United States Court of Appeals
for the Federal Circuit
__________________________
ALMOND BROS. LUMBER CO.; BIGHORN
LUMBER COMPANY; BLUE MOUNTAIN LUMBER
PRODUCTS, LLC; CF INDUSTRIES, INC. (formerly
known as Clearwater Forest Industries); COLLINS
PINE COMPANY; CODY LUMBER, INC.; D.R.
JOHNSON LUMBER CO.; EMPIRE LUMBER CO.,
F.H. STOLTZE LAND & LUMBER COMPANY;
GRAYSON LUMBER CORP.; HAMPTON
RESOURCES, INC.; HARWOOD PRODUCTS INC.;
HEDSTROM LUMBER COMPANY, INC.; HERBER,
LUMBER CO.; IDAHO VENEER COMPANY;
INTERMOUNTAIN RESOURCES, LLC; MOUNTAIN
VALLEY LUMBER CO., INC.; NEIMAN SAWMILLS,
INC.; NORTHERN LIGHTS TIMBER & LUMBER,
INC.; OCHOCO LUMBER COMPANY; PINECREST
LUMBER CO. (division of Green Bay Packaging,
Inc.); PRECISION PINE & TIMBER, INC.;
ROSBORO, LLC, RSG FOREST PRODUCTS, INC.;
RUSHMORE FOREST PRODUCTS, INC.; SANDERS
WOOD PRODUCTS, INC.; SPANISH TRAIL
LUMBER CO., LLC; SUNDANCE LUMBER
COMPANY, INC.; THRIFT BROTHERS LUMBER
CO., INC.; TRINITY RIVER LUMBER COMPANY;
TRIPLE T STUDS CO.; VIKING LUMBER
COMPANY, INC.; WARM SPRINGS FOREST
PRODUCTS INDUSTRIES; WESTERN CASCADE
INDUSTRIES LLC; WRENN BROTHERS, INC.;
WYOMING SAWMILLS, INC.; AND ZIP-O-LOG
MILLS, INC.,
Plaintiffs-Appellants,
2 ALMOND BROS LUMBER v US
v.
UNITED STATES AND RON KIRK, United States
Trade Representative,
Defendants-Appellees.
__________________________
2010-1389
__________________________
Appeal from the United States Court of International
Trade in case no. 08-CV-0036, Judge Richard K. Eaton.
__________________________
Decided: June 28, 2011
__________________________
ALAN I. SALTMAN, Saltman & Stevens, P.C., of Wash-
ington, DC, argued for plaintiffs-appellants. With him on
the brief were ALAN F. HOLMER, RUTH G. TIGER and ARON
C. BEEZLEY.
DAVID S. SILVERBRAND, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, argued for defen-
dants-appellees. With him on the brief were TONY WEST,
Assistant Attorney General, JEANNE E. DAVIDSON, Direc-
tor, FRANKLIN E. WHITE, JR., Assistant Director. Of
counsel on the brief was J. DAINEL STIRK, Associate Gen-
eral Counsel, Office of the United States Trade Represen-
tative, of Washington, DC.
__________________________
Before NEWMAN, SCHALL, and LINN, Circuit Judges
LINN, Circuit Judge.
This case involves a long-running dispute between the
United States and Canada relating to the softwood lum-
ALMOND BROS LUMBER v US 3
ber trade. Appellants, each a domestic producer of soft-
wood lumber products, filed suit in the Court of Interna-
tional Trade (“CIT”) challenging actions of the United
States Trade Representative (“USTR”) in connection with
the 2006 Softwood Lumber Agreement (“2006 SLA”)
between the United States and Canada. Here, Appellants
challenge the CIT’s dismissal of their complaint for lack of
subject matter jurisdiction. Because the CIT erred in
finding that it lacked jurisdiction, this court reverses and
remands.
I. BACKGROUND
A. History of Softwood Lumber Disputes Between the
United States and Canada
Since at least the early 1980s United States producers
of softwood lumber products have accused Canada of
unfairly subsidizing the production of softwood lumber.
These accusations spawned an enormous amount of
litigation. See, e.g., David Quayat, The Forest for the
Trees: A Roadmap to Canada’s Litigation Experience in
Lumber IV, 12 J. Int’l Econ. L. 115 (2009). The following
is a summary of the portion of that litigation history
relevant here.
In January 1986, the Coalition for Fair Lumber Im-
ports (“Coalition”), an association made up of many, but
not all, domestic softwood lumber producers, filed peti-
tions with the Department of Commerce (“Commerce”)
and the International Trade Commission (“ITC”) alleging
that Canadian softwood lumber exports were being subsi-
dized. After an investigation, Commerce issued an af-
firmative preliminary finding that Canada was
subsidizing its softwood lumber exports at a rate of 15%.
Preliminary Affirmative Countervailing Duty Determina-
4 ALMOND BROS LUMBER v US
tion: Certain Softwood Lumber Products from Canada, 51
Fed. Reg. 37,453-02, 37,454 (Dep’t Commerce Oct. 22
1986). In reaction to this finding, Canada and the United
States signed a Memorandum of Understanding (the
“1986 MOU”), according to which the United States would
discontinue the ITC and Commerce investigations and
Canada would impose a 15% tax on all softwood lumber
exports. President Reagan issued a memorandum to the
Secretary of Commerce stating:
Under Section 301(a)(1)(A) of the Trade Act of
1974, as amended (19 U.S.C. § 2411(a)(1)(A)), I
have determined that action is feasible and ap-
propriate to enforce rights of the United States of
America under [the 1986 MOU], which was signed
today by the Government of Canada and the Gov-
ernment of the United States of America.
Memorandum for the Secretary of Commerce, 52 Fed. Reg.
233, 233 (Dec. 30, 1986) (“Memorandum”). This arrange-
ment prevailed for several years until Canada exercised
its right to terminate the 1986 MOU in September 1991.
On October 8, 1991, following Canada’s termination of
the 1986 MOU, Commerce self-initiated a countervailing
duty investigation—pursuant to section 301(a)(1)(A) of
the Trade Act of 1974, as amended, 19 U.S.C.
§ 2412(b)(1)(A)—to inquire into whether Canada was
subsidizing its softwood lumber exports, and published
notice of this investigation in the Federal Register on
October 31, 1991. Self Initiation of Countervailing Duty
Investigation: Certain Softwood Lumber Products from
Canada, 56 Fed. Reg. 56,055-03 (Dep’t Commerce Oct. 31,
1991). On May 28, 1992, Commerce published a final
determination—pursuant to section 304(a) of the Trade
Act of 1974, as amended, 19 U.S.C. § 2414(a)—that Can-
ada was subsidizing softwood lumber exports at a rate of
ALMOND BROS LUMBER v US 5
6.51% and entered a countervailing duty order. Final
Affirmative Countervailing Duty Determination: Certain
Softwood Lumber Products from Canada, 57 Fed. Reg.
22,570, 22,570 (Dep’t Commerce May 28, 1992) (“May 28,
1992 Order”). Based on that finding, the ITC determined
that the domestic industry was being materially injured
by imports of Canada’s softwood lumber. Determination,
Investigation No. 701-TA-312, 57 Fed. Reg. 31,389-01
(Int’l Trade Comm’n July 15, 1992).
The May 28, 1992 Order led to a lengthy dispute be-
tween Canada and the United States in various fora.
Canada appealed both the subsidy and injury determina-
tions to binational panels established under the Canada-
United States Free Trade Agreement (“Free Trade
Agreement”). See Quayat, supra, at 124-25; Certain
Softwood Lumber Products from Canada: Notice of Panel
Decision, Revocation of Countervailing Duty Order and
Termination of Suspension of Litigation, 59 Fed. Reg.
49,029 (Dep’t Commerce Aug. 16, 1994) (“Revocation”).
Commerce and the ITC made attempts to recalculate the
subsidy and injury determinations in light of panel re-
mands, which largely favored Canada. Id. The United
States ultimately appealed the final subsidy determina-
tion to an Extraordinary Challenge Committee, also
established under the Free Trade Agreement. Id. In
1994, following the Extraordinary Challenge Committee
decision the United States revoked the May 28, 1992
Order. Id. However, in 1995, Congress adopted legisla-
tion under new World Trade Organization (“WTO”)
agreements that effectively neutralized the binational
panels’ findings with respect to the countervailing duty
subsidy and injury determinations. Quayat, supra, at
125-26; see generally Charles M. Gastle & Jean-G Castel,
Should the North American Free Trade Agreement Dis-
pute Settlement Mechanism in Antidumping and Counter-
vailing Duty Cases Be Reformed in Light of Softwood
6 ALMOND BROS LUMBER v US
Lumber III?, 26 Law & Pol’y Int’l Bus. 823, 887-90 (1995)
(discussing the necessity for reform in light of inconsistent
binational panel findings in the Softwood Lumber III
litigation). With the renewed threat of a countervailing
duty order looming, Canada and the United States en-
tered into a new softwood lumber agreement. Softwood
Lumber Agreement between the Government of Canada
and the Government of the United States (Apr. 1, 1996),
available at http://www.international.gc.ca/ controls-contr
oles/assets/pdfs/softwood/treaty-e.pdf (last visited June
20, 2011) (“1996 SLA”).
The 1996 SLA states that it “is intended to ensure
that there is no material injury or threat thereof to an
industry in the United States from imports of softwood
lumber from Canada.” Art. I, ¶ 1. Under the 1996 SLA,
Canada was entitled to ship a certain amount of its soft-
wood lumber duty free. Any exports above this set
amount were subject to export taxes. In turn, the United
States promised, inter alia, “not [to] self-initiate an inves-
tigation under Title VII of the Tariff Act of 1930, [provid-
ing for the imposition of countervailing and antidumping
duties] . . . with respect to imports of softwood lumber
from Canada.” Id. Art. I, ¶ 2. The 1996 SLA further
provided that “if a [countervailing or antidumping duty]
petition is filed . . . with respect to softwood lumber from
Canada, [Commerce] shall dismiss the petition.” Id.
After entering the agreement, the USTR announced
the 1996 SLA:
On May 29, 1996, the United States entered into
[the 1996 SLA] with Canada under the authority
of section 301(c)(1)(D) of the Trade Act of 1974, as
amended (19 U.S.C. § 2411(c)(1)(D)), which au-
thorizes the [USTR] to ‘enter into binding agree-
ments’ with a foreign country. The Agreement,
which went into effect on April 1, 1996, was spe-
ALMOND BROS LUMBER v US 7
cifically intended to provide a satisfactory resolu-
tion to certain acts, policies and practices of the
Government of Canada affecting exports to the
United States of softwood lumber which had been
the subject of an investigation initiated by the
USTR under section 302(b)(1)(A) of the Trade Act
of 1974 as amended (19 U.S.C. § 2412(b)(1)(A)),
and which on October 4, 1991, pursuant to section
304(a) of the Trade Act of 1974, as amended (19
U.S.C. § 2414(a)), had been found by the USTR to
be unreasonable and to burden or restrict U.S.
commerce.
Entry of Softwood Lumber Shipments from Canada, 62
Fed. Reg. 8620, 8620 (Dep’t Treasury Feb. 26, 1997).
Under its terms, the 1996 SLA expired on March 31,
2001.
B. The 2006 Softwood Lumber Agreement
In April 2001, just after the expiration of the 1996
SLA, the Coalition filed new petitions with Commerce and
the ITC seeking the imposition of both antidumping and
countervailing duty orders. Until this petition in 2001,
the Coalition had sought only countervailing duty orders,
as discussed in Part A. After investigation, the ITC
determined that there was a threat of future injury by
reason of imports from Canada of softwood lumber, and
Commerce entered an antidumping duty order, Notice of
Amended Final Determination of Sales at Less Than Fair
Value and Antidumping Duty Order: Certain Softwood
Lumber Products from Canada, 67 Fed. Reg. 36,068,
36,069-70 (Dep’t Commerce May 22, 2002), and further
entered a countervailing duty order at a rate of 18.79%,
Notice of Amended Final Countervailing Duty Determina-
tion and Notice of Countervailing Duty Order: Certain
8 ALMOND BROS LUMBER v US
Softwood Lumber Products from Canada, 67 Fed. Reg.
36,070, 36,076 (Dep’t Commerce May 22, 2002) (collec-
tively “May 22, 2002 Orders”). The May 22, 2002 Orders
spawned yet another lengthy series of litigations between
the United States and Canada. Again, Canada appealed
these findings in various fora, including the binational
panels and Extraordinary Challenge Committee under
the Free Trade Agreement, and an additional WTO Panel.
See Tembec, Inc. v. United States, 441 F. Supp. 2d 1302,
1307-1308 (Ct. Int’l Trade 2006). This exhaustive litiga-
tion was concluded with the United States (through the
USTR) and Canada entering into yet another softwood
lumber agreement. Softwood Lumber Agreement Between
the Government of Canada and the Government of the
United States (Sept. 12, 2006), available at
http://www.international.gc.ca/controls-controles/ assets/p
dfs/softwood/SLA-en.pdf (last visited June 20, 2011), as
amended by Agreement Between the Government of Can-
ada and the Government of the United States Amending
the [2006 SLA] (Oct. 12, 2006), available at
http://www.international.gc.ca/controls-controles/assets/p
dfs/softwood/Agreementamending-en.pdf) (last visited
June 20, 2011) (“2006 SLA”).
The 2006 SLA required that for a period of seven
years after the effective date of October 12, 2006, Canada,
in certain circumstances, would impose export charges on
softwood lumber exported to the United States to offset its
subsidization of that lumber. Consistent with the agree-
ment, Commerce revoked the May 22, 2002 Orders and
refunded duties collected on softwood lumber from Can-
ada after May 22, 2002. Notice of Rescission of Counter-
vailing Duty Reviews and Revocation of Countervailing
Duty Order: Certain Softwood Lumber Products from
Canada, 71 Fed. Reg. 61,714-02 (Dep’t Commerce Oct. 19,
2006). In turn, the agreement required Canada to dis-
tribute some of the returned duties to various groups in
ALMOND BROS LUMBER v US 9
the United States. Five-hundred million dollars of this
was to be distributed to United States lumber producers
identified as members of the Coalition. Appellants are
United States lumber producers that were not members of
the Coalition and thus not eligible beneficiaries of the
distributed funds. Almond Bros. Lumber Co. v. United
States, No. 08-00036, slip op. 10-37, 2010 WL 1409656, at
*3 (Ct. Int’l Trade Apr. 8, 2010) [hereinafter Reconsidera-
tion].
Unlike the 1996 SLA, the 2006 SLA does not state its
purpose. However, in an April 27, 2006, press release, the
USTR, Canada’s Minister of International Trade, and
Canada’s Industry Minister announced that the 2006 SLA
was aimed at “resolving the softwood lumber dispute,
including revocation of orders, refund of deposits, imposi-
tion of an export measure in Canada and addressing long
term policy reform.” Basic Terms of a Canada-United
States Agreement on Softwood Lumber, Apr. 27, 2006,
http://www.for.gov.bc.ca/het/softwood/Term%20Sheet%20
Apr%2027%202006.pdf (last visited June 20, 2011). The
statements of purpose with regard to the 1996 and 2006
SLAs indicate that both SLAs were broadly intended to
“resolve” the softwood lumber dispute between the United
States and Canada. As discussed above, the 1996 and
2006 SLAs were both entered into in the face of potential
or existing countervailing duties. The antidumping duty
concern first came into play after the 1996 SLA, with the
May 22, 2002 Orders.
Like the 1996 SLA, the 2006 SLA does not state the
authority under which it was negotiated or entered into
by the USTR. However, on October 12, 2006, the USTR
prepared a background statement on the 2006 SLA, which
it subsequently included in a letter sent to the Depart-
ment of State on October 1, 2007. Under the heading
“Legal Authority,” the background statement provided:
10 ALMOND BROS LUMBER v US
The [2006 SLA] was concluded under the general
authority of the Office of the [USTR] to negotiate,
including pursuant to USTR’s authority under the
Trade Act of 1974, as amended.
J.A. 121. Nothing in the public record specifies the
section(s) of the Trade Act of 1974 that the USTR was
referring to in this statement.
C. Procedural History
In January 2008, Appellants filed a complaint in the
CIT alleging that the USTR improperly exercised its
authority under § 2411 by entering into the 2006 SLA.
Specifically, Appellants alleged that in requiring Canada
to pay $500 million only to those softwood lumber produc-
ers that were members of the Coalition, the 2006 SLA was
arbitrary and capricious and violated § 2411’s require-
ment that the USTR protect the interests of the entire
affected domestic industry. Section 2411(c)(1)(D)(iii)(II)
provides that, when entering into binding agreements
with foreign countries, the USTR must comply with
§ 2411(c)(4), which provides in pertinent part that “[a]ny
trade agreement described in paragraph (1)(D)(iii) shall
provide compensatory trade benefits that benefit the
economic sector which includes the domestic industry that
would benefit from the elimination of the act, policy, or
practice that is the subject of the action to be taken under
subsection (a) or (b) . . . .”
The government moved to dismiss on the grounds that
Appellants failed to allege facts sufficient to give rise to
subject matter jurisdiction. Almond Bros. Lumber Co. v.
United States, No. 08-00036, slip op. 09-48, 2009 WL
1397182, at *5 (Ct. Int’l Trade May 20, 2009) [hereinafter
Dismissal]. The CIT granted the government’s motion
ALMOND BROS LUMBER v US 11
and denied Appellants’ subsequent motion for reconsid-
eration.
In dismissing the complaint, the CIT concluded that
“plaintiffs’ sole basis for invoking the jurisdiction of the
[CIT] [was] that the SLA was negotiated and entered into
pursuant to 19 U.S.C. § 2411(c)(1)(D)”—which both par-
ties agreed would give rise to jurisdiction under
§ 1581(i)—and that Appellants “failed to meet their
burden of pleading facts from which the [CIT] could
conclude that the SLA was indeed the product of § 2411.”
Dismissal, at *8. The CIT determined that the 2006 SLA
was not the product of § 2411 based largely on its finding
that the USTR failed to comply with the procedural
requirements of § 2411, set forth in 19 U.S.C. §§ 2412 and
2414. Id. at *6-*7. Sections 2412 and 2414 provide for
initiating an investigation and making and publishing a
determination based on any such investigation prior to
acting under § 2411. The CIT held that the USTR’s 1991
investigation and determination giving rise to the 1996
SLA were insufficient with regard to the 2006 SLA. Id. at
*7. The CIT reasoned that “the factual situation in 2006
was markedly different from that in 1991” because of the
lack of final antidumping or countervailing duty orders in
place in 1991, which were both present in 2006. Id. The
CIT did state, however, that “[t]he issue of the imposition
of [countervailing duties] was also resolved by the 1996
SLA.” Id. at n.9. The CIT concluded that the 1991 inves-
tigation and determination applied more specifically to
“the collection of export taxes that were required by the
1986 MOU,” did not address “the more general concerns
about softwood lumber dumping or subsidization,” and
thus could not be applied to the 2006 SLA. Id.
The CIT determined that it was more likely that the
USTR entered into the 2006 SLA under its more general
authority to act on behalf of the President as “the chief
representative of the United States for[] international
12 ALMOND BROS LUMBER v US
trade negotiations . . . .” 19 U.S.C. § 2171(c)(1)(C). The
CIT concluded that this general authority derives from
both the Constitution and § 2171 and does not give rise to
jurisdiction under § 1581(i). Reconsideration, at *8-*10.
The CIT viewed the USTR’s background statement de-
scribing the 2006 SLA as supported for the conclusion
that the USTR entered into the 2006 SLA under § 2171
“because § 2171 is part of the Trade Act of 1974 and
provides for the USTR’s general authority as ‘the chief
representative of the United States for international trade
negotiations.’” Id. at *8. The CIT reasoned that the
reference to the USTR’s “general authority” in the first
clause could be referring to “[t]he President’s authority to
conduct foreign policy[, which] derives mainly from the
United States Constitution. The USTR, in acting on
behalf of the President, derives his or her authority from
both the Constitution and from statutes such as § 2171.”
Id. at *10. Thus, the CIT concluded that “the reference to
both the USTR’s general authority and to more specific
statutory authority create[d] no ambiguity.” Id. Having
so concluded, the CIT determined that it lacked jurisdic-
tion under 28 U.S.C. § 1581(i).
Appellants timely appealed. This court has jurisdic-
tion under 28 U.S.C. § 1295(a)(5).
II. DISCUSSION
A. Standard of Review
This court reviews jurisdictional rulings of the CIT de
novo. Orleans Int’l, Inc. v. United States, 334 F.3d 1375,
1378 (Fed. Cir. 2003).
ALMOND BROS LUMBER v US 13
B. The Parties’ Arguments
Appellants argue that the CIT had jurisdiction over
its complaint because 28 U.S.C. § 1581(i) provides the CIT
with “exclusive jurisdiction of any civil action commenced
against the United States, its agencies, or its officers, that
arises out of any law of the United States providing for
. . . tariffs, duties, or other taxes on the importation of
merchandise for reasons other than the raising of reve-
nue.” Section 301 of the Trade Act of 1974, 19 U.S.C.
§ 2411, provides for the imposition of duties for reasons
other than the raising of revenue, and thus it is under-
stood that “if the [2006 SLA] were indeed the product of
§ 2411 then . . . the court would have jurisdiction pursu-
ant to the ‘arising under’ provision of 28 U.S.C. § 1581(i).”
Dismissal, at *5 n.14. According to Appellants, the USTR
entered into the 2006 SLA on behalf of the United States
pursuant to its authority under § 2411. Thus, Appellants
contend that the CIT has jurisdiction over the USTR’s
failure to comply with its terms.
Appellants contend that there is no basis for the CIT’s
conclusion that the 2006 SLA was entered into under any
different authority than that used to enter into the 1996
SLA, which was part of the same continuing dispute over
imported softwood lumber. In addition, Appellants assert
that because the situation in 2006 was the same as in
1996, the formalities followed for the 1996 SLA, including
the 1991 investigation under § 2412 and the published
injury determination under § 2414 remained valid and
applicable to the 2006 SLA.
Appellants cite to the USTR’s October 12, 2006, back-
ground statement submitted to the Department of State
to support their argument that the USTR entered into the
2006 SLA pursuant to § 2411 because the statement
referred to the USTR’s general authority to negotiate—
which Appellants assert refers to § 2171—and the USTR’s
14 ALMOND BROS LUMBER v US
authority under the Trade Act of 1974—which Appellants
assert must refer to § 2411. Appellants essentially argue
that, read otherwise, both parts of the USTR’s statement
would refer to the same statutory provision, § 2171, and
thus the appropriate interpretation must be that the
statement refers to both §§ 2171 and 2411.
Appellants argue that the legislative history of the
Trade Act of 1974 shows that the USTR was acting under
§ 2411 because, in 1988, Congress delegated the authority
to act under § 2411 to remedy unfair trade practices to the
USTR—an authority that Congress had originally re-
served exclusively to the President. Thus, Appellants
contend that § 2171 “does not (and never did) authorize
the USTR to enter into any agreement with a foreign
country to eliminate unfair trade practices.” Appellant
Br. 36.
As an alternative basis for reversal, Appellants assert
that the CIT would have jurisdiction even if the 2006 SLA
was indeed entered into pursuant to § 2171. Appellants
cite Eli Lilly & Co. v. Medtronic, Inc., 496 U.S. 661, 665-
68 (1990) to support the proposition that the word “law”—
as used in § 1581(i)’s “arises out of any law of the United
States” requirement—encompasses the entirety of the
Trade Act of 1974, which is a single law providing for
“duties . . . on the importation of merchandise for reasons
other than the raising of revenue,” and thus gives rise to
jurisdiction under § 1581(i).
The government responds that the CIT was correct in
concluding that it does not have subject matter jurisdic-
tion over Appellants’ complaint because the USTR en-
tered into the 2006 SLA pursuant to § 2171, which does
not provide for any of the actions listed in § 1581(i) that
give rise to jurisdiction. The government asserts that the
2006 SLA is more similar to the 1986 MOU than the 1996
SLA. According to the government, the 1986 MOU was
ALMOND BROS LUMBER v US 15
not entered into under the authority of § 2411. Oral Ar.
at 20:51-21:40, available at http://www.cafc.uscourts.gov/
oral-argument-recordings/all/almond.html.
The government also contends that the CIT was cor-
rect in finding that the USTR’s background statement
submitted to the Department of State shows that the
USTR entered into the 2006 SLA under the general
authority of § 2171 because the statement references only
“general authority” and does not specifically identify
§ 2411 when referring to the USTR’s authority under the
Trade Act of 1974.
In the alternative, the government asserts that Appel-
lants’ complaint presents a non-justiciable political ques-
tion that the CIT does not possess jurisdiction to
entertain.
C. Jurisdiction Pursuant to 19 U.S.C. § 1581(i)
The CIT is a court of limited jurisdiction, possessing
“only that power authorized by the Constitution and
federal statutes, which is not to be expanded by judicial
decree.” Sakar Int’l, Inc. v. United States, 516 F.3d 1340,
1349 (Fed. Cir. 2008). In pertinent part, 28 U.S.C.
§ 1581(i) grants exclusive jurisdiction to the CIT over:
any civil action commenced against the United
States, its agencies, or its officers, that arises out
of any law of the United States providing for─
...
(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
16 ALMOND BROS LUMBER v US
this subsection and subsections (a)-(h) of this sec-
tion.
While “Congress did not commit to the Court of Inter-
national Trade’s exclusive jurisdiction every suit against
the Government challenging customs-related laws and
regulations,” K-Mart Corp. v. Cartier, Inc., 485 U.S. 176,
188 (1988) (emphasis in original), this court has noted
that in enacting 28 U.S.C. § 1581(i), Congress granted the
CIT broad residual jurisdiction over matters relating to
imports. Conoco, Inc. v. United States Foreign-Trade
Zones Bd., 18 F.3d 1581, 1586 (Fed. Cir. 1994) (stating
that Congress wanted to “‘eliminate much of the difficulty
experienced by international trade litigants who in the
past commenced suits in the district courts only to have
those suits dismissed for want of subject matter jurisdic-
tion,’ as well as to ‘ensure that these suits will be heard
on the merits’” (quoting H.R. Rep. No. 1235, at 47 (1980),
as reprinted in 1980 U.S.C.C.A.N. 3729, 3759)).
The parties do not dispute that claims arising out of
§ 2411 fall within the CIT’s exclusive jurisdiction. Thus,
the main dispute in this appeal is whether the USTR
acted under the authority of § 2411 when it entered into
the 2006 SLA. This court concludes that the 2006 SLA
was (1) one action in a series of events, commencing with
the 1986 MOU, intended to resolve a broad based dispute
over unfair importation of Canadian softwood lumber into
the United States; (2) falls under § 2411 of the Trade Act
of 1974; and (3) falls within the jurisdiction of the CIT
under § 1581(i).
This court is persuaded that the lengthy history of the
Canadian softwood lumber dispute, much of which indis-
putably involved action under the authority of § 2411,
provides ample basis on which to conclude that the 2006
SLA, like the similar agreements before it, was entered
into under the authority of § 2411. Both the 1996 SLA
ALMOND BROS LUMBER v US 17
and the 2006 SLA were part of a series of events relating
to the longstanding dispute over the pricing of Canadian
softwood lumber. The 1996 SLA was entered into after
the expiration of the 1986 MOU, and, similarly, the 2006
SLA was entered into after Canada unilaterally withdrew
from the 1996 SLA. There is no question that the USTR
entered into the 1996 SLA pursuant to § 2411, and that
all the technical procedural requirements of §§ 2412 and
2414 were observed in the process leading up to the 1996
SLA. There is no explicit indication in the record that the
USTR used any different authority to enter into the 2006
SLA than it used to enter into the 1996 SLA.
The CIT based its decision that the USTR was not act-
ing under § 2411, in large part, on the lack of evidence
that the USTR engaged in the procedural requirements
under §§ 2412 and 2414 in conjunction with the 2006
SLA. See Reconsideration, at *5-*7. Section 2411(b)
provides that the USTR may act when he or she “deter-
mines under section 2414(a)(1) . . . that—(1) an act, policy,
or practice of a foreign country is unreasonable or dis-
criminatory and burdens or restricts United States com-
merce, and (2) action by the United States is appropriate.”
In turn, § 2414(a)(1) directs the USTR to initiate an
investigation under § 2412 to determine whether the
conditions for action expressed in § 2411 are met. Sec-
tions 2412(b)(1)(B) and 2414(b) also direct the USTR to
publish such investigations and determinations in the
Federal Register to allow “for the presentation of views by
interested persons.” § 2414(b)(1)(A).
Sections 2412 and 2414 serve to put the public on no-
tice of USTR action, and to provide the opportunity for
public comment. See S. Rep. No. 96-249, as reprinted in
1979 U.S.C.C.A.N 381 (1979) (discussing 1979 amend-
ments imposing stricter time requirements for publication
of injury determination following investigation—stating
that “section 304 [as amended, § 2414,] largely will con-
18 ALMOND BROS LUMBER v US
tinue existing law regarding public comment and receipt
of advice before action is taken”); H.R. Rep. No. 100-576,
at 29 (1988), as reprinted in 1988 U.S.C.C.A.N. 1574, 1586
(reporting that the 1988 amendments will extend “the
same prior opportunity for [public expression of] views to
both the determination whether an act, policy, or practice
is actionable and the determination on action by the
USTR”). Congress intended for investigations into unfair
trade practices to broadly address all the issues fairly
raised by the allegations in the petition under § 2412. See
S. Rep. No. 96-249 (“[I]t is expected that the scope of the
investigation will comprehend all issues fairly raised by
the allegations in the petition [under § 2412], and not be
narrowly focused only on the accuracy of the allegations.”)
This court is unpersuaded that the failure to institute
a separate investigation in 2006 should be dispositive on
the issue of jurisdiction under § 1581(i). The CIT’s hold-
ing to the contrary does not properly take into account the
broad nature of the notice provided to the public in the
1991 investigation, the ongoing nature of the Canadian
softwood lumber dispute, and the continued threat of
injury to the domestic market caused by Canadian soft-
wood lumber imports. See, e.g., Tembec, 441 F. Supp. 2d
at 1306 (“Softwood lumber has been a perennial sore-spot
in trade relations between the United States and Can-
ada.” (citing Coalition petitions for countervailing duty
orders dating back to 1982)).
The purpose of §§ 2412 and 2414 is to provide public
notice and allow for public response in matters affecting
commerce. The 1991 investigation broadly gave notice
that the United States was looking into “certain acts,
policies, and practices by the Government of Canada
affecting exports to the United States of certain softwood
lumber agreements.” Initiation of Section 302 Investiga-
tion and Request for Public Comment on Determinations
Involving Expeditious Action, 56 Fed. Reg. 50,738-02,
ALMOND BROS LUMBER v US 19
50,739 (USTR Oct. 8, 1991). Despite the various events
following the initiation of this investigation, it cannot be
said that the interested parties lacked notice of the ongo-
ing nature of the softwood lumber dispute and the contin-
ued domestic threat imposed by Canadian softwood
lumber imports leading up to the 2006 SLA. Extensive
Federal Register publications leading up the May 22,
2002 Orders provided for ample public notice and re-
sponse. See e.g., Notice of Antidumping Duty Investiga-
tion: Certain Softwood Lumber Products From Canada, 66
Fed. Reg. 21,328 (Dep’t Commerce Apr. 30, 2001); Notice
of Final Determination of Sales at Less than Fair Value:
Certain Softwood Lumber Products from Canada, 67 Fed.
Reg. 15,539, 15,539 (Dep’t Commerce Apr. 2, 2002) (“Final
Antidumping Duty Determination”) (describing the receipt
of case briefs from the United States petitioners (the
Coalition; the United Brotherhood of Carpenters and
Joiners; and the Allied-Industrial, Chemical and Energy
Workers International Union); six respondents; and seven
other interested entities, neither petitioners nor respon-
dents). The interested parties were aware of the ongoing
softwood lumber dispute leading up to the 2006 SLA, and
many availed themselves of the opportunity to respond.
Final Antidumping Duty Determination at 15,539.
The CIT found that the procedures undertaken by the
USTR with respect to the 1996 SLA were insufficient with
regard to the 2006 SLA because the factual situations
were “markedly different.” Reconsideration, at *7. The
CIT stated:
[T]he 1996 SLA resulted from Canada’s failure, in
1991, to collect the taxes required by the 1986
MOU which failure was found to be unreasonable
and to burden or restrict United States commerce.
Thus, the specifics found in the 1991 Investigation
and set out in the determination related directly
to Canada’s withdrawal from the 1986 MOU, and
20 ALMOND BROS LUMBER v US
not to more general concerns about softwood lum-
ber dumping or subsidization. In addition, al-
though plaintiffs insist otherwise, the factual
situation in 2006 was markedly different from
that in 1991. In 1991, when Canada terminated
the 1986 MOU, no dumping or countervailing
duty orders were in place. Thus, neither the 1991
Investigation nor the October 8, 1991 determina-
tion took antidumping duty orders into account.
However, by 2006, determinations regarding both
dumping and countervailing duties existed and
were being contested.
Id. (internal footnote omitted)
The facts, however, do not justify the conclusion that
a new investigation and publication were required. While
the CIT recognized that the events in 1991, including
Canada’s withdrawal from the 1986 MOU and the initia-
tion of the countervailing duty investigation, reflected the
then-existing concern surrounding the threat of domestic
injury posed by Canada’s importation of softwood lumber,
it failed to appreciate that this same concern was very
much present in 2006. The CIT’s focus on the fact that
the 1996 SLA was intended to remedy Canada’s with-
drawal from the 1986 MOU overshadowed the equally
relevant fact that, just as Commerce initiated the coun-
tervailing duty investigation in 1991 in response to Can-
ada’s withdrawal from the 1986 MOU, Commerce
similarly initiated the antidumping and countervailing
duty investigations in 2001 in response to the expiration
of the 1996 SLA. Indeed, the situations and responses are
analogous.
Although no antidumping duty order was in place
prior to the 1996 SLA, Canada’s resistance to the May 28,
1992 countervailing duty order led to multiple interna-
tional appeals. See Tembec, 441 F. Supp. 2d at 1307.
ALMOND BROS LUMBER v US 21
While the May 28, 1992 countervailing duty order was
ultimately repealed in 1994, the threat of a new counter-
vailing duty order unquestionably contributed to the
negotiations resulting in the 1996 SLA. See Quayat,
supra, at 125-26. Similarly, the USTR entered into the
2006 SLA in response to yet another lengthy series of
international litigations between the United States and
Canada, this time stemming from the May 22, 2002
Orders. Thus, the only real factual difference prior to the
2006 SLA was the presence of the May 22, 2002 anti-
dumping duty order. There is nothing in the record to
suggest that the overarching purpose of the 2006 SLA was
not the same as that stated in the first paragraph of the
1996 SLA: “to ensure that there is no material injury or
threat thereof to an industry in the United States from
imports of softwood lumber from Canada.”
There is also no evidence in the record supporting the
government’s argument that the 1986 MOU was not
entered into under the authority of § 2411. In fact, there
is evidence to the contrary. President Reagan’s December
30, 1986 letter, published in the Federal Register, de-
scribed the 1986 MOU under the subject line: “Determi-
nation Under Section 301 of the Trade Act of 1974.”
Memorandum at 233 (“Under Section 301(a)(1)(A) of the
Trade Act of 1974, as amended (19 U.S.C. § 2411(a)(1)(A)),
I have determined that action is feasible and appropriate
to enforce rights of the United States of America under
the Memorandum of Understanding on trade in softwood
lumber products.”). Thus, the government’s argument
that the USTR entered into the 2006 SLA under the same
authority as the 1986 MOU actually supports a finding
that the USTR proceeded under the authority of § 2411
when entering into the 2006 SLA.
Moreover, this court is persuaded that the legislative
history supports Appellants’ argument. In the original
Trade Act of 1974, Congress reserved exclusively to the
22 ALMOND BROS LUMBER v US
President the authority to act under § 2411 for the pur-
pose of remedying unfair trade practices. Press Release,
House Comm. on Ways & Means, at 86-87 (Apr. 10, 1973);
S. Rep. 93-1298, at 31 (1974). In 1988, Congress amended
the Trade of Act of 1974 to transfer this authority to the
USTR. H.R. Rep. No. 100-576, at 28 (1988), as reprinted
in 1988 U.S.C.C.A.N. 1574, 1584. Thus, at least before
1988, the USTR did not have explicit authority to remedy
unfair trade practices under § 2171 because that author-
ity was reserved exclusively to the President under
§ 2411. In delegating this specific authority to the USTR
in 1988, it is reasonable to conclude that it was not Con-
gress’ intent that the USTR could or would act to remedy
unfair trade practices under its more general authority,
which it had always possessed under § 2171 of the Act.
The well settled principle that a specific statute con-
trols over a general provision further supports this con-
clusion. See, e.g., City of Columbus v. Ours Garage &
Wrecker Serv., Inc., 536 U.S. 424, 445 (2002); HCSC-
Laundry v. United States, 450 U.S. 1, 6 (1981). Here, the
USTR entered into the 2006 SLA in response to unfair
trade practices surrounding Canadian softwood lumber
imports into the United States, an action unquestionably
within the ambit of § 2411. Indeed, Respondents ac-
knowledge as much, contesting only that the absence of
renewed procedural requirements under §§ 2412 and 2414
signal that the action in this case was taken under the
more general provision of § 2171. Oral Ar. at 17:38-18:25,
available at http://www.cafc.uscourts.gov/oral-argument-
recordings/all/almond.html. Because § 2411 is a more
specific provision governing USTR action in response to
unfair trade practices than § 2171, which broadly sets
forth the USTR’s general authority to act on behalf of the
President, it is reasonable to conclude that the more
specific statute governs.
Finally, we believe that the October 12, 2006 back-
ground statement is properly read as consistent with the
ALMOND BROS LUMBER v US 23
conclusion that the USTR entered into the 2006 SLA
under the authority of § 2411. As noted, under “Legal
Authority,” the background statement reads, “The [2006
SLA] was concluded under the general authority of the
[USTR] to negotiate, including pursuant to USTR's au-
thority under the Trade Act of 1974, as amended.” J.A.
121. For an agreement to be “concluded,” it must be both
negotiated and entered into. In the first part of the
quoted sentence, we read the USTR as stating that it
negotiated the 2006 SLA pursuant to its general authority
under § 2171(c)(1)(C) (stating that the USTR shall “have
lead responsibility for the conduct of, and shall be the
chief representative of the United States for, interna-
tional trade negotiations”). In the second part of the
quoted sentence (beginning with the word “including”), we
read the USTR as stating that the 2006 SLA was formally
entered into pursuant to the Trade Act of 1974, as
amended. This is a way of referring to § 2411(c)(1)(D)(iii).
In other words, in the background statement, the USTR
was stating that it negotiated the 2006 SLA under § 2171
and formally entered into it pursuant to § 2411. This is
consistent with the statutory scheme.
Because this court holds that the USTR entered into
the 2006 SLA under the authority of § 2411, we do not
address Appellants’ alternative argument that the CIT
possesses jurisdiction over any action arising out of the
Trade Act of 1974 in its entirety, as a single law allowing
for the imposition of duties for purposes other than rais-
ing revenue.
D. Political Question Doctrine
As an alternative basis for affirmance, the govern-
ment asserts that Appellants’ complaint presents a non-
justiciable political question that neither the CIT nor this
court possess jurisdiction to entertain. Because it granted
the government’s motion to dismiss for lack of subject
24 ALMOND BROS LUMBER v US
matter jurisdiction, the CIT did not reach this issue.
Dismissal, at *8 n.20. This court declines to decide this
issue in the first instance and instead leaves the question
for the CIT’s consideration on remand.
III. CONCLUSION
For the foregoing reasons, this court reverses the
judgment of the CIT and remands for further proceedings
consistent with this opinion.
REVERSED AND REMANDED
COSTS
Each party shall bear its own costs.