United States Court of Appeals
for the Federal Circuit
__________________________
CANADIAN WHEAT BOARD,
Plaintiff-Appellee,
and
GOVERNMENT OF CANADA,
Plaintiff-Appellee,
and
GOVERNMENT OF ALBERTA,
Plaintiff-Appellee,
and
GOVERNMENT OF ONTARIO,
Plaintiff-Appellee,
and
GOVERNMENT OF SASKATCHEWAN,
Plaintiff-Appellee,
v.
UNITED STATES,
Defendant-Appellant.
__________________________
2010-1083
__________________________
Appeal from the United States Court of International
Trade in consolidated case nos. 07-CV-0058 and 07-CV-
0059, Judge Richard K. Eaton.
______________________________
CANADIAN WHEAT BOARD v. US 2
Decided: April 19, 2011
______________________________
DANIELLE SPINELLI, Wilmer Cutler Pickering Hale
and Dorr LLP, of Washington DC, argued for all plain-
tiffs-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, Massachusetts. 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 Washing-
ton, 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 Govern-
ment 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, Assis-
tant Attorney General, PATRICIA M. MCCARTHY, Assistant
3 CANADIAN WHEAT BOARD v. US
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 anti-
dumping duties, and that the depositors could recover
them. We affirm.
I
A. A brief summary of the statutory and administra-
tive 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 anti-
dumping duty order intended to rectify the unfair trade
practice. 19 U.S.C. §§ 1673b(b)(1)(A) (preliminary dump-
ing determination), 1673d (final dumping determination);
CANADIAN WHEAT BOARD v. US 4
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 (“Cus-
toms”) “pending liquidation.” Id. § 1673e(a)(3). “Liquida-
tion 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 or-
ders, 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 Interna-
tional 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 Can-
ada, 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).
5 CANADIAN WHEAT BOARD v. US
Congress has implemented both the NAFTA agree-
ment and its predecessor through enacting legislation.
See United States-Canada Free-Trade Agreement Imple-
mentation 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 “materi-
ally 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 (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 en-
tered 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
CANADIAN WHEAT BOARD v. US 6
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 domes-
tic 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 In-
ternational 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.
7 CANADIAN WHEAT BOARD v. US
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 anti-
dumping 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, how-
ever, 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.
CANADIAN WHEAT BOARD v. US 8
III
The question on the merits is whether, after Com-
merce has revoked an antidumping duty order following a
NAFTA panel determination that the Commission’s
injury determination (upon which that order was based)
was invalid, Commerce may retain antidumping duties
that had been deposited before the date of the NAFTA
panel decision but were still unliquidated. The answer is
no.
After the NAFTA panel issued its final order affirm-
ing the Commission’s remand finding that the “dumping”
had not materially injured the United States wheat
industry, Commerce
1. revoked the antidumping duty order; and
2. terminated the imposition and collection of anti-
dumping duties on future
importations of the Canadian wheat; but
3. proposed to retain and refused to return the anti-
dumping duties the Canadians had previously deposited
pursuant to the antidumping duty order that had been
revoked because it turned out to have been erroneously
issued.
The third action is so bizarre and unfair that we
would be most reluctant to sustain it unless we could say
with complete assurance that there was no doubt that
Congress intended that result. Our analysis of the gov-
erning statutes and regulatory provisions indicates that
Congress intended that foreign sellers in the Canadians’
position could recover the suspended and unliquidated
deposited antidumping duties involved in this case.
The government contends that these statutory provi-
sions and their legislative history show that Congress
9 CANADIAN WHEAT BOARD v. US
intended to preclude foreign sellers in the Canadians’
position from recovering the duties they had deposited
pursuant to antidumping orders that had been invali-
dated. We are not persuaded.
The language of the relevant statutory provisions does
not explicitly address that question. There is nothing in
that language, however, or in the legislative history of
those provisions, that shows that Congress intended the
result the government seeks.
One would expect that, after an antidumping duty or-
der has been finally invalidated, Commerce thereafter
would refuse to enforce it. Commerce did exactly that
with respect to Canadian wheat that entered the country
after January 2, 2006, the date of the NAFTA panel’s
final decision. But with respect to deposits of those duties
made before that date, pursuant to the antidumping duty
order that had been invalidated, Commerce, in effect,
enforced the order.
Although those duties were still suspended and
unliquidated, Commerce instructed Customs that because
the “revocation [of the duty order] does not affect the
liquidation of entries made prior to January 2, 2006,”
Customs should liquidate those duties “at the rate in
effect at the time of entry.” In other words, although the
underlying antidumping duty order had been invalidated,
Commerce directed that duties deposited under that order
should be treated as if the order were still valid. Neither
the statute nor its legislative history “suggests that
Congress intended to produce such an inequitable result.”
Asociacion Colombiana de Exportadores de Flores v.
United States, 916 F.2d 1571, 1576 (Fed. Cir. 1990).
Commerce gave no explanation for its extraordinary
and seemingly arbitrary action, and we cannot discern
any valid justification for it. Although the government
CANADIAN WHEAT BOARD v. US 10
now offers various explanations for Commerce’s attempt
to retain unliquidated amounts deposited under the
invalid order, Commerce’s action must be evaluated on
the basis of what it said and did at the time, not on its
counsel’s subsequent justification for the agency action
made in litigation challenging it. Bowen v. Georgetown
Univ. Hosp., 488 U.S. 204, 212-13 (1988).
An opinion of our predecessor court, although involv-
ing a quite different issue, points the way to the proper
disposition of this case. Atlantic Coastline R.R. v. United
States, 140 F. Supp. 569 (Ct. Cl. 1956), involved a rail-
road’s claim against the United States for freight charges
that the government had not paid, because the railroad
allegedly had overcharged the government on prior ship-
ments. The government had deducted those alleged
overcharges from the amounts owed to the railroad. One
of the railroad’s contentions was that the alleged earlier
overcharges were authorized by a filed tariff. The gov-
ernment countered that the tariff rates were based on an
invalid order of the Interstate Commerce Commission.
The Court of Claims agreed with the government on this
point and stated:
A tariff repeating an unlawful order of the Inter-
state Commerce Commission, can not, we think,
be valid if the order authorizing it is invalid.
Id. at 571.
Similarly, an order retaining unliquidated deposited
antidumping duties “can not, we think, be valid if the
[antidumping duty] order authorizing it is invalid.”
Once the NAFTA panel had finally determined that
the unliquidated antidumping duty order was invalid–a
ruling not subject to judicial review, see 19 U.S.C.
§ 1516a(g)(2)–Commerce had no valid basis for retaining
11 CANADIAN WHEAT BOARD v. US
the unliquidated duties that the Canadians had deposited
pursuant to that order. As between the Canadians and
the United States, it was the Canadians, not the United
States, that had the stronger claim to the deposited
money.
IV
The government makes several other arguments,
which need not detain us long. The government contends
that 19 U.S.C. § 1516a(g)(5)(B) limited NAFTA panels to
granting “prospective” relief in the present situation and
that requiring Commerce to return the unliquidated duty
deposits would be retroactive relief. We disagree. Bar-
ring Commerce from retaining the deposits and requiring
it to return them after the NAFTA panel had determined
that the antidumping order pursuant to which they were
made was invalid, would be effectuating the NAFTA
panel decision. It would be prospective, not retroactive
action. The Trade Court’s judgment, quoted in part
above, was itself prospective. It directed that unliqui-
dated entries be liquidated “without regard to . . . anti-
dumping duties” and that Customs “refund” the
antidumping duty cash deposits made on or before Janu-
ary 2, 2006—both prospective actions. Indeed, the statu-
tory provisions prohibiting NAFTA panels from providing
retroactive relief would appear to be directed against
attempts by those panels to invalidate antidumping
duties that had already been liquidated, not those still
under suspension.
The government also argues that 19 U.S.C. § 3312(c)
bars this action. That provision states that “no person”
shall have a cause of action based on the claim that the
United States acted “inconsistent with [NAFTA].” But, as
this court recently explained, that provision bars actions
“brought under NAFTA itself[,]” not under “domestic law”
CANADIAN WHEAT BOARD v. US 12
implementing NAFTA. Canadian Lumber Trade Alliance
v. United States, 517 F.3d 1319, 1340-41 (2008) (emphasis
in original). As we have previously explained, this action
was brought not as a challenge to the NAFTA panel
decision itself but to the way Commerce implemented and
carried out that decision.
Finally, the government contends that we should de-
fer to Commerce’s interpretation of the statute because
Commerce is charged with applying and enforcing it. As
we have stated, however, in instructing Customs to liqui-
date the deposited duties, Commerce did not provide a
reasoned explanation for its action. Its brief statement to
Customs fell far short of the “careful analysis of the
statutory issue[s]” which would warrant any deference.
Cathedral Candle Co. v. U.S. Int’l Trade Comm’n, 400
F.3d 1352, 1366 (Fed. Cir. 2005).
V
The government contends that, under the statutory
provisions stating the Court of International Trade’s
jurisdiction, that court had no jurisdiction to entertain
this suit.
The jurisdiction of the Trade Court is defined in 28
U.S.C. § 1581. That section gives the court “exclusive
jurisdiction” to review eight different types of “civil ac-
tion[s]” listed in subsections (a) thorough (h), including
“any civil action commenced under section 516A of the
Tariff Act of 1930” (subsection (c)). These separate provi-
sions are followed by a catchall provision, subparagraph
(i), which gives the court, in addition to its jurisdiction
under the first eight subsections, exclusive jurisdiction of
“any civil action . . . against the United States . . .” that
arises out of any law of the United States provid-
ing for –
13 CANADIAN WHEAT BOARD v. US
(2) tariffs, duties, fees, or other taxes on the im-
portation of merchandise for reasons other than
the raising of revenue;
...
(4) administration and enforcement with respect
to the matters referred to in paragraphs (1)-(3) of
this subsection and subsections (a)-(h) of this sec-
tion.
This subsection shall not confer jurisdiction over
an antidumping or countervailing duty determi-
nation which is reviewable either by the Court of
International Trade under section 516A(a) of the
Tariff Act of 1930 or by a binational panel under
article 1904 of the North American Free Trade
Agreement or the United States-Canada Free-
Trade Agreement and section 516A(g) of the Tariff
Act of 1930.
The Trade Court had jurisdiction under subsections
(i)(2) and (4), on the basis that Commerce’s order involved
the “administration and enforcement” of “duties . . . on the
importation of merchandise for reasons other than the
raising of revenue.” Antidumping duty orders are im-
posed “for reasons other than the raising of revenue.”
They are imposed to protect American industries against
unfair trade practices by foreign entities who sell in the
American market. See Consol. Bearings Co. v. United
States, 348 F.3d 997, 1002-03 (Fed. Cir. 2003)
(“[L]iquidation instructions direct Customs to impose
antidumping duties to protect domestic markets. As a
result, an action against those instructions also arises as
a challenge to ‘tariffs, duties, fees, or other taxes on the
CANADIAN WHEAT BOARD v. US 14
importation of merchandise for reasons other than the
raising of revenue.’ 28 U.S.C. § 1581(i)(2).”).
The government contends that under Norcal/Crosetti
Foods, Inc. v. United States, 963 F.2d 356, 359 (Fed. Cir.
1992), “1581(i) jurisdiction may not be invoked” when
jurisdiction under another subsection “is or could have
been available.” The government, however, does not
assert that the Canadians could have brought the present
suit under another subsection of section 1581. Instead, it
argues that rather than invoking the NAFTA panel
procedure, they could have initially directly challenged
the antidumping duty order in a suit in the Trade Court,
brought under section 1581(c).
It is most unlikely, however, that Norcal/Crosetti in-
tended to bar jurisdiction under subsection (i) whenever a
wholly different action seeking the same relief could have
been brought under a different subsection of section 1581.
Indeed, the government’s theory would strongly discour-
age the use of the NAFTA panel system to challenge
antidumping duties and make that procedure far less
effective and useful than it was intended and expected to
be.
CONCLUSION
The judgment of the Court of International Trade is
AFFIRMED.