CAFC Denies Wooden Bedroom Furniture CDSOA Funds Bid, but Judge Dissents
The Court of Appeals for the Federal Circuit affirmed the dismissal of a bid by Ashley Furniture and Ethan Allan for funds under the Continued Dumping and Subsidy Offset Act (CDSOA, also known as the Byrd Amendment). The two domestic furniture companies argued they were eligible for antidumping and countervailing duties paid under the wooden bedroom furniture from China orders, simply because they responded when the International Trade Commission asked whether they supported the original AD/CVD petitions. Ashley Furniture had answered that it opposed the petition, while Ethan Allan checked the box for “take no position.” According to the two companies, any sort of response qualified as support because it helped the ITC in the investigation. Like the Court of International Trade, the appeals court rejected the argument. Although in a similar case the court had ruled Chez Sidney qualified for CDSOA funds even though it took no position in the final phase questionnaire, that case was different because Chez Sidney checked the box for support of AD/CV duties during the preliminary phase, CAFC said.
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Judge Raymond Clevenger dissented from the ruling. While the majority cited the “plain language” of the statute in requiring express support for the AD/CVD petition to qualify for CDSOA funds, Clevenger said he found no such language. Nothing requires a domestic producer to check a specific box to qualify, he said. That would go against speech protections found in the First Amendment. Instead, CDSOA requires active support, and both companies supported the petition through their actions by providing requested data, said Clevenger.
(Ashley Furniture Industries v. U.S., CAFC No. 2012-1196, dated 08/19/13, Judges Moore and Prost, Judge Clevenger dissenting.)