Swiff-Train Co. v. United States , 793 F.3d 1355 ( 2015 )

United States Court of Appeals
for the Federal Circuit
______________________
SWIFF-TRAIN CO., METROPOLITAN HARDWOOD
FLOORS, INC., BR CUSTOM SURFACE, REAL
WOOD FLOORS, LLC, GALLEHER CORP., DPR
INTERNATIONAL, LLC,
Plaintiffs-Appellants
v.
UNITED STATES,
Defendant-Appellee
THE COALITION FOR AMERICAN HARDWOOD
PARITY,
Defendant-Appellee
______________________
2014-1814
______________________
Appeal from the United States Court of International
Trade in No. 12-cv-00010-RKM, Senior Judge R. Kenton
Musgrave.
______________________
Decided: July 13, 2015
______________________
WILLIAM E. PERRY, Dorsey & Whitney LLP, Seattle,
WA, argued for plaintiffs-appellants. Also represented by
EMILY LAWSON.
2 SWIFF-TRAIN CO. v. UNITED STATES
DAVID FISHBERG, Office of the General Counsel, Unit-
ed States International Trade Commission, Washington,
DC, argued for defendant-appellee United States. Also
represented by DOMINIC L. BIANCHI, ANDREA C. CASSON,
MARY JANE ALVES.
JEFFREY STEVEN LEVIN, Levin Trade Law PC, Bethes-
da, MD, for defendant-appellee The Coalition for Ameri-
can Hardwood Parity.
______________________
Before NEWMAN, O’MALLEY, and WALLACH, Circuit
Judges.
WALLACH, Circuit Judge.
Swiff-Train Co., Metropolitan Hardwood Floors, Inc.,
BR Custom Surface, Real Wood Floors, LLC, Galleher
Corp., and DPR International, LLC (collectively, “Appel-
lants” or “U.S. Importers”) appeal the opinion and final
judgment of the United States Court of International
Trade (“CIT”) affirming the United States International
Trade Commission’s (the “Commission”) finding of mate-
rial injury to a domestic industry. See Swiff-Train Co. v.
United States (Swiff-Train II), 999 F. Supp. 2d 1334 (Ct.
Int’l Trade 2014); Swiff-Train Co. v. United States (Swiff-
Train I), 904 F. Supp. 2d 1336 (Ct. Int’l Trade 2013).
Because the Commission’s remand determination was
supported by substantial evidence and is in accordance
with law, this court affirms.
BACKGROUND
I. Facts and Proceedings
After receiving antidumping and countervailing duty
petitions from Appellee the Coalition for American Hard-
SWIFF-TRAIN CO. v. UNITED STATES 3
wood Parity (the “Coalition”), 1 an ad hoc association of
United States manufacturers of multilayered wood floor-
ing, the Commission initiated investigations of imports of
multilayered wood flooring (“subject imports”) from the
People’s Republic of China (“China”) on October 21, 2010.
See Multilayered Wood Flooring from China, Inv. Nos.
701-TA-476, 731-TA-1179 (Int’l Trade Comm’n Nov. 2011)
(Final), Pub. 4278, at 1 (J.A. 492–584) (“Initial Views”);
Multilayered Wood Flooring from China, 76 Fed. Reg.
76,435 (Int’l Trade Comm’n Dec. 7, 2011) (final affirma-
tive injury determination). Appellants, United States
importers of multilayered wood flooring from China,
participated in the investigations.
Pursuant to 19 U.S.C. §§ 1671d(b) and 1673d(b)
(2006), in the investigation the Commission sought to
determine whether the domestic multilayered wood
flooring industry was materially injured by reason of less-
than-fair-value and subsidized subject imports from
China. Initial Views at 1. Upon completing its investiga-
tion in November 2011, the Commission made an affirma-
tive injury determination. Id. at 36.
U.S. Importers challenged the Commission’s final af-
firmative injury decision before the CIT. In Swiff-Train I,
the CIT remanded four issues to the Commission, includ-
ing “whether the subject imports were a ‘but-for’ cause of
material injury to the domestic industry,” and affirmed all
other aspects of the Commission’s determinations. Swiff-
Train I, 904 F. Supp. 2d at 1338. Specifically, as to cau-
sation, the CIT found the Commission’s determinations to
be “unsupported by substantial evidence because the
Commission failed to adequately consider the effect that
1 The Coalition “joins in and adopts by reference the
response brief” of the United States. Coalition’s Br. 2.
Accordingly, “Appellees” in this opinion refers to both the
United States and the Coalition.
4 SWIFF-TRAIN CO. v. UNITED STATES
the severe disruption of the home building and remodel-
ing industries had on the domestic like product industry.”
Id. at 1346. Therefore, the CIT directed the Commission
“to ensure that the subject imports, as compared to other
economic factors affecting the domestic industry, were not
a but-for cause of the injury.” Id. at 1347. The CIT,
however, “disagree[d] [with U.S. Importers] that the
statute in conjunction with our appellate precedent re-
quire us to restrict application of the ‘but-for’ causation
standard to a particular factual scenario, or a particular
aspect of the material injury inquiry.” Id. Instead, the
CIT found, “the statutory ‘by reason of’ standard clearly
applies to the overall causation analysis to be performed
by the Commission.” Id.
On remand, the Commission reopened the record and
solicited written comments from Appellants and other
parties. On September 30, 2013, the Commission submit-
ted its determinations on remand to the CIT, wherein it
continued to find the domestic industry was materially
injured by reason of subject imports. See Multilayered
Wood Flooring from China (Remand), Inv. Nos. 701-TA-
476, 731-TA-1179, Pub. 4430 (Int’l Trade Comm’n Sept.
30, 2013) (J.A. 942–86) (“Remand Views”). Specifically,
the Commission concluded after an extensive analysis,
“but for the unfairly traded subject . . . imports from
China in the U.S. market during the [period of investiga-
tion], the domestic industry would have been materially
better off both during the housing market collapse and
during the developing recovery that followed.” Id. at 47.
On December 20, 2013, U.S. Importers submitted
their objections to the Remand Views to the CIT, arguing
the Remand Views did not comply with the court’s re-
mand order in Swiff-Train I to apply a “but-for” causation
standard. On July 16, 2014, in Swiff-Train II, the CIT
sustained the material injury determination, finding the
Remand Views complied with its remand order. Swiff-
Train II, 999 F. Supp. 2d at 1340. The CIT found the
SWIFF-TRAIN CO. v. UNITED STATES 5
Commission “properly framed the legal basis upon which
to determine whether subject imports are the cause-in-
fact of material injury, to wit, ‘notwithstanding any injury
from other factors,’” which the CIT characterized as “an
obvious expression of a ‘but for’ cause-in-fact inquiry.” Id.
at 1344.
Appellants appealed to this court on September 8,
2014. This court has jurisdiction under 28 U.S.C.
§ 1295(a)(5) (2012).
DISCUSSION
I. Standard of Review
This court reviews decisions of the CIT de novo, “ap-
ply[ing] anew the same standard used by the [CIT].”
Mittal Steel Point Lisas Ltd. v. United States, 548 F.3d
1375, 1380 (Fed. Cir. 2008) (internal quotation marks and
citation omitted). Under that standard, this court must
uphold the Commission’s determinations unless they are
“unsupported by substantial evidence on the record, or
otherwise not in accordance with law.” 19 U.S.C.
§ 1516a(b)(1)(B)(i) (2006); see also Gerald Metals, Inc. v.
United States, 132 F.3d 716, 719 (Fed. Cir. 1997) (“This
court duplicates the [CIT’s] review of the Commission’s
determinations, evaluating whether they are ‘unsupport-
ed by substantial evidence on the record, or otherwise not
in accordance with law.’” (quoting 19 U.S.C.
§ 1516a(b)(1)(B)(i))). “Although such review amounts to
repeating the work of the [CIT], we have noted that ‘this
court will not ignore the informed opinion of the [CIT].’”
Diamond Sawblades Mfrs. Coal. v. United States, 612
F.3d 1348, 1356 (Fed. Cir. 2010) (quoting Suramerica de
Aleaciones Laminadas, C.A. v. United States, 44 F.3d 978,
983 (Fed. Cir. 1994) (“Although reviewing anew the
[Commission’s] determination, this court will not ignore
the informed opinion of the [CIT]. That court reviewed
the record in considerable detail. Its opinion deserves due
respect.”)); Cleo Inc. v. United States, 501 F.3d 1291, 1296
6 SWIFF-TRAIN CO. v. UNITED STATES
(Fed. Cir. 2007) (“When performing a substantial evidence
review, . . . we give great weight to the informed opinion
of the [CIT]. Indeed, it is nearly always the starting point
of our analysis.” (internal quotation marks and citation
omitted)).
Substantial evidence is defined as “more than a mere
scintilla,” as well as evidence that a “reasonable mind
might accept as adequate to support a conclusion.” Con-
sol. Edison Co. of N.Y. v. NLRB, 305 U.S. 197, 217 (1938).
This court’s review is limited to the record before the
Commission in the particular proceeding at issue and
includes all evidence that supports and detracts from the
Commission’s conclusion. Sango Int’l L.P. v. United
States, 567 F.3d 1356, 1362 (Fed. Cir. 2009). An agency
finding may still be supported by substantial evidence
even if two inconsistent conclusions can be drawn from
the evidence. Consolo v. Fed. Mar. Comm’n, 383 U.S. 607,
620 (1966).
II. Legal Framework
The United States imposes duties on foreign-produced
goods sold in the United States at less-than-fair value
(“antidumping duties”), 19 U.S.C. § 1673(1), or that
benefit from subsidies provided by foreign governments
(“countervailing duties”), id. § 1671(a)(1). Commerce is
responsible for investigating whether there have been, or
are likely to be, sales at less-than-fair value or whether a
countervailable subsidy has been provided, while the
Commission determines whether “an industry in the
United States . . . is materially injured, or . . . is threat-
ened with material injury . . . by reason of imports” of the
subject merchandise. Id. §§ 1671d(a)(1), (b)(1),
1673d(a)(1), (b)(1) (emphasis added). “If both inquiries
are answered in the affirmative, Commerce issues the
relevant antidumping and countervailing duty orders.”
Duferco Steel, Inc. v. United States, 296 F.3d 1087, 1089
(Fed. Cir. 2002).
SWIFF-TRAIN CO. v. UNITED STATES 7
An affirmative material injury determination by the
Commission “requires both (1) present material injury
and (2) a finding that the material injury is ‘by reason of’
the subject imports.” Gerald Metals, 132 F.3d at 719.
Section 1677(7)(A) defines “material injury” as a “harm
which is not inconsequential, immaterial, or unim-
portant.” 19 U.S.C. § 1677(7)(A). When determining
whether imports have caused material injury to a domes-
tic industry, the Commission evaluates:
(I) the volume of imports of the merchandise,
(II) the effect of imports of that merchandise on
prices in the United States for domestic like prod-
ucts, and
(III) the impact of imports of such merchandise on
domestic producers of domestic like products, but
only in the context of production operations within
the United States.
Id. § 1677(7)(B)(i) (emphases added); see also id.
§ 1677(7)(C)(i)–(iii). The Commission “may [also] consider
such other economic factors as are relevant to the deter-
mination.” Id. § 1677(7)(B)(ii). No single factor is disposi-
tive and the Commission considers all relevant factors
“within the context of the business cycle and conditions of
competition that are distinctive to the affected industry.”
Id. § 1677(7)(C)(iii).
Beyond enumerating these factors (i.e., volume of sub-
ject imports, their price effects, and their impact on the
domestic industry), the statute does not define the phrase
“by reason of.” See Mittal Steel, 542 F.3d at 878. This
court has specified, however, that “[i]n reviewing an
affirmative injury determination for substantial evidence,
this court requires evidence in the record ‘to show that the
harm occurred by reason of the [subject] imports, not by
reason of a minimal or tangential contribution to material
8 SWIFF-TRAIN CO. v. UNITED STATES
harm caused by [subject] goods.’” Id. at 873 (quoting
Gerald Metals, 132 F.3d at 722).
III. The Commission’s Causation Analysis Was in Accord-
ance with Law
Appellants argue the Commission erred in failing to
conduct a counterfactual analysis to determine whether
the subject imports were a “but-for” cause of material
injury to the domestic industry. Under the proper but-for
test, Appellants contend, the Commission is required “to
conduct an analysis comparing the actual state of the
domestic industry during the Period of Investigation . . .
with what the state of the industry would have been
absent the subject imports.” Appellants’ Br. 27. Appel-
lants assert such an inquiry is required by the words of
the statute: “A ‘but-for,’ counterfactual analysis is the
minimum requirement for a finding of causation where a
statute is phrased in terms of an injury ‘by reason of’ a
particular intervention, as the antidumping and counter-
vailing duty statutes are defined in this case.” Id. at 16.
This is because, Appellants argue, “[t]he words ‘by reason
of’ are pervasively understood to mean ‘on account of’ or
‘because of.’ This type of statutory language fundamen-
tally requires proof that the subject imports were a ‘but-
for’ cause of material injury.” Id. at 20–21; see also id. at
21 (“[T]he statutes impose a causation standard that
requires the Commission to ask whether the domestic
[multilayered wood flooring] industry would be in the
same position today if the Chinese imports were not in
the marketplace during the [period of investigation].”).
In support, U.S. Importers point to United States Su-
preme Court cases from various legal contexts that dis-
cuss the statutory use of the terms “because of” and “by
reason of.” They argue the “Court has repeatedly recog-
nized, across multiple legal contexts, that this type of
statutory language requires ‘but-for’ causation.” Id. at
22–23. Appellants also claim support from Justice Ken-
SWIFF-TRAIN CO. v. UNITED STATES 9
nedy’s dissent in Price Waterhouse v. Hopkins, where he
wrote: “Any standard less than but-for . . . simply repre-
sents a decision to impose liability without causation.”
See Price Waterhouse v. Hopkins, 490 U.S. 228, 282 (1989)
(Kennedy, J., dissenting), superseded by statute, Civil
Rights Act of 1991, Pub. L. No. 102-166, § 107(a), 105
Stat. 1075 (codified at 42 U.S.C. § 2000e-2(m)) (dispensing
with but-for causality), as recognized in Burrage v. United
States, 134 S. Ct. 881, 889 n.4 (2014).
Appellants also contend a but-for test is required by
this court’s cases. Citing Gerald Metals and Bratsk
Aluminium Smelter v. United States, U.S. Importers
argue “this Court has expressly held that ‘the anti-
dumping statute mandates a showing of causal . . . con-
nection between the [less-than-fair-value] goods and the
material injury.’” Appellants’ Br. 24–25 (quoting Gerald
Metals, 132 F.3d at 720) (citing Bratsk Aluminium Smel-
ter v. United States, 444 F.3d 1369, 1373 (Fed. Cir. 2006)).
Appellants also cite this court’s decision in Mittal Steel,
where we stated “we regard the inquiry into ‘but for’
causation as a proper part of the Commission’s responsi-
bility to determine whether the injury to the domestic
industry is ‘by reason of’ the subject imports.” Mittal
Steel, 542 F.3d at 877. Appellants argue this court in
Mittal Steel articulated the proper analysis, based on
Price Waterhouse, which the Commission failed to employ
here:
“But for causation is a hypothetical construct. In
determining whether a particular factor was a
but-for cause of a given event, we begin by assum-
ing that that factor was present at the time of the
event, and then ask whether even if that factor
had been absent, the event nevertheless would
have transpired in the same way.”
Id. at 876 (quoting Price Waterhouse, 490 U.S. at 240).
10 SWIFF-TRAIN CO. v. UNITED STATES
Finally, U.S. Importers point to several older Com-
mission investigations where the Commission employed
certain economic models (“CADIC” and “COMPAS”) to
perform a counterfactual “but-for” determination. Appel-
lants argue the Commission previously used these eco-
nomic models to construct a hypothetical state of the
industry, as they argue is required by Mittal Steel. Appel-
lants acknowledge the Commission ceased using these
models in the early 2000s, but argue the Commission
“must still establish that the imports are a ‘but-for’ ‘legal
cause’ of injury to the U.S. industry.” Appellants’ Br. 33;
see also id. (“[C]ertain Commissioners apparently do not
favor rigorous but-for methodologies, such as CADIC and
then its mathematically identical successor, COMPAS, as
they threaten the Commissioners’ discretion to make an
unfettered injury decision, unfettered of the statutory
requirement to undertake a counterfactual analysis based
on record evidence.”). While Appellants acknowledge this
court does not require use of any particular model or
methodology, they contend the former use of such models
supports their argument that a strict counterfactual
analysis is required by statute.
The Commission performed a proper but-for analysis
in making its affirmative injury determination and fully
complied with applicable law. Specifically, the Commis-
sion considered the statutory factors of the volume of
subject imports, their price effects, and their impact on
the domestic industry, 19 U.S.C. § 1677(7)(B)(i), and
found substantial record evidence established a causal
link between subject imports and material injury to the
domestic industry, Remand Views at 47. The Commission
considered the role of other factors in the market that
may have injured the domestic industry, and concluded
these factors did not break the causal link between sub-
ject imports and material injury to the domestic industry.
Remand Views at 42–47. Based on these findings, the
Commission concluded:
SWIFF-TRAIN CO. v. UNITED STATES 11
[B]ut for the unfairly traded subject . . . imports
from China in the U.S. market during the [period
of investigation], the domestic industry would
have been materially better off both during the
housing market collapse and during the develop-
ing recovery that followed. On remand, we there-
fore reaffirm the conclusion that subject imports
of [multilayered wood flooring] from China had a
significant adverse impact on the domestic indus-
try during the [period of investigation].
Id. at 47. Having established cause-in-fact by identifying
the injurious effect of subject imports on the domestic
industry using the statutory factors, and then ensuring
injury was not caused by factors other than subject im-
ports, the Commission also demonstrated that subject
imports were a but-for cause of injury to the domestic
industry. See id. The Commission was not then required
to conduct an explicit counterfactual test to determine the
hypothetical condition of the domestic industry but for the
subject imports where the actual data on the record
enabled the Commission to conduct a reasonable causa-
tion analysis.
Furthermore, Appellants point to no support for their
proposition that the Commission can only satisfy the “by
reason of” language in the statute by conducting a coun-
terfactual analysis. Appellants’ Br. 34–35. Indeed, in
Bratsk, this court noted “the Commission uses different
methodologies in determining whether the domestic
injury was ‘by reason of’ the [less-than-fair-value] im-
ports,” and “the antidumping statute ‘on its face compels
no [ ] uniform methodology, and we are not persuaded
that we should create one, even were we so empowered.’”
Bratsk, 444 F.3d at 1373 n.3 (quoting U.S. Steel Grp. v.
United States, 96 F.3d 1352, 1362 (Fed. Cir. 1996)).
As to Appellants’ citations to various tort and criminal
law statutes containing the terms “because of” or “by
12 SWIFF-TRAIN CO. v. UNITED STATES
reason of,” which the Supreme Court has stated require
but-for causation, Appellants are correct the Commission
is required to demonstrate causation under the trade
statutes. There is no support, however, for U.S. Import-
ers’ assertion that a strict counterfactual analysis is
required. As Appellees point out, “where Congress has
required a counterfactual analysis by the Commission to
satisfy a statutory threshold under the antidumping and
countervailing duty law, it has explicitly told the Com-
mission to perform that analysis.” United States’ Br. 41–
42. This is evident from the Statement of Administrative
Action (“SAA”) of the Uruguay Round Agreements Act,
which states:
The likelihood of continuation or recurrence of
material injury standard is not the same as the
standards for material injury and threat of mate-
rial injury, although it contains some of the same
elements. Under the material injury standard,
the Commission determines whether there is cur-
rent material injury by reason of imports of sub-
ject merchandise. Under the threat of material
injury standard, the Commission decides whether
injury is imminent, given the status quo. By com-
parison, under the likelihood standard, the Com-
mission will engage in a counter-factual analysis:
it must decide the likely impact in the reasonably
foreseeable future of an important change in the
status quo—the revocation or termination of a
proceeding and the elimination of its restraining
effects on volumes and prices of imports.
SAA, H.R. Rep. No. 103-316, vol. 1, at 883–84 (1994),
reprinted in 1994 U.S.C.C.A.N. 4040, 4209. (emphases
added).
Furthermore, nowhere in the three related cases re-
lied upon by Appellants—Mittal Steel, Bratsk, and Gerald
Metals—did this court rule the “by reason of” standard
SWIFF-TRAIN CO. v. UNITED STATES 13
can only be met by an explicit counterfactual analysis. By
contrast, in Mittal Steel this court stated, “[i]n making its
determination as to whether the harm to the domestic
injury occurred ‘by reason of’ the [less-than-fair-value]
imports, the Commission [is] required to ‘examine the
relevant data and articulate a satisfactory explanation for
its action.’” 542 F.3d at 873 (citation omitted). Then, “[i]n
reviewing an affirmative injury determination for sub-
stantial evidence, this court requires evidence in the
record ‘to show that the harm occurred by reason of the
[less-than-fair-value] imports, not by reason of a minimal
or tangential contribution to material harm caused by
[less-than-fair-value] goods.’” Id. (quoting Gerald Metals,
132 F.3d at 722).
Appellants are correct, however, that in Mittal Steel,
this court also stated that “[a]n important element of the
causation inquiry—not necessarily dispositive, but im-
portant—is whether the subject imports are the ‘but for’
cause of the injury to the domestic industry.” Id. at 876;
see also id. at 877 (“[W]e regard the inquiry into ‘but for’
causation as a proper part of the Commission’s responsi-
bility to determine whether the injury to the domestic
industry is ‘by reason of’ the subject imports.”). However,
this court further clarified:
In this context, that principle requires the finder
of fact to ask whether conditions would have been
different for the domestic industry in the absence
of dumping. Thus, Bratsk (like Gerald Metals) di-
rects that in cases involving commodity products
in which non-[less-than-fair-value] imported goods
are present in the market, the Commission must
give consideration to the issue of “but for” causa-
tion by considering whether the domestic industry
would have been better off if the dumped goods
had been absent from the market.
14 SWIFF-TRAIN CO. v. UNITED STATES
Id. at 876 (emphasis added). Appellants have not shown
this statement prescribes a fixed methodology that ap-
plies in this case. Indeed, in Mittal Steel, this court also
noted, “[w]hile the Commission may not enter an affirma-
tive determination unless it finds that a domestic indus-
try is materially injured ‘by reason of’ subject imports, the
Commission is not required to follow a single methodology
for making that determination.” 2 Id. at 873 (emphasis
added); see also id. (The Commission has “broad discretion
with respect to its choice of methodology.”). Therefore,
this court concluded:
To say that an affirmative determination must be
based on evidence that the injury to the domestic
industry is “by reason of” subject imports does not
require the Commission to address the causation
issue in any particular way . . . . The Commission
is simply required to give full consideration to the
causation issue and to provide a meaningful ex-
planation of its conclusions.
Id. at 878 (internal citation omitted). The Commission’s
explanation was meaningful in this case.
In addition, this court has stated the “‘Commission
need not isolate the injury caused by other factors from
2 For this reason, Appellants’ arguments regarding
CADIC and COMPAS are also unavailing. Indeed, as
Appellees point out, the Commission has explained it
prefers to rely on actual empirical data in the record,
rather than conclusions based on a theoretical economic
model. See United States’ Br. 43–44 (citing Circular
Seamless Stainless Steel Hollow Products from Japan,
Inv. No. 731–TA–859 (Remand), USITC Pub. 3475, at 7
(Dec. 2001) (stating empirical record data is more useful
than conclusions based on the results of the COMPAS
model)).
SWIFF-TRAIN CO. v. UNITED STATES 15
injury caused by unfair imports,’” Bratsk, 444 F.3d at
1373 (quoting SAA at 851), nor demonstrate the subject
imports are the “principal” cause of injury, Nippon Steel
Corp. v. Int’l Trade Comm’n, 345 F.3d 1379, 1381 (Fed.
Cir. 2003) (“[T]he ‘dumping’ need not be the sole or prin-
cipal cause of injury. As long as its effects are not merely
incidental, tangential or trivial, the foreign product sold
at less than fair value meets the causation requirement.”).
Appellants’ reliance on our case law does not support
their proposition that a strict counterfactual analysis is
required to demonstrate material injury “by reason of”
subject imports. As the CIT stated, “[t]he Commission
need not state for the record the precise contours of the
hypothetical counterfactual ‘but for’ state, so long as its
ultimate conclusions, on causation ‘by reason of’ subject
imports from the evidence of record, are discernable and
reasonable.” Swiff-Train II, 999 F. Supp. 2d at 1352.
Accordingly, the Commission’s causation analysis was
in accordance with law.
IV. The Commission Did Not Improperly Rely on Its
Discretion in Its Causation Analysis
Next, Appellants argue the Commission erred in as-
serting that by statute the proper test for causation falls
within its discretion. Appellants’ Br. 17. In the Remand
Views, the Commission stated, “since the statute does not
define the phrase ‘by reason of,’ the question of whether
the injury to the domestic industry by subject imports
satisfies the material injury threshold notwithstanding
any injury from other factors falls within the Commis-
sion’s discretion and is reviewable under the substantial-
evidence standard.” Remand Views at 33 n.142. Appel-
lants claim this interpretation was tantamount to the
Commission taking “the position that it is not required to
apply any particular causation standard so long as its
finding is supported by substantial evidence.” Appellants’
Br. 43. Appellants continue:
16 SWIFF-TRAIN CO. v. UNITED STATES
In effect, the Commission appears to argue that it
is unique and the U.S. Antidumping and Counter-
vailing Duty law are unique and not subject to ju-
dicial interpretation and fundamental statutory
construction as set forth by this Court and the
Supreme Court. Apparently “trade speak,” a lan-
guage used only within the four walls of the
Commission building, trumps ordinary statutory
construction and thus the Commission can simply
ignore Supreme Court precedent.
Id.
The court declines to entertain Appellants’ unjustified
hyperbole. The Commission did not improperly exercise
its discretion in making its causation analysis; rather, it
adhered to the statutory requirements as interpreted by
the SAA, the legislative history, and this court’s cases
discussing the statutory causation standard. As to its
discretion, the Commission stated:
We understand our burden under [Mittal Steel] is
to identify substantial evidence in the record
demonstrating the domestic industry is materially
injured by reason of subject imports notwithstand-
ing any record evidence of other factors that might
also be having adverse effects on the industry at
the same time. While the type of analysis posited
by [Appellants] might be one way to conduct such
an inquiry, the Federal Circuit has been clear in
holding that the Commission has discretion in
choosing its methodology for assessing causation
and need not follow any rigid formula, such as
that proposed by [Appellants]. As the Commis-
sion noted, the Federal Circuit, in addressing the
causation standard of the statute, concluded that
“[a]s long as its effects are not merely incidental,
tangential, or trivial, the foreign product sold at
less than fair value meets the causation require-
SWIFF-TRAIN CO. v. UNITED STATES 17
ment.” Nippon, 345 F.3d at 1384. This was fur-
ther ratified in Mittal [Steel], 542 F.3d at 873,
where the Federal Circuit, quoting Gerald Metals
. . . , stated that “this court requires evidence in
the record ‘to show that the harm occurred by rea-
son of the [less-than-fair-value] imports, not by
reason of a minimal or tangential contribution to
material harm caused by [less-than-fair-value]
goods.’”; see also Nippon Steel Corp. v. United
States, 458 F.3d 1345, 1357 (Fed. Cir. 2006); Tai-
wan Semiconductor Indus. [Ass’n] v. Int’l Trade
Comm’n, 266 F.3d 1339, 1345 (Fed. Cir. 2001).
Congress has delegated this finding to the Com-
mission because of the agency’s institutional ex-
pertise in resolving injury issues. Mittal [Steel],
542 F.3d at 873; Nippon, 458 F.3d at 1350 (citing
[U.S. Steel Grp., 96 F.3d at 1357]); S. Rep. 96-249
at 75 (“The determination of the [Commission]
with respect to causation is . . . complex and diffi-
cult, and is a matter for the judgment of the
[Commission].”)).
Remand Views at 33 n.142.
This statement does not amount to the Commission
improperly deferring to its own discretion in place of
fulfilling the statutory “by reason of” standard; rather, the
Commission correctly stated it has discretion to choose an
appropriate methodology for analyzing causation. While
there may be instances where a strict counterfactual but-
for analysis is necessary, in Mittal Steel this court stated
the “by reason of” standard “does not require the Commis-
sion to address the causation issue in any particular
way . . . . The Commission is simply required to give full
consideration to the causation issue and to provide a
meaningful explanation of its conclusions.” Id. at 878.
The Commission did so in this case.
18 SWIFF-TRAIN CO. v. UNITED STATES
V. The CIT Did Not Impose a “Substantial Factor” Test
Appellants further argue the CIT “erred in introduc-
ing the substantial factor test of causation as a means of
bypassing the threshold requirement of ‘but-for’ causation
in fact.” Appellants’ Br. 16. Appellants say in Swiff-
Train II, “on its own motion, the CIT introduced the
‘substantial factor’ test of legal causation to assess wheth-
er the Commission had interpreted the ‘by reason of’
language in accordance with law.” Id. at 34; Reply Br. 9
(“Since the Commission refused to respond to the but for
causation argument, except to state that the causation
standard itself, and not simply the analysis the Commis-
sion adopts to apply the standard, is left to the discretion
of the Commission, the CIT, in upholding the Commis-
sion’s remand determinations, crafted from thin air the
substantial factor causation standard sua sponte, and
concluded that is what the Commission had applied.”).
Appellants also challenge the CIT’s reasoning that “if the
Commission undertakes a proper ‘substantial factor’
analysis and finds subject imports the legal cause of
material injury, then the Commission has, perforce,
necessarily determined that the subject imports are the
‘but for’ cause of injury.” Appellants’ Br. 34. They say
this reasoning, “though accurate,” led to an error of law
because it allowed the Commission to “bypass the coun-
terfactual analysis.” Id. at 34–35 (emphasis added). To
Appellants, a two-step analysis is required: “the Commis-
sion must first determine whether the subject imports are
a ‘but-for’ cause of injury and then assess whether they
were the substantial factor in causing the harm. The fact
that this two-part analysis did not occur was an error of
law.” Id. at 42.
Nowhere in Swiff-Train II did the CIT “introduce[]
the substantial factor test of causation” as Appellants
allege. Id. at 16. The CIT provided a detailed discussion
of this court’s cases to illustrate the interplay between
but-for causation and the substantial-factor analysis to
SWIFF-TRAIN CO. v. UNITED STATES 19
support its observation that “‘[s]ubstantial factor’ analysis
subsumes [the] ‘but for’ causation analysis, albeit with
multiple acts and effects for consideration.” Swiff-Train
II, 999 F. Supp. 2d at 1343. In support, the CIT cited
Mittal Steel, where this court noted “Bratsk . . . simply
required the Commission to consider the ‘but for’ causa-
tion analysis in fulfilling its statutory duty to determine
whether the subject imports were a substantial factor in
the injury to the domestic industry, as opposed to a mere-
ly ‘incidental, tangential, or trivial’ factor.” Mittal Steel,
542 F.3d at 879 (quoting Nippon Steel, 345 F.3d at 1381)
(emphasis added). The CIT then observed “if the Com-
mission undertakes a proper ‘substantial factor’ analysis
and finds subject imports the legal cause of material
injury, then the Commission has, perforce, necessarily
determined that the subject imports are the ‘but for’ cause
of injury.” Swiff-Train II, 999 F. Supp. 2d at 1343; cf.
Burrage, 134 S. Ct. at 889 n.4 (explaining that in Price
Waterhouse, the Court “did not eliminate the but-for-
cause requirement imposed by the ‘because of’ provision of
[the statute at issue], but allowed a showing that discrim-
ination was a ‘motivating’ or ‘substantial’ factor to shift
the burden of persuasion to the employer to establish the
absence of but-for cause”).
Thus, the CIT was not attempting to “bypass the
counterfactual analysis,” Appellants’ Br. 34–35; rather, it
was accurately explaining the relationship between our
cases that discuss causation in terms of the “substantial
factor” analysis and those that call for a “but-for” analy-
sis. In doing so, the CIT noted Appellants “are correct: a
finding of cause-in-fact must express, at a minimum (and
howsoever expressed), the fundamental sufficiency of a
‘but for’ analysis.” Swiff-Train II, 999 F. Supp. 2d at 1344
(emphasis added); see Burrage, 134 S. Ct. at 889 (“[T]he
phrase, ‘by reason of,’ requires at least a showing of ‘but
for’ causation.”) (emphasis added). Therefore, the CIT
concluded, “the Commission ha[d] properly framed the
20 SWIFF-TRAIN CO. v. UNITED STATES
legal basis upon which to determine whether subject
imports are the cause-in-fact of material injury, to wit,
‘notwithstanding any injury from other factors.’ That is
an obvious expression of a ‘but for’ cause-in-fact inquiry.”
Swiff-Train II, 999 F. Supp. 2d at 1344. (emphasis
added). Appellants’ unsupported suggestion that the CIT
independently imposed a new test is therefore unavailing.
Furthermore, Appellants cite no support for their proposi-
tion that a two-step analysis is required whereby the
Commission must first determine whether the subject
imports are a “but-for” cause of injury and then assess
whether they are the substantial factor in causing the
injury.
Accordingly, this court finds no error in the CIT’s
analysis.
VI. Substantial Record Evidence Supports the Commis-
sion’s Determination
Finally, U.S. Importers argue the Commission’s deci-
sion was not based on substantial evidence because a
counterfactual analysis was not performed. In contrast to
the Commission’s findings, Appellants offer their own
summation of the record evidence: “The heart of the
analysis is the observation that the record in this investi-
gation offers a rare extended natural experiment from the
beginning of 2009 through the end of the [period of inves-
tigation] that supports unambiguously a strong inference
that U.S. demand for [multilayered wood flooring] is
extremely highly—bordering on infinitely—elastic.”
Appellants’ Br. 49–50. Therefore, Appellants conclude,
“[a]s a result of the extremely high elasticity of U.S.
demand for [multilayered wood flooring], increased sales
of subject imports in the U.S. market have not resulted in
lower [multilayered wood flooring] prices, and have there-
fore not harmed the U.S. [multilayered wood flooring]
industry.” Id. at 50; see also id. at 52 (“The only economi-
cally coherent explanation for why increased sales of
SWIFF-TRAIN CO. v. UNITED STATES 21
[multilayered wooding flooring] in the U.S. market in the
face of declining demand did not reduce U.S. [multi-
layered wooding flooring] prices is that U.S. demand for
[multilayered wooding flooring] is extremely highly elastic
(i.e., geometrically, the demand curve is almost horizon-
tal, locking down price even when supply increases).”).
Thus, U.S. Importers believe their “analysis shows the
U.S. industry’s observed condition during the [period of
investigation] to be the same as its condition but-for
competition with the subject imports.” Id.
As noted, when analyzing whether an industry is ma-
terially injured “by reason of” subject imports, the Com-
mission considers the volume of subject imports, their
price effects, and their impact on the domestic industry,
19 U.S.C. § 1677(7)(B)(i), (C)(i)–(iii), and must support its
ultimate conclusion with substantial evidence. Here, the
Commission examined each of these factors and explained
in detail why substantial evidence supports both its
findings and its ultimate affirmative injury determina-
tion. It also identified substantial record evidence estab-
lishing a causal link between subject imports and
material injury to the domestic industry. Furthermore,
the Commission considered the role of other factors in the
market that may have injured the domestic industry and
concluded these factors did not break the causal link
between subject imports and material injury to the do-
mestic industry. Accordingly, the Commission’s causation
analysis was supported by substantial evidence and was
in accordance with law.
Specifically, the Commission made detailed findings
based on the record evidence on the following factors: (1)
“subject imports from China and the domestic like product
competed in the U.S. market primarily based on price,”
Remand Views at 28 (emphasis added); (2) “traditional
quarterly pricing data” indicated subject imports “under-
sold the domestic like product throughout the [period of
investigation],” id. (emphasis added); (3) “low-priced
22 SWIFF-TRAIN CO. v. UNITED STATES
subject imports gained sales and market share directly at
the domestic industry’s expense,” id. at 29 (emphasis
added); (4) “by underselling the domestic like product at
significant margins while selling products that were
highly substitutable for the domestic like product and
competing in the same geographic markets and channels
of distribution,” subject imports “maintain[ed] a signifi-
cant volume both in absolute terms and relative to con-
sumption in the United States, increase[d] significantly
relative to domestic production, and capture[d] significant
market share from the domestic industry,” id. at 30–31
(emphases added); (5) low-priced subject imports “de-
pressed prices of the domestic like product in the U.S.
market,” id. at 31 (emphasis added); and (6) the low-
priced, directly competitive subject imports had a materi-
ally injurious impact on the domestic industry, id. at 36.
In addition, the Commission explained how the record
evidence revealed that, regardless of whether “U.S. con-
sumption was increasing or declining,” through signifi-
cant underselling, subject imports continued to gain
market share, capturing significant market share from
the domestic industry. Id. at 31.
As to Appellants’ alternative view of the record and
their arguments regarding the elasticity of market de-
mand, the Commission acknowledged demand declined
overall during the period of investigation. Id. at 42
(“[Q]uestionnaire respondents generally reported de-
creased demand for [multilayered wood flooring] during
the [period of investigation].”). Nonetheless, based on the
data on the record, the Commission explained subject
imports maintained a significant volume that increased
significantly relative to domestic production and con-
sumption by underselling the domestic-like product at
significant margins regardless of demand conditions. Id.
at 43–45. Thus, the Commission concluded, the “domestic
industry’s loss of market share to unfairly traded subject
SWIFF-TRAIN CO. v. UNITED STATES 23
imports from China . . . throughout the period of investi-
gation was not a function of demand.” Id. at 44.
Having considered the volume of subject imports,
their effect on prices of the domestic-like product, and
their impact on the domestic industry within the context
of the business cycle and relevant conditions of competi-
tion, the Commission found the domestic multilayered
wood flooring industry was materially injured by reason
of subject imports from China. Id. at 36. This determina-
tion was supported by substantial evidence. See Cleo, 501
F.3d at 1296 (The substantial evidence test does not
require an “absence of evidence detracting from the
agency’s conclusion, nor is there an absence of substantial
evidence simply because the reviewing court would have
reached a different conclusion based on the same rec-
ord.”).
CONCLUSION
Accordingly, the decision of the United States Court of
International Trade is
AFFIRMED