Ashley Furniture Industries, Inc. v. United States

CLEVENGER, Circuit Judge,

dissenting.

The majority concludes that the “plain meaning” of the Byrd Amendment allows the International Trade Commission (ITC) to determine who qualifies as an affected domestic producer1 based solely on the producer’s response to the ITC’s support/oppose question.2 Maj. Op. at 1310-11. This is incorrect. Nothing in the history of the Byrd Amendment, the support/oppose question, or our case law, requires a domestic producer to check a certain box in order to qualify for Byrd distributions.

I

The support/oppose question found on the ITC questionnaires has been a part of the ITC questionnaires at least since 1987, well before the 2000 Byrd Amendment, and “is not designed solely to determine eligibility for Byrd Amendment distributions.” SKF USA v. U.S. Customs and Border Prot., 556 F.3d 1337, 1357-58 (Fed.Cir.2009) (SKF). It served then, as it does now, a purpose unrelated to whether a domestic producer has supported an an-tidumping investigation.

The purpose of the support/oppose question is to allow the Department of Commerce to confirm that an antidumping petition “has been filed by or on behalf of the domestic industry.” 19 U.S.C. § 1673a(e)(1)(A)(ii). Commerce must ensure that “the domestic producers or workers who support the petition account for at least 25 percent of the total production of the domestic like product” and “the domestic producers or workers who support the petition account for more than 50 percent of the production of the domestic like product produced by that portion of the industry expressing support for or opposition to the petition.” 19 U.S.C. § 1673a(c)(4)(A). If the petition alone does not establish domestic industry support, Commerce must poll the industry to determine if the petition has the requisite support. § 1673a(c)(4)(D)(i).

*1313When the Byrd Amendment was enacted, there was no mention of using the support/oppose question in the ITC’s questionnaires as the basis for determining which domestic producers could receive Byrd Amendment distributions. See, e.g., 146 CONG. REC. S10669-01 (daily ed. Oct. 18, 2000) (statement of Sen. William Roth) (“[Clash payment will not be made to the whole domestic industry. Instead, only those who supported the filing of the antidumping petition will be paid. Differentiating between different parts of a domestic industry in this way is unprecedented in our trade policy and completely unwarranted.”); id. (statement of Sen. Robert Byrd) (“My provision simply provides a mechanism to help injured U.S. industries recover from the harmful effects of illegal foreign dumping and subsidies.”); 146 CONG. REC. H9,681-08 (daily ed. Oct. 11, 2000) (statement of Rep. Jim Kolbe) (“Under the amendment adopted in the Agriculture Appropriations conference report, an-tidumping and countervailing duties which are currently paid by the importing industry would be transferred from the U.S. Treasury Department directly in the petitioning company.”). The same was true when U.S. Customs developed regulations implementing the Byrd Amendment. See Distribution of Continued Dumping and Subsidy Offset to Affected Domestic Producers, 66 Fed.Reg. 33,920 (proposed June 26, 2001) (to be codified at 19 C.F.R. pt. 159); 66 Fed.Reg. 48,546 (Sept. 21, 2001) (final rule).

II

There has been no apparent Congressional intent to link Commerce’s polling question to the Byrd Amendment. Nonetheless, the ITC has used the support/oppose question as a litmus test for determining whether a domestic producer can receive Byrd Amendment distributions. See PS Chez Sidney, L.L.C. v. U.S. Int’l Trade Comm’n, 684 F.3d 1374, 1382 (Fed.Cir.2012) (Chez Sidney). This court now endorses this practice. Neither SKF nor Chez Sidney suggest that it is appropriate to distinguish between domestic producers solely on the basis of their response to the support/oppose question; in fact, we have already rejected this position as “unreasonable.” Id.

In Chez Sidney we held that “when a U.S. producer assists investigation by [1] responding to questionnaires but [2] takes no other action probative of support or opposition the producer has supported the petition under 19 U.S.C. § 1675c(d).... ” 684 F.3d at 1382. Chez Sidney’s holding is derived from a similar statement in SKF where we concluded that the Byrd Amendment “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).” 556 F.3d at 1353 n. 26 (emphasis added).

Taken together, SKF and Chez Sidney set up a twostep test to determine who qualifies for Byrd Amendment distributions. First, the producer must have responded to the ITC questionnaires. Because the questionnaires are mandatory, all producers in the industry should pass this step. See 19 U.S.C. § 1333(a); see also SKF USA Inc., v. U.S. Customs and Border Prot., 583 F.3d 1340, 1342-43 (Fed.Cir.2009) (Linn, J., dissenting from denial of rehearing en banc). Second, the producer must have “actively supported” the petition and “take[n] no other action probative of support or opposition.” To determine if the producer has taken “other action probative of support or opposition” we consider the “surrounding circumstances.” Chez Sidney, 684 F.3d at 1382-83. The relevant factors include (1) *1314whether the producer participated in the investigation by providing supporting information in a questionnaire response, (2) whether the producer .provided supporting arguments in its responses, (3) whether the producer engaged in activity in opposition to the petition, and (4) whether the producer expressed opposition to the petition. Id. at 1383.

Ill

Applying our holdings in SKF and Chez Sidney to the cases before us today, I conclude that both Ethan Allen and Ashley Furniture are “interested parties in support of a petition” and may qualify for Byrd Amendment distributions. Both clearly satisfy the statutory test, which states that a domestic producer meets the “in support of the petition” requirement when it “indicate[s] support ... by letter or through questionnaire response.” 19 U.S.C. § 1675c(d)(1).

A. Ethan Axlen

Ethan Allen meets both elements of the Chez Sidney test. Ethan Allen responded to the ITC questionnaires sent during the Wooden Bedroom Furniture Investigation and checked the “Take no position” box on both questionnaires. Evaluating the “surrounding circumstances,” Ethan Allen provided supporting data to the ITC in the form of sales and production data, did not express opposition to the petition, and did not engage in any activity in opposition to the petition. See Chez Sidney, 684 F.3d at 1382-83. Because we have already decided that the Byrd Amendment does not require producers to make “an affirmative declaration of support for the petition,” id. at 1380, Ethan Allen must qualify as an affected domestic producer in support of the petition.

B. Ashley FuRniture

Our prior cases also resolve Ashley Furniture’s case. As with Ethan Allen, Ashley Furniture responded to both ITC questionnaires. Maj. Op. at 1308-09. Ashley Furniture provided important sales and production data to the ITC, assisting the ITC in determining if the wooden bedroom furniture industry was injured by dumping. Ashley Furniture also did not take any action' — such as appearing at hearings or submitting testimony — against the petition. Ashley Furniture did, however, express its opinion about the wisdom of the investigation by checking the “oppose” box on both questionnaire responses.

‘ By merely checking the “oppose” box, Ashley Furniture did not transform itself into a party who “actively opposed” the petition. The majority’s bare conclusion that “the government did not deny Byrd Amendment distributions to Appellants solely on the basis of abstract expression,” Maj. Op. at 1310, is flatly contradicted by the fact that Oakwood Interiors, a producer who received Byrd distributions, participated in the investigation in the exact same manner as Ashley Furniture, differing only in its answer to the support/oppose question. Ashley Br. at 15.

As we recognized in SKF, if the Byrd Amendment penalized the mere expression of opposition to a dumping investigation, it would raise serious First Amendment concerns. 556 F.3d at 1351. Instead, we concluded that the Byrd Amendment’s purpose was “to reward injured parties who assisted government enforcement of the antidumping laws by initiating or supporting antidumping proceedings.” Id. at 1352, 1353 n. 25. We then limited the statute’s “support” requirement to require active support, and not a mere abstract expression of support. See Chez Sidney, 684 F.3d at 1381. For the same reasons, the ITC cannot use a mere expression of opposition to substitute for active opposition in denying Byrd Amendment distributions.

*1315The majority elides these warnings by interpreting dictum in a footnote in SKF to reason that “a producer’s ‘bare statement that it was a supporter’ is a necessary (though not a sufficient) condition to obtain ADP status.” Maj. Op. at 1311 (emphasis added). The majority errs. Nothing in SKF states that a'producer must check the “support” box, and Chez Sidney actually rejects this proposition outright. Chez Sidney, 684 F.3d at 1380 (“Both the ITC and Customs, however, contend that § 1675c(d) requires not just the submission of letters or responses, but also the inclusion of an affirmative declaration of support for the petition. But the statute’s plain language does not require that producers indicate an expression of support other than through a letter or by filing a response — it states that supporting producers are those who submit letters or responses.”) (emphasis added).

In this case, Ashley Furniture expressed its abstract opposition to the petition, but its only “action” in the investigation, providing questionnaire responses, assisted the government by providing data the government needed to determine if dumping existed and if the dumping materially injured a domestic industry. Ashley Furniture should be considered an “interested party in support of the petition,” as were Oakwood Industries or Chez Sidney, and not a party in opposition to the petition, as was SKF.

IV

The court’s endorsement of ITC’s choice to use the support/oppose question as a shortcut for classifying domestic producers, thus mandating the expression of a point of view to distinguish between similarly situated producers, invites a serious First Amendment problem. The court in SKF recognized this problem when it noted that if the Byrd Amendment penalized the mere expression of opposition to a dumping investigation, it “might well render the statute unconstitutional.... ” SKF, 556 F.3d at 1351. Just as the court in SKF heeded the counsel that we should, where possible, interpret the law to avoid constitutional conflict, we should do the same when deciding whether the answer to the support/oppose question can dictate whether a particular domestic producer is or is not “in support of the petition.” I would follow our prior decisions and conclude that both Ethan Allen and Ashley Furniture may be entitled to Byrd Amendment distributions if they can show the requisite injury. Because the majority does not agree with me, I respectfully dissent.

. The Byrd Amendment provides for the distribution of antidumping duties collected by the United States to eligible "affected domestic producers” of the dumped goods. 19 U.S.C. § 1675c(a) (2000). An "affected domestic producer” must be "a petitioner or interested party in support of the petition ...” Id. § 1675c(b)(1)(A). An affected domestic producer meets the "in support of the petition” requirement by "indicat[ing] support of the petition by letter or through questionnaire response.” Id. § 1675c(d)(1).

. ITC questionnaires include the question "Petition support.' — Do you support or oppose the petition?” In response to this question, the respondent may check one of three boxes: "Support,” "Oppose,” or "Take no position.” See U.S. Int’l Trade Comm’n, GENERIC U.S. PRODUCER QUESTIONNAIRE at 2, available at http://www.usitc.gov/trade_r eme-dy/documents/USProducerQuestionnaire.pdf.