734 F.3d 1306 (Fed. Cir. 2013), 2012-1196, Ashley Furniture Industries, Inc. v. United States

Docket Nº:2012-1196, 2012-1200.
Citation:734 F.3d 1306
Opinion Judge:MOORE, Circuit Judge.
Party Name:ASHLEY FURNITURE INDUSTRIES, INC., Plaintiff-Appellant, v. UNITED STATES, Defendant-Appellee, and United States International Trade Commission, Defendant-Appellee, and American Furniture Manufacturers Committee for Legal Trade, Kincaid Furniture Co., Inc., L. & J.G. Stickley, Inc., Sandberg Furniture Manufacturing Company, Inc., Stanley Furniture C
Attorney:Kevin Russell, Goldstein & Russell, P.C., of Washington, DC, argued for plaintiff-appellant Ashley Furniture Industries, Inc., et al. in appeal no.2012-1196. With him on the brief were Kristin H. Mowry, Jeffrey S. Grimson, Jill A. Cramer, Susan Lehman Brooks and Sarah M. Wyss, Mowry & Grimson, PL...
Judge Panel:Before PROST, CLEVENGER, and MOORE, Circuit Judges. Dissenting opinion filed by Circuit Judge CLEVENGER. CLEVENGER, Circuit Judge, dissenting.
Case Date:August 19, 2013
Court:United States Courts of Appeals, Court of Appeals for the Federal Circuit
 
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Page 1306

734 F.3d 1306 (Fed. Cir. 2013)

ASHLEY FURNITURE INDUSTRIES, INC., Plaintiff-Appellant,

v.

UNITED STATES, Defendant-Appellee,

and

United States International Trade Commission, Defendant-Appellee,

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., Defendants-Appellees.

Ethan Allen Global, Inc. and Ethan Allen Operations, Inc., Plaintiffs-Appellants,

v.

United States and United States Customs and Border Protection, Defendants-Appellees,

and

International Trade Commission, Defendant-Appellee,

and

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., Defendants-Appellees.

Nos. 2012-1196, 2012-1200.

United States Court of Appeals, Federal Circuit.

August 19, 2013

Rehearing En Banc Denied Jan. 3, 2014.[*]

Page 1307

Kevin Russell, Goldstein & Russell, P.C., of Washington, DC, argued for plaintiff-appellant Ashley Furniture Industries, Inc., et al. in appeal no.2012-1196. With him on the brief were Kristin H. Mowry, Jeffrey S. Grimson, Jill A. Cramer, Susan Lehman Brooks and Sarah M. Wyss, Mowry & Grimson, PLLC, of Washington, DC.

Franklin E. White, Jr., Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for defendant-appellee United States. With him on the brief were Stuart F. Delery, Acting Assistant Attorney General, Jeanne E. Davidson, Director, and Jessica R. Toplin, Trial Attorney. Of counsel were Courtney Sheehan McNamara, Trail Attorney.

Patrick V. Gallagher, Jr., Attorney, Office of General Counsel, United States International Trade Commission, of Washington, DC, argued of defendant-appellee United States International Trade Commission. With him on the brief were Dominic L. Bianchi, Acting General Counsel, Neal J. Reynolds, Assistant General Counsel for Litigation.

Ashley C. Parrish, King & Spalding LLP, of Washington, DC, argued for defendants-appellees American Furniture Manufacturers Committee for Legal Trade, et al. With her on the brief were Joseph W. Dorn and Jeffrey M. Telep. Of counsel on the brief was Richard H. Fallon, of Cambridge, Massachusetts.

Herbert C. Shelley, Steptoe & Johnson, LP, of Washington DC for amici curiae, SKF USA, Inc., et al. With him on the brief was Michael T. Gershberg. Of counsel on the brief were John M. Gurley, Nancy A. Noonan and Diana Dimitriuc-Quaia, Arent Fox LLP, of Washington DC.

David W. Debruin, Jenner & Block, LLP, of Washington, DC, for amicus curiae Furniture Brands International, et al. With him on the brief was Matthew E. Price.

Terence P. Stewart, Stewart and Stewart of Washington, DC, for amici curiae Timken Company, et al. With him on the brief were Geert De Prest and Patrick J. McDonough. Of counsel on the brief were Roy T. Englert, Jr., Robbins, Russell, Englert, Orseck, Untereiner & Sauber LLP, of Washington, DC.

Christopher T. Handman, Hogan Lovells U.S. LLP, of Washington, DC, argued for plaintiffs-appellants Ethan Allen Global, Inc., et al., in appeal no.2012-1200. With him on the brief were Craig A. Lewis and Jonathan T. Stoel.

Franklin E. White, Jr., Assistant Director, Commercial Litigation Branch, Civil

Page 1308

Division, United States Department of Justice, of Washington, DC, argued for defendant-appellee United States, et al. With him on the brief were STUART F. DELERY, Acting Assistant Attorney General, Jeanne E. Davidson, Director, and Jessica R. Toplin, Trial Attorney. Of counsel was Courtney Sheehan McNamara, Trial Attorney.

Patrick V. Gallagher, Jr., Attorney, Office of General Counsel, United States International Trade Commission, of Washington, DC, argued for defendant-appellee International Trade Commission. With him on the brief were Dominic L. Bianchi, Acting General Counsel, Neal J. Reynolds, Assistant General Counsel for Litigation, and Geoffrey S. Carlson, Attorney.

Ashley C. Parrish, King & Spalding, LLP, of Washington, DC, argued for defendants-appellees Kincaid Furniture Co., Inc., et al. With her on the brief were Joseph W. Dorn and Jeffrey M. Telep. Of counsel on the brief was Richard H. Fallon, of Cambridge, Massachusetts.

Herbert C. Shelley, Steptoe & Johnson, LP, of Washington, DC, for amici curiae SKF USA, Inc., et al. With him on the brief was Michael T. Gershberg. Of counsel on the brief were John M. Gurley, Nancy A. Noonan and Diana Dimitriuc-Quaia, Arent Fox, LLP, of Washington, DC.

David W. Debruin, Jenner & Block, LLP, of Washington, DC, for amicus curiae Furniture Brands International, Inc., et al. With him on the brief was Matthew E. Price.

Terence P. Stewart, Stewart and Stewart of Washington, DC, for amici curiae Timken Company, et al. With him on the brief were Geert De Prest and Patrick J. McDonough. Of counsel on the brief were Roy Englert, Jr., Robbins, Russell, Englert, Orseck, Untereiner and Sauber, LLP, of Washington, DC.

Before PROST, CLEVENGER, and MOORE, Circuit Judges.

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

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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 part[ies] in support of the petition" and therefore not ADPs. Id. § 1675c(b)(1)(A); see also id. § 1675c(d)(1). Accordingly, Customs denied Byrd Amendment distributions to Appellants.

...

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