Tembec, Inc. v. U.S., Slip Op. 07-28.

CourtU.S. Court of International Trade
Writing for the CourtPer Curiam
Citation475 F.Supp.2d 1393
PartiesTEMBEC, INC., Plaintiff, and Government of Canada, Gouvernement Du Quebec, Government of Ontario, Government of Alberta, Government of British Columbia, Canadian Lumber Trade Alliance, and Abitibi-Consolidated, Inc., Plaintiff-Intervenors, v. UNITED STATES, Defendant, and Coalition for Fair Lumber Imports Executive Committee, Defendant-Intervenor.
Decision Date28 February 2007
Docket NumberSlip Op. 07-28.,Court No. 05-00028.

Page 1393

475 F.Supp.2d 1393
TEMBEC, INC., Plaintiff, and
Government of Canada, Gouvernement Du Quebec, Government of Ontario, Government of Alberta, Government of British Columbia, Canadian Lumber Trade Alliance, and Abitibi-Consolidated, Inc., Plaintiff-Intervenors,
v.
UNITED STATES, Defendant, and
Coalition for Fair Lumber Imports Executive Committee, Defendant-Intervenor.
Slip Op. 07-28.
Court No. 05-00028.
United States Court of International Trade.
February 28, 2007.

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COPYRIGHT MATERIAL OMITTED

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Baker & Hostetler, LLP (Elliot Jay Feldman, Bryan Jay Brown, John Burke, Robert Lewis La Frankie), Washington, DC, for Plaintiff Tembec, Inc.

Arnold & Porter, LLP (Michael Tod Shor), Washington, DC, for Plaintiff-Intervenor Abitibi-Consolidated, Inc.

Steptoe & Johnson, LLP (Mark Astley Moran, Alice Alexandra Kipel, Sheldon E. Hochberg, Michael Thomas Gershberg), Washington, DC, for Plaintiff-Intervenor Canadian Lumber Trade Alliance Executive Committee.

Arent Fox Kintner Plotkin & Kahn, PLLC (Matthew J. Clark, Keith Richard Marino), Washington, DC, for Plaintiff-Intervenor Gouvernement du Quebec.

Hogan & Hartson, LLP (Mark S. McConnell, Craig Anderson Lewis, Harold Deen Kaplan, Jonathan Thomas Stoel), Washington, DC, for Plaintiff-Intervenor Government of Ontario.

Akin, Gump, Strauss, Hauer & Feld, LLP (Spencer Stewart Griffith, Bernd G. Janzen, Anne K. Cusick, Jason Alexander Park), Washington, DC, for Plaintiff-Intervenor Government of British Columbia.

Weil, Gotshal & Manges, LLP (M. Jean Anderson, Amy Tross Dixon, Gregory Husisian, John Michael Ryan, J. Sloane Strickler); Wilmer, Cutler, Pickering, Hale & Dorr, LLP (Randolph Daniel Moss), Arlington, DC, for Plaintiff-Intervenor Government of Canada.

Arnold & Porter, LLP (Lawerence A. Schneider, Claire Elizabeth Reade), Washington, DC, for Plaintiff-Intervenor Government of Alberta.

Peter D. Keisler, Assistant Attorney General; Jeanne E. Davidson, Acting Director; (Stephen Carl Tosini), Commercial Litigation Branch, Civil Division, United States Department of Justice; Dean Pinkert, Senior Attorney, Office of the Chief Counsel for Import Administration, United States Department of Commerce; Theodore R. Posner, Associate General Counsel, Office of the United States Trade Representative, for Defendant United States.

Dewey Ballantine, LLP (Kevin M. Dempsey, Alan William Wolff, Harry Lewis Clark, David Adrian Bentley), Washington, DC, for Defendant-Intervenor Coalition for Fair Lumber Imports Executive Committee.

Before: Jane A. Restani, Chief Judge, Judith M. Barzilay & Richard K. Eaton, Judges.

OPINION AND ORDER

PER CURIAM.


On October 12, 2006, Defendant the United States filed a motion pursuant to USCIT Rule 12(b)(1) seeking dismissal of the case that resulted in the issuance of Tembec, Inc. v. United States, 30 CIT ___, 461 F.Supp.2d 1355 (2006) ("Tembec II"). See Def.'s Mot. Dismiss. By its motion, Defendant maintained that the matter had been rendered moot by the action of the United States Department of Commerce ("Commerce") on October 12, 2006, revoking the contested antidumping and countervailing duty orders covering imports of Canadian softwood lumber into the United States. See Def.'s Mot. Dismiss 2-3; see also Certain Softwood Lumber Products from Canada, 71 Fed.Reg. 61,714 (ITA Oct. 19, 2006) (notice) (revoking

Page 1396

the underlying antidumping duty order) ("AD Order Revocation"); Certain Softwood Lumber Products from Canada, 71 Fed.Reg. 61,714 (ITA Oct. 19, 2006) (notice) (revoking the underlying countervailing duty order) ("CVD Order Revocation"); Certain Softwood Lumber Products from Canada, 67 Fed.Reg. 36,068 (ITA May 22, 2002) ("AD Order"); Certain Softwood Lumber Products from Canada, 67 Fed.Reg. 36,070 (ITA May 22, 2002) ("CVD Order") (collectively, the "Orders").

The following day, October 13, 2006, we issued Tembec II, which directed that "all of Plaintiffs' unliquidated entries, including those entered before, on, and after November 4, 2004, must be liquidated in accordance with the final negative decision of the NAFTA panel," Tembec II, 30 CIT at ___, 461 F.Supp.2d at 1367, and further ordered Commerce to instruct the Bureau of Customs and Border Protection ("Customs") to "refund, with interest, all [antidumping duty] and [countervailing duty] cash deposits on all unliquidated entries of softwood lumber from Canada made on or after May 22, 2002." See J. Tembec II, at 1357.

On November 13, 2006, in a postjudgment motion styled as one seeking reconsideration and vacatur of Tembec II, Defendant renewed the substance of its October 12, 2006, motion to dismiss. See Def.'s Mot. Recons. & Vacate Tembec II 1 ("Def.'s Mot. Recons. & Vacate") (asking the court pursuant to USCIT R. 59 to "reconsider its decision in [Tembec II], and vacate that decision and judgment as moot"). By its motion, Defendant raised the additional claim that the court committed an error of law by not addressing in Tembec II "the Court's jurisdiction to order relief that had already been provided." Def.'s Mot. Recons. & Vacate 7.

Jurisdiction lies pursuant to 28 U.S.C. § 1581(i) (2000). See Tembec, Inc. v. United States, 30 CIT ___, ___, 441 F.Supp.2d 1302, 1315-27 (2006) ("Tembec I").1 Based on our conclusion that the matter was not moot on October 13, 2006, we deny both Defendant's motion to dismiss and its motion to reconsider and vacate the court's decision in Tembec II. Because we find that the liquidation instructions of October 31, 2006, which resulted from a prejudgment agreement entered into by the Governments of the United States and Canada, provided Plaintiffs with the relief they sought, the Tembec II judgment is vacated.2

Page 1397

I. Background

On July 12, 2006, the court issued Tembec I, its first decision in this case, which found invalid the actions of the United States Trade Representative ("USTR") ordering the implementation of a United States International Trade Commission affirmative threat of material injury determination with respect to imports of Canadian softwood lumber into the United States. In Tembec I, the court reserved decision on the remedy to be imposed. See Tembec I, 30 CIT at ___, 441 F.Supp.2d at 1343.

On September 12, 2006, the Governments of Canada and the United States signed an agreement designed to settle the softwood lumber dispute, albeit at an undetermined "Effective Date." See Softwood Lumber Agreement Between the Government of Canada and the Government of the United States of America (Sept. 12, 2006), Art. III, as amended by Agreement Between the Government of the United States of America and the Government of Canada Amending the Softwood Lumber Agreement Between the Government of the United States of America and the Government of Canada Done at Ottawa on 12 September 2006 (Oct. 12, 2006) ("Agreement"). By its terms, the Agreement was to enter into effect after the parties exchanged letters certifying that the conditions set out in Article II thereof were met. See Agreement, Art. II (stating, among other things, that the Agreement would not have legal effect unless and until "the CIT has modified the injunctions against liquidation issued in [West Fraser Mills Ltd. v. United States, Consol. Ct. No. 05-00079] to permit the United States to fulfill its obligations under Article III"). The certifying letters were exchanged on October 12, 2006.3 Thus, the Governments of Canada and the United States attested to each other that the Article II conditions had been satisfied, even though the injunctions on liquidation present in West Fraser Mills remained in place. See W. Fraser Mills, Consol. Ct. No. 05-00079 (CIT Mar. 7, 2005) (order granting preliminary injunction) at 2 (enjoining Defendant, during the pendency of the action, from liquidating entries of Canadian softwood lumber that "were entered, or withdrawn from warehouse, for consumption during the period May 22, 2002, through April 30, 2003"); W. Fraser Mills, Consol. Ct. No. 05-00079 (CIT Apr. 1, 2005) (order granting preliminary injunction) at 2 (same); W. Fraser Mills, Consol. Ct. No. 05-00079 (CIT May 20, 2005) (order granting preliminary injunction) at 3 (same).

Also, on October 12, 2006, Commerce retroactively revoked the AD Order and the CVD Order applicable to entries of softwood lumber from Canada. See AD Order Revocation, 71 Fed.Reg. at 61,714; CVD Order Revocation, 71 Fed.Reg. at 61,714. Under the terms of the AD Order Revocation, Commerce stated that it would instruct Customs "to cease collecting cash deposits, as of October 12, 2006, on imports of softwood lumber products from Canada," and would further require Customs "to liquidate all entries made on or after May 22, 2002, without regard to antidumping duties, except that, where liquidation of certain entries is enjoined for

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antidumping purposes, the antidumping liquidation instructions for such entries will be issued upon removal of the injunction." AD Order Revocation, 71 Fed.Reg. at 61,714 (emphasis added). The following day, Customs provided its port directors with liquidation instructions received from Commerce mirroring the terms set forth in the AD Order Revocation. See Instructions from Dir., Special Enforcement, to Dirs. of Field Operations, Port Dirs. (Oct. 13, 2006) at 1-2 ("October 13 Liquidation Instructions").

The "except" language in the October 12, 2006, AD Order Revocation was necessary because of the continued existence of the injunctions against liquidation present in West Fraser Mills. Those injunctions prevented Customs from liquidating entries of the Canadian merchandise made between May 22, 2002, and April 30, 2003. On September 21, 2006, Defendant, who is also the defendant in West Fraser Mills, filed a partial consent motion asking the court to lift the injunctions. The panel hearing that case granted Defendant's motion and modified the injunctions on October 27, 2006, allowing the United States to "liquidate all Covered...

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11 practice notes
  • Diamond Sawblades Mfrs. Coalition v. U.S., Slip Op. 09-107.
    • United States
    • U.S. Court of International Trade
    • September 30, 2009
    ...final decision and issued the judgment necessary to give that decision legal effect. Tembec, Inc. v. United States, 31 CIT ___, 475 F.Supp.2d 1393, n. 2 (2007) (noting that "judgment is the legal pronouncement of [the] decision and the act that gives the decision legal effect."). ......
  • Canadian Wheat Bd. v. U.S., Slip Op. 08-112. Court No. 07-00058.
    • United States
    • U.S. Court of International Trade
    • October 20, 2008
    ...States, 30 CIT ___, 461 F.Supp.2d 1355 (2006) ("Tembec II"), judgment vacated by Tembec, Inc. v. United States, 31 CIT ___, 475 F.Supp.2d 1393 (2007) ("Tembec III").2 Defendant the United States' motion, on behalf of Commerce, seeks dismissal of this action on the ground......
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    • United States
    • U.S. Court of International Trade
    • September 1, 2009
    ...States, 30 CIT 1519, 461 F.Supp.2d 1355 (2006) ("Tembec II"), judgment vacated by Tembec, Inc. v. United States, 31 CIT ___, 475 F.Supp.2d 1393 (2007) ("Tembec III").8 In that case, suspension of Page 1336 of some of the entries at issue was accomplished pursuant to § 15......
  • United States v. Great Am. Ins. Co. of Ny, Slip Op. 11–109.Court No. 09–00187.
    • United States
    • U.S. Court of International Trade
    • August 31, 2011
    ...Inc. v. United States, 30 CIT 1519, 1525–26, 461 F.Supp.2d 1355, 1361 (2006), and judgment vacated on other grounds, 31 CIT 241, 475 F.Supp.2d 1393 (2007); SSAB N. Am. Div., 31 CIT at ––––, 571 F.Supp.2d at 1351; Alden Leeds Inc. v. United States, 34 CIT ––––, ––––, 721 F.Supp.2d 1322, 1325......
  • Request a trial to view additional results
11 cases
  • Diamond Sawblades Mfrs. Coalition v. U.S., Slip Op. 09-107.
    • United States
    • U.S. Court of International Trade
    • September 30, 2009
    ...final decision and issued the judgment necessary to give that decision legal effect. Tembec, Inc. v. United States, 31 CIT ___, 475 F.Supp.2d 1393, n. 2 (2007) (noting that "judgment is the legal pronouncement of [the] decision and the act that gives the decision legal effect."). ......
  • Canadian Wheat Bd. v. U.S., Slip Op. 08-112. Court No. 07-00058.
    • United States
    • U.S. Court of International Trade
    • October 20, 2008
    ...States, 30 CIT ___, 461 F.Supp.2d 1355 (2006) ("Tembec II"), judgment vacated by Tembec, Inc. v. United States, 31 CIT ___, 475 F.Supp.2d 1393 (2007) ("Tembec III").2 Defendant the United States' motion, on behalf of Commerce, seeks dismissal of this action on the ground......
  • Canadian Wheat Bd. v. U.S., Slip Op. 09-92. Court No. 07-00058.
    • United States
    • U.S. Court of International Trade
    • September 1, 2009
    ...States, 30 CIT 1519, 461 F.Supp.2d 1355 (2006) ("Tembec II"), judgment vacated by Tembec, Inc. v. United States, 31 CIT ___, 475 F.Supp.2d 1393 (2007) ("Tembec III").8 In that case, suspension of Page 1336 of some of the entries at issue was accomplished pursuant to § 15......
  • United States v. Great Am. Ins. Co. of Ny, Slip Op. 11–109.Court No. 09–00187.
    • United States
    • U.S. Court of International Trade
    • August 31, 2011
    ...Inc. v. United States, 30 CIT 1519, 1525–26, 461 F.Supp.2d 1355, 1361 (2006), and judgment vacated on other grounds, 31 CIT 241, 475 F.Supp.2d 1393 (2007); SSAB N. Am. Div., 31 CIT at ––––, 571 F.Supp.2d at 1351; Alden Leeds Inc. v. United States, 34 CIT ––––, ––––, 721 F.Supp.2d 1322, 1325......
  • Request a trial to view additional results

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