View PDF Version

No. 09-767

 

In the Supreme Court of the United States

SKF USA INC., PETITIONER

v.

UNITED STATES CUSTOMS AND BORDER PROTECTION, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS
IN OPPOSITION

ELENA KAGAN
Solicitor General
Counsel of Record
TONY WEST
Assistant Attorney General
JEANNE E. DAVIDSON
FRANKLIN E. WHITE, JR.
Attorneys
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217

 

QUESTION PRESENTED

The antidumping-duty law, 19 U.S.C. 1673, autho rizes the Department of Commerce to impose duties on foreign merchandise sold in the United States at less than its fair value if such sales cause material injury, or threaten to cause material injury, to domestic industry. The law permits an interested party, including a mem ber of domestic industry, to initiate an antidumping pro ceeding by filing a petition, provided that the petition has a specified level of support among domestic produc ers or workers. 19 U.S.C. 1673a(b), (c)(1)(A) and (c)(4).

The now-repealed Continued Dumping and Subsidy Offset Act of 2000 (CDSOA), Pub. L. No. 106-387, Tit. X, 114 Stat. 1549A-72 (19 U.S.C. 1675c (2000)), repealed by Deficit Reduction Act of 2005, Pub. L. No. 109-171, § 7601(a), 120 Stat. 154, provided that antidumping du ties on merchandise that entered the United States be fore October 1, 2007, would be distributed annually to "affected domestic producers." Potential recipients of such distributions include any "petitioner or interested party in support of the petition with respect to which an antidumping duty order * * * has been entered." In 2005, petitioner was found to be ineligible for distribu tions under a particular antidumping-duty order be cause it had not supported the petition for that order. The question presented is as follows:

Whether the CDSOA's support requirement violated the First Amendment.

In the Supreme Court of the United States

No. 09-767

SKF USA INC., PETITIONER

v.

UNITED STATES CUSTOMS AND BORDER PROTECTION,

ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS
IN OPPOSITION

 

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a- 100a) is reported at 556 F.3d 1337. The initial opinion of the Court of International Trade (Pet. App. 129a-155a) is reported at 451 F. Supp. 2d 1355. That court's later opinion upholding the determinations of the Interna tional Trade Commission and the Bureau of Customs and Border Protection on remand (Pet. App. 109a-128a) is reported at 502 F. Supp. 2d 1325.

JURISDICTION

The judgment of the court of appeals was entered on February 19, 2009. A petition for rehearing was denied on September 29, 2009 (Pet. App. 101a-108a). The petition for a writ of certiorari was filed on December 28, 2009. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. In international trade law, the practice of export ing goods to another country to be sold at less than their fair value-i.e., the price for which they are sold in the producer's home market, or their cost of production- is known as "dumping." See 19 U.S.C. 1677(34). Section 1673 of Title 19 authorizes the Department of Commerce to impose antidumping duties to "address harm to do mestic manufacturing from foreign goods sold at an un fair price." United States v. Eurodif S.A., 129 S. Ct. 878, 883 (2009).1

The Department of Commerce may initiate an anti dumping proceeding either on its own initiative or in response to a petition filed by an interested party, in cluding a member of domestic industry. 19 U.S.C. 1673a, 1677(9)(C); see 19 C.F.R. 351.202(a) (noting that the Department of Commerce "normally initiates anti dumping * * * duty investigations based on petitions filed by a domestic interested party"). A petition must be "filed by or on behalf of the industry," 19 U.S.C. 1673a(c)(1)(A)(ii), meaning that it must receive a speci fied level of support from domestic producers or work ers, 19 U.S.C. 1673a(c)(4).

Once an antidumping proceeding has commenced, the International Trade Commission (ITC) must deter mine whether there is a material injury or threat of ma terial injury to a domestic industry by reason of alleg edly dumped imports. 19 U.S.C. 1673(2). To make that determination, the ITC issues questionnaires to domes tic producers in which it solicits detailed factual infor mation relating to, inter alia, production capacity, pro duction, shipments, inventories, prices, and employment records, for periods spanning several years. See Pet. App. 47a. The ITC also considers the degree of support for the petition from members of the domestic industry. See, e.g., Suramerica de Aleaciones Laminadas, C.A. v. United States, 44 F.3d 978, 984 (Fed. Cir. 1994). The ITC's domestic-producer questionnaires accordingly have long included a question asking whether the pro ducer supports, opposes, or is neutral as to the relief sought by the petitioner. Pet. App. 5a.

If the ITC issues a negative determination with re spect to material injury, the investigation is terminated. If the ITC issues an affirmative determination, and if the Department of Commerce has determined that the foreign merchandise at issue in the investigation "is be ing, or is likely to be, sold in the United States at less than its fair value," 19 U.S.C. 1673(1), it issues an antidumping-duty order directing United States Cus toms and Border Protection (Customs) to assess duties on the merchandise. 19 U.S.C. 1673d(c)(2), 1673e(a)(1).

2. Antidumping duties, like other customs duties, have typically been deposited into the United States Treasury for general purposes. In 2000, however, Congress enacted the Continued Dumping and Subsidy Offset Act (CDSOA or Byrd Amendment), Pub. L. No. 106-387, Tit. X, 114 Stat. 1549A-72 (19 U.S.C. 1675c (2000)), repealed by Deficit Reduction Act of 2005, Pub. L. No. 109-171, § 7601(a), 120 Stat. 154. Enacted to fur ther the remedial purposes of the fair trade laws, CDSOA § 1002, 114 Stat. 1549A-72, the CDSOA directed Customs to distribute monies collected pursuant to antidumping-duty orders to "affected domestic produc ers" in order to allow such producers to recoup certain qualifying expenditures. 19 U.S.C. 1675c(a) (2000); see 19 U.S.C. 1675c(b)(4) (2000) (defining "qualifying expen ditures" to include various costs of production). The CDSOA defined the term "affected domestic producer" to mean "any manufacturer, producer, farmer, rancher, or worker representative" that "was a petitioner or in terested party in support of the petition with respect to which an antidumping duty order * * * has been entered," and that "remains in operation." 19 U.S.C. 1675c(b)(1) (2000); see 19 U.S.C. 1677(9)(C) ("interested party" includes, inter alia, any "manufacturer, pro ducer, or wholesaler in the United States of a domestic like product").

In 2006, after the Appellate Body of the World Trade Organization (WTO) held that the CDSOA violated the United States' obligations in several international agree ments,2 Congress repealed the CDSOA. Deficit Reduc tion Act of 2005 § 7601(a), 120 Stat. 154. Congress pro vided, however, that "[a]ll duties on entries of goods made and filed before October 1, 2007 * * * shall be distributed" pursuant to the CDSOA. Id. § 7601(b), 120 Stat. 154.

3. In 1988, the Torrington Company, a domestic pro ducer of antifriction bearings and a predecessor of respondent Timken US Corporation (Timken), filed a petition alleging that imports of antifriction bearings from several countries were being dumped in the United States. Pet. App. 9a; see id. at 18a n.11. The Depart ment of Commerce commenced antidumping proceed ings. Antifriction Bearings (Other Than Tapered Rol ler Bearings) and Parts Thereof from France, 53 Fed. Reg. 15,074 (Dep't of Commerce 1988).

The ITC issued questionnaires to domestic produc ers, asking for detailed factual data on their production and financial operations. The questionnaires also asked whether the producers supported the Torrington Com pany's petition. Pet. App. 12a. After further investiga tion, the ITC determined that domestic industry was materially injured by reason of certain imports of antifriction bearings. Id. at 13a-14a. The Department of Commerce subsequently found that the antifriction bearings were being dumped in the United States, and it accordingly issued antidumping-duty orders against antifriction bearings imported from several countries, including Japan. Id. at 14a.

In 2000, after the CDSOA became effective, the ITC produced an initial list of supporters of the petition that had resulted in the antidumping-duty orders relating to ball bearings from Japan. Pet. App. 15a; see 19 U.S.C. 1675c(d)(1) (2000). Each year thereafter, Customs pub lished a notice of intent to distribute funds to that group of eligible domestic producers. Pet. App. 16a; see 19 U.S.C. 1675c(d)(2) (2000).

4. Petitioner is a domestic subsidiary of a major for eign bearings producer that was a respondent in the antidumping proceedings. In response to the ITC's questionnaire, petitioner checked a box indicating that it opposed the relief sought by the Torrington Company. Pet. App. 12a. Because petitioner had not supported the Torrington Company's petition, petitioner was not in cluded in the ITC's list of entities eligible to receive CDSOA distributions, and for four years petitioner made no effort to claim a share of the annual CDSOA distributions. Id. at 16a.

In 2005, petitioner requested for the first time that the ITC add it to the list of entities eligible to receive CDSOA distributions under the antidumping-duty order covering antifriction bearings from Japan. Pet. App. 16a. The ITC denied the request on the ground that petitioner had not supported the petition and therefore was not an "affected domestic producer" within the meaning of the CDSOA. Id. at 17a. Petitioner later re quested CDSOA distributions from Customs. That re quest was also denied. Ibid.

5. Petitioner filed suit in the United States Court of International Trade (CIT), challenging the determina tion of the ITC and Customs that petitioner was not an "affected domestic producer" and was therefore ineligi ble for distributions under the relevant antidumping- duty order. Pet. App. 130a. Petitioner contended that the distribution scheme established by the CDSOA, un der which a particular entity's eligibility for distribu tions turns on whether that entity supported or opposed the relevant antidumping-duty petition, violated the First and Fifth Amendments. See ibid. The CIT granted petitioner's motion for judgment upon the agen cy record. Id. at 129a-155a.

The CIT held that the CDSOA's support requirement violated the equal protection component of the Fifth Amendment because that requirement lacked a rational basis. Pet. App. 141a-146a. The court stated that "[t]he plain language of the CDSOA fails to rationally indicate why entities who supported a petition are worthy of greater assistance than entities who took no position or opposed the petition when all the domestic entities are members of the injured domestic industry." Id. at 143a. The CIT further concluded that the support require ment of the statute must be severed, so that all domestic producers that had participated in the relevant anti dumping investigation would be eligible to receive CDSOA funds, regardless of whether they had sup ported the petition. Id. at 151a-153a. The CIT re manded the case to allow Customs and the ITC to deter mine whether petitioner was eligible to receive a CDSOA distribution for fiscal year 2005 under that stan dard. Id. at 153a-154a. On remand, Customs and the ITC concluded that petitioner would qualify for a distri bution under that standard, and the CIT affirmed. Id. at 109a-128a.

6. The federal respondents and Timken appealed the CIT's judgment to the Federal Circuit. On appeal, petitioner urged affirmance primarily on First Amend ment rather than equal protection grounds. The court of appeals reversed. Pet. App. 1a-52a.

a. The court of appeals first held that petitioner's as-applied challenge was not barred by the applicable two-year statute of limitations, 28 U.S.C. 2636(i), which the court assumed was jurisdictional under John R. Sand & Gravel Co. v. United States, 552 U.S. 130 (2008). The court reasoned that, even though petitioner had waited approximately five years after the CDSOA was enacted and the ITC promulgated its list of entities eli gible to receive CDSOA distributions, and some four years after Customs had published that list, its suit was timely because petitioner "could not file suit to recover fiscal year 2005 Byrd Amendment distributions until it was known whether Byrd Amendment distributions would be available"-i.e., when Customs published its notice of intent to distribute duties for fiscal year 2005. Pet. App. 24a-25a.

On the merits of petitioner's First Amendment chal lenge, the court of appeals rejected petitioner's argu ment that the CDSOA "is impermissibly designed to penalize those who oppose antidumping petitions." Pet. App. 31a. The court disagreed with the government's position that "the statute's only purpose was to compen sate those who are injured by dumping," using "petition support as a surrogate for injury." Id. at 30a. After reviewing the statute's text and purposes, the court con cluded that the CDSOA was also designed "to reward injured parties who assisted government enforcement of the antidumping laws by initiating or supporting antidumping proceedings," id. at 33a; see id. at 36a ("The language of the Byrd Amendment is easily suscep tible to a construction that rewards actions (litigation support) rather than the expression of particular views.").

The court of appeals held that the statute's "subsid iary purpose" of rewarding injured parties that assisted in enforcement efforts did not render the statute uncon stitutional. Pet. App. 31a-52a. Noting that this Court's cases "do not establish a standard for determining when such rewards * * * would be forbidden by the First Amendment," the court of appeals relied by analogy on the standard of scrutiny set out in Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980), for reviewing commercial-speech regulations. Pet. App. 39a-40a; see id. at 40a n.28 (noting that the result would be the same under "the test for speech combined with conduct in United States v. O'Brien, 391 U.S. 367, 377 (1968)"). The court concluded that the distribution scheme established by the CDSOA satisfied that standard of review. Id. at 40a. The court explained that "preventing dumping is a substantial government interest" and that the CDSOA "directly advances" that interest "by rewarding parties who assist in [trade-law] enforcement." Id. at 41a; see id. at 44a ("[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 government policy."). The court further concluded that the CDSOA is not unduly broad, and that Congress could reasonably choose to reward the supporters of antidumping-duty petitions without rewarding opponents as well. Id. at 44a-51a. Finally, finding 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 court of appeals held that the CIT had erred in concluding that the CDSOA violated the Fifth Amendment's equal protection guarantee. Id. at 51a- 52a.

b. Judge Linn dissented. Pet. App. 53a-100a. In his view, the CDSOA's support requirement was subject to strict scrutiny because it "denies a benefit on the basis of expression of a viewpoint on a political matter in a public forum." Id. at 89a. Applying strict scrutiny, Judge Linn would have held the CDSOA's support re quirement to be invalid on the ground that the govern ment had less restrictive means of achieving any inter ests in compensating injured domestic producers and rewarding those who supported government enforce ment efforts. Id. at 94a; see id. at 80a-84a.

7. The court of appeals denied rehearing en banc over Judge Linn's dissent, which was joined by three other judges. Pet. App. 101a-108a.

ARGUMENT

Petitioner (Pet. 12-38) contends that the distribution scheme established by the CDSOA, under which indus try participants who support an antidumping petition are entitled to a share of any duties collected while par ticipants who oppose the petition are not, violates the First Amendment. The court of appeals correctly re jected that contention, and its decision does not conflict with any decision of this Court or of any other court of appeals. The question presented is also of limited pro spective significance, since the CDSOA was repealed in 2006 and applies only to a diminishing pool of antidump ing duties collected on goods that entered the United States before October 1, 2007. Further review is not warranted.

1. The court of appeals upheld the CDSOA based on its conclusion that the CDSOA was designed not only to compensate those members of domestic industry that are injured by unfair trade practices, but also "to re ward injured parties who assisted government enforce ment of the antidumping laws by initiating or supporting antidumping proceedings." Pet. App. 33a. Although the statute's purpose to compensate injured parties provides a sufficient basis for upholding the CDSOA, the court correctly concluded that a purpose to reward those who assist in the enforcement of federal law is also a valid objective under the First Amendment. See id. at 31a- 51a.3

As the court of appeals correctly noted, "it is now common for the government to reward those who assist in enforcing government policies through litigation or administrative proceedings," Pet. App. 41a, through such mechanisms as "qui tam proceedings, monetary awards of a portion of the government's recovery, and awards of attorney's fees," id. at 44a. Such reward pro visions serve substantial governmental interests both in compensating injured parties and in rewarding assis tance in enforcing federal law. Nothing in this Court's cases casts doubt on the government's authority to re ward successful parties without extending the same ben efits to those who unsuccessfully opposed the granting of relief. Cf. BE&K Constr. Co. v. NLRB, 536 U.S. 516, 537 (2002) ("[N]othing in our holding today should be read to question * * * the validity of statutory provi sions that merely authorize the imposition of attorney's fees on a losing plaintiff.").

The cases on which petitioner relies (Pet. 14-15) are not to the contrary. Neither Rosenberger v. Rector & Visitors of University of Virginia, 515 U.S. 819 (1995), nor Simon & Schuster, Inc. v. Members of the New York State Crime Victims Board, 502 U.S. 105 (1991), nor Speiser v. Randall, 357 U.S. 513 (1958), concerned the government's power to reward parties who assist suc cessful efforts to enforce federal law-or, alternatively, the government's power to deny benefits to those who, like petitioner, oppose such efforts. In Legal Services Corp. v. Velazquez, 531 U.S. 533 (2001), see Pet. 34, this Court struck down a statute that prohibited government- funded legal services attorneys from undertaking efforts "to amend or otherwise challenge existing law in effect on the date of the initiation of the representation." 531 U.S. at 538, 549. But as the court below correctly noted, the Velazquez Court's conclusion that the government may not limit the scope of arguments that may be made by an attorney speaking on behalf of a private client, see id. at 542, 547-549, casts no doubt on the government's authority to "reward those who assist in supporting the validity of federal statutes" in the course of litigation or administrative proceedings. Pet. App. 43a.

2. Petitioner raises several challenges (Pet. 17-24) to the court of appeals' conclusion that the CDSOA is in fact designed to reward parties who assisted government enforcement of the antidumping law. None of those chal lenges merits this Court's review.

First, petitioner contends (Pet. 17-20) that the court of appeals invented "a benign legislative purpose" that is not evident on the face of the CDSOA. But in concluding that the CDSOA was designed to reward enforcement assistance, the court relied on the language of the CDSOA provisions that established the challenged distri bution scheme, as well as on statutory findings that em phasized Congress's intent "to strengthen enforcement of the trade laws." Pet. App. 33a. The court of appeals' approach is thus consistent with "this Court's teaching that the 'purpose, or justification, of a regulation will often be evident on its face.'" Pet. 17 (quoting Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 642 (1994)).

Petitioner next contends (Pet. 21-22) that the court of appeals erred in concluding that the CDSOA was de signed to reward enforcement assistance, even though the government had argued that the CDSOA was de signed solely to compensate those injured by dumping. Petitioner's contention relies primarily on Thompson v. Western States Medical Center, 535 U.S. 357 (2002), in which this Court rejected a justification for speech-re lated statutory restrictions that had been raised by the dissenting Justices but not by counsel for the govern ment. Id. at 373. The Court in Thompson explained that, while it had "sustained statutes on the basis of hy pothesized justifications when reviewing statutes merely to determine whether they are rational," the heightened standard of scrutiny applicable in that case required the government not only to identify a "substantial interest," but "also to prove that the regulation directly advances that interest and is not more extensive than is necessary to serve that interest." Id. at 373-374 (internal quotation marks and citations omitted). The Court rejected the dissent's proposed justification on the ground that the government had "not met any of these requirements with regard to the interest the dissent describes." Id. at 374. The Court did not, as petitioner suggests, hold that a court is limited to considering those legislative purposes advanced in the government's briefs.

Finally, petitioner contends (Pet. 22-24) that the "'re ward' purpose is entirely fictitious" because "petition supporters and petition opponents provide exactly the same assistance to the government in antidumping inves tigations." Pet. 23 (quoting Pet. App. 72a). Petitioner is correct that petition opponents, like petition supporters, may provide important information to the ITC during its antidumping investigations. See Pet. App. 48a. But as the court of appeals observed, "[o]pposing parties' inter ests 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." Ibid. Congress may permissibly decline to reward parties who have unsuccessfully opposed the granting of particular relief, and thus have failed to provide the type of assis tance that Congress wishes to reward, even when those parties have provided relevant information during the course of the proceedings. See id. at 50a-51a. In any event, the statute-specific question petitioner raises does not merit this Court's review, particularly in light of the fact that the statute was repealed years ago. See p. 4, supra.

3. Petitioner contends (Pet. 24-26, 31-33) that the decision below implicates a conflict in authority about the proper definition of "commercial speech" under Central Hudson Gas & Electric Corp. v. Public Service Commis sion, 447 U.S. 557 (1980). That argument reflects a mis understanding of the court of appeals' analysis. Con trary to petitioner's apparent premise, the court below did not hold that domestic manufacturers' responses to the ITC's questionnaires actually constituted "commer cial speech" for purposes of the Central Hudson inquiry. Instead, using commercial-speech regulation as an anal ogy, the court drew on the Central Hudson framework to determine the proper standard of review for determining "when, if ever," rewards for assistance in government enforcement efforts "would be forbidden by the First Amendment." Pet. App. 39a. Notably, the court empha sized that the same result would obtain if it applied "the test for speech combined with conduct in United States v. O'Brien." Id. at 40a n.28; see United States v. O'Brien, 391 U.S. 367, 377 (1968) ("[A] government regu lation is sufficiently justified if it is within the constitu tional power of the Government; if it furthers an impor tant or substantial governmental interest; if the govern mental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essen tial to the furtherance of that interest."). Petitioner identifies no conflict about the proper application of commercial-speech doctrine that warrants this Court's intervention.

4. Finally, petitioner contends (Pet. 27-31) that this Court's review is warranted to resolve a conflict among the courts of appeals as to the standard of scrutiny that applies to regulations rewarding support for government action. Petitioner is incorrect.

In Lac Vieux Desert Band of Lake Superior Chip pewa Indians v. Michigan Gaming Control Board, 172 F.3d 397 (1999), the Sixth Circuit held that strict scru tiny applied to a Detroit ordinance that gave bidding preferences to casino developers that had been involved in "actively promoting and significantly supporting a state initiative authorizing gaming." Id. at 409 (internal quotation marks, citation, and brackets omitted). But as the court of appeals in this case correctly explained, "[t]he 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." Pet. App. 44a n.32. The court of appeals' conclusion that rewards for assistance in gov ernment enforcement efforts are subject to less searching constitutional review creates no conflict with the Sixth Circuit's ruling in Lac Vieux.

Nor does the decision below conflict with Hoover v. Morales, 164 F.3d 221 (5th Cir. 1998). In Hoover, the court of appeals preliminarily enjoined, as presumptively invalid, a policy that barred professors at a state univer sity from serving as consultants or expert witnesses on behalf of parties opposing the State in litigation. Id. at 227. The state policy at issue in that case bears little resemblance to the CDSOA, which does not forbid par ties from expressing particular viewpoints. Cf. Pet. App. 32a (explaining that "[p]arties who are awarded anti dumping 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").4

5. In any event, the merits of petitioner's as-applied challenge are of limited prospective significance because the CDSOA has been repealed. Even if, as petitioner argues (Pet. 33-34), the CDSOA may once have had a "chilling effect" in antidumping proceedings, all of the ITC questionnaire responses upon which CDSOA eligi bility determinations were made were submitted years ago (in this case, more than 20 years ago). There is con sequently no possibility that the decision below could affect the behavior of industry participants in any pend ing or future antidumping proceedings. As applied in this case, moreover, the challenged distribution scheme could not have affected industry participants' decisions whether to support or oppose the Torrington Company's antidumping petition, since the questionnaires submitted in connection with that petition were completed several years before Congress enacted the CDSOA. And while petitioner contends (Pet. 36) that "[t]he mere possibility that Congress could reenact the statute * * * chills free speech," such a speculative possibility provides insuffi cient grounds for this Court's review.

Petitioner also contends (Pet. 35) that this Court's review is warranted because duties on goods that en tered the United States before October 1, 2007, continue to be distributed to persons who supported, but not those who opposed, the relevant antidumping petitions. But the monies remaining to be distributed with respect to pre-October 2007 entries are significantly less than the $1 billion figure petitioner cites, and are steadily dimin ishing.5 And those figures include monies that would be distributed to a considerable number of petition support ers, not only monies that would be distributed to petition opponents like petitioner and its amici if petitioner were to prevail on its challenge.

Finally, petitioner's reliance (Pet. 36 n.20) on City of Pittsburgh v. Alco Parking Corp., 417 U.S. 369 (1974), and Fulton Corp. v. Faulkner, 516 U.S. 325 (1996), is misplaced. Petitioner is correct that the repeal of the CDSOA does not render this case moot for Article III purposes, since petitioner would derive a tangible benefit if it were held to be entitled to a share of the fiscal year 2005 antidumping duties at issue in this case. See Alco Parking, 417 U.S. at 372 n.2; Fulton Corp., 516 U.S. at 327 n.1. But petitioner identifies no persuasive reason for this Court to review the constitutionality of a now- repealed statute, where the case presents no "familiar and recurring" issues, Alco Parking, 417 U.S. at 373, of particular importance outside the narrow statutory con text at issue.

6. Although the ITC sent Customs the list of entities eligible for CDSOA distributions in December 2000, and Customs published the list in August 2001, petitioner did not file a complaint until October 2005. In the court of appeals, the ITC and respondent Timken argued that petitioner's suit was barred by the applicable two-year statute of limitations. See 28 U.S.C. 2636(i). The court of appeals, while assuming (without deciding) that Sec tion 2636(i)'s limitations period is jurisdictional, held that the suit was timely because petitioner's cause of action did not accrue until June 1, 2005, when Customs pub lished its notice of intent to distribute duties for fiscal year 2005. Pet. App. 23a-26a.

The Court's decision in Lewis v. City of Chicago, No. 08-974 (argued Feb. 22, 2010), may bear on the proper resolution of the timeliness issue in this case. If this Court were to grant the petition for a writ of certiorari, it might ultimately be foreclosed from deciding the mer its of petitioner's constitutional claim if the Court found that claim to be time-barred. The existence of this po tential jurisdictional barrier provides a further reason for this Court to deny review.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

ELENA KAGAN
Solicitor General
TONY WEST
Assistant Attorney General
JEANNE E. DAVIDSON
FRANKLIN E. WHITE, JR.
Attorneys

APRIL 2010

1 Separate statutory provisions authorize the Department of Com merce to impose countervailing duties on merchandise whose "manu facture, production, or export" is subsidized by a foreign governmen tal entity, and materially injures, or threatens to materially injure, domestic industry. 19 U.S.C. 1671. Because this case involves only antidumping-duty orders, our discussion of the legal framework is limited to antidumping procedures.

2 See Appellate Body Report, United States-Continuing Dumping and Subsidy Offset Act of 2000, WT/DS217/AB/R (Jan. 16, 2003), available at 2003 WL 134123.

3 The government argued in the court of appeals that, in enacting the CDSOA's support requirement, Congress sought to distribute govern ment funds to those domestic producers who had been most severely harmed by dumping, and that Congress viewed a producer's support for an antidumping petition as evidence of likely harm. See Pet. App. 30a. The court of appeals agreed with the government that "the Byrd Amendment was designed to compensate domestic producers." Id. at 29a. It disagreed, however, with the government's contention that this was the statute's "only purpose," id. at 30a, finding that the CDSOA was also intended in part "to reward injured parties who assisted government enforcement of the antidumping laws," id. at 33a. Although compensation of injured domestic producers provides a sufficient rationale for upholding the CDSOA against petitioner's First Amendment challenge, the court of appeals was correct that rewarding persons who assist in the enforcement of federal law is a constitution ally valid objective.

4 Petitioner also contends (Pet. 30-31) that the decision below con flicts with Solantic, LLC v. City of Neptune Beach, 410 F.3d 1250 (11th Cir. 2005), ACLU v. City of Las Vegas, 466 F.3d 784 (9th Cir. 2006), and State v. Musser, 721 N.W.2d 734 (Iowa 2006). None of those decisions, however, addressed the standard of scrutiny that applies to a govern mental reward for successful enforcement efforts. See Solantic, 410 F.3d at 1274 (content-based prohibition on certain types of signs); ACLU, 466 F.3d at 797 (content-based prohibition on certain forms of solicitation); Musser, 721 N.W.2d at 743-744 (statute effectively requiring disclosure of speaker's HIV status).

5 The most recent CBP statement of the CDSOA clearing account balances, as of October 1, 2009, can be viewed at http://www.cbp.gov/ linkhandler/cgov/trade/priority_trade/add_cvd/cont_dump/cdsoa_09/ report/balances.ctt/balances.pdf.