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, United 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, Bethesda, MD, for defendant-appellee The Coalition for American 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, “Appellants” 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 material 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 (SwiffTrain 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 flooring, 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 affirmative 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 lessthan-fair-value and subsidized subject imports from 

China. Initial Views at 1. Upon completing its investigation in November 2011, the Commission made an affirmative injury determination. Id. at 36.

U.S. Importers challenged the Commission’s final affirmative injury decision before the CIT. In Swiff-Train I, 

the CIT remanded four issues to the Commission, including “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. SwiffTrain I, 904 F. Supp. 2d at 1338. Specifically, as to causation, 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 remodeling 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 require 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 submitted 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-TA476, 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 investigation], 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 remand 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. SwiffTrain 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-infact 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, “apply[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 ‘unsupported 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.” Consol. 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 threatened 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 unimportant.” 19 U.S.C. § 1677(7)(A). When determining 

whether imports have caused material injury to a domestic 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 products, 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 determination.” Id. § 1677(7)(B)(ii). No single factor is dispositive 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 subject 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 Accordance 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. Appellants 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 countervailing 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 fundamentally requires proof that the subject imports were a ‘butfor’ 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 Supreme Court cases from various legal contexts that discuss the statutory use of the terms “because of” and “by 

reason of.” They argue the “Court has repeatedly recognized, 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 represents 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 antidumping statute mandates a showing of causal . . . connection 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 Smelter 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 responsibility 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 assuming 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 Commission investigations where the Commission employed 

certain economic models (“CADIC” and “COMPAS”) to 

perform a counterfactual “but-for” determination. Appellants argue the Commission previously used these economic models to construct a hypothetical state of the 

industry, as they argue is required by Mittal Steel. Appellants 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 Commission 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 subject 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 developing recovery that followed. On remand, we therefore reaffirm the conclusion that subject imports 

of [multilayered wood flooring] from China had a 

significant adverse impact on the domestic industry 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 imports, 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 causation 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 counterfactual 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] imports,” 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. Importers’ 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 Commission 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 material injury, although it contains some of the same 

elements. Under the material injury standard, 

the Commission determines whether there is current material injury by reason of imports of subject merchandise. Under the threat of material 

injury standard, the Commission decides whether 

injury is imminent, given the status quo. By comparison, under the likelihood standard, the Commission 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 relied 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 substantial 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 important—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 responsibility 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) directs 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” causation 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 applies in this case. Indeed, in Mittal Steel, this court also 

noted, “[w]hile the Commission may not enter an affirmative determination unless it finds that a domestic industry 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 explanation 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 principal 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 asserting 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 Commission’s discretion and is reviewable under the substantialevidence standard.” Remand Views at 33 n.142. Appellants 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 Countervailing Duty law are unique and not subject to judicial interpretation and fundamental statutory 

construction as set forth by this Court and the 

Supreme Court. Apparently “trade speak,” a language 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 notwithstanding 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 Commission 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 further 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 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.’”; see also Nippon Steel Corp. v. United 

States, 458 F.3d 1345, 1357 (Fed. Cir. 2006); Taiwan 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 Commission because of the agency’s institutional expertise 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 difficult, 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 butfor analysis is necessary, in Mittal Steel this court stated 

the “by reason of” standard “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 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 introducing 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 SwiffTrain II, “on its own motion, the CIT introduced the 

‘substantial factor’ test of legal causation to assess whether 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 Commission adopts to apply the standard, is left to the discretion 

of the Commission, the CIT, in upholding the Commission’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 counterfactual analysis.” Id. at 34–35 (emphasis added). To 

Appellants, a two-step analysis is required: “the Commission 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’ causation 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 merely ‘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 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.” 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-forcause requirement imposed by the ‘because of’ provision of 

[the statute at issue], but allowed a showing that discrimination 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” analysis. 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 proposition 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 Commission’s Determination

Finally, U.S. Importers argue the Commission’s decision 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 investigation offers a rare extended natural experiment from the 

beginning of 2009 through the end of the [period of investigation] 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 therefore not harmed the U.S. [multilayered wood flooring] 

industry.” Id. at 50; see also id. at 52 (“The only economically 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. [multilayered wooding flooring] prices is that U.S. demand for 

[multilayered wooding flooring] is extremely highly elastic 

(i.e., geometrically, the demand curve is almost horizontal, 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 materially injured “by reason of” subject imports, the Commission 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 determination. It also identified substantial record evidence establishing 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 domestic 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 “undersold 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 significant volume both in absolute terms and relative to consumption 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 “depressed prices of the domestic like product in the U.S. 

market,” id. at 31 (emphasis added); and (6) the lowpriced, directly competitive subject imports had a materially 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. consumption was increasing or declining,” through significant 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 demand, the Commission acknowledged demand declined 

overall during the period of investigation. Id. at 42

(“[Q]uestionnaire respondents generally reported decreased 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 consumption 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 investigation 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 competition, the Commission found the domestic multilayered 

wood flooring industry was materially injured by reason 

of subject imports from China. Id. at 36. This determination 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 record.”).

CONCLUSION

Accordingly, the decision of the United States Court of 

International Trade is

AFFIRMED