Canadian Wheat Bd. v. United States, 2010–1083.

• Decision Date: 19 April 2011
• Docket Number: No. 2010–1083.,2010–1083.
• Citation: 32 ITRD 2185,641 F.3d 1344
• Parties: CANADIAN WHEAT BOARD, Plaintiff–Appellee,andGovernment of Canada, Plaintiff–Appellee,andGovernment of Alberta, Plaintiff–Appellee,andGovernment of Ontario, Plaintiff–Appellee,andGovernment of Saskatchewan, Plaintiff–Appellee,v.UNITED STATES, Defendant–Appellant.
• Court: U.S. Court of Appeals — Federal Circuit

641 F.3d 1344

32 ITRD 2185

CANADIAN WHEAT BOARD, Plaintiff–Appellee,andGovernment of Canada, Plaintiff–Appellee,andGovernment of Alberta, Plaintiff–Appellee,andGovernment of Ontario, Plaintiff–Appellee,andGovernment of Saskatchewan, Plaintiff–Appellee,

v.UNITED STATES, Defendant–Appellant.

No. 2010–1083.

United States Court of Appeals, Federal Circuit.

April 19, 2011.

Danielle Spinelli, Wilmer Cutler Pickering Hale and Dorr LLP, of Washington DC, argued for all plaintiffs-appellees. With her on the brief for plaintiff-appellee Government of Canada were Randolph D. Moss, and Micah S. Myers. Of counsel on the brief were Mark C. Fleming, of Boston, MA. Also on the brief were M. Jean Anderson and John M. Ryan, Weil Gotshal & Manges LLP, of Washington, DC.Mark A. Moran, Steptoe & Johnson LLP, of Washington, DC, for plaintiff-appellee Canadian Wheat Board. Of counsel were Jamie B. Beaber and Matthew S. Yeo.Lawrence A. Schneider, Arnold & Porter LLP, of Washington, DC, for plaintiff-appellee Government of Alberta. With him on the brief was Francis Franze–Nakamura.Mark S. McConnell, Hogan Lovells US LLP, of Washington, DC, for plaintiff-appellee Government of Ontario. With him on the brief were H. Deen Kaplan and Jonathan T. Stoel.Michele Sherman Davenport, Davenport & James PLLC, of Washington, DC, for plaintiff-appellee Government of Saskatchewan.Jeanne E. Davidson, Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for the defendant-appellant. With her on the brief were Tony West, Assistant Attorney General, Patricia M. McCarthy, Assistant Director, and Stephen C. Tosini. Of counsel was Scott D. McBride, Senior Attorney, Office of the Chief Counsel for Import Administration, United States Department of Commerce, of Washington, DC.Before NEWMAN, FRIEDMAN, and LOURIE, Circuit Judges.FRIEDMAN, Circuit Judge.

The principal question is whether, after a North American Free Trade Agreement (“NAFTA”) binational panel has invalidated a federal antidumping duty order and the Department of Commerce (“Commerce”) has revoked the order, the invalidated duties that had been deposited prior to the date of that determination but that had not been liquidated, may be recovered from the United States by the depositors of those duties. The Court of International Trade (sometimes “Trade Court”) held that the government could not retain those antidumping duties, and that the depositors could recover them. We affirm.

I

A. A brief summary of the statutory and administrative provisions governing antidumping duties and their judicial review is necessary to understand our decision.

Upon Commerce finding that a product from a foreign country has been “dumped,” i.e., sold at less than fair value, in the United States and the International Trade Commission (“Commission”) finding that such “dumping” has “materially injured” or “threatened with material injury” a domestic industry, Commerce issues an antidumping duty order intended to rectify the unfair trade practice. 19 U.S.C. §§ 1673b(b)(1)(A) (preliminary dumping determination), 1673d (final dumping determination); 1673b(a)(1) (preliminary injury determination), 1673d(b)(1) (final injury determination). Upon issuance of such order, the additional duties must be deposited with United States Customs and Border Protection (“Customs”) “pending liquidation.” Id. § 1673e(a)(3). “Liquidation means the final computation or ascertainment of duties on entries.” 19 C.F.R. § 159.1.

If a party to the antidumping proceeding so requests, Commerce conducts an annual administrative review of the dumping margins for the product. 19 U.S.C. § 1675(a). A request for such review suspends liquidation of the duties while such review takes place. 19 U.S.C. § 1675(a)(2)(C); see also Int'l Trading Co. v. United States, 281 F.3d 1268, 1272 (Fed.Cir.2002); 19 C.F.R. § 351.212(c)(1).

Similar provisions also cover countervailing duty orders, which are issued when a foreign government has subsidized sales in the United States. The same legal principles govern such duties. Although this case involves both types of duties, we do not discuss them separately and refer to them collectively as “antidumping duties.”

Someone wishing to challenge an antidumping duty order has a choice of two methods of doing so. In any case, suit may be brought before the Court of International Trade. 28 U.S.C. § 1581(c); 19 U.S.C. § 1516a(2)(B). The Trade Court may enjoin liquidation of duties pending its decision. 19 U.S.C. § 1516a(c)(2).

If the “dumped” goods originated in Mexico or Canada, however, the antidumping order may be challenged before a NAFTA binational panel. 19 U.S.C. § 1516a(g). In certain circumstances, liquidation of entries may be suspended pending review by a NAFTA panel. 19 U.S.C. § 1516a(g)(5).

Congress has implemented both the NAFTA agreement and its predecessor through enacting legislation. See United States–Canada Free–Trade Agreement Implementation Act of 1988, Pub.L. No. 100–449, 102 Stat. 1851; NAFTA Implementation Act of 1993, Pub.L. No. 103–182, 107 Stat.2057. Among other things, these statutes amended Section 516A of the Tariff Act of 1930, which governs judicial review of antidumping challenges.

B. In 2003 Commerce, acting in response to a petition by the United States domestic wheat industry, found that Canadian wheat had been sold in the United States at less than fair value. Canadian Wheat Bd. v. United States, 580 F.Supp.2d 1350, 1354 (Ct. Int'l Trade 2008) (hereinafter “ Canadian Wheat Bd. II ”). The Commission determined that the dumping of the wheat had “materially injured” the United States' domestic wheat industry. Durum and Hard Red Spring Wheat from Canada, Inv. Nos. 701–TA–430A and 430B and 731–TA–1019A and 1019B, USITC Pub. 3639, 2003 WL 22683952 (Oct.2003). Commerce then issued an antidumping order. Notice of Antidumping Duty Order: Hard Red Spring Wheat from Canada, 68 Fed.Reg. 60,641.

The present case involves Canadian wheat that entered the United States in 2004, subject to Commerce's 2003 antidumping duty order. Canadian Wheat Bd. v. United States, 491 F.Supp.2d 1234, 1239 (Ct. Int'l Trade 2007) (hereinafter “ Canadian Wheat Bd. I ”). The appellee Canadian Wheat Board deposited the antidumping duties on the entries. Liquidation of those duties was suspended when Canadian Wheat Board subsequently requested an annual administrative review thereof. Id.

The Canadians challenged the Commission's injury determination before a NAFTA binational panel, which found that there was not substantial evidence in the record that the “dumping” had materially injured the domestic wheat industry, and remanded the case to the Commission for further consideration. In the Matter of: Hard Red Spring Wheat from Canada, USA–CDA–2003–1904–06 (June 7, 2005). On remand, the Commission found that the domestic industry was not “materially injured” by the importation of the Canadian wheat. Hard Spring Wheat from Canada, Inv. Nos. 701–TA–430B and 731–TA–1019B, USITC Pub. 3806 (Oct.2005). The domestic wheat industry challenged the Commission's remand-determination, but a NAFTA panel affirmed the finding, effective January 2, 2006. In the Matter of: Hard Red Spring Wheat from Canada, USA–CDA–2003–1904–06 (Dec. 12, 2005).

Commerce then revoked the antidumping duty order. Revocation of Countervailing and Antidumping Duty Orders, 71 Fed.Reg. 8,275 (Dep't of Commerce Feb. 16, 2006). Commerce instructed Customs to “terminate the suspension of liquidation of hard red spring wheat from Canada” and “cease collection of cash deposits” as of January 2, 2006. Commerce stated, however, that the “revocation does not affect the liquidation of entries made prior to January 2, 2006” and instructed Customs to liquidate those earlier entries “at the rate in effect at the time of entry.”

Canadian Wheat Board filed suit in the Court of International Trade to enjoin Commerce from liquidating the antidumping duties on its wheat imported prior to January 2, 2006. Canadian Wheat Bd. I, 491 F.Supp.2d at 1236. It also sought the return of those deposited duties. Canadian Wheat Bd. II, 580 F.Supp.2d at 1354. After filing suit, Canadian Wheat Board withdrew its request for an administrative review by Commerce. Canadian Wheat Bd. I, 491 F.Supp.2d at 1239.

The Trade Court granted a preliminary injunction against liquidation of those duties. Id. at 1237. On the merits, the Trade Court, after concluding that it had jurisdiction over the case, granted summary judgment for Canadian Wheat Board, holding that it was entitled to the return of its deposited unliquidated antidumping duties. Canadian Wheat Bd. II, 580 F.Supp.2d at 1353–54. The court reasoned that because the entries were suspended and unliquidated when the antidumping duty order was revoked, they should not be subjected to those orders. Id. at 1368. The court clarified portions of its decision in an opinion denying reconsideration. Canadian Wheat Bd. v. United States, 637 F.Supp.2d 1329, 1336 (2009) (hereinafter “ Canadian Wheat Bd. III ”).

The court's judgment directed Commerce to instruct Customs to (1) liquidate all unliquidated entries of the Canadian wheat covered “without regard to antidumping and countervailing duties,” and (2) “refund ... all antidumping and countervailing duty cash deposits on all unliquidated entries” of the Canadian wheat “made on or before January 2, 2006.”

II

The government contends that the present action is an attempt to obtain judicial review of or to enforce a NAFTA panel decision and that the relevant statutes prohibit such a suit. The Canadian Wheat Board, however, is not challenging or seeking to enforce the NAFTA panel decision in which it prevailed. Its complaint is about Commerce's implementation of that decision. The challenge here is to the action of Commerce, not to that of the panel, and that is a challenge that may be properly made.

III

The question on the merits is...