Canadian Lumber Trade Alliance v. U.S., No. 2006-1622.

CourtUnited States Courts of Appeals. United States Court of Appeals for the Federal Circuit
Writing for the CourtMichel
Citation517 F.3d 1319
PartiesCANADIAN 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.
Decision Date25 February 2008
Docket NumberNo. 2006-1636.,No. 2006-1622.,No. 2006-1627.,No. 2006-1626.,No. 2006-1648.,No. 2006-1625.
517 F.3d 1319
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.
No. 2006-1622.
No. 2006-1625.
No. 2006-1626.
No. 2006-1627.
No. 2006-1636.
No. 2006-1648.
United States Court of Appeals, Federal Circuit.

[517 F.3d 1320]

February 25, 2008.

[517 F.3d 1323]

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-cross

[517 F.3d 1324]

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

517 F.3d 1325

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

517 F.3d 1326

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 added).

As the Court of International Trade recognized, section 408 of the NIA is a "magic words" rule. "[A]ny amendment to title VII of the Tariff Act of 1930 must contain certain `magic words' for Congress to indicate that it intends to alter antidumping and countervailing duty laws with respect to NAFTA parties." CLTA I, 425 F.Supp.2d at 1334.

B. The Continued Dumping And Subsidy Offset...

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69 practice notes
  • Furniture Brands Int'l, Inc. v. United States, Slip Op. 11–132.Court No. 07–00026.
    • United States
    • U.S. Court of International Trade
    • October 20, 2011
    ...(Fed.Cir.2009), cert. denied, ––– U.S. ––––, 130 S.Ct. 3273, 176 L.Ed.2d 1182 (2010); Canadian Lumber Trade Alliance v. United States, 517 F.3d 1319 (Fed.Cir.2008); Dixon Ticonderoga Co. v. United States, 468 F.3d 1353 (Fed.Cir.2006); Candle Corp. of Am. v. U.S. Int'l Trade Comm'n, 374 F.3d......
  • Howard v. United States, No. 09-575L
    • United States
    • Court of Federal Claims
    • August 16, 2012
    ...seeks to have a specific statute superseded by a more general one. Id. at 169; see also Canadian Lumber Trade Alliance v. United States, 517 F.3d 1319, 1343 (Fed. Cir. 2008) ("'[f]or a later statute to be held implicitly to supercede an apparently inconsistent earlier enactment, the intent ......
  • Salmon Spawning v. U.S. Customs and Border Prot., No. 2007-1444.
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • December 18, 2008
    ...7. In addition to this "irreducible constitutional minimum of Article III standing," Canadian Lumber Trade Alliance v. United States, 517 F.3d 1319, 1331 (Fed.Cir.2008) (internal quotation marks omitted), the plaintiff generally must also establish prudential standing by showing that the "i......
  • Salmon Spawning and Recovery Alliance v. U.S., No. 2007-1444.
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • July 15, 2008
    ...7. In addition to this "irreducible constitutional minimum of Article III standing," Canadian Lumber Trade Alliance v. United States, 517 F.3d 1319, 1331 (Fed.Cir.2008) (internal quotation marks omitted), the plaintiff generally must also establish prudential standing by showing that the "i......
  • Request a trial to view additional results
65 cases
  • Furniture Brands Int'l, Inc. v. United States, Slip Op. 11–132.Court No. 07–00026.
    • United States
    • U.S. Court of International Trade
    • October 20, 2011
    ...(Fed.Cir.2009), cert. denied, ––– U.S. ––––, 130 S.Ct. 3273, 176 L.Ed.2d 1182 (2010); Canadian Lumber Trade Alliance v. United States, 517 F.3d 1319 (Fed.Cir.2008); Dixon Ticonderoga Co. v. United States, 468 F.3d 1353 (Fed.Cir.2006); Candle Corp. of Am. v. U.S. Int'l Trade Comm'n, 374 F.3d......
  • Howard v. United States, No. 09-575L
    • United States
    • Court of Federal Claims
    • August 16, 2012
    ...seeks to have a specific statute superseded by a more general one. Id. at 169; see also Canadian Lumber Trade Alliance v. United States, 517 F.3d 1319, 1343 (Fed. Cir. 2008) ("'[f]or a later statute to be held implicitly to supercede an apparently inconsistent earlier enactment, the intent ......
  • Salmon Spawning v. U.S. Customs and Border Prot., No. 2007-1444.
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • December 18, 2008
    ...7. In addition to this "irreducible constitutional minimum of Article III standing," Canadian Lumber Trade Alliance v. United States, 517 F.3d 1319, 1331 (Fed.Cir.2008) (internal quotation marks omitted), the plaintiff generally must also establish prudential standing by showing that the "i......
  • Salmon Spawning and Recovery Alliance v. U.S., No. 2007-1444.
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • July 15, 2008
    ...7. In addition to this "irreducible constitutional minimum of Article III standing," Canadian Lumber Trade Alliance v. United States, 517 F.3d 1319, 1331 (Fed.Cir.2008) (internal quotation marks omitted), the plaintiff generally must also establish prudential standing by showing that the "i......
  • Request a trial to view additional results
2 books & journal articles
  • Developments in Standing for Public Lands and Natural Resources Litigation
    • United States
    • Environmental Law Reporter Nbr. 48-12, December 2018
    • December 1, 2018
    ...that tribes should receive the same “special solicitude” granted to states). But see Canadian Lumber Trade Alliance v. United States, 517 F.3d 1319, 1337 (Fed. Cir. 2008) (mentioning but deferring judgment on the question of whether tribes are entitled to “special solicitude”); Native Vill.......
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    ...123. Id . at 1454-55. 124. Id . at 1464 (Roberts, C.J., dissenting). 125. See, e.g ., Canadian Lumber Trade Alliance v. United States, 517 F.3d 1319, 1336-37 (Fed. Cir. 2008) (reading Massachusetts as creating a special rule for states and refusing to extend that “special solicitude” to Can......

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