Canadian Wheat Bd. v. U.S., Slip Op. 09-92. Court No. 07-00058.

Citation637 F.Supp.2d 1329
Decision Date01 September 2009
Docket NumberSlip Op. 09-92. Court No. 07-00058.
PartiesCANADIAN WHEAT BOARD and the Government of Canada, Plaintiffs, and Government of Alberta, Government of Ontario, and Government of Saskatchewan, Plaintiff-Intervenors, v. UNITED STATES and the United States Department of Commerce, Defendants.
CourtU.S. Court of International Trade

Steptoe & Johnson LLP, Washington, DC (Mark A. Moran, Jamie B. Beaber, and Matthew S. Yeo), for plaintiff Canadian Wheat Board.

Weil, Gotshal & Manges LLP (M. Jean Anderson, John M. Ryan, and Peter J.S. Kaldes), and Wilmer Cutler Pickering Hale and Dorr LLP (Seth P. Waxman, Randolph D. Moss, Mark C. Fleming, and Danielle G. Spinelli), for plaintiff Government of Canada.

Arnold & Porter LLP, Washington, DC (Lawrence A. Schneider), for plaintiff-intervenor Government of Alberta.

Hogan & Hartson LLP, Washington, DC (Mark S. McConnell, H. Deen Kaplan, and Jonathon T. Stoel), for plaintiff-intervenor Government of Ontario.

Cameron & Hornbostel LLP, Washington, DC (Michele Sherman Davenport), for plaintiff-intervenor Government of Saskatchewan.

Tony West, Assistant Attorney General; Jeanne E. Davidson, Director, Patricia M. McCarthy, Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice (Stephen C. Tosini); Office of the Chief Counsel for Import Administration, United States Department of Commerce (Scott D. McBride), of counsel, for defendants.

OPINION

EATON, Judge.

This matter is before the court on the motion of defendants, the United States and the United States Department of Commerce ("Commerce" or "the Department"), for reconsideration, and the joint motion of plaintiffs, Canadian Wheat Board ("CWB") and the Governments of Canada1 (collectively, "plaintiffs") for clarification. See Defs.' Mot. Reconsideration ("Defs.' Mot."); Mot. Clarification ("Pls.' Mot."). These motions follow the court's decision in Canadian Wheat Board v. United States, 32 CIT ___, 580 F.Supp.2d 1350 (2008) ("Wheat Board II"),2 which held: (1) that Commerce must liquidate all of CWB's pre-Timken notice entries, whose liquidation has been suspended, without regard to duties; and (2) that the Governments of Canada lacked standing to sue under Article III of the Constitution.

As set forth at length in Wheat Board II, jurisdiction lies under 28 U.S.C. § 1581(i)(4). See 32 CIT at ___, 580 F.Supp.2d at 1357-64; see also Canadian Wheat Bd. v. United States, 31 CIT ___, 491 F.Supp.2d 1234 (2007) ("Wheat Board I"). Because the motions ask the court to consider important questions not previously addressed, it will treat them both as motions for reconsideration.3 For the following reasons, defendants' motion for reconsideration is denied, and plaintiffs' motion for reconsideration is granted.

STANDARD OF REVIEW

The granting of a motion for reconsideration is within the court's sound discretion. See Yuba Natural Res., Inc. v. United States, 904 F.2d 1577, 1583 (Fed. Cir.1990); Kerr-McGee Chem. Corp. v. United States, 14 CIT 582, 583 (1990) (not reported in the Federal Supplement).

DISCUSSION
I. Defendants' Motion

In Wheat Board II the court considered questions relating to the liquidation of CWB's entries of hard red spring [HRS] wheat from Canada. By its motion the United States, on behalf of Commerce, makes a new argument that the court was statutorily barred from hearing plaintiffs' claims. In making its argument, defendants assert that "the statute upon which the Court concluded that Commerce had suspended liquidation of entries of hard red spring wheat from Canada . . . [19 U.S.C. § 1516a(g)(5)(C)4], expressly prohibits any judicial action with respect to Commerce's actions concerning the statutory suspension of liquidation." Defs.' Mot. 4 (citing 19 U.S.C. § 1516a (g)(5)(C)(iv)5) (internal citation omitted). Central to defendants' claim are their assertions that liquidation of CWB's merchandise was suspended pursuant to the provisions of 19 U.S.C. § 1516a(g)(5)(C) and that the court in Wheat Board II unlawfully reviewed Commerce's "actions" taken pursuant to that subsection. Thus, defendants' motion is dependent upon two sets of alleged facts: (1) that the court in Wheat Board II found that liquidation of CWB's merchandise had been suspended under § 1516a (g)(5)(C); and (2) that, in its Wheat Board II decision, the court was reviewing actions taken by Commerce pursuant to § 1516a (g)(5)(C).

Plaintiffs dispute both of these assertions. First, plaintiffs insist:

[A]s the United States is well aware, the CWB entries at issue in this action were never suspended pursuant to section 1516a(g)(5)(C). That section provides for "continued suspension of liquidation" of entries during an appeal to a NAFTA panel of the results of an administrative review or scope determination. The hard red spring wheat entries at issue here were never the subject of an administrative review or scope determination. Rather, the entries were suspended pursuant to 19 U.S.C. § 1675 when the CWB requested an administrative review and, subsequently, by this Court's injunction when the request for administrative review was withdrawn. Because the entries at issue were not suspended under section 1516a(g)(5)(C), the limitation on judicial review of continued suspensions in subparagraph (C)(iv) does not apply.

Pls.' Resp. Defs.' Mot. Reconsideration ("Pls.' Resp.") 2 (citations omitted). Thus, plaintiffs argue that defendants are factually incorrect in claiming that liquidation of CWB's merchandise was suspended pursuant to § 1516a(g)(5)(C).

As to defendants' contention that Wheat Board II purported to review actions of Commerce made pursuant to 19 U.S.C. § 1516a(g)(5)(C), plaintiffs maintain:

[T]he United States' argument fails even on its own (counterfactual) terms. Section 1516a(g)(5)(C)(iv) operates only to bar judicial review of action taken by Commerce under 1516a(g)(5)(C), i.e., action taken to continue suspension of liquidation. It would not oust this Court of jurisdiction over actions under 28 U.S.C. § 1581(i) like this one, which do not challenge the continued suspension of liquidation, but rather Commerce's failure to liquidate entries in accordance with the final NAFTA panel decision in the case.

Pls.' Resp. 2-3. Put another way, plaintiffs claim that § 1516a(g)(5)(C)(iv) prohibits judicial review only of specified actions taken by Commerce pursuant to § 1516a (g)(5)(C)(i). According to plaintiffs, in this case no such actions were taken and hence the court was not reviewing any action taken under § 1516a(g)(5)(C)(i).

The court finds that plaintiffs are correct in both of their contentions. First, despite defendants' claims to the contrary, in Wheat Board II liquidation of CWB's merchandise was not suspended pursuant to 19 U.S.C. § 1516a(g)(5)(C). Rather, liquidation was suspended or enjoined pursuant to other provisions of law. See Wheat Board II, 32 CIT at ___, 580 F.Supp.2d at 1355-56 ("Plaintiff CWB's entries were made in September 2004. . . . Liquidation of these entries was suspended on October 31, 20056, when CWB filed a request for administrative review of the AD/CVD Orders. . . . Thereafter, on February 26, 2007, CWB withdrew its request for administrative review. That same day, CWB moved to restrain temporarily and enjoin preliminarily the liquidation of its merchandise to allow it to litigate the merits of its case. . . .") (citations omitted). That liquidation of CWB's entries was never suspended pursuant to § 1516a(g)(5)(C) is apparent since that subsection provides for an injunction-like suspension of liquidation following a final determination of an administrative review or scope determination. Here, there was no scope determination and there was also no administrative review because the request for such review was withdrawn. See Wheat Board II, 32 CIT at ___, 580 F.Supp.2d at 1356.

Next, defendants argue that the court was barred from reviewing the effect of its notice of revocation, (Antidumping Duty Investigation and Countervailing Duty Investigation of HRS Wheat from Canada, 71 Fed.Reg. 8,275 (Dep't of Commerce Feb. 16, 2006) ("Notice of Revocation")),7 because 19 U.S.C. § 1516(a)(g)(5)(C)(iv)). expressly precludes judicial review of "any action" taken by Commerce "under this subparagraph." For the court, the operative word is "action." See Defs.' Mot. 6 (citing 19 U.S.C. § 1516(a)(g)(5)(C)(iv)). An examination of the subparagraph reveals that the "action" that Commerce is authorized to undertake under § 1516(a)(g)(5)(C)(i) is to "order the continued suspension of liquidation of those entries of merchandise" that are the subject of a completed administrative review or scope determination. See 19 U.S.C. § 1516(a)(g)(5)(C)(i). It is clear that the purpose of this subsection is to bar this Court from reviewing decisions of Commerce in a precise set of circumstances relating to the continuation of a suspension of liquidation following the completion of two specific administrative procedures. These continuations of the suspension of liquidation are the only actions authorized by the subsection. See 19 U.S.C. § 1516a(g)(5)(C)(i); 19 U.S.C. §§ 1516a(2)(B)(iii) and (vi). In this case, no party has challenged any action relating to the continued suspension of liquidation under § 1516a(g)(5)(C), nor could they, simply because there was no suspension of liquidation under that subsection.

Defendants endeavor to bolster their position by, for the first time, recharacterizing the Notice of Revocation as a "decision not to grant the benefit of section 1516a(g)(5)(C) suspensions to certain entries of subject merchandise." Defs.' Mot. 6. This recharacterization does not save defendants' argument. First, as noted, under the facts of this case there was no suspension of liquidation under 19 U.S.C. § 1516a(g)(5)(C). Second, this "decision," if in fact there ever was one, is simply not an...

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