Ashley Furniture Industries, Inc. v. United States

734 F.3d 1306, 2013 WL 4406634

• Court: Court of Appeals for the Federal Circuit
• Decided: August 19, 2013
• Docket: Nos. 2012-1196, 2012-1200
• Status: Published

Opinions

MOORE, Circuit Judge.

Ashley Furniture, Inc., Ethan Allen Global, Inc., and Ethan Allen Operations, Inc. (Appellants) appeal from the decisions of the Court of International Trade (CIT) dismissing Appellants’ complaints seeking compensation pursuant to the Continued Dumping and Subsidy Offset Act (the Byrd Amendment) for failure to state a claim for relief. Because the CIT correctly concluded that Appellants are not Affected Domestic Producers (ADPs) within the meaning of the Byrd Amendment and thus do not qualify for the requested relief, we affirm,.

BACKGROUND

Appellants are domestic producers of wooden bedroom furniture. In 2003, the Department of Commerce (Commerce) initiated an antidumping investigation of Chinese wooden bedroom furniture manufacturers pursuant to a petition filed by an association of U.S. furniture manufacturers and several labor unions. In parallel, the International Trade Commission (ITC) investigated whether the domestic industry had been materially injured by dumped imports from China. To aid in the investigation, the ITC distributed questionnaires to all known domestic wooden bedroom furniture producers, seeking sales data and other information. Producers are required by law to respond to the questionnaires, and the Appellants duly responded. One of the questions asked, simply, “Do you support or oppose the petition?” and gave respondents the choice to answer “Support,” “Oppose,” or “Take no position.” Ashley answered “Oppose” and Ethan Allen answered “Take no position.”

The ITC subsequently determined dumping and injury to the domestic industry and issued an antidumping duty order. Pursuant to the order, Commerce directed the U.S. Customs and Border Patrol (Customs) to collect duties on entries of Chinese wooden bedroom furniture. The ITC prepared a list of ADPs eligible under the Byrd Amendment to receive a share of the antidumping duties. See 19 U.S.C. § 1675c(a), (d)(1) (2000) (repealed by Deficit Reduction Act of 2005, Pub L. No. 109-171, § 7601(a), 120 Stat. 4, 154 (Feb. 8, 2006; effective Oct. 1, 2007)). The ITC did not include Appellants because it determined that they were not “interested parties] in support of the petition” and therefore not ADPs. Id. § 1675e(b)(1)(A); see also id. § 1675c(d)(1). Accordingly, Customs denied Byrd Amendment distributions to Appellants.

Appellants sued the ITC, Customs, and domestic producers who received Byrd Amendment funds in the CIT. Although the Byrd Amendment has long since been repealed, Appellants sought their share of the funds for the several fiscal years when it was still in effect. Appellants contended that they supported the petition within the meaning of the Byrd Amendment and, in the alternative, that the Byrd Amendment violated the First Amendment of the Constitution. The CIT dismissed both Appellants’ complaints, holding that our decision in SKF USA, Inc. v. U.S. Customs & Border Protection, 556 F.3d 1337 (Fed.Cir.2009), foreclosed their claims for relief. Ashley Furniture Indus., Inc. v. United States, 818 F.Supp.2d 1355 (C.I.T.2012); Ethan Allen Global, Inc. v. United States, 816 F.Supp.2d 1330 (C.I.T.2012).

This appeal followed. We have jurisdiction under 28 U.S.C. § 1295(a)(5).

DISCUSSION

We review the CIT’s dismissal for failure to state a claim de novo. Sioux Honey Ass’n v. Hartford Fire Ins. Co., 672 F.3d 1041, 1049 (Fed.Cir.2012). “We review statutory interpretation by the CIT without deference. Constitutional interpretation is also a question of law, which we review de novo.” U.S. Shoe Corp. v. United States, 296 F.3d 1378, 1381 (Fed.Cir.2002) (citations omitted).

The CIT reasoned that SKF, where we held that the Byrd Amendment’s petition support requirement is not facially unconstitutional, disposed of Appellants’ facial First Amendment challenges. The CIT also rejected Appellants’ as-applied challenges because it found that SKF was not distinguishable. The court explained that SKF made clear that the government did not violate the First Amendment when it rewarded only those producers who supported the petition and denied distributions to those who were opposed to or neutral to it. Ashley Furniture, 818 F.Supp.2d at 1366; Ethan Allen, 816 F.Supp.2d at 1337-38 (citing SKF, 556 F.3d at 1359). Finally, the CIT held that the plain language of the Byrd Amendment prevented Appellants from obtaining relief. Ashley Furniture, 818 F.Supp.2d at 1361; Ethan Allen, 816 F.Supp.2d at 1336.

Appellants argue that the CIT’s dismissal of their complaints must be reversed under PS Chez Sidney, L.L.C. v. U.S. International Trade Commission, 684 F.3d 1374 (Fed.Cir.2012), a case decided after the CIT’s rulings at issue in these appeals. Appellants contend that they, like the producer in Chez Sidney, should be awarded Byrd Amendment distributions. Appellants acknowledge that the producer in Chez Sidney indicated support for a petition in the preliminary questionnaire and answered “Take no position” in the final questionnaire. They contend that Chez Sidney’s holding rests not on the producer’s initial expression of support in the preliminary questionnaire, but on the fact that it filled out the final questionnaire and took no action to oppose the petition. Appellants argue that their conduct is closer to that of Chez Sidney than that of SKF because SKF took action in opposition to the petition that outweighed the assistance it provided by responding to the questionnaire. Ashley contends that even an “Oppose” answer supports the petition in the sense that it enables Customs to determine the extent of injury caused by dumping. Ethan Allen contends that it, like Chez Sidney, answered “Take no position” in the final questionnaire and should therefore qualify for a distribution. Appellants also contend that intervening Supreme Court cases have undermined SKF, rendering the Byrd Amendment unconstitutional on its face or at least as applied to them.

Appellees counter that allowing a domestic producer who marked “Oppose” or “Take no position” to qualify as a “supporter” of the petition would contravene the plain language of the statute. They contend that Appellants do not qualify for distributions because, even though they filled out the questionnaires, they failed to provide any statement of support for the petition. Appellees contend that Chez Sidney is distinguishable. They argue that answering “Oppose” or “Take no position” in the final questionnaire is not merely abstract expression, but a significant statement indicating that a producer does not wish an antidumping duty order to issue. Appellees contend that Chez Sidney could not — and did not — overrule SKF’s holding that parties “opposing (or not supporting)” the petition “should not be rewarded.” SKF, 556 F.3d at 1359. They argue that the fact that Chez Sidney indicated support for the investigation in the preliminary questionnaire was critical to our decision in that case. Thus, Appellees contend that Chez Sidney supports the conclusion that a producer who never declared support for a petition does not qualify for a distribution.

With regard to Appellants’ First Amendment challenges, Appellees contend that we are bound to follow SKF’s holding that the Byrd Amendment is constitutional. They contend that the Byrd Amendment does not discriminate on the basis of a viewpoint, but simply provides relief to producers who request it by indicating support for the antidumping petition. Ap-pellees argue that SKF settled the First Amendment challenges to the Byrd Amendment, and contend that we cannot revisit those holdings.

We agree with Appellees that the CIT properly dismissed the Appellants’ complaints. SKF resolved the facial First Amendment challenge presented in these cases. We are bound to follow this precedent and are not free to revisit the First Amendment arguments that were before the SKF panel. To the extent that Appellants argue that recent Supreme Court precedent overruled our SKF holding, we do not agree. We also reject the Appellants’ as-applied First Amendment challenges because, as explained below, the government did not deny Byrd Amendment distributions to Appellants solely on the basis of abstract expression.

We note that the Byrd Amendment was repealed several years ago and the government informs us that only a small number of cases remain to be resolved. SKF, Chez Sidney, and the appeals before us provide three factual scenarios for evaluating the Byrd Amendment cases that remain. On one side is SKF, where the producer indicated opposition to the petition in a questionnaire and actively opposed the petition — and failed to qualify for a distribution. On the opposite side is Chez Sidney, where the producer indicated support for the petition through a questionnaire response and did not actively oppose the petition — and received a Byrd Amendment distribution. The appeals before us fall between these two extremes. Here, Appellants did not indicate support for the petition in a questionnaire and did not actively oppose the petition. We hold that Appellants have not supported the petition under the plain meaning of the Byrd Amendment.

It is not enough, as Appellants contend, merely to supply the answers to the questionnaires. Both SKF and Chez Sidney provided such answers, yet only one was held to be a supporter. The plain language of the statute requires “support of the petition” in order to obtain a distribution. 19 U.S.C. § 1675c(b)(1)(A). A producer meets that requirement when it “indicate[s] support ... by letter or through questionnaire response.” Id. § 1675c(d)(1). Appellants’ arguments lead to the incongruous conclusion that a producer who indicates only opposition to the petition in questionnaires — the polar opposite of support — is nevertheless a supporter. The conclusion that a producer who indicates that it “takes no position” in a questionnaire is a supporter is also incongruous because such a producer has not “indicated support.” Because Congress could not have intended the odd construction of the Byrd Amendment advocated by Appellants, we hold that a producer who never indicates support for the petition by letter or through questionnaire response cannot be an ADP. The language of this statute is straightforward. This interpretation is consistent with both SKF and Chez Sidney. No doubt a skilled advocate could pluck out-of-context statements from these cases to argue in a client’s favor, but we must decide this case on its facts. We conclude that the domestic producers in these cases are not entitled to Byrd Amendment distributions.¹

This analysis is consistent with SKF, which explained that a producer’s “bare statement that it was a supporter” is a necessary (though not a sufficient) condition to obtain ADP status. SKF, 556 F.3d at 1354 n. 26. Chez Sidney provided such a statement, but Appellants did not. This is not a case about standalone abstract expression. Appellants submitted official questionnaires that could have prevented the ITC and Customs from “successfully enforcing] government policy.” SKF, 556 F.3d at 1357. As SKF explained, the Byrd Amendment does not reward neutral or opposing parties because filling out the questionnaire without indicating support for the petition can contribute to the petition’s defeat. Id. at 1357-59. Indeed, the ITC takes the level of support of the petition into account in its determination of material injury, and the petition cannot be considered as filed “on behalf of the industry” unless at least 25% of the domestic producers in the relevant industry sector indicate support. See id. at 1376-77 (citing 19 U.S.C. § 1673a(c)(4)(A)(i)-(ii)) (Linn, J., dissenting). While we recognize that this framework may create incentives for domestic producers to indicate support for a petition even when they may believe that an antidumping duty order is unwarranted, it is not our task to pass on Congress’s wisdom in enacting the Byrd Amendment. We find nothing in Chez Sidney that precludes this conclusion. Chez Sidney repeatedly referred to the fact that the producer expressed affirmative support for the petition at one point — i.e., in the preliminary questionnaire. See id. at 1379-80, 1381-83. In doing so, Chez Sidney “indicate[d] support of the petition ... through questionnaire response” within the meaning of the Byrd Amendment. 19 U.S.C. § 1675c(d)(1).

Conclusion

We have considered the parties’ remaining arguments and do not find them to be persuasive. Because Appellants failed to state a claim upon which relief can be granted, we affirm.

AFFIRMED

Costs

No costs.

Dissenting opinion filed by Circuit Judge CLEVENGER.

1 . The dissent would find entitlement to a distribution based simply on filling out a questionnaire and not actively opposing the petition. Dissent at 1313-14. But the Byrd Amendment does not say "not actively oppose” — it says the producer must "indicate support of the petition by letter or through questionnaire response.” 19 U.S.C. § 1675c(d)(1). Neither of the Appellants here indicated support in any letter or through questionnaire response. The simple act of filling out the questionnaire is not an indication of support through questionnaire response.