Standard Furniture Mfg. Co., Inc. v. United States, No. 07-00028 (Ct. Int'l Trade 2012)
Annotate this CaseThis opinion or order relates to an opinion or order originally issued on March 23, 2011.
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Slip Op. 12- 21 UNITED STATES COURT OF INTERNATIONAL TRADE STANDARD FURNITURE MANUFACTURING CO., INC., Plaintiff, v. UNITED STATES and UNITED STATES INTERNATIONAL TRADE COMMISSION, Defendants, Before: Gregory W. Carman, Judge Timothy C. Stanceu, Judge Leo M. Gordon, Judge and AMERICAN FURNITURE MANUFACTURERS COMMITTEE FOR LEGAL TRADE, KINCAID FURNITURE CO., INC., L. & J.G. STICKLEY, INC., SANDBERG FURNITURE MANUFACTURING COMPANY, INC., STANLEY FURNITURE COMPANY, INC., T. COPELAND AND SONS, INC., and VAUGHAN-BASSETT FURNITURE COMPANY, INC., Consol. Court No. 07-00028 Defendant-Intervenors. OPINION [Dismissing the consolidated case, in which certain claims must be dismissed for lack of standing and the remaining claims must be dismissed for failure to state a claim upon which relief can be granted] Dated: February 17, 2012 Kristin H. Mowry, Jeffrey S. Grimson, Jill A. Cramer, Sarah M. Wyss, and Susan L. Brooks, Mowry & Grimson, PLLC, of Washington, DC and Kevin K. Russell, Goldstein, Howe & Russell, P.C., of Bethesda, MD, for plaintiff. Jessica R. Toplin, David S. Silverbrand, Courtney S. McNamara, and Michael J. Dierberg, Trial Attorneys, Commercial Litigation Branch, Civil Division, U.S. Department of Consol. Court No. 07-00028 Page 2 Justice, of Washington, DC, for defendant United States. With them on the briefs were Tony West, Assistant Attorney General, Jeanne E. Davidson, Director, and Franklin E. White, Jr., Assistant Director. Of counsel on the briefs was Andrew G. Jones, Office of Assistant Chief Counsel, U.S. Customs and Border Protection, of New York, NY. Patrick V. Gallagher, Jr., Attorney Advisor, Office of the General Counsel, U.S. International Trade Commission, of Washington, DC, for defendant. With him on the briefs were James M. Lyons, General Counsel, and Neal J. Reynolds, Assistant General Counsel. Joseph W. Dorn and Jeffrey M. Telep, King & Spalding, LLP, of Washington, DC, for defendant-intervenors the American Furniture Manufacturers Committee for Legal Trade, Kincaid Furniture Co., Inc., L. & J.G. Stickley, Inc., Sandberg Furniture Manufacturing Company, Inc., Stanley Furniture Co., Inc., T. Copeland and Sons, Inc., and Vaughan-Bassett Furniture Company, Inc. With them on the briefs was Taryn K. Williams. Of counsel on the briefs was Richard H. Fallon, of Cambridge, MA. Stanceu, Judge: Plaintiff Standard Furniture Manufacturing Co., Inc. ( Standard ), a domestic furniture manufacturer, brought four separate actions, now consolidated,1 during the period of January 31, 2007 through March 4, 2010, all stemming from certain administrative determinations of the U.S. International Trade Commission ( ITC or the Commission ) and U.S. Customs and Border Protection ( Customs or CBP ). The ITC did not include Standard on the list of entities potentially eligible for status as an affected domestic producer ( ADP ) under the Continued Dumping and Subsidy Offset Act of 2000 (the CDSOA or Byrd Amendment ), Pub. L. No. 106-387, §§ 1001-03, 114 Stat. 1549, 1549A-72-75, 19 U.S.C. § 1675c (2000),2 repealed by Deficit Reduction Act of 2005, Pub. L. 109-171, § 7601(a), 1 Due to the presence of common issues, the court, on February 15, 2011, consolidated plaintiff s four actions under Consol. Court No. 07-00028. Order (Feb. 15, 2011), ECF No. 57. Consolidated with Standard Furniture Mfg. Co. v. United States under Consol. Court No. 0700028 are Standard Furniture Mfg. Co. v. United States, Court No. 07-00295, Standard Furniture Mfg. Co. v. United States, Court No. 09-00027, and Standard Furniture Mfg. Co. v. United States, Court No. 10-00082. 2 Citations are to the version of the Continued Dumping and Subsidy Offset Act (continued...) Consol. Court No. 07-00028 Page 3 120 Stat. 4, 154 (Feb. 8, 2006; effective Oct. 1, 2007). If the ITC had included Standard on the list of companies potentially eligible for ADP status, Standard might have qualified for annual monetary distributions by Customs of antidumping duties collected under an antidumping duty order on imports of wooden bedroom furniture from the People s Republic of China. Notice of Amended Final Determination of Sales at Less Than Fair Value & Antidumping Duty Order: Wooden Bedroom Furniture From the People s Republic of China, 70 Fed. Reg. 329 (Jan. 4, 2005) ( Antidumping Duty Order ). The ITC construed the petition support requirement of the CDSOA, under which distributions are limited to petitioners and parties in support of a petition, to disqualify Standard from the list of potential ADPs because Standard indicated to the ITC that it opposed the petition that resulted in the antidumping duty order. Plaintiff claims that the administrative actions of the two agencies were inconsistent with the CDSOA, were not supported by substantial evidence, and were otherwise not in accordance with law. Plaintiff also brings constitutional challenges grounded in the First Amendment, the Fifth Amendment equal protection guarantee, and the Fifth Amendment due process guarantee. Before the court are four dispositive motions. On February 23, 2011, defendantintervenors American Furniture Manufacturers Committee for Legal Trade, Kincaid Furniture Co., Inc., L. & J.G. Stickley, Inc., Sandberg Furniture Manufacturing Company, Inc., Stanley Furniture Co., Inc., T. Copeland and Sons, Inc., and Vaughan-Bassett Furniture Company, Inc. moved to dismiss under Rule 12(b)(5) and for judgment on the pleadings under Rule 12(c). Def.intervenors Mot. to Dismiss & for J. on the Pleadings (Feb. 23, 2011), ECF No. 61 ( Def.2 (...continued) ( CDSOA ) found at 19 U.S.C. § 1675c (2000). All other citations to the United States Code are to the 2006 edition. Consol. Court No. 07-00028 Page 4 intervenors Feb. Mot. ). After the court granted plaintiff leave to amend its complaints in Court Nos. 07-00028 and 07-00295, defendant-intervenors moved to dismiss under USCIT Rule 12(b)(5). Def.-intervenors Mot. to Dismiss Case Nos. 07-00028 & 07-00295 (April 1, 2011), ECF No. 83 ( Def-intervenors Apr. Mot. ). Defendants ITC and Customs moved to dismiss under Rule 12(b)(5) on May 2, 2011. Def. U.S. Customs & Border Protection s Mot. to Dismiss the Second Amended Compl. for Failure to State a Claim upon which Relief can be Granted (May 2, 2011), ECF No. 92 ( Customs Mot. ); Def. U.S. Int l Trade Comm n s Mot. to Dismiss for Failure to State a Claim (May 2, 2011), ECF No. 91 ( ITC s Mot. ). Also before the court is Standard s motion for a preliminary injunction, filed January 11, 2012. Pl. s Mot. for Prelim. Inj. (Jan. 11, 2012), ECF No. 110. Standard seeks to halt, pending a final disposition of this litigation, including all appeals and remands, CBP s pending distribution of certain collected antidumping duties to domestic parties recognized as ADPs by the Commission, including the defendant-intervenors in this case. Id. at 1. The distribution was scheduled to occur on or after January 31, 2012.3 Def. U.S. Customs & Border Protection s Resp. to the Ct. s Feb. 14, 2011 Request (Feb. 28, 2011), ECF No. 66. Customs withheld these funds from distribution pending the resolution of various lawsuits, including plaintiff s, challenging the constitutionality of the CDSOA. The court concludes that relief is not available on plaintiff s claims challenging the administration of the CDSOA by the two agencies. We also conclude that no relief can be granted on Standard s claims challenging the CDSOA on First Amendment and Fifth 3 Defendants represent that distribution is now scheduled to take place on or after March 9, 2012. Def. s Mot. for an Extension of Time for all Defs. to File Their Resps. in Opp n to Pl. s Mot. for Prelim. Inj. 2 (Jan. 19, 2012), ECF No. 112. Consol. Court No. 07-00028 Page 5 Amendment equal protection grounds. Plaintiff lacks standing to assert the claims it bases on Fifth Amendment due process grounds. Finally, plaintiff does not satisfy the standards for obtaining the injunction it seeks. The court will enter judgment dismissing this action. I. BACKGROUND During a 2003 ITC investigation to determine whether imports of wooden bedroom furniture from China were causing or threatening to cause material injury to the domestic industry, Initiation of Antidumping Duty Investigation: Wooden Bedroom Furniture from the People s Republic of China, 68 Fed. Reg. 70,228, 70,231 (Dec. 17, 2003), Standard responded to the ITC s questionnaires, indicating that it opposed the issuance of an antidumping duty order. See, e.g., First Amended Compl. ¶ 19 (Mar. 23, 2011), ECF No. 81. Based on the affirmative ITC injury determination, the International Trade Administration, U.S. Department of Commerce ( Commerce or the Department ) issued the antidumping duty order on imports of wooden bedroom furniture from China in 2005. Antidumping Duty Order, 70 Fed. Reg. at 329. Determining that Standard had not supported the petition so as to qualify it for CDSOA benefits, ITC declined to place Standard on the list of potential ADPs with respect to this order for Fiscal Years 2006 through 2010. Distribution of Continued Dumping & Subsidy Offset to Affected Domestic Producers, 71 Fed. Reg. 31,336, 31,375-76 (June 1, 2006); Distribution of Continued Dumping & Subsidy Offset to Affected Domestic Producers, 72 Fed. Reg. 29,582, 29,622-23 (May 29, 2007); Distribution of Continued Dumping & Subsidy Offset to Affected Domestic Producers, 73 Fed. Reg. 31,196, 31,236-37 (May 30, 2008); Distribution of Continued Dumping & Subsidy Offset to Affected Domestic Producers, 74 Fed. Reg. 25,814, 25,855-56 Consol. Court No. 07-00028 Page 6 (May 29, 2009); Distribution of Continued Dumping & Subsidy Offset to Affected Domestic Producers, 75 Fed. Reg. 30,530, 30,571-72 (June 1, 2010). Plaintiff filed actions contesting the government s refusal to provide it CDSOA distributions of antidumping duties collected during Fiscal Years 2006 (Court No. 07-00028), 2007 (Court No. 07-00295), 2008 (Court No. 09-00027), and 2009-2010 (Court No. 10-00082). The court stayed the four actions pending a final resolution of other litigation raising the same or similar issues.4 See, e.g., Order (June 11, 2007), ECF No. 37. Following the decision of the U.S. Court of Appeals for the Federal Circuit ( Court of Appeals ) in SKF USA Inc. v. United States, 556 F.3d 1337 (2009) ( SKF ), cert. denied, 130 S. Ct. 3273 (2010), which addressed legal questions also present in this case, the court issued an order directing Standard to show why these actions should not be dismissed and lifted the stay for the purposes of allowing any brief, response, or reply described in that order. See, e.g., Order (Jan. 3, 2011), ECF No. 45. On February 1, 2011, plaintiff responded to the court s order and moved for a partial lift of the stay to allow amendment of the complaints in Court Nos. 07-00028 and 07-00295 as a matter of course to add an additional count challenging the CDSOA under the First Amendment as applied to Standard. See, e.g., Pl. s Br. in Resp. to the Ct. s Order to Show Cause (Feb. 1, 2011), ECF No. 50 ( Pl. s Br. ); Mot. for Leave to Amend Compl. (Jan. 24, 2011), ECF No. 47; Proposed First Am. Compl. ¶ 50 (Jan. 24, 2011), ECF No. 47; Mot. for 4 The court s orders stayed the actions until final resolution of Pat Huval Restaurant & Oyster Bar, Inc. v. United States International Trade Commission, Consol. Court No. 06-00290, that is, when all appeals have been exhausted. Order (June 11, 2007), ECF No. 37. The language of the court s stay orders in the other consolidated actions was substantially the same. Consol. Court No. 07-00028 Page 7 Leave to Amend Compl. (Jan. 24, 2011), ECF No. 45 (Court No. 07-00295); Proposed Second Am. Compl. ¶ 50 (Jan. 24, 2011), ECF No. 45 (Court No. 07-00295). The court lifted the stay for all purposes on February 9, 2011. See, e.g., Order (Feb. 9, 2011), ECF No. 52. The same day, plaintiff filed notices of amended complaints in Courts Nos. 09-00027 and 10-00082. First Amended Compl. (Feb. 9, 2011), ECF No. 32 (Court No. 09-00027); First Amended Compl. (Feb. 9, 2011), ECF No. 29 (Court No. 10-00082). On February 15, 2011, the court consolidated Standard Furniture Mfg. Co. v. United States, Court No. 07-00295, Standard Furniture Mfg. Co. v. United States, Court No. 09-00027, and Standard Furniture Mfg. Co. v. United States, Court No. 10-00082 under Consol. Court No. 07-00028. Order (Feb. 15, 2011), ECF No. 57. Defendant-intervenors filed their motions to dismiss the consolidated action and for judgment on the pleadings on February 23, 2011. Def-intervenors Feb. Mot. On March 23, 2011, this court acknowledged plaintiff s amendment of its complaints in Court Nos. 09-00027 and 10-00082, granted plaintiff s motion to amend the complaints in Court Nos. 07-00028 and 07-00295, and accepted the amended complaints in the 2007 actions for filing in the consolidated action. Standard Furniture Mfg. Co. v. United States, 35 CIT __, Slip Op. 11-32 (Mar. 23, 2011); First Amended Compl.; Second Amended Compl., ECF No. 82 (Court No. 07-00295). Defendant-intervenors filed a motion to dismiss the consolidated action on April 1, 2011. Def-intervenors Apr. Mot. The ITC and Customs filed their motions to dismiss the consolidated action on May 2, 2011. ITC s Mot.; Customs Mot. In July 2011, plaintiff filed a notice of supplemental authority highlighting recent decisions by the U.S. Supreme Court, which, according to plaintiff, are relevant to the pending motions to dismiss Standard s as-applied First Amendment challenge to the government s Consol. Court No. 07-00028 Page 8 implementation of the [CDSOA]. Notice of Supp. Authority 1 (July 7, 2011), ECF No. 105 ( Pl. s Notice of Supp. Authority ) (citing Sorrell v. IMS Health Inc., 131 S. Ct. 2653 (2011); Arizona Free Enterprise Club s Freedom Club PAC v. Bennett, 131 S. Ct. 2086 (2011); Citizens United v. Federal Election Comm n, 130 S. Ct. 876 (2010)). Defendant-intervenors filed a reply to this letter, and both defendants addressed the supplemental authority question in their reply briefs. Def.-intervenor s Resp. to Pl. s Notice of Supplemental Authority (July 22, 2011), ECF No. 109; United States & U.S. Customs & Border Protection s Reply in Supp. of their Mot. to Dismiss for Failure to State a Claim upon which Relief Can Be Granted 5-6 n.4 (July 14, 2011), ECF No. 107; Def. U.S. Int l Trade Comm n s Reply to Pl. s Br. in Opp n to Mot. to Dismiss for Failure to State a Claim 12-14 (July 14, 2011), ECF No. 108. Standard filed its motion for a preliminary injunction on January 11, 2012, seeking to prevent the pending CBP distribution. Pl. s Mot. for Prelim. Inj.; Pl. s Mem. of Points & Authorities in Supp. of Mot. for Prelim. Inj. (Jan. 11, 2012), ECF No. 110. II. DISCUSSION The court exercises jurisdiction over this action according to section 201 of the Customs Courts Act of 1980, 28 U.S.C. § 1581(i)(4), which provides the Court of International Trade jurisdiction of civil actions arising out of any law of the United States, such as the CDSOA, providing for administration with respect to duties (including antidumping duties) on the importation of merchandise for reasons other than the raising of revenue. See Furniture Brands Int l v. United States, 35 CIT __, __, 807 F. Supp. 2d 1301, 1307-10 (2011) ( Furniture Brands ). Consol. Court No. 07-00028 Page 9 The CDSOA amended the Tariff Act of 1930 ( Tariff Act ) to provide for the distribution of funds from assessed antidumping and countervailing duties to persons with ADP status, which is limited to petitioners, and interested parties in support of petitions, with respect to which antidumping duty and countervailing duty orders are entered. 19 U.S.C. § 1675c(a)-(d).5 The statute directed the ITC to forward to Customs, within sixty days after an antidumping or countervailing duty order is issued, lists of petitioners and persons with respect to each order and finding and a list of persons that indicate support of the petition by letter or through questionnaire response. Id. § 1675c(d)(1).6 The CDSOA directed Customs to publish in the Federal Register lists of entities potentially eligible to be ADPs for distributions of a continuing dumping and subsidy offset based on the lists obtained from the Commission. Id. § 1675c(d)(2). The CDSOA also directed Customs to segregate antidumping and countervailing duties according to the relevant antidumping or countervailing duty order, to maintain these duties in special accounts, and to distribute to an ADP annually, as reimbursement for incurred qualifying expenditures, a ratable share of the funds (including all interest earned) from duties 5 The CDSOA provided that: The term affected domestic producer means any manufacturer, producer, farmer, rancher or worker representative (including associations of such persons) that (A) was a petitioner or interested party in support of the petition with respect to which an antidumping duty order, a finding under the Antidumping Act of 1921, or a countervailing duty order has been entered, and (B) remains in operation. 19 U.S.C. § 1675c(b)(1) (emphasis added). 6 Additionally, the CDSOA directed the U.S. International Trade Commission to forward to U.S. Customs and Border Protection a list identifying potential affected domestic producers within 60 days after the effective date of this section in the case of orders or findings in effect on January 1, 1999 . . . . 19 U.S.C. § 1675c(d)(1). The antidumping duty order at issue in this case was not in effect on that date. Consol. Court No. 07-00028 Page 10 assessed on a specific unfairly traded product that were received in the preceding fiscal year. Id. § 1675c(d)(3), (e).7 In February 2009, approximately two years after plaintiff filed the first of its four actions, the Court of Appeals decided SKF, upholding the CDSOA against constitutional challenges brought on First Amendment and Fifth Amendment equal protection grounds. 556 F.3d at 1360. SKF reversed the decision of the Court of International Trade in SKF USA Inc. v. United States, 30 CIT 1433, 451 F. Supp. 2d 1355 (2006), which held the petition support requirement of the CDSOA unconstitutional on Fifth Amendment equal protection grounds. We address below the motions to dismiss, basing our rulings on the five claims that are stated in plaintiff s First Amended Complaints. In Count 1 of the amended complaints, plaintiff claims that defendants actions were unlawful under the CDSOA and not supported by substantial evidence.8 First Amended Compl. ¶¶ 39-40. In Counts 2 and 5, plaintiff challenges the in support of the petition requirement of the CDSOA ( petition support requirement ) on constitutional First Amendment grounds. Id. ¶¶ 41-43, 49-50. In Count 3, plaintiff brings a 7 Congress repealed the CDSOA in 2006, but the repealing legislation provided that [a]ll duties on entries of goods made and filed before October 1, 2007, that would [but for the legislation repealing the CDSOA], be distributed under [the CDSOA] . . . shall be distributed as if [the CDSOA] . . . had not been repealed . . . . Deficit Reduction Act of 2005, Pub. L. No. 109-171, § 7601(b), 120 Stat. 4, 154 (2006). In 2010, Congress further limited CDSOA distributions by prohibiting payments with respect to entries of goods that as of December 8, 2010 were (1) unliquidated; and (2)(A) not in litigation; or (B) not under an order of liquidation from the Department of Commerce. Claims Resolution Act of 2010, Pub. L. No. 111-291, § 822, 124 Stat. 3064, 3163 (2010). 8 Plaintiff s four First Amended Complaints are essentially identical but directed to CDSOA distributions for the different Fiscal Years, i.e., 2006, 2007, 2008, 2009, and 2010. In citing to the claims in the consolidated action, the court will cite to the First Amended Complaint as filed in Standard Furniture Manufacturing Co., Inc., v. United States, Court No. 07-00028. Consol. Court No. 07-00028 Page 11 challenge to the petition support requirement on Fifth Amendment equal protection grounds. Id. ¶¶ 44-46. In Count 4, plaintiff challenges the petition support requirement on Fifth Amendment due process grounds, claiming that the CDSOA is impermissibly retroactive. Id. ¶¶ 47-48. We also address, in Part II(C) of this opinion, plaintiff s motion for an injunction. A. No Relief Can Be Granted on the Claims in Counts 1, 2, 3, and 5 of the Amended Complaints In ruling on motions to dismiss made under USCIT Rule 12(b)(5), we dismiss complaints that do not contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). For the reasons discussed below, we conclude that plaintiff has failed to plead facts on which we could conclude that it could obtain a remedy on any of the claims asserted in Counts 1, 2, 3, and 5 of the amended complaints. In brief summary, plaintiff s claims that the actions by the two agencies were not supported by substantial evidence and were otherwise not in accordance with law must be dismissed because Standard admits a fact establishing its disqualification from receiving CDSOA distributions and presents no other facts from which the court could reach a conclusion that those actions must be set aside. Relief on Standard s constitutional claims under the First Amendment and the equal protection guarantee of the Fifth Amendment is foreclosed by the binding precedent established by SKF, which upheld the CDSOA against constitutional challenges brought on First Amendment and equal protection grounds. In the following, we address Counts 1 through 3, and Count 5, in further detail.9 9 Although relief on the Fifth Amendment due process claims that plaintiff bases on retroactivity, which are stated in Count 4 of its amended complaints, is not foreclosed by binding (continued...) Consol. Court No. 07-00028 Page 12 1. Count 1 Fails to State a Claim upon which Relief Can Be Granted In Count 1, plaintiff claims that [t]he Commission s determination not to include Standard on its list of affected domestic producers for the antidumping order covering wooden bedroom furniture from China and Customs failure to make distributions to Standard, were inconsistent with the CDSOA, were not supported by substantial evidence, and were otherwise not in accordance with law. First Amended Compl. ¶¶ 39-40. We conclude that Count 1 fails to state a claim upon which relief can be granted and, therefore, must be dismissed. Plaintiff alleges that [d]uring the injury phase of the antidumping investigation covering wooden bedroom furniture from China, Standard filed timely and complete questionnaire responses to the Commission s domestic producer and importer questionnaires. Id. ¶ 19. The CDSOA language pertinent to the issue raised by Count 1 is the directive that the ITC, in providing its list to Customs, include a list of persons that indicate support of the petition by letter or through questionnaire response. 19 U.S.C. § 1675c(d)(1) (emphasis added). Standard s filing of questionnaire responses without an indication of support for the petition does not satisfy the petition support requirement. Moreover, plaintiff admits that [in] its questionnaire responses, Standard indicated that it opposed the petition. First Amended Compl. ¶ 19. Doing so disqualified Standard from receiving CDSOA distributions. In opposing dismissal of Count 1, plaintiff argues that [in] SKF, the Federal Circuit adopted a saving construction of the CDSOA that could otherwise have violated the First Amendment by conditioning receipt of CDSOA payments on the content of a domestic 9 (...continued) precedent, we conclude in Part II(B) of this opinion that Standard has no standing to bring these claims. Consol. Court No. 07-00028 Page 13 producer s speech. Pl. s Resp. to Def. s May 2, 2011 Mot. to Dismiss 9 (Jun. 6, 2011), ECF No. 101 ( Pl. s Resp. ). Plaintiff submits that, due to this saving construction, SKF does not support dismissal of Standard s claims but rather makes clear that Standard is entitled to disbursements under the statute, constitutionally construed. Id. (footnote omitted). Plaintiff views SKF to hold that the CDSOA only permit[s] distributions to those who actively supported the petition (i.e., a party that did no more than submit a bare statement that it was a supporter without answering questionnaires or otherwise actively participating would not receive distributions). Id. at 10 (quoting SKF, 556 F.3d at 1353 n.26) (alteration in original). Under this saving construction, plaintiff argues, SKF USA Inc. ( SKF ), the plaintiff in SKF, was ineligible to receive distributions not because it opposed the petition in its responses to the ITC questionnaire, but rather because it actively opposed the petition in other concrete ways that placed it in a role that was nearly indistinguishable from that played by a defendant in a qui tam or attorney s fees award case. Id. at 11 (quoting SKF, 556 F.3d at 1358). According to plaintiff, [in] light of this substantial opposition, . . . the First Amendment did not bar denying [SKF] a share in antidumping duties but compels the opposite result in this case because, [by] contrast, Standard took no similar steps to impede the investigation, nor did it express a refus[al] to cooperate with the Government. Id. at 11-12 (quoting SKF, 556 F.3d at 1359) (second alteration in original). Plaintiff s argument is based on an incorrect understanding of the SKF holding. The Court of Appeals did not construe the CDSOA such that a domestic producer may express opposition to a petition in its ITC questionnaire response and still be eligible to receive CDSOA distributions, so long as the producer does not take additional steps that amount to substantial Consol. Court No. 07-00028 Page 14 opposition to the petition. The opinion in SKF recounts the various steps SKF took in opposing an antidumping duty order that were beyond merely indicating opposition to the petition on a questionnaire response, but it did so in the context of explaining why it considered the petition support requirement not to be overly broad, and therefore permissible, under the test established by Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm n of N.Y., 447 U.S. 557, 566 (1980). SKF, 556 F.3d at 1357-59. The Court of Appeals reasoned that in enacting the petition support requirement Congress permissibly, and rationally, could conclude that those who did not support a petition should not be rewarded. Id. at 1357, 1359. Defendants determinations denying benefits to Standard comported with the CDSOA. Therefore, we reject plaintiff s claims that either or both of the agencies acted contrary to law. 2. Relief on Plaintiff s First Amendment Claims Is Foreclosed by Binding Precedent In Count 2 of the First Amended Complaints, plaintiff claims that the petition support requirement violates the First Amendment to the Constitution. First Amended Compl. ¶ 42. Standard claims, specifically, that [d]efendants application of the [CDSOA] conditions receipt of a government benefit on a private speaker[ s] expressing a specific viewpoint support for an antidumping petition and, therefore, is viewpoint discrimination in contravention of the First Amendment. Id. ¶ 43. Count 5 of plaintiff s First Amended Complaints contains an as-applied challenge to the CDSOA that plaintiff also bases on the First Amendment. Id. ¶¶ 49-50. Plaintiff claims that the CDSOA violates the First Amendment as applied to Standard because it discriminates against Standard based on expression of [Standard s] views rather than action ([Standard s] litgation support). Id. ¶ 50. Consol. Court No. 07-00028 Page 15 Relief on Standard s facial First Amendment claims is precluded by the holding in SKF, 556 F.3d at 1360 (holding that the Byrd Amendment is valid under the First Amendment because it is within the constitutional power of Congress to enact, furthers the government s substantial interest in enforcing the trade laws, and is not overly broad. ). The holding in SKF also forecloses relief on plaintiff s as-applied First Amended claims. The Court of Appeals held that the CDSOA did not violate constitutional First Amendment principles as applied to SKF, which expressed in its response to the ITC s questionnaire its opposition to the antidumping duty petition involved in that litigation. See SKF, 556 F.3d at 1343 (stating that SKF also responded to the ITC s questionnaire, but stated that it opposed the antidumping petition ). Standard, like SKF, expressed opposition to the petition in its response to the ITC s questionnaire. First Amended Compl. ¶ 19. Plaintiff fails to plead any facts allowing the court to conclude, notwithstanding the binding precedent of SKF, that the CDSOA was applied to Standard in a manner contrary to the First Amendment. In all material respects, Standard s expression of opposition to an antidumping duty petition was equivalent to that of SKF and properly resulted in Standard s disqualification from receiving distributions under the CDSOA. In support of its as-applied First Amendment claims, Standard directs the court s attention to the Supreme Court s decisions in Snyder v. Phelps, 131 S. Ct. 1207 (2011), Citizens United v. Federal Election Comm n, 130 S. Ct. at 876, Sorrell v. IMS Health, Inc., 131 S. Ct. at 2653, and Arizona Free Enterprise Club s Freedom Club PAC v. Bennett, 131 S. Ct. at 2806. According to plaintiff, these recent decisions have rendered [the] conclusion of [SKF] utterly untenable. . . . Today, it is clear that corporate speech relating to matters such as international trade and law enforcement is entitled to the strictest First Amendment protection. Pl. s Consol. Court No. 07-00028 Page 16 Resp. 21. We recently addressed these arguments in our opinions in Ashley Furniture Industries, Inc. v. United States, 36 CIT __, __, Slip Op. 12-14, at 16-25 (Jan. 31, 2012) ( Ashley Furniture ) and Furniture Brands, 35 CIT __, __, 807 F. Supp. 2d at 1313-15. We conclude here, as we did in those opinions, that the cases plaintiff cites do not implicitly overturn SKF or otherwise require us to apply a level of scrutiny to the CDSOA different from that applied in SKF. In Snyder v. Phelps, the Supreme Court held that members of the Westboro Baptist Church who picketed near the funeral of a member of the U.S. Marine Corps killed in the line of duty in Iraq could not be held liable on state-law tort claims alleging intentional infliction of emotional distress, intrusion upon seclusion, and civil conspiracy. 131 S. Ct. at 1213-14, 1220. Concluding that the various messages condemning the United States and its military displayed on the picketer s signs were entitled to special protection under the First Amendment, id. at 1219, the Supreme Court held that the jury verdict holding the Westboro picketers liable on the tort claims for millions of dollars in damages must be set aside as an impermissible burden on protected speech, even if the picketing caused emotional distress to the mourners, id. at 1213, 1220. The Supreme Court cautioned that its holding was narrow and limited only to the particular facts before it, having emphasized that the picketers carried signs displaying messages that, for the most part, constituted speech addressing matters of public concern, id. at 1216-17, and conducted their picketing peacefully, and without interfering with the funeral, at each of three locations the Supreme Court considered to be a public forum, id. at 1218-19. Plaintiff maintains that [in] light of the Court s decision in Snyder, there can be no dispute that opposition to a government antidumping investigation constitutes speech on a matter Consol. Court No. 07-00028 Page 17 of public concern, subject to full First Amendment protection and that to the extent that SKF rested on a belief that this opposition does not constitute political speech, Snyder demonstrates that the Federal Circuit erred. Pl. s Resp. 22. Snyder, however, resolved a First Amendment question differing from those presented by this case and by SKF. Standard is not asserting First Amendment rights as a defense against civil liability for an award of monetary damages. The burden the CDSOA placed on Standard s speech ineligibility for potential CDSOA distributions does not rise to a level commensurate with the burden the Supreme Court addressed by setting aside the jury verdict against the Westboro picketers. In speaking to a different First Amendment issue than the one Standard raises, Snyder does not establish a principle of First Amendment law under which we may invalidate the CDSOA petition support requirement in response to Standard s as-applied challenge. In Citizens United v. Federal Election Commission, the Supreme Court struck down a federal election law imposing an outright ban, backed by criminal sanctions on independent expenditures by corporation[s], including nonprofit advocacy corporations or unions, during the thirty-day period preceding a primary election or the sixty-day period preceding a general election, for an electioneering communication or for advocacy of the election or defeat of a candidate. 130 S. Ct. at 886-87, 897. Reasoning that political speech must prevail against laws that would suppress it, whether by design or inadvertence, the Supreme Court concluded that [l]aws that burden political speech are subject to strict scrutiny, which requires the Government to prove that the restriction furthers a compelling interest and is narrowly tailored to achieve that interest. Id. at 898 (citing Federal Election Comm n v. Wisconsin Right to Life, Inc., 551 U.S. 449, 464 (2007)). Consol. Court No. 07-00028 Page 18 Standard argues that the holding in SKF cannot stand now that the Supreme Court has made perfectly clear that so long as speech relates to matters of public concern, it is entitled to the highest form of constitutional protection, even if it involves corporations or activities of a commercial nature. Pl. s Resp. 23 (quoting SKF, 556 F.3d at 1355). According to plaintiff, applying a lesser standard of scrutiny to the petition support requirement, as the Court of Appeals did in SKF based on a perceived statutory purpose of rewarding cooperation with the government, is incompatible with Citizens United. Id. Positing that the petition support requirement as applied to entities like Standard is calculated to silence or at least discourage dissent against proposed antidumping actions, plaintiff argues that [t]his sort of arm-twisting cannot withstand constitutional scrutiny after Citizens United. Id. at 24. Citizens United does not hold that any statute affecting speech relating to matters of public concern, whether made by individuals or corporations, is to be subjected to a strict scrutiny standard. The statute struck down in Citizens United banned political speech, and the Supreme Court s decision to apply strict scrutiny can only be viewed properly in that context. As the Court of Appeals recognized in SKF, the CDSOA does not prohibit particular speech, that statutes prohibiting or penalizing speech are rarely sustained, and that cases addressing the constitutionality of such statutes are of little assistance in determining the constitutionality of the far more limited provisions of the Byrd Amendment. 556 F.3d. at 1350. The Court of Appeals reasoned that [in] considering limited provisions that do not ban speech entirely, the purpose of the statute is important, and concluded that [n]either the background of the statute, nor its articulated purpose, nor the sparse legislative history supports a conclusion that the purpose of the Byrd Amendment was to suppress expression. Id. at 1350-51. Contrary to this view, Consol. Court No. 07-00028 Page 19 Standard maintains that the Supreme Court in Citizens United made clear that the degree of First Amendment protection afforded corporate speech on matters of public concern does not vary depending on whether the government directly prohibits speech or instead withholds benefits based on speech. Pl. s Resp. 24 (citing Citizens United, 130 S. Ct. at 905). Thus, plaintiff s argument would have us consider immaterial the distinction between the CDSOA, which does not prohibit speech, and the statute struck down in Citizens United, which had as its purpose and effect the suppression of political speech through an outright ban, backed by criminal sanctions. Citizens United, 130 S. Ct. at 897. Plaintiff misreads Citizens United. In the passage from the opinion to which plaintiff directs our attention, the Supreme Court explained that it no longer subscribes to certain reasoning expressed in Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990), which Citizens United overturned. Citizens United signaled the Supreme Court s rejection of the notion that the special state-law advantages corporations enjoy over wealthy individuals, such as limited liability, perpetual life, and favorable treatment of accumulation and distribution of assets, can suffice to allow laws prohibiting speech, i.e., laws prohibiting corporations from speaking on matters of public concern. 130 S. Ct. at 905. Plaintiff misconstrues the Supreme Court s explanation to mean broadly that [w]hile the government has no obligation to provide those benefits to corporations, the Court made clear that the government may not condition corporations receipt of these benefits on corporations foregoing full First Amendment protection for their speech. Pl. s Resp. 24 (citing Citizens United, 130 S. Ct. at 905). Rather, the Supreme Court was specific in concluding that the granting of benefits to corporations under state laws does not suffice, however, to allow laws prohibiting speech. Citizens United, Consol. Court No. 07-00028 Page 20 130 S. Ct. at 905 (emphasis added). Because the CDSOA is not a prohibitory statute, and because the relevant purpose of the CDSOA is to reward petitioners and those in support of petitions, we reject the argument that Citizens United implicitly invalidates the SKF analysis upholding the CDSOA against attack on First Amendment grounds. Plaintiff argues, next, that in the wake of the Supreme Court s decision in Sorrell, the conclusion that intermediate scrutiny should be applied to the CDSOA despite the CDSOA s viewpoint discrimination is a conclusion that can no longer stand and that the CDSOA now must be subjected to heightened judicial scrutiny. Pl. s Notice of Supp. Authority 2 (citing Sorrell, 131 S. Ct. at 2663-64). We reject the argument that Sorrell implicitly overturned SKF. In Sorrell, the Supreme Court struck down a Vermont statute (the Prescription Confidentiality Law ) that prohibited, subject to certain exceptions, the sale, disclosure, and use of prescriber-identifying information, which is information obtained from pharmacy records that reveals the drug prescribing practices of individual physicians. 131 S. Ct. at 2660 (citation omitted). The statute prohibited pharmacies, health insurers, and similar entities from selling this information, or allowing such information to be used for marketing, without the prescriber s consent, and it prohibited pharmaceutical manufacturers and marketers from using such information for marketing without the prescriber s consent. Id. The statute authorized the Vermont attorney general to pursue civil remedies against violators. Id. The Supreme Court concluded that the Prescription Confidentiality Law enacts content-and speaker-based restrictions on the sale, disclosure, and use of prescriber-identifying information. Id. at 2663. Under the heightened scrutiny the Supreme Court considered to be warranted, the State must show at least that the statute directly advanced a substantial Consol. Court No. 07-00028 Page 21 government interest and that the measure is drawn to achieve that interest. Id. at 2667-68. The Court concluded that the State of Vermont failed to make that showing. The Court considered that the stated interest of promoting medical privacy and physician confidentiality did not justify the prohibitions placed on the sale and use of the information. Id. at 2668. The Court noted that the law allowed wide dissemination of the information but effectively prohibited use of the information by a class of disfavored speakers ( detailers, who used the prescriber-identifying information to promote brand-name drugs on behalf of pharmaceutical manufacturers) and in effect prohibited a disfavored use, marketing. Id. Under the Supreme Court s analysis, the Vermont law forbids sale of the information subject to exceptions based in large part on the content of a purchaser s speech, disfavors marketing, that is, speech with a particular content, and disfavors specific speakers, namely, pharmaceutical manufacturers. Id. at 2663. Another purpose the State of Vermont advanced in support of the Prescription Confidentiality Law, reducing health care costs and promoting public health, also failed to justify the burden on speech. Id. at 2668, 2670. In restraining certain speech by certain speakers, and specifically, in diminishing the ability of detailers to influence prescription decisions, the statute sought to influence medical decisions by the impermissible means of keeping physicians from receiving the disfavored information. Id. at 2670-71. Sorrell and SKF analyze dissimilar statutes, which vary considerably in the nature and degree of the effect on expression as well as in purpose. SKF concluded that the CDSOA does not have as a stated purpose, or even an implied purpose, the intentional suppression of expression, SKF, 556 F.3d at 1351-52, whereas the Vermont statute authorized civil remedies against those selling or using the prescriber-identifying information that the statute sought to Consol. Court No. 07-00028 Page 22 suppress. See Sorrell, 131 S. Ct. at 2660. Sorrell does not require us to review the CDSOA according to a First Amendment analysis differing from that applied by the Court of Appeals in SKF. In analyzing the Vermont statute, the Supreme Court stated in Sorrell that the State must show at least that the statute directly advances a substantial government interest and that the measure is drawn to achieve that interest. 131 S. Ct. at 2667-68 (citing Board of Trustees of State Univ. of N.Y. v. Fox, 492 U.S. 469, 480-81 (1989); Central Hudson, 447 U.S. at 566). SKF concluded that SKF s opposition to the antidumping petition is protected First Amendment activity, 556 F.3d at 1354, and applied a test to which it referred to as the well established Central Hudson test, id. at 1355. The Court of Appeals described this test as requiring that regulation of commercial speech be held permissible if the asserted governmental interest is substantial, the regulation directly advances that interest, and the regulation is not more extensive than is necessary to serve that interest. Id. (citing Central Hudson, 447 U.S. at 566). We reject plaintiff s argument that Sorrell requires us to apply to the CDSOA a level of scrutiny different from that applied by the Court of Appeals in SKF. In Arizona Free Enterprise, the Supreme Court struck down an Arizona campaign finance law imposing a matching funds scheme that substantially burdens protected political speech without serving a compelling state interest and therefore violates the First Amendment. 131 S. Ct. at 2813. Under the Arizona statute, candidates for state office who agreed to accept public funding received matching funds when the allotment of state funds to the publicly financed candidate were exceeded by an amount calculated according to the amount a privately funded candidate received in contributions (including the candidate s contribution of expenditures of personal funds), combined with the expenditures independent groups made in support of the Consol. Court No. 07-00028 Page 23 privately funded candidate or in opposition to a publicly funded candidate. Id. at 2313-14. According to plaintiff, the Supreme Court s decision in Arizona Free Enterprise demonstrates that, contrary to the government s position, strict scrutiny applies to viewpoint discrimination that falls short of an outright ban and that [in] SKF, the Federal Circuit declined to apply heightened scrutiny even though the CDSOA has the equivalent effect, providing a subsidy to the direct economic competitors of those engaging in disfavored speech. Pl. s Notice of Supp. Authority 3-4. Therefore, plaintiff argues, SKF is no longer compatible with Supreme Court precedent. Id. at 4. We do not agree that the Supreme Court s holding in Arizona Free Enterprise implicitly invalidates the holding in SKF. Arizona Free Enterprise is one of a line of Supreme Court cases that struck down laws affecting speech during campaigns for political office. That line of cases includes Citizens United, discussed supra, and Davis v. Federal Election Comm n, 554 U.S. 724 (2008), which invalidated a federal statute under which a new, asymmetrical regulatory scheme of limits on campaign donations of individuals in elections for the U.S. House of Representatives was triggered when one candidate in such an election spent more than $350,000 of personal funds on the race. Arizona Free Enterprise, 131 S. Ct. at 2818. The Supreme Court grounded its reasoning in Arizona Free Enterprise partly on the principle that the First Amendment has its fullest and most urgent application to speech uttered during a campaign for political office. Id. (quoting Eu v. San Francisco County Democratic Central Comm., 489 U.S. 214, 223 (1989)) (internal quotation omitted). Stating in Arizona Free Enterprise that [t]he logic of Davis largely controls our approach to this case, the Supreme Court found the burdens the Arizona law imposed on speech uttered during a campaign to impose an even more onerous penalty on the Consol. Court No. 07-00028 Page 24 free speech of a privately funded candidate than did the federal statute invalidated in Davis and to inflict a penalty on groups making or desiring to make independent expenditures. Id. at 2818-20. Under the Arizona law s scheme, [t]he direct result of the speech of privately financed candidates and independent expenditure groups is a state-provided monetary subsidy to a political rival. Id. at 2821. Contrary to plaintiff s argument, the CDSOA does not bear more than a superficial resemblance to the laws invalidated in Arizona Free Enterprise, Davis (a case decided prior to SKF), and similar such cases, which regulated and impermissibly burdened political speech during an election by restricting campaign expenditures. Accordingly, we reject Standard s contention that Arizona Free Enterprise established a new First Amendment principle requiring us to disregard the holding in SKF and to apply a strict scrutiny analysis to the CDSOA. In summary, SKF remains binding precedent that is controlling on the disposition of plaintiff s as-applied First Amendment claims. These claims must be dismissed according to USCIT Rule 12(b)(5). 3. Relief on Plaintiff s Equal Protection Claims Is Foreclosed by Precedent In Count 3 of the amended complaints, plaintiff claims that the petition support requirement of the CDSOA violates the Equal Protection Clause of the Constitution because Defendants have created a classification that implicates Standard s fundamental right of speech and Defendants actions are not narrowly tailored to a compelling government objective. First Amended Compl. ¶ 45. Count 3 claims, further, that defendants application of the CDSOA to Standard also violates the Equal Protection Clause because it impermissibly discriminates between Standard and other domestic parties who expressed support for the relevant antidumping petition, denying a benefit to Standard. Id. ¶ 46. Consol. Court No. 07-00028 Page 25 Relief on these claims is foreclosed by the holding in SKF. The Court of Appeals held in SKF that the CDSOA did not violate equal protection principles as applied to plaintiff SKF. Standard, like SKF, expressed opposition to the relevant antidumping duty petition and thus failed to satisfy the petition support requirement, 19 U.S.C. § 1675c(d)(1). Compare First Amended Compl. ¶ 19 ( In its questionnaire responses, Standard indicated that it opposed the petition. ) with SKF, 556 F.3d at 1343 ( SKF also responded to the ITC s questionnaire, but stated that it opposed the antidumping petition. ). Plaintiff points out that SKF did much more than simply express abstract opposition to the petition, Pl. s Resp. 11, but this fact does not distinguish the holding in SKF from the instant case. In ruling on claims that are not distinguishable from Standard s in any material way, the Court of Appeals held that [b]ecause it serves a substantial government interest, the Byrd Amendment is . . . clearly not violative of equal protection under the rational basis standard, SKF, 556 F.3d at 1360, and that the Byrd Amendment does not fail the equal protection review applicable to statutes that disadvantage protected speech, id. at 1360 n.38. Because plaintiff fails to plead facts allowing the court to conclude that its equal protection claims are distinguishable from those brought, and rejected, in SKF, Count 3 must be dismissed for failure to state a claim upon which relief can be granted. B. Plaintiff Lacks Standing to Bring a Fifth Amendment Retroactivity Challenge to the CDSOA Count 4 of the amended complaints challenges the CDSOA under the Due Process guarantee of the Fifth Amendment on the ground that the statute is impermissibly retroactive. Plaintiff claims that the petition support requirement of the CDSOA violates the Due Process Clause of the Constitution because Defendants base Standard s eligibility for disbursements on Consol. Court No. 07-00028 Page 26 past conduct (i.e., support for a petition). First Amended Compl. ¶ 48. According to Count 4, [t]he Due Process Clause disfavors retroactive legislation, and Defendants disbursements only to those companies that express support for a petition is not rationally related to a legitimate governmental purpose. Id. We construe Standard s retroactivity claims, which are vaguely stated, to mean that the CDSOA is impermissibly retroactive under the Fifth Amendment due process guarantee because it conditions the receipt of distributions on a decision whether or not to support an antidumping duty petition that was made before the statute went into effect, and thus before the affected party making that decision could have had notice of the consequences. See 19 U.S.C. § 1675c(d)(1) (directing the ITC to forward to Customs a list identifying petitioners and parties expressing support for a petition within 60 days after the effective date of this section in the case of orders or findings in effect on January 1, 1999 . . . ). Because it applies to petition support decisions made prior to enactment, the CDSOA may be characterized as having a retroactive aspect. See Landgraf v. USI Film Prods., 511 U.S. 244, 270 (1994) (considering a retroactive statute to be one that attaches new legal consequences to events completed before its enactment ). We previously have concluded that the CDSOA is not violative of the due process guarantee because the retroactive reach of the petition support requirement in the CDSOA is justified by a rational legislative purpose and therefore is not vulnerable to attack on constitutional due process grounds. New Hampshire Ball Bearing Co., Inc. v. United States, 36 CIT __, __, Slip Op. 12-2, at 14 (Jan. 3, 2012); see also Schaeffler Grp. USA, Inc. v. United States, 36 CIT __, __, Slip Op. 12-8, at 11-12 (Jan. 17, 2012). We conclude that Standard s Consol. Court No. 07-00028 Page 27 retroactivity claims, when construed in this way, must be dismissed for lack of standing.10 Because the CDSOA was enacted in 2000, it was not applied retroactively to Standard, which expressed opposition to the wooden bedroom furniture petition in 2003. First Amended Compl. ¶¶ 18-19. Standard, therefore, had the opportunity to . . . conform [its] conduct accordingly. Landgraf, 511 U.S. at 265. As a consequence, plaintiff s amended complaints fail to allege an injury in fact arising from conduct predating the CDSOA s enactment. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167, 180-81 (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)) ( To satisfy Article III s standing requirements, a plaintiff must show (1) it has suffered an injury in fact that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical . . . ). Because the amended complaints do not allege facts from which we may conclude that Standard has standing to bring the claims stated as Count 4, we must dismiss these claims for lack of jurisdiction pursuant to USCIT Rule 12(b)(1). 10 It is also possible to construe Standard s retroactivity claims, when read literally, to mean that the CDSOA is impermissibly retroactive under the due process guarantee simply because it attaches negative consequences to petition support decisions made prior to the determination of eligibility for distributions. We decline to construe the claims in this way because, according to such a construction, the CDSOA would not be retroactive as the term has been recognized in case law and would be indistinguishable from any of innumerable statutes attaching a consequence to a past action of a person to whom enactment of the statute provided notice of the consequences. See Landgraf v. USI Film Prods., 511 U.S. 244, 265 (1994) ( Elementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly; settled expectations should not be lightly disrupted. ). Were we to adopt the alternate construction of plaintiff s retroactivity claims that we pose hypothetically, we would be compelled to dismiss such claims as ones upon which no relief could be granted. Consol. Court No. 07-00028 Page 28 C. Plaintiff Does Not Qualify for an Injunction Plaintiff s January 11, 2012 motion seeks what plaintiff terms a preliminary injunction, under which defendants would be enjoined from disbursing any funds that are currently being withheld by CBP for Standard for FY2006-FY2010 . . . for the pendency of this litigation, including all relevant appeals and remands, until such time as a final court decision is rendered in this case. Pl. s Mot. for Prelim. Inj. 1. A preliminary injunction normally dissolves upon the entry of judgment. See Univ. of Texas v. Camenisch, 451 U.S. 390, 395 (1981) (stating that the purpose of a preliminary injunction is to preserve the status quo until the merits of the action are ultimately determined); 11A Charles A. Wright, Arthur R. Miller & Mary K. Kane, Federal Practice and Procedure, § 2947 (2d ed. 2010) (the principal purpose of preliminary injunctive relief is to preserve the court s power to render a meaningful decision pursuant to a trial on the merits). Because our decision today will conclude this action, the question of a preliminary injunction to prevent irreparable harm during the pendency of this case is moot. By attempting to enjoin distribution through all remands and appeals, plaintiff s January 11, 2012 motion seeks equitable relief beyond a preliminary injunction. Additionally, plaintiff seeks as a remedy that the court order the ITC to declare Standard an ADP and order Customs to disburse pursuant to the CDSOA a pro rata portion of the assessed antidumping duties on wooden bedroom furniture from China . . . . First Amended Compl. ¶ 51 (Prayer for Relief). In summary, Standard seeks to prevent Customs from paying to other CDSOA claimants what Standard claims is its share of the withheld distributions and seeks affirmative injunctions against both agencies so that Standard will receive those distributions. In these respects, plaintiff is seeking permanent equitable relief both as a provisional measure pending a possible appeal Consol. Court No. 07-00028 Page 29 and as a remedy on its claims. We conclude, however, that Standard does not qualify for permanent equitable relief. Standard is required to show for a permanent injunction that it has suffered an irreparable injury, that the remedies available at law are inadequate to compensate for that injury, that, considering the balance of hardships between the parties, a remedy in equity is warranted, and that the public interest would not be disserved by a permanent injunction. Ebay Inc. v. Mercexchange, L.L.C., 547 U.S. 388, 391 (2006). Here, we conclude that there are no remedies available at law and that no remedy in equity is warranted, based on our analysis of plaintiff s claims as discussed supra. We presume, without deciding, that plaintiff would be irreparably harmed were Customs to distribute to other parties what Standard claims to be its share of the withheld distributions. With respect to the balance of hardships, Standard would be prejudiced by such a distribution, but defendant-intervenors also will be prejudiced by further delay in obtaining what they claim to be their lawful CDSOA disbursements. The public interest favors an orderly and lawful distribution of the withheld funds. The controlling factor, however, is that neither a remedy at law nor a remedy in equity is appropriate in these circumstances. For the reasons discussed in this opinion, we conclude that the appropriate disposition is the dismissal of this action. III. CONCLUSION Because Counts 1, 2, 3, and 5 of plaintiff s amended complaints fail to state a claim upon which relief may be granted, and because the claims in Count 4 of plaintiff s amended complaints must be dismissed for lack of standing, we will grant the motions to dismiss filed by defendants and defendant-intervenors. And because neither a remedy at law nor a remedy in Consol. Court No. 07-00028 Page 30 equity is available on the claims stated, we conclude that plaintiff is not entitled to injunctive relief that would delay the pending CBP distribution of CDSOA funds or to an affirmative injunction directing distribution of CDSOA benefits to Standard. Plaintiff has taken the opportunity to amend its original complaints and has not indicated an intention to seek leave to amend its complaints again, and we see no reason why this action should be prolonged. Accordingly, we shall enter judgment dismissing this consolidated action. /s/ Timothy C. Stanceu Timothy C. Stanceu Judge Dated: February 17, 2012 New York, New York
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