The Byrd Amendment Still in Court?

Despite having been repealed in 2005, the Continuing Dumping and Subsidy Offset Act (known as the Byrd Amendment) is still in Court, although maybe not anymore. In Furniture Brands Int'l v. United States, a three-judge panel of the Court of International Trade was asked to decide a number of motions most of which were directed at dismissing the case for failing to state a claim on which relief can be granted.

The point of the CDSOA is to allow members of the domestic industry to receive an allocation of funds collected from importers. These funds were intended to offset the expense of pursuing the case incurred by the petitioners and domestic interested parties who supported the petition. Thus means that domestic interests who opposed the petition are not entitled to CDSOA funds. The Court of International Trade had held in previous cases that this petition support requirement violated both the first amendment guaranty of free speech and the fifth amendment guaranty of equal protection. Unfortunately, for the plaintiff, the Court of Appeals for the Federal Circuit reversed both of those earlier decision.

After finding, consistent with prior CDSOA cases, that the Court of International Trade had subject matter jurisdiction, the CIT addressed whether there was any way for the plaintiff to successfully maintain the cause of action. The Court found that plaintiff's claims were precluded by the Federal Circuit's decisions that the CDSOA violates neither the first nor the fifth amendments. Plaintiff made an effort to distinguish its case on several grounds. First, it argued that the plaintiff's opposition to the petition was not commercial speech, which is subject to a lower level of constitutional review, but was actually more highly protected speech on a matter of public concern. Second, the plaintiff argued that one of the earlier decisions was based in part on the fact that the "domestic" party was owned by a foreign company. Neither of these arguments was sufficiently compelling for the CIT to draw a distinction to the prior CAFC decisions.

The plaintiff's last argument has to do with a decision the Supreme Court issued after the plaintiff filed this case. That case, Sorrell v. IMS Health, involved a Vermont statute that authorized civil remedies for the prohibited use of prescription information. That statute was content-based and also discriminated against speakers based on view point. In contrast, according to the CIT, the CDSOA does not intentionally suppress expression. Consequently, the CIT held that the Federal Circuit decisions control and need not be given a narrow reading, as proposed by the plaintiff.

Given that legal conclusion, the CIT also denied the plaintiff's motion to amend its complaint on the grounds that the amendment would be futile.

And, that is all the constitutional law you will get from me tonight.


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