  United States Court of Appeals
      for the Federal Circuit
                ______________________

     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.
            ______________________

                      2012-1196
                ______________________

   Appeal from the United States Court of International
Trade in No. 10-CV-0081, Judges Gregory W. Carman,
Leo M. Gordon, and Timothy C. Stanceu.

               ----------------------
2                      ASHLEY FURNITURE INDUSTRIES   v. US


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.
              ______________________

                      2012-1200
                ______________________

   Appeal from the United States Court of International
Trade in No. 08-CV-0302, Judges Gregory W. Carman,
Leo M. Gordon, and Timothy C. Stanceu.
                ______________________

               Decided: August 19, 2013
               ______________________
ASHLEY FURNITURE INDUSTRIES   v. US                     3




    KEVIN RUSSELL, Goldstein & Russell, P.C., of Wash-
ington, DC, argued for plaintiff-appellant Ashley Furni-
ture 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 Washing-
ton, DC.

    FRANKLIN E. WHITE, JR., Assistant Director, Commer-
cial 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 Gen-
eral, 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 Gen-
eral Counsel, United States International Trade Commis-
sion, 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 Wash-
ington, 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.
4                      ASHLEY FURNITURE INDUSTRIES   v. US

     DAVID W. DEBRUIN, Jenner & Block, LLP, of Washing-
ton, DC, for amicus curiae Furniture Brands Internation-
al, et al. With him on the brief was MATTHEW E. PRICE,

    TERENCE P. STEWART, Stewart and Stewart of Wash-
ington, 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, Un-
tereiner & Sauber LLP, of Washington, DC.
                  ______________________

    CHRISTOPHER T. HANDMAN, Hogan Lovells US 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, Commer-
cial Litigation Branch, Civil 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 Gen-
eral Counsel, United States International Trade Commis-
sion, 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 Wash-
ington, 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, Massa-
chusetts.
ASHLEY FURNITURE INDUSTRIES   v. US                      5


   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 Washing-
ton, DC, for amicus curiae Furniture Brands Internation-
al, Inc., et al. With him on the brief was MATTHEW E.
PRICE.

    TERENCE P. STEWART, Stewart and Stewart of Wash-
ington, 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, Un-
tereiner and Sauber, LLP, of Washington, DC.
                ______________________

    Before PROST, CLEVENGER, and MOORE, Circuit Judg-
                         es.
   Opinion for the court filed by Circuit Judge MOORE.
  Dissenting opinion filed by Circuit Judge CLEVENGER.
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) dis-
missing 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 Appel-
lants 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 (Com-
6                        ASHLEY FURNITURE INDUSTRIES   v. US
merce) initiated an antidumping investigation of Chinese
wooden bedroom furniture manufacturers pursuant to a
petition filed by an association of U.S. furniture manufac-
turers and several labor unions. In parallel, the Interna-
tional 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 posi-
tion.” Ashley answered “Oppose” and Ethan Allen an-
swered “Take no position.”
    The ITC subsequently determined dumping and inju-
ry 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 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.
    Appellants sued the ITC, Customs, and domestic pro-
ducers 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. Appel-
lants contended that they supported the petition within
the meaning of the Byrd Amendment and, in the alterna-
tive, 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
ASHLEY FURNITURE INDUSTRIES   v. US                       7
1337 (Fed. Cir. 2009), foreclosed their claims for relief.
Ashley Furniture Indus., Inc. v. United States, 818 F.
Supp. 2d 1355 (Ct. Int’l Trade 2012); Ethan Allen Global,
Inc. v. United States, 816 F. Supp. 2d 1330 (Ct. Int’l Trade
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 Furni-
ture, 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 Furni-
ture, 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
8                        ASHLEY FURNITURE INDUSTRIES   v. US
petition in the preliminary questionnaire and answered
“Take no position” in the final questionnaire. They con-
tend that Chez Sidney’s holding rests not on the produc-
er’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 de-
clared support for a petition does not qualify for a distri-
bution.
ASHLEY FURNITURE INDUSTRIES   v. US                       9
    With regard to Appellants’ First Amendment chal-
lenges, Appellees contend that we are bound to follow
SKF’s holding that the Byrd Amendment is constitution-
al. 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. Appellees 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 dis-
missed 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 Appel-
lants’ 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 sev-
eral 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 indicat-
ed opposition to the petition in a questionnaire and active-
ly 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 peti-
tion. We hold that Appellants have not supported the
petition under the plain meaning of the Byrd Amend-
ment.
10                      ASHLEY FURNITURE INDUSTRIES   v. US
     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 incongru-
ous conclusion that a producer who indicates only opposi-
tion 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 con-
struction of the Byrd Amendment advocated by Appel-
lants, 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 distribu-
tions. 1




     1  The dissent would find entitlement to a distribu-
tion based simply on filling out a questionnaire and not
actively opposing the petition. Dissent at 6. 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.
ASHLEY FURNITURE INDUSTRIES    v. US                       11
    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. Appel-
lants submitted official questionnaires that could have
prevented the ITC and Customs from “successfully en-
forc[ing] 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 ques-
tionnaire without indicating support for the petition can
contribute to the petition’s defeat. Id. at 1357–59. In-
deed, 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 sup-
port 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 pre-
cludes 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 Appel-
lants failed to state a claim upon which relief can be
granted, we affirm.
                        AFFIRMED
                           COSTS
    No costs.
 United States Court of Appeals
     for the Federal Circuit
             ______________________

   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.
            ______________________

                   2012-1196
             ______________________
2                              ETHAN ALLEN GLOBAL   v. US
   Appeal from the United States Court of International
Trade in No. 10-CV-0081, Judges Gregory W. Carman,
Leo M. Gordon, and Timothy C. Stanceu.
               ----------------------
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.
              ______________________

                      2012-1200
                ______________________

   Appeal from the United States Court of International
Trade in No. 08-CV-0302, Judges Gregory W. Carman,
Leo M. Gordon, and Timothy C. Stanceu.
ETHAN ALLEN GLOBAL   v. US                                   3
                  ______________________
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 producer 1 based solely on the producer’s
response to the ITC’s support/oppose question. 2 Maj. Op.
at 9. 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 ques-
tionnaires has been a part of the ITC questionnaires at
least since 1987, well before the 2000 Byrd Amendment,


    1   The Byrd Amendment provides for the distribu-
tion 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 affect-
ed domestic producer meets the “in support of the peti-
tion” requirement by “indicat[ing] support of the petition
by letter or through questionnaire response.” Id.
§ 1675c(d)(1).
    2   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_remedy/documents/USProduce
rQuestionnaire.pdf.
4                                ETHAN ALLEN GLOBAL   v. US
and “is not designed solely to determine eligibility for
Byrd Amendment distributions.” SKF USA v. U.S. Cus-
toms 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 antidumping investigation.
    The purpose of the support/oppose question is to allow
the Department of Commerce to confirm that an anti-
dumping petition “has been filed by or on behalf of the
domestic industry.” 19 U.S.C. § 1673a(c)(1)(A)(ii). Com-
merce must ensure that “the domestic producers or work-
ers who support the petition account for at least 25
percent of the total production of the domestic like prod-
uct” 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 opposi-
tion to the petition.” 19 U.S.C. § 1673a(c)(4)(A). If the
petition alone does not establish domestic industry sup-
port, Commerce must poll the industry to determine if the
petition has the requisite support. § 1673a(c)(4)(D)(i).
    When 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 distri-
butions. See, e.g., 146 CONG. REC. S10669-01 (daily ed.
Oct. 18, 2000) (statement of Sen. William Roth) (“[C]ash
payment will not be made to the whole domestic industry.
Instead, only those who supported the filing of the anti-
dumping petition will be paid. Differentiating between
different parts of a domestic industry in this way is un-
precedented in our trade policy and completely unwar-
ranted.”); 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-
03 (daily ed. Oct. 11, 2000) (statement of Rep. Jim Kolbe)
ETHAN ALLEN GLOBAL   v. US                                5
(“Under the amendment adopted in the Agriculture
Appropriations conference report, antidumping and
countervailing duties which are currently paid by the
importing industry would be transferred from the U.S.
Treasury Department directly in the petitioning compa-
ny.”). 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 (pro-
posed 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 Amend-
ment. Nonetheless, the ITC has used the support/oppose
question as a litmus test for determining whether a
domestic producer can receive Byrd Amendment distribu-
tions. 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 “unreason-
able.” 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 state-
ment that it was a supporter without answering ques-
tionnaires or otherwise actively participating would not
6                                 ETHAN ALLEN GLOBAL   v. US
receive distributions).” 556 F.3d at 1353 n.26 (emphasis
added).
    Taken together, SKF and Chez Sidney set up a two-
step 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 re-
hearing en banc). Second, the producer must have “ac-
tively 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) whether the producer participated in the
investigation by providing supporting information in a
questionnaire response, (2) whether the producer provid-
ed 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.
                            III
    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 distri-
butions. Both clearly satisfy the statutory test, which
states that a domestic producer meets the “in support of
the petition” requirement when it “indicate[s] sup-
port . . . by letter or through questionnaire response.” 19
U.S.C. § 1675c(d)(1).
ETHAN ALLEN GLOBAL   v. US                                 7
                     A. ETHAN ALLEN
     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 question-
naires. Evaluating the “surrounding circumstances,”
Ethan Allen provided supporting data to the ITC in the
form of sales and production data, did not express opposi-
tion 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 6. 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 peti-
tion. 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 Furni-
ture 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 distribu-
tions to Appellants solely on the basis of abstract expres-
sion,” Maj. Op. at 9, is flatly contradicted by the fact that
Oakwood Interiors, a producer who received Byrd distri-
butions, participated in the investigation in the exact
8                                ETHAN ALLEN GLOBAL   v. US
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 pe-
nalized 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 antidump-
ing 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 Amend-
ment distributions.
     The 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 11 (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 decla-
ration 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 add-
ed).
    In this case, Ashley Furniture expressed its abstract
opposition to the petition, but its only “action” in the
investigation, providing questionnaire responses, assisted
ETHAN ALLEN GLOBAL   v. US                              9
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 expres-
sion 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 ques-
tion 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. Be-
cause the majority does not agree with me, I respectfully
dissent.
