517 F.3d 1319 (Fed. Cir. 2008), 2006-1622, Canadian Lumber Trade Alliance v. United States

Docket Nº:2006-1622, 2006-1625, 2006-1626, 2006-1627, 2006-1636, 2006-1648.
Citation:517 F.3d 1319
Party Name:CANADIAN LUMBER TRADE ALLIANCE, Plaintiff-Appellee, and Norsk Hydro Canada, Inc., Plaintiff-Appellee, and Canadian Wheat Board, Plaintiff-Appellee, and Government of Canada, Plaintiff-Cross Appellant, and Ontario Forest Industries Association, Ontario Lumber Manufacturers Association, and The Free Trade Lumber Council, Plaintiffs-Appellees, v. UNIT
Case Date:February 25, 2008
Court:United States Courts of Appeals, Court of Appeals for the Federal Circuit
 
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517 F.3d 1319 (Fed.Cir. 2008)

CANADIAN LUMBER TRADE ALLIANCE, Plaintiff-Appellee,

and

Norsk Hydro Canada, Inc., Plaintiff-Appellee,

and

Canadian Wheat Board, Plaintiff-Appellee,

and

Government of Canada, Plaintiff-Cross Appellant,

and

Ontario Forest Industries Association, Ontario Lumber Manufacturers Association, and The Free Trade Lumber Council, Plaintiffs-Appellees,

v.

UNITED STATES, Defendant-Appellant,

and

Coalition for Fair Lumber Imports Executive Committee, Defendant-Appellant,

and

US Magnesium LLC, Defendant-Appellant,

and

United States Steel Corporation, Defendant-Appellant,

and

U.S. Foundry & Manufacturing Co., Neenah Foundry Co., Municipal Castings, Inc., Lebaron Foundry, Inc., East Jordan Iron Works, Inc., Allegheny Ludlum Corporation, and AK Steel Corporation, Defendants-Appellants.

Nos. 2006-1622, 2006-1625, 2006-1626, 2006-1627, 2006-1636, 2006-1648.

United States Court of Appeals, Federal Circuit.

Feb. 25, 2008

Appeal from the United States Court of International Trade in consol. case nos. 1:05-CV-00324, 1:05-CV-00325, 1:05-CV-00326, 1:05-CV-00327, 1:05-CV-00328, Judge Donald C. Pogue.

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Mathew S. Yeo, Steptoe & Johnson LLP, of Washington, DC, argued for all plaintiffs-appellees. With him on the brief for Norsk Hydro Canada Inc. was Gregory S, McCue for Canadian Wheat Board, Edward J. Krauland, and for Ontario Forest Industries Association, et al. was Elliot Jay Feldman, Baker & Hostetler LLP, of Washington. Of counsel were Michael Thomas Gershberg and Mark Astley Moran, Steptoe & Johnson LLP, of Washington; John J. Burke and Michael S. Snarr, Baker & Hostetler LLP, of Washington, DC.

Carter G. Phillips, Sidney Austin LLP, of Washington, DC, argued for plaintiff-

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cross appellant. With him on the brief was Brian E. Nelson. Of counsel were Ruthanne M. Deutsch and Neil R. Ellis, Sidley Austin LLP, of Washington, DC.

Jeanne E. Davidson, Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for defendant-appellant United States. On the brief was David S. Silverbrand, Trial Attorney. Of counsel were Michael J. Dierberg, Trial Attorney; and Andrew G. Jones, Office of Assistant Chief Counsel, United States Customs and Border Protection, of Indianapolis, IN.

Bradford L. Ward, Dewey & LeBoeuf LLP, of Washington, DC, for defendant-appellant Coalition for Fair Lumber Imports Executive Committee. With him on the brief was David A. Bentley. Of counsel was Harry L. Clark.

Stephen A. Jones, King & Spalding LLP, of Washington, DC, for defendant-appellant U.S. Magnesium LLC. With him on the brief were Joseph W. Dorn and Jeffrey M. Telep.

Jeffrey D. Gerrish, Skadden, Arps, Slate, Meagher & Flom LLP, of Washington, DC, argued for defendant-appellant United States Steel Corporation. With him on the brief were John J. Mangan and Robert E. Lighthizer.

Paul C. Rosenthal, Kelley Drye Collier Shannon, LLP, of Washington, DC, argued for defendants-appellants U.S. Foundry & Manufacturing Co., et al. With him on the brief was Michael R. Kershow.

Stephan E. Becker, Pillsbury Winthrop Shaw Pittman LLP, of Washington, DC, for amicus curiae Government of Mexico. With him on the brief were Sanjay J. Mullick and Kemba T. Eneas.

Lewis E. Leibowitz, Hogan & Hartson L.L.P, of Washington, DC. for amici curiae ThyssenKrupp Mexinox S.A. de C.V., et al. With him on the brief was H. Christopher Bartolomucci.

Before MICHEL, Chief Judge, PLAGER, Senior Circuit Judge, and RADER, Circuit Judge.

MICHEL, Chief Judge.

This is a trade case concerning the interplay between the North American Free Trade Agreement Implementation Act, Pub. L. No. 103-182, 107 Stat. 2057 (1993) (codified at 19 U.S.C. §§ 3301-3473) ("NAFTA Implementation Act" or "NIA"), and the Continued Dumping and Subsidy Offset Act, Pub. L. No. 106-387, § 1003, 114 Stat. 1549, 1623 (2000) ("CDSOA"), repealed by the Deficit Reduction Act of 2005, Pub. L.No. 109-171, § 7601(b), 120 Stat. 4, 154 (2006). We heard argument on December 4, 2007.

The NIA was enacted in 1993. Section 408 of that act provides that any subsequent amendment to certain United States trade laws "shall apply to goods from a NAFTA country only to the extent specified in the amendment." 19 U.S.C. § 3438. The CDSOA, enacted in 2000, amended the trade laws by providing that antidumping and countervailing duties assessed on imported goods--which previously had been placed into the general fund of the United States Treasury--would instead be "distributed on an annual basis . . . to the affected domestic producers for qualifying expenditures." 19 U.S.C. § 1675c (2000). Following enactment of the CDSOA, United States Customs and Border Protection ("Customs") began distributing duties assessed on imported goods, including on goods imported from NAFTA countries Canada and Mexico, to domestic producers.

In 2005, Plaintiffs-Appellees Canadian Lumber Trade Alliance, Norsk Hydro Canada, Inc., Canadian Wheat Board, Ontario Forest Industries Association, Ontario Lumber Manufacturers Association, The Free Trade Lumber Council (together, the "Canadian Producers"), and Plaintiff-Cross Appellant the Government of Canada

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sued the United States in the Court of International Trade, alleging that because the CDSOA does not specify that it applies to goods from NAFTA countries, it must be construed (in light of section 408 of the NIA) not to apply to goods from NAFTA countries. The Plaintiffs sought, inter alia, a declaratory judgment interpreting the CDSOA in their favor, and an injunction against Customs' continued distribution of duties assessed on softwood lumber, magnesium, and hard red spring wheat from Canada.

Defendants-Appellants Coalition for Fair Lumber Imports Executive Committee, U.S. Magnesium LLC, United States Steel Corp., U.S. Foundry & Manufacturing Co., Neenah Foundry Co., Municipal Castings, Inc., LeBaron Foundry, Inc., East Jordan Iron Works, Inc., Allegheny Ludlum Corp., and AK Steel Corp. (together, the "Domestic Producers") intervened in the litigation, arguing (along with the United States) that the Plaintiffs lacked standing to challenge Customs' CDSOA distributions, had no cause of action, and were wrong on the merits in any event. After briefing and an evidentiary hearing, the Court of International Trade held that the Canadian Producers had standing and a cause of action, that the Government of Canada did not have standing because it had elected to proceed in the World Trade Organization ("WTO"), and that the merits favored the Canadian Producers. Canadian Lumber Trade Alliance v. United States, 425 F.Supp.2d 1321 (Ct. Int'l Trade 2006) ("CLTA I"). The Court of International Trade issued a declaratory judgment holding the CDSOA inapplicable to goods from Canada and Mexico, and granted an injunction against Customs' further distribution of duties assessed on softwood lumber, magnesium, and hard red spring wheat from Canada. Canadian Lumber Trade Alliance v. United States, 441 F.Supp.2d 1259 (Ct. Int'l Trade 2006) ("CLTA II").

The United States and the Domestic Producers now appeal the judgment in favor of the Canadian Producers, and the Government of Canada cross-appeals the judgment against it and dismissal of its claims for lack of standing. We have jurisdiction over these appeals under 28 U.S.C. § 1295(a)(5). We affirm the declaratory judgment issued by the Court of International Trade, because at least one Plaintiff-Appellee has standing to seek it, and because the Court of International Trade properly interpreted the CDSOA, in light of section 408 of the NIA, to be inapplicable to goods imported from Canada or Mexico. We also affirm the Court of International Trade's dismissal of the Government of Canada's claims for lack of standing, though we hold that Canada's institution of WTO proceedings did not determine this outcome. Finally, we modify the injunction issued by the Court of International Trade so that it pertains only to hard red spring wheat, because subsequent events have rendered this case moot with respect to the softwood lumber and magnesium industries.

BACKGROUND

A. Relevant Provisions of the NAFTA Implementation Act

The United States entered into the North American Free Trade Agreement ("NAFTA") with Canada and Mexico in December of 1992. Congress passed the NIA in November 1993, President Clinton signed the bill on December 8, 1993, and the NIA was made effective on January 1, 1994. Pub. L. No. 103-182, 107 Stat. 2057 (1993). Section 101 of the NIA contains Congress's approval of the NAFTA treaty, providing that "the Congress approves-- (1) the North American Free Trade Agreement ...." 19 U.S.C. § 3311(a) (emphasis added). Section 102 of the NIA provides that "[n]o person other than the United

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States—(1) shall have any cause of action or defense under—(A) the Agreement [i.e., NAFTA]1 or by virtue of Congressional approval thereof ...." 19 U.S.C. § 3312(c) (emphasis added).

Section 408 of the NIA, entitled "[t]reatment of amendments to antidumping and countervailing duty law," lies at the center of this appeal. The entire section reads as follows:

Any amendment enacted after the Agreement [i.e., NAFTA] enters into force with respect to the United States that is made to—

(1)section 303 or title VII of the Tariff Act of 1930 [19 USCS §§ 1671 et seq.], or any successor statute, or

(2)any other statute which—

(A) provides for judicial review of final determinations under such section, title, or successor statute, or

(B) indicates the standard of review to be applied,

shall apply to goods from a NAFTA country only to the extent specified in the amendment.

19 U.S.C. § 3438 (emphasis...

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