case inconsistent with
Ashley Furniture.
In sum, the explicit support rule is contrary to our
precedent, and, as I describe below, renders the CDSOA
unconstitutional. These constitutional concerns bolster
my conclusion that the majority’s interpretation of the
CDSOA is incorrect. Edward J. DeBartolo Corp. v. Flori-
da Gulf Coast Bldg. & Const. Trades Council, 485 U.S.
568, 575 (1988) (“where an otherwise acceptable construc-
tion of a statute would raise serious constitutional prob-
lems, the Court will construe the statute to avoid such
problems unless such construction is plainly contrary to
the intent of Congress.”) (internal citations omitted).
V. CONSTITUTIONALITY OF THE CDSOA
In SKF, we held that the constitutionality of the
CDSOA’s petition support requirement under the First
Amendment is assessed under the commercial speech
doctrine. SKF, 447 F.3d at 1355. 9 Under this doctrine, the
9 Being bound by precedent, I accept this holding,
but for the reasons that Judge Linn provided in his
GIORGIO FOODS, INC. v. US 13
regulation must “directly advance[]” a substantial gov-
ernment interest. Id. (citing Cent. Hudson Gas & Elec.
Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557, 566
(1980)). In SKF, we held that the petition support re-
quirement directly advances the government interest in
preventing dumping by rewarding parties who assist in
antidumping enforcement. SKF, 447 F.3d at 1355. To
avoid the constitutional challenge, the Court in SKF
focused on whether a party “assists,” or takes action in
support of the petition, not whether a party “expresses
support” for the petition. See SKF, 556 F.3d at 1353.
Giorgio argues that this case presents a related, but
different constitutional question: whether it is constitu-
tional to determine petition support entirely on the pres-
ence of a statement of explicit support. See Appellant’s Br.
57. The majority rejects this challenge on the basis that a
statement of explicit support “has consequences” that are
of “two types” that furthers the Government’s interest in
enforcing the antidumping laws. Maj. Op. at 13. First, it
influences Commerce’s decision as to whether the petition
has the requisite industry support. Id. Second, it influ-
ences the ITC’s material injury determination. Id. These
assertions reflect a fundamental misunderstanding on
how antidumping investigations are conducted.
The ITC questionnaire response does not affect
whether Commerce initiates an investigation. 10 First, it
thoughtful dissent, I believe that the CDSOA should be
subjected to strict scrutiny, not evaluated under the
commercial speech doctrine. SKF, 556 F.3d at 1370 (Linn,
J., dissenting).
10 The majority fails to explain what “consequences”
resulted from Giorgio’s answer to the petition support
question. Importantly, it is not explained what difference,
if any, Giorgio’s response had on the investigation.
14 GIORGIO FOODS, INC. v. US
is Commerce, not the ITC, that makes the industry sup-
port (standing) determination. Commerce provides infor-
mation to the ITC after an affirmative industry support
determination is made. Id. § 1673a(d). Second, the ITC
producer questionnaire is typically issued after Commerce
initiates its investigation. Once Commerce makes its
industry support determination, it cannot be changed. 19
U.S.C. § 1673a(c)(4).
Thus, it is not the ITC’s task to determine if a petition
has requisite industry support; Congress assigned that
task to Commerce. Id. § 1673a(c)(1)(A)(ii). Congress
provided Commerce with its own tools for making that
determination: the petition and, if necessary, a poll of the
domestic producers. 19 U.S.C. § 1673a(c)(4)(D).
During Oral Argument, counsel for the ITC confirmed
that Commerce determines industry support and that the
ITC has no role in the determination.
Court:
“As I understand it, there’s a
bright line rule for the initiation of
these proceedings, which says
there has to be 25 % support, cor-
rect? And that’s not something the
ITC administers . . . that’s a bright
line rule at Commerce . . . and it’s
based on the questionnaire”
Counsel for the Commission interjects:
“No sir, it is not based on the ques-
tionnaire . . . that’s where the con-
fusion enters in. . . . It’s
Commerce’s obligation under the
statute to initiate the investiga-
tion. On the face of the petition
there must be at least 25 % of in-
GIORGIO FOODS, INC. v. US 15
dustry support, the industry must
have supported that, or Commerce
will reject the petition.”
Oral argument at 23:40–24:40 available at
http://oralarguments.cafc.uscourts.gov/default.aspx?fl=2
013-1304.mp3.
Court:
“So someone who checked oppose
or don’t support isn’t counted in
arriving at the 25 %?”
Counsel for the Commission responded:
“That is not part . . . they do their
exercise separately from what the
Commission does. The Commis-
sion sends out its questionnaires
after initiation.”
Oral Argument at 24:44–25:00.
The above demonstrates that petition support expres-
sions, in ITC questionnaire responses, do not further the
enforcement of antidumping laws.
The majority solely relies on Commerce’s Notice of
Initiation issued in the underlying investigation for its
assertion that statements of “explicit” support in an ITC
questionnaire response impact Commerce’s industry
support determination. Maj. Op. at 13–14. There is,
however, no showing precisely how Giorgio’s ITC ques-
tionnaire impacted Commerce’s initial industry support
determination. The majority apparently believes that the
Notice of Initiation evidences that Commerce considered
Giorgio’s preliminary questionnaire response, and specifi-
cally points to certain comments made to Commerce
under 19 U.S.C. § 1673a(c)(4)(E), which permits interest-
16 GIORGIO FOODS, INC. v. US
ed parties to “submit comments or information on the
issue of industry support.”
The Notice states that Commerce received two “com-
ments regarding industry support” on January 22, 1998.
63 Fed. Reg. 5361–62. The first was filed by a Chilean
exporter asserting that the petitioners are not members of
the applicable U.S. industry. Id. The second, an “expres-
sion of opposition,” was filed by Giorgio with respect to
the investigation (petition) involving imports from India.
63 Fed. Reg. 5362. The majority speculates that this
“expression of opposition” has to be Giorgio’s preliminary
ITC questionnaire response. See Maj. Op. at 13–14.
Giorgio’s comment was made pursuant to 19 U.S.C. §
1673a(c)(4)(E), which permits voluntary comments from
interested parties concerning any aspect of an initiation,
including industry support. It is unreasonable to con-
clude that Giorgio submitted its ITC questionnaire re-
sponse for purposes of this comment period. Nor is there
any evidence that Commerce consulted Giorgio’s ITC
questionnaire response for purposes of this comment
period. Conversely, the Notice makes no mention of
opposition by Giorgio in connection with the Chile, China,
and Indonesia petitions. 63 Fed. Reg. 5362. Borrowing the
majority’s view, since the Notice states no opposition from
Giorgio with respect to those investigations, one is forced
to conclude that Giorgio supported those investigations.
But this, too, would be speculation primarily because
Commerce, by law, bases its industry support decision on
the information provided in the petition. If the petition
does not demonstrate the required industry support, the
investigation is not initiated.
The majority concludes that Giorgio’s “expression of
opposition” and its preliminary ITC questionnaire re-
sponse are the same document because they were filed on
the same day. See Maj. Op. at 13–14. There are a number
GIORGIO FOODS, INC. v. US 17
of plausible reasons that could explain the coincidence,
such as parallel due dates for receipt of factual submis-
sions. Indeed, the Chilean comment was also filed on the
same day. 63 Fed. Reg. 5361. This does not mean that the
Chilean exporter filed its comments via an ITC question-
naire response. It did not.
The majority’s second “consequence” is an impact on
the ITC’s material injury determination. Maj. Op. at 14–
15. Specifically, the majority asserts that Suramerica de
Aleaciones Laminadas, C.A. v. United States, 44 F.3d 978,
984 (Fed. Cir. 1994) requires that the ITC, “in every case,”
take into account a producer’s publicly stated position in
its ITC questionnaire response for the purpose of making
injury determinations. Maj. Op. at 14. This assertion is
not correct, and it ignores the facts of the case. First, this
Court noted the difference between a threat of injury case
(where views of the industry must be considered) and a
material injury case. 11 Thus, we held that “the breadth of
relevant factors in Trent Tube, a material injury case,
does not govern in this threat of material injury case.”
Suramerica, 44 F.3d at 984 (citing Trent Tube Div., Cru-
cible Materials Corp. v. Avesta Sandvik Tube AB, 975
F.2d 807 (Fed. Cir. 1992)). Here, the ITC case is not a
threat of injury case so the relevant factors relied on in
Suramerica have no application. One needs look no
further than this case as an example where the answer to
the ITC industry support question has no impact on the
merits determination. Unlike Suramerica, there is no
11 For “material” injury cases, the ITC “may” consid-
er factors beyond those listed in the statute. 19 U.S.C.
§ 1677(7)(B). In “threat” cases, the ITC “shall” consider all
relevant economic factors, including publicly declared
industry support. 19 U.S.C. § 1677(7)(F)(i). See also
Suramerica, 44 F.3d at 984 (describing statutory differ-
ences for material and threat cases).
18 GIORGIO FOODS, INC. v. US
indication that the ITC relied on Giorgio’s answers to the
support question while there is significant evidence that
the ITC relied on the trade data provided in the responses
to support a finding of material injury in this case. In this
regard, Suramerica supports Giorgio’s assertion of a
plausible claim.
Having acknowledged that Suramerica did not compel
the ITC to consider publicly declared support, the majori-
ty instead asserts that the ITC might consider it. Maj. Op.
14, n. 7. This assertion does not salvage the petition
support requirement’s constitutionality. Under the com-
mercial speech doctrine, a regulation “may not be sus-
tained if it provides only ineffective or remote support for
the government’s purpose.” Cent. Hudson Gas & Elec.
Corp., 447 U.S. at 564. The Supreme Court has further
explained that “[t]his burden is not satisfied by mere
speculation or conjecture; rather, a governmental body
seeking to sustain a restriction on commercial speech
must demonstrate that the harms it recites are real and
that its restriction will in fact alleviate them to a material
degree.” Edenfield v. Fane, 507 U.S. 761, 770–71 (1993).
It is irrelevant whether the ITC might consider pub-
licly declared support because Giorgio has raised an as-
applied, not facial, challenge. Appellant’s Br. at 52. The
question is not whether the ITC may, hypothetically,
consider a producer’s publicly declared support; it is
whether the ITC considered Giorgio’s support answers in
this case. Dahnke-Walker Milling Co. v. Bondurant, 257
U.S. 282, 289 (1921) (“A statute may be invalid as applied
to one state of facts and yet valid as applied to another.”).
The majority offers no evidence that the ITC considered
Giorgio’s support answer, or that the support answer
otherwise alleviated any harm to a material degree.
In sum, the majority bases its reasoning on the asser-
tion that the ITC questionnaire industry support question
has “two types” of consequences that directly advance a
GIORGIO FOODS, INC. v. US 19
substantial government interest. Neither of these conse-
quences is based in agency practice, agency regulations,
or the trade statutes. Because neither Commerce nor the
ITC rely on a producer’s answer to the petition support
question to respectively establish industry support under
19 U.S.C. §1673a(c)(4)(A), or otherwise to affect the
outcome of a material injury case, the petition support
requirement does not “directly advance” a substantial
government interest. 12 As such, the majority opinion
renders the CDSOA petition support requirement uncon-
stitutional under the First Amendment. Cent. Hudson
Gas & Elec. Corp., 447 U.S. at 564.
The majority also supports its holding by comparing
the CDSOA to the False Claims Act, arguing that pay-
ments and attorney’s fees under the latter would not be
available to a party like Giorgio who “sat on the sidelines
and refused to take an open and active role in support of
the government.” Maj. Op. at 16 (citation omitted). Such
reliance is misplaced because the qui tam provision of the
False Claims Act rewards parties that file an action. 31
U.S.C. § 3730(d). The CDSOA does not require that only
petitioners may receive a distribution. Conversely, the
eligibility of a qui tam plaintiff to qualify for proceeds
does not hinge on a statement of “explicit support” for the
action.
In any event, the facts in this case show that Giorgio
did not sit on the sidelines but rather took significant
action and played an important role towards the issuance
of the antidumping order. Giorgio’s second amended
12 Further, I have serious concerns regarding, but do
not address, the constitutionality of the retroactive appli-
cation of a statement of “explicit support” requirement to
actions taken by U.S. producers two years prior to the
enactment of the CDSOA.
20 GIORGIO FOODS, INC. v. US
complaint, which we accept as true at this stage, states
that Giorgio supported the preparation of the petition. It
contributed over one million dollars ($ 1,000,000) for legal
fees towards preparation of the petition and participation
in proceedings before Commerce and the ITC—an amount
greater than contributed by any of the petitioners. 13 J.A.
74, ¶ 34. Prior to filing the petition, Giorgio provided the
petitioner with confidential information regarding its
capacity, production, sales, pricing, and profitability. J.A.
75, ¶ 37. The petition incorporated much of the infor-
mation that Giorgio provided, e.g., Giorgio’s closing of a
production line for its largest can size due to the imports.
J.A. 76, ¶ 41. After the petition was filed, Giorgio hosted
two ITC staffers for a day-long field visit of the closed
production line and reiterated its belief that the low-
priced imports caused its closure. J.A. 77, ¶ 43. This type
of “plant visit” is distinct from a verification visit under 19
C.F.R. § 353.36(c). A plant visit is conducted to educate
Commerce and ITC personnel on production processes
and overall relevant industry practices.
13 Counsel for one of the petitioners appeared and
argued that Giorgio’s lack of support for the India petition
undermined the petitions involving imports from other
countries. Counsel’s appearance and argument can best
be understood in the context of CDSOA distributions. To
the extent that Giorgio does not qualify for a distribution
(at least $9 million), petitioners share of CDSOA money is
significantly increased. This is an absurd result. Congress
could not have contemplated a result where a U.S. pro-
ducer submits a questionnaire response that details
evidence of material injury and establishes in clear terms
that it is a domestic producer of the like product that is
adversely affected by virtue of dumped imports should not
be entitled to a share of CDSOA money.
GIORGIO FOODS, INC. v. US 21
In sum, Giorgio establishes a plausible claim that it is
an ADP. For these reasons, I dissent.