# PS Chez Sidney, L.L.C. v. United States International Trade Commission

> United States Court of International Trade · June 17, 2008 · 558 F. Supp. 2d 1370

URL: https://www.frixlaw.com/law-library/cases/817477

## Case

- **Full name:** PS CHEZ SIDNEY, L.L.C., Plaintiff, v. UNITED STATES INTERNATIONAL TRADE COMMISSION, and United States Customs Service, Defendants, and Crawfish Processors Alliance, Et Al., Defendant-Intervenors
- **Court:** United States Court of International Trade
- **Decided:** June 17, 2008
- **Citations:** 558 F. Supp. 2d 1370; 32 Ct. Int'l Trade 697; 32 C.I.T. 697; 30 I.T.R.D. (BNA) 1858; 2008 Ct. Intl. Trade LEXIS 66
- **Precedential status:** Published
- **Opinion:** Opinion by Wallach
- **Judges:** Wallach
- **Cited by:** 1 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/817477

## Opinion text

Slip Op. 08-69
UNITED STATES COURT OF INTERNATIONAL TRADE
____________________________________
:
PS CHEZ SIDNEY, L.L.C., :
:
Plaintiff, :
:
v. :
:
UNITED STATES INTERNATIONAL :
TRADE COMMISSION, and :
UNITED STATES CUSTOMS :
SERVICE, : Before: WALLACH, Judge
: Court No.: 02-00635
Defendants, :
:
and :
:
CRAWFISH PROCESSORS :
ALLIANCE, et al., :
:
Defendant-Intervenors. :
____________________________________:

[United States International Trade Commission’s Remand Determination is AFFIRMED; United
States Customs and Border Protection’s Remand Determination is AFFIRMED; Plaintiff PS
Chez Sidney, L.L.C.’s Motion for Entry of Money Judgment Pursuant to 28 U.S.C. ' 2643(a)(1)
is DENIED.]

Dated: June 17, 2008

William E. Brown and Arnold & Porter (Michael T. Shor) for Plaintiff PS Chez Sidney, L.L.C.

Gregory G. Katsas, Acting Assistant Attorney General; Jeanne E. Davidson, Director, Patricia
M. McCarthy, Assistant Director, Commercial Litigation Branch, Civil Division, U.S.
Department of Justice (Franklin E. White); and Andrew G. Jones, Office of Assistant Chief
Counsel, U.S. Customs and Border Protection, of Counsel, for Defendant United States Customs
and Border Protection.

Neal J. Reynolds, Assistant General Counsel, Office of the General Counsel, United States
International Trade Commission (Patrick V. Gallagher), for Defendant United States
International Trade Commission.
Adduci, Mastriani & Schaumberg, LLP (Will E. Leonard), for Defendant-Intervenors Crawfish
Processors Alliance; Bob Odom, Commissioner, Louisiana Department of Agriculture and
Forestry; Louisiana Department of Agriculture and Forestry.

Sonnenschein Nath & Rosenthal (Michael A. Bamberger) for INA USA Corporation, appearing
amicus curiae in support of Plaintiff.

Arnold & Porter, LLP (Michael T. Shor and Claire E. Reade), for Giorgio Foods Inc., appearing
amicus curiae in support of Plaintiff.

Kelley Drye & Warren (David A. Hartquist) and Stewart and Stewart (P. Stewart) for Committee
to Support U.S. Trade Laws, appearing amicus curiae in support of Plaintiff.

OPINION

Wallach, Judge:

I

INTRODUCTION

This matter comes before the court following its remand to Defendants United States

International Trade Commission (the “Commission”) and United States Customs and Border

Protection (“Customs”), respectively. In the underlying action, the court held that the support

requirement of the Continued Dumping and Subsidy Offset Act of 2000 (the “CDSOA” or the

“Byrd Amendment”) was unconstitutional and severed that requirement from the statute. The

court remanded to the Commission and Customs to determine Plaintiff PS Chez Sidney, L.L.C.’s

(“Chez Sidney”) eligibility for CDSOA distributions under the modified version of the statute,

and to determine how Chez Sidney would receive those distributions for which it is eligible.

On remand, the Commission determined that Chez Sidney qualified for inclusion on the

list of producers eligible for CDSOA distributions, and Customs determined that Chez Sidney

was eligible for such distributions in fiscal year (“FY”) 2002 and FY 2003. Chez Sidney

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contests Customs’ decision not to furnish payment on the FY 2002 and FY 2003 CDSOA

distributions until all appeals in this action have been exhausted; Chez Sidney also challenges

Customs’ determination that it is ineligible for FY 2004 CDSOA distributions.

This court has jurisdiction pursuant to 28 U.S.C. ' 1581(i). For the reasons set forth

below, Customs’ Remand Determination is affirmed.

II

BACKGROUND

Chez Sidney initiated this action to challenge the requirement that a domestic producer

support an antidumping petition in order to be eligible for CDSOA distributions. The court held

that the support requirement of the CDSOA was unconstitutional because it violated the First

Amendment protections of freedom of speech and freedom of expression. PS Chez Sidney,

L.L.C. v. United States, 442 F. Supp. 2d 1329, 1358-59 (CIT 2006) (“PS Chez Sidney I”); cf.

SKF USA Inc. v. United States, 451 F. Supp. 2d 1355 (CIT 2006) (holding that the support

requirement of the CDSOA was unconstitutional on Equal Protection grounds); Canadian

Lumber Trade Alliance v. United States, 425 F. Supp. 2d 1321 (CIT 2006), aff’d in relevant part,

517 F.3d 1319 (Fed. Cir. 2008) (holding that the NAFTA Implementation Act rendered the

CDSOA inapplicable to goods from Canada and Mexico). In a subsequent decision, the court

held that it was appropriate to sever the unconstitutional support requirement. PS Chez Sidney,

L.L.C. v. United States, 502 F. Supp. 2d 1318, 1323-24 (CIT 2007) (“PS Chez Sidney II”);

accord SFK, 415 F. Supp. 2d at 1365.

After striking this requirement, the court found that “all ‘affected domestic producers’

who are either petitioners or interested parties in an antidumping petition are eligible to be

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included on the [Commission’s] list for CDSOA distributions.” Id. at 1324; accord SKF, 451 F.

Supp. 2d at 1365-66. The court remanded the matter to the Commission and Customs. The

Commission was instructed to determine whether, under the modified version of the CDSOA,

Chez Sidney otherwise met the requirements to qualify as an “affected domestic producer.” Id. at

1324. If the Commission determined that Chez Sidney qualified as an “affected domestic

producer,” then Customs was directed to (1) assess the sufficiency of Chez Sidney’s claim, (2)

include Chez Sidney on the list of producers eligible for CDSOA distributions for FY 2002, if

appropriate, and (3) “determine how Chez Sidney shall receive its pro rata share, if any, of the

2002 CDSOA disbursements.” Id. at 1324-25. The court also ordered the Commission and

Customs to make such determinations for each subsequent year in which Chez Sidney applied

for CDSOA distributions. Id.

The Commission determined on remand that, under the modified version of the Byrd

Amendment, Chez Sidney met the requirements to be included on the list of “affected domestic

producers” eligible for CDSOA distributions. Letter from Neal J. Reynolds, Assistant General

Counsel for Litigation, United States International Trade Commission to Tina Potuto Kimble,

Clerk of the Court, United States Court of International Trade (November 27, 2007)

(“Commission’s Remand Determination”). That determination did not elicit comments from

Chez Sidney and is hereby affirmed.

Subsequently, Customs determined that Chez Sidney is eligible for a pro rata share of the

FY 2002 and FY 2003 CDSOA distributions “to the extent these funds are either recoverable

from the affected domestic producers who initially received them or are available in the Special

Account.” Reconsideration of the Fiscal Year 2002, 2003, and 2004 CDSOA Certifications of PS

4
Chez Sidney, L.L.C. (February 5, 2008) (“Customs’ Remand Determination”) at 3. Customs

indicated, however, that Chez Sidney will not receive payment until “all opportunities for

rehearing and/or appeal have been exhausted.” Id. at 2. In addition, Customs stated its intention

to verify the qualifying expenditures for which Chez Sidney seeks CDSOA disbursements in FY

2002 and FY 2003 “in a manner consistent with 19 C.F.R. ' 159.63(d).” Id. at 3. Chez Sidney’s

request for FY 2004 CDSOA distributions was denied on the ground that it had ceased

production in 2003. Id. at 2.

Chez Sidney contests Customs’ Remand Determination on three principal grounds. First,

Chez Sidney argues that that Customs’ proposed remedy is inadequate. Plaintiff PS Chez Sidney,

L.L.C.’s Comments on February 5, 2008 Remand Determination by United States Customs and

Border Protection (“Plaintiff’s Comments”) at 1-2. Second, Chez Sidney argues that it is entitled

to both pre- and post-judgment interest on its pro rata shares of the FY 2002 and FY 2003

distributions. Id. at 10. Third, Chez Sidney asserts that it is entitled to post-FY 2003 CDSOA

distributions. Id. at 11. Chez Sidney requests that the court direct Customs to either furnish

payment on its pro rata shares of the FY 2002 and FY 2003 CDSOA distributions immediately

or reserve funds in the Special Account for such distribution. Id. at 2.

III

STANDARD OF REVIEW

Remand determinations are reviewed “for compliance with the court’s remand order.”

Dorbest Ltd. v. United States, No. 05-00003, 2008 Ct. Int’l Trade LEXIS 22, at *3 (February 27,

2008) (citing NMB Sing. Ltd. v. United States, 28 CIT 1252, 341 F. Supp. 2d 1327 (2004)).

Because jurisdiction over this action is derived from 28 U.S.C. ' 1581(i), the applicable standard

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of review is as established in Section 706 of the Administrative Procedure Act (“APA”). 28

U.S.C. ' 2640(e).

IV

ANALYSIS

A

Customs’ Remand Determination Fully Complies with the Court’s Remand Instructions
and Can Not be Characterized as Arbitrary and Capricious

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Customs’ Proposed Remedy is Adequate

Chez Sidney contends that the remedy proposed in Customs’ Remand Determination

contradicts the court’s directive that Customs determine how Chez Sidney “shall receive its pro

rata share” of the CDSOA funds for which it is eligible. Plaintiff’s Comments at 2 (citing PS

Chez Sidney II, 502 F. Supp. 2d at 1324-25). In support of this contention, Chez Sidney weighs

the perceived risks of not receiving payment from Customs until disposition of the case on

appeal, id. at 4-6, and ultimately concludes that an order directing “immediate distribution of

funds in the Special Account . . . maximizes Chez Sidney’s recovery . . . and complies with the

letter and the spirit of the [c]ourt’s opinion and judgment,” id. at 7.

Customs has explained that Federal regulations contemplate the possibility that CDSOA

disbursements may need to be redistributed and provide a “deliberative and orderly” mechanism

for doing so. Defendant United States Customs and Border Protection’s Response to Plaintiff PS

Chez Sidney, L.L.C.’s Comments on February 5, 2008 Remand Determination (“Customs’

Response”) at 7 (citing 19 CFR ' 159.64(b)(3)). Chez Sidney objects to this process established

by federal legislation on the bases that full recovery from the domestic crawfish producers “will

6
be impossible,” Plaintiff’s Comments at 4-5, and that the “Special Account will be empty,” id. at

5.

The court specifically authorized Customs not only to determine Chez Sidney’s

eligibility for CDSOA distributions, but also to establish the mechanism by which Chez Sidney

would receive such funds. PS Chez Sidney II, 502 F. Supp. 2d at 1325 (“Customs is directed to

determine how Chez Sidney shall receive its pro rata share, if any, of the 2002 CDSOA

disbursements.”). Accordingly, Customs’ decision to verify the amounts submitted by Chez

Sidney as qualifying expenditures, wait until all appeals are exhausted in this case before

furnishing payment to Chez Sidney, and follow its internal administrative process to secure the

funds with which to do so is neither inconsistent with the court’s remand instructions nor

arbitrary and capricious.

2
Chez Sidney is Not Entitled to Pre- or Post-Judgment Interest on the FY 2002 and FY 2003
CDSOA Distributions

Chez Sidney claims that it “should be entitled to prejudgment and post-judgment

interest” on its pro rata shares of the FY 2002 and FY 2003 CDSOA distributions. Plaintiff’s

Comments at 10.

These claims fail as a matter of law. It is a long-standing principle of U.S. jurisprudence

that, in the absence of a constitutional requirement, interest can be recovered against the United

States only if Congress has expressly consented to such recovery. United States v. N.Y. Rayon

Importing Co., 329 U.S. 654, 658-59, 67 S. Ct. 601, 91 L. Ed. 577 (1947). This limitation,

which is commonly referred to as the no-interest rule, “must be strictly construed.” Id. at 659.

Indeed, the rule of sovereign immunity requires that Congressional “consent to liability for

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interest on a damage award . . . be ‘affirmatively and separately contemplated’ . . . from a

general waiver of immunity for the cause of action resulting in the damages award against the

United States.” Marathon Oil Co. v. United States, 374 F.3d 1123, 1126-27 (Fed. Cir. 2004)

(quoting Library of Congress v. Shaw, 478 U.S. 310, 314-15, 106 S. Ct. 2957, 92 L. Ed. 2d 250

(1986)). The no-interest rule applies to claims for both pre- and post-judgment interest. Id.

(citing N.Y. Rayon, 329 U.S. at 661).

According to Plaintiff, the rule does not apply in this case because the funds in the

Special Account do not belong to the United States. Plaintiff’s Comments at 10. That fact has no

effect, however, on the applicability of the no-interest rule in this case. Indeed, “the sine qua

non of federal sovereign immunity is the federal government’s possession of the money in

question. The government need not have an actual interest in the funds in order to invoke the

defense.” Kalodner v. Abraham, 310 F.3d 767, 769-70 (D.C. Cir. 2002) (citing N.Y. Rayon, 329

U.S. 654).

Therefore, because there is neither a constitutional requirement nor evidence of explicit

Congressional intent to authorize the payment of interest on CDSOA disbursements, Plaintiff’s

claims for both pre- and post-judgment interest on funds held by the United States must fail.

3
Chez Sidney is Not Entitled to CDSOA Distributions in FY 2004 Because it Ceased
Operations in 2003

Chez Sidney argues that, notwithstanding the fact that it ceased operations in 2003-2004,

it is entitled to CDSOA distributions based on the additional qualifying expenditures it would

have submitted in the years after 2003. Plaintiff’s Comments at 12-13. According to Chez

Sidney, the cessation of its operations in 2003-2004 was a direct result of its inability to collect

8
the CDSOA distributions to which it would have been entitled in previous years in the absence

of the support requirement ultimately found unconstitutional by this court in PS Chez Sidney I.

Id. at 11-12. On this basis, Chez Sidney asserts that it is entitled to its pro rata share of post-FY

2003 distributions based on the same percentages of qualifying expenditures that it submitted in

FY 2002 and FY 2003. Id. at 12-13.

Nothing in the court’s remand instructions in PS Chez Sidney II can be read to require

Customs to make CDSOA distributions to Plaintiff for FY 2004 or any other year for which it

was not in operation. Customs was directed to determine whether Plaintiff is entitled to such

distributions after 2002; beyond striking the unconstitutional support provision from the

CDSOA, the court did not direct or otherwise constrain Customs’ determinative process. The

Byrd Amendment specifically excludes companies that have ceased production of the product

covered by the antidumping duty order in question from the definition of “affected domestic

producer” eligible for CDSOA distributions. 19 U.S.C. ' 1675c(b)(1)(B) (2000). Thus, because

Chez Sidney was not “in operation” after 2003, it is statutorily ineligible for CDSOA

distributions in later years. Id. at 14-15.

C

Chez Sidney’s Request That the Court, In Effect, Issue a Writ of Mandamus is
Inappropriate in These Circumstances

Chez Sidney’s requested relief requires the court to take the specific step of ordering

Customs to either immediately furnish payment on Chez Sidney’s pro rata shares of the FY 2002

and FY 2003 CDSOA distributions or to “hold and preserve sufficient funds already in and to be

deposited in the Special Account so that funds will be available” to do so. Plaintiff’s Comments

at 13-14. This is effectively a request that the court issue a writ of mandamus, and will be

9
evaluated accordingly.

The common-law writ of mandamus, as codified in 28 U.S.C. § 1361 and 28 U.S.C. §

1651(a), is a “drastic [remedy], to be invoked only in extraordinary situations.” Allied Chem.

Corp. v. Daiflon, Inc., 449 U.S. 33, 34, 101 S. Ct. 188, 66 L. Ed. 2d 193 (1980). It is “one of

‘the most potent weapons in the judicial arsenal.’” Cheney v. U.S. Dist. Court, 542 U.S. 367,

380, 124 S. Ct. 2576, 159 L. Ed. 2d 459 (2004) (quoting Kerr v. United States Dist. Court for N.

Dist., 426 U.S. 394, 403, 96 S. Ct. 2119, 48 L. Ed. 2d 725 (1976)). Thus, before the court can

issue a writ of mandamus, it must ensure that the party seeking the writ makes three required

showings. First, the party must demonstrate that it has “no other adequate means” to attain the

desired relief. Id. (quoting Kerr, 426 U.S. at 403). Second, the party must demonstrate that its

right to obtain the writ is “clear and indisputable,” id. at 381 (quoting Kerr, 426 U.S. at 403) –

in other words, the party must demonstrate that he or she is owed a “clear nondiscretionary

duty,” Heckler v. Ringer, 466 U.S. 602, 616, 104 S. Ct. 2013, 80 L. Ed. 2d 622 (1984). Finally,

even after making the first two required showings, the party must demonstrate that a writ of

mandamus is “appropriate under the circumstances.” Cheney, 542 U.S. at 381.

Chez Sidney has not made the three required showings. There is an alternative means for

it to attain the relief it seeks; that alternative is to allow Customs to follow its internal

administrative process to obtain the funds with which to render payment on Chez Sidney’s pro

rata shares of the FY 2002 and FY 2003 CDSOA distributions. While the court’s decision in PS

Chez Sidney II, 502 F. Supp. 2d 1318, establishes Chez Sidney’s right to those funds, Customs

has not given this court any reason to believe that it will not follow through with payment.

Therefore, a writ of mandamus is not appropriate in these circumstances.

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V

CONCLUSION

For the above stated reasons, the Commission’s Remand Determination is Affirmed,

Customs’ Remand Determination is Affirmed, and Chez Sidney’s Motion for Entry of Money

Judgment Pursuant to 28 U.S.C. ' 2643(a)(1), filed on April 10, 2008, is Denied.

_/s/ Evan J. Wallach_____
Evan J. Wallach, Judge

Dated: June 17, 2008
New York, New York

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/817477. Public record. Not legal advice.