CIT to Hear Challenge of CDSOA's "Acquisition Clause"

The Court of International Trade said it will hear a challenge of the “acquisition clause” of the Continued Dumping and Subsidy Act of 2000 (CDSOA, commonly known as the Byrd Amendment), which says a company must not have been acquired by a company or business that is related to a company that opposed the investigation in order to qualify for CDSOA disbursement.

CIT dismissed plaintiff Barden Corporation’s claims for benefits under CDSOA for fiscal years 2004-2006 for various reasons, including (i) expiry of the time limit for a challenge, (ii) Court of Appeals for the Federal Circuit rulings against First Amendment (free speech) and Fifth Amendment (equal protection and retroactivity) challenges of CDSOA, and (iii) the confidentiality of Barden’s support for the original petition (CDSOA funds cannot be disbursed to companies whose support for the petition was confidential).

However, CIT denied the government’s motion to dismiss Barden’s claims for fiscal years 2007-2009. The government argued that Barden’s First and Fifth Amendment challenges were foreclosed by CACF precedent in SKF v. U.S., but CIT said SKF v. U.S. ruled against such claims with respect to the petition support requirement of CDSOA, not the acquisition clause. CIT said because this is the first instance that a constitutional challenge of the acquisition clause has been raised it could not dismiss Barden’s claims as foreclosed. CIT ordered the International Trade Commission and U.S. Customs and Border Protection to file their administrative records so it can consider the acquisition clause issue.

(CIT Slip Op. 12-85, dated 06/15/12, Judges Carman, Stanceu, and Gordon)