FUSONG JINLONG WOODEN GROUP CO., LTD. v. US

Authored by: Jeremy J. Gustrowsky

The Federal Circuit affirmed a Court of International Trade decision setting antidumping duties on multilayered wood flooring from China, holding that the appellants forfeited their arguments by not raising them before the trade court after key facts changed in their favor. 

The case arose from the Department of Commerce’s sixth administrative review of an antidumping duty order covering multilayered wood flooring from China. Commerce individually investigated two mandatory respondents, calculating a 0% dumping margin for the cooperating respondent (Senmao) and an 85.13% margin for the noncooperating respondent (Sino-Maple), the latter based on adverse facts available (AFA). For other companies that qualified for a “separate rate,” Commerce initially calculated a rate of 42.57% by taking a simple average of the two mandatory respondents’ margins. 

Galleher Corp., Galleher LLC, and Wego International Floors LLC challenged the separate rate before the Court of International Trade, arguing that including the AFA rate was improper, that using a simple average was unreasonable, and that the resulting rate was “aberrational.” The trade court reserved decision on these issues while remanding for Commerce to reconsider its methodology. On remand, Commerce switched to a weighted average approach that gave greater weight to Senmao’s 0% rate based on export volumes, resulting in a lower separate rate of 31.63% for the appellants—about a 25% reduction from the original rate. 

Here is where things went sideways for the appellants. When given the opportunity to comment on Commerce’s remand results, the appellants told the trade court they “generally agree” with the redetermination and asked the court to “uphold” Commerce’s decision. They said nothing about their prior “aberrational” arguments or whether those arguments still applied to the new, lower rate. The trade court then sustained the redetermination and treated the reserved issues as moot. 

On appeal, the Federal Circuit refused to reach the merits, holding the appellants’ arguments forfeited. The court observed that the appellants had never defined what would make a rate “aberrational” or explained how high a rate would have to be to qualify. Because the factual landscape changed significantly during the proceedings (particularly the shift to a weighted average and the reduced 31.63% rate), the appellants could not simply rely on their original motion for judgment on the agency record to preserve arguments about a rate that did not yet exist when those arguments were made. 

The court emphasized that when a party’s arguments depend on factual circumstances that shift during the litigation, that party must indicate to the lower tribunal that its arguments still apply. Here, the appellants did the opposite by signaling agreement with Commerce’s revised approach. The Federal Circuit declined to interpret the trade court’s earlier reservation of the “aberrational” issue as a blanket preservation covering any future rate Commerce might calculate. The trade court’s judgment was affirmed. 

The takeaway for practitioners is straightforward. When an agency issues remand results during litigation, take the opportunity to comment carefully. If prior arguments still apply to the redetermined outcome, say so explicitly. Silence or apparent agreement can be treated as forfeiture on appeal, even where the lower court previously reserved decision on the issue.