Canadian Wheat Board v. United States

Slip Op. 08-112

UNITED STATES COURT OF INTERNATIONAL TRADE

:
CANADIAN WHEAT BOARD :
and the GOVERNMENT OF CANADA, :
:
Plaintiffs, :
: Before: Richard K. Eaton, Judge
and :
: Consol. Court No. 07-00058
GOVERNMENT OF ALBERTA, :
GOVERNMENT OF ONTARIO, and :
GOVERNMENT OF SASKATCHEWAN, :
:
Plaintiff-Intervenors, :
:
v. :
:
UNITED STATES and the UNITED :
STATES DEPARTMENT OF COMMERCE,:
:
Defendants. :
:

OPINION

[Defendant’s motion to dismiss denied in part and granted in
part; plaintiff Canadian Wheat Board’s motion for summary
judgment granted.]

Dated: October 20, 2008

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

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

Arnold & Porter LLP (Lawrence A. Schneider and Francis
Anthony Franze-Nakamura), for plaintiff-intervenor Government of
Alberta.

Hogan & Hartson LLP (Mark S. McConnell, H. Deen Kaplan,
Jonathon T. Stoel), for plaintiff-intervenor Government of
Ontario.
Consol. Court No. 07-00058 Page 2

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

Gregory G. Katsas, 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.

Eaton, Judge: This matter is before the court on the

motions of plaintiffs Canadian Wheat Board (“CWB”) and the

Governments of Canada1 (collectively, “plaintiffs”) for summary

judgment pursuant to USCIT Rule 56(c) and the motion of defendant

the United States to dismiss plaintiffs’ case pursuant to USCIT

Rules 12(b)(1) and 12(b)(5).

In bringing this action, plaintiffs seek to compel the

liquidation, without the imposition of unfair trade duties, of

certain entries of hard red spring (“HRS”) wheat imported into

the United States from Canada. Specifically, plaintiffs contend

1
Plaintiff the Federal Government of Canada originally
filed a separate suit under Court No. 07-00059. That action was
consolidated with this action under Consol. Court No. 07-00058.
Prior to consolidation, the Federal Government of Canada filed a
consent motion to intervene in Court No. 07-00058, as did the
Governments of Saskatchewan, Alberta, and Ontario. Each was
granted plaintiff-intervenor status in Consol. Court No. 07-
00058. Separate summary judgment motions were filed by CWB and
the Federal Government of Canada, jointly with the three
Provincial Governments. For purposes of convenience, the court
refers to all of these parties collectively as “plaintiffs,”
unless otherwise indicated. When referring to the various
Governments of Canada, the court will, when necessary,
distinguish between the Canadian Federal and the Provincial
Governments.
Consol. Court No. 07-00058 Page 3

that, because the order imposing the antidumping and

countervailing duties affecting CWB’s merchandise has been

invalidated, all of its unliquidated entries should be liquidated

without the imposition of either antidumping or countervailing

duties. See Memo. Pl. CWB Supp. Mot. Summ. J. and Opp. Def.’s

Mot. to Dismiss (“CWB Br.”) 1-4; Memo. Supp. Mot. Pl. Gov’t

Canada and Pl.-Ints. Canadian Provincial Gov’ts Summ. J. and

Resp. Def.’s Mot. to Dismiss (“Can. Br.”) 1-3; see also HRS Wheat

From Canada, 68 Fed. Reg. 60,641 (Dep’t of Commerce Oct. 23,

2003) (notice of antidumping duty order); HRS Wheat From Canada,

68 Fed. Reg. 60,642 (Dep’t of Commerce Oct. 23, 2003) (notice of

countervailing duty order) (collectively, the “AD/CVD Orders”).

Plaintiffs’ challenge is to the United States Department of

Commerce’s (“Commerce” or the “Department”) conclusion that

CWB’s duty deposits should not be refunded in their entirety,

despite the revocation of the order under which they were

imposed. This legal conclusion was contained in the Department’s

notice of revocation of the AD/CVD Orders, which was published

following a negative injury determination of the United States

International Trade Commission (“ITC” or the “Commission”). See

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 Panel Decision, Revocation

of Countervailing and Antidumping Duty Orders and Termination of
Consol. Court No. 07-00058 Page 4

Suspension of Liquidation) (the “Notice of Revocation”).

For plaintiffs, Commerce committed legal error by not

providing for the return of all duty deposits for CWB’s entries,

the liquidation of which had been suspended, made while the now

invalid AD/CVD Orders were in place. Plaintiffs claim that their

position is supported by this Court’s decision in Tembec, Inc. v.

United 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 grounds that the court does not have the

authority to hear plaintiffs’ claims. See generally Def.’s Mot.

to Dismiss (“Def.’s Br.”).

For the reasons that follow, the court dismisses the

Governments of Canada from this case for lack of standing, denies

the Governments of Canada’s motion for summary judgment, and

grants CWB’s motion for summary judgment.

BACKGROUND

Plaintiff CWB is an exporter of Canadian HRS wheat. In

September 2002, the domestic wheat industry petitioned both

2
The Tembec III Court vacated as moot its prior judgment
in Tembec II, but, having found “that the issues in Tembec II
were decided within the context of a live controversy,” kept the
Tembec II decision in place. Tembec III, 31 CIT at __, 475 F.
Supp. 2d at 1402-03.
Consol. Court No. 07-00058 Page 5

Commerce and the ITC seeking investigations into possible dumping

and subsidization of Canadian HRS wheat, and into the effect of

Canadian wheat imports on the United States market. Thereafter,

following an investigation, Commerce published its determination

that Canadian HRS wheat was both subsidized and being sold in the

United States at less than fair value. See Certain Durum Wheat

and HRS Wheat from Canada, 68 Fed. Reg. 52,747 (Dep’t of Commerce

Sept. 5, 2003) (final affirmative countervailing duty

determinations); Certain Durum Wheat and HRS Wheat from Canada,

68 Fed. Reg. 52,741 (Dep’t of Commerce Sept. 5, 2003) (notice of

final determinations of sales at less than fair value).

In October 2003, after conducting its own investigation, the

ITC determined that imports of Canadian HRS wheat were materially

injuring the domestic industry. See Durum and HRS Wheat from

Canada, USITC Pub. 3639, Inv. Nos. 701-TA-430A and 430B and 731-

TA-1019A and 1019B (Oct. 2003) (Final). This, however, did not

end the matter, for CWB challenged the ITC’s affirmative

determination before a North American Free Trade Agreement

(“NAFTA”) panel. The panel found that the ITC’s affirmative

material injury determination was unsupported by substantial

evidence and remanded the case to the Commission for further

consideration. See HRS Wheat from Canada, USA-CDA-2003-1904-06

(panel decision) at 64 (June 7, 2005). On remand, the ITC

reversed its original affirmative determination and concluded
Consol. Court No. 07-00058 Page 6

“that an industry in the United States is not materially injured,

or threatened with material injury, by reason of imports of [HRS]

wheat from Canada found to be subsidized and sold in the United

States at less than fair value.” HRS Wheat from Canada, USITC

Pub. 3806, Inv. Nos. 701-TA-430B and 731-TA-1019B (Oct. 2005)

(Remand).

The domestic wheat industry then challenged the ITC’s

negative determination before the NAFTA panel. The domestic

industry did not prevail, however, and in December 2005 the panel

sustained the ITC’s negative determination and ordered the United

States NAFTA Secretary to issue a Notice of Final Panel Action.

That notice was issued on December 23, 2005. See HRS Wheat from

Canada, USA-CDA-2003-1904-06 (panel decision on remand

determination) at 5, 21–22 (Dec. 12, 2005).

On January 30, 2006, the United States NAFTA Secretary

published in the Federal Register a Notice of Completion of Panel

Review, which by its terms was effective as of January 24, 2006.

See Article 1904 NAFTA Panel Reviews; Completion of Panel Review,

71 Fed. Reg. 4,896 (Dep’t of Commerce Jan. 30, 2006) (notice).

On January 31, 2006, pursuant to 19 U.S.C. § 1516a(g)(5)(B),

Commerce published in the Federal Register notice that the NAFTA

panel’s final decision was not in harmony with the ITC’s original

affirmative injury determination. See HRS Wheat from Canada:

NAFTA Panel Decision, 71 Fed. Reg. 5,050 (Dep’t of Commerce Jan.
Consol. Court No. 07-00058 Page 7

31, 2006) (the “Timken Notice”); see also Timken Co. v. United

States, 893 F.2d 337 (Fed. Cir. 1990). This notice had an

effective date of January 2, 2006,3 and stated that it “serve[d]

to suspend liquidation of entries of subject merchandise entered,

or withdrawn from warehouse, for consumption on or after January

2, 2006, i.e., ten days from the issuance of the Notice of Final

Panel Action, at the current cash deposit rate.” Timken Notice,

71 Fed. Reg. at 5,051. Thus, the notice preserved from

liquidation those entries made on or after January 2, 2006, but

did nothing to prevent liquidation of earlier entries.

On February 16, 2006, the Department published the Notice of

Revocation, which “revok[ed] the countervailing duty order and

antidumping duty order on [HRS] wheat from Canada . . . .”

Notice of Revocation, 71 Fed. Reg. at 8,275. Although, as shall

be seen, the notice itself appears to indicate otherwise,

defendant insists that the Notice of Revocation did not affect

the liquidation of entries made prior to January 2, 2006. See

Def.’s Br. 10.

3
In Timken Co. v. United States, 893 F.2d 337, 340 (Fed.
Cir. 1990), the Court of Appeals for the Federal Circuit held
that 19 U.S.C. § 1516a(c)(1) required Commerce to “publish notice
of a . . . decision not in harmony [with the original
determination] within 10 days of the issuance of the
decision . . . .” This requirement is equally applicable to
NAFTA panel decisions not in harmony with the original challenged
determination. See 19 U.S.C. § 1516a(g)(5)(B). Thus, even
though the Timken Notice was published later than 10 days after
the NAFTA panel decision, it obtained legal effect on January 2,
2006, the last day the notice could lawfully be published.
Consol. Court No. 07-00058 Page 8

Plaintiff CWB’s entries were made in September 2004. At the

time they were entered, CWB’s goods were subject to the duties

imposed by the then-existing AD/CVD Orders. As a result, CWB

paid cash deposits based on the 5.29 percent net subsidy rate and

8.86 percent antidumping duty margin.4 Liquidation of these

entries was suspended on October 31, 2005, when CWB filed a

request for administrative review of the AD/CVD Orders. See

Canadian Wheat Bd. v. United States, 31 CIT __, __, 491 F. Supp.

2d 1234, 1239 (2007) (citations omitted).

On February 21, 2007, plaintiffs CWB and the Federal

Government of Canada commenced actions (since consolidated) in

this Court, challenging Commerce’s failure to make the revocation

of the AD/CVD Orders effective ab initio and refund all paid cash

deposits. 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.

Id. at __, 491 F. Supp. 2d at 1239.

On February 28, 2007, the court granted CWB’s motion for a

temporary restraining order. See id. at __, 491 F. Supp. 2d at

4
According to Customs’ fiscal year 2004 annual report, as
of October 1, 2004, $176,171.37 in cash deposits had been paid on
CWB’s entries of Canadian HRS wheat. This amount includes any
cash deposits paid by CWB on its September 2004 entries. See
Canadian Wheat Bd. v. United States, 31 CIT __, __, 491 F. Supp.
2d 1234, 1239 n.5 (2007) (citation omitted).
Consol. Court No. 07-00058 Page 9

1248. On May 2, 2007, the court enjoined the liquidation of

CWB’s entries pending the final and conclusive decision in this

action. See Canadian Wheat Bd. v. United States, Consol. Court

No. 07-00058, May 2, 2007 (order).

STANDARD OF REVIEW

Defendant’s jurisdictional challenge to plaintiffs’ action

raises a “threshold inquiry.” See Hartford Fire Ins. Co. v.

United States, 31 CIT __, __, 507 F. Supp. 2d 1331, 1334-35

(2007) (citations omitted). When the Court’s jurisdiction is

disputed under USCIT Rule 12(b)(1), plaintiffs bear the burden of

proving jurisdiction by a preponderance of the evidence. See

Toxgon Corp. v. BNFL, Inc., 312 F.3d 1379, 1383 (Fed. Cir. 2002).

The court must therefore make an initial determination that

jurisdiction exists.

In evaluating defendant’s Rule 12(b)(5) motion to dismiss

for failure to state a claim upon which relief can be granted, a

Court generally accepts as true the facts as alleged in the

pleadings and must view the facts in the light most favorable to

plaintiffs. See United States v. Ford Motor Co., 497 F.3d 1331,

1336 (Fed. Cir. 2007). Motions to dismiss for failure to state a

claim, however, are “the only [Rule 12 motions] . . . [where] a

court may treat a motion to dismiss as a summary judgment

motion.” Toxgon Corp., 312 F.3d at 1383 (citation omitted).
Consol. Court No. 07-00058 Page 10

Accordingly, as the facts are not in dispute and only legal

issues are contested, the court treats defendant’s Rule 12(b)(5)

motion as a motion for summary judgment. See USCIT Rule 1

(directing that the rules of this Court “shall be construed and

administered to secure the just, speedy, and inexpensive

determination of every action”).

Assuming plaintiffs establish jurisdiction under 28

U.S.C. § 1581(i),5 summary judgment is proper with respect to

their substantive claims if “there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment

as a matter of law.” USCIT R. 56(c). “Once it is clear there

are no material facts in dispute, a case is proper for summary

adjudication.” AMKO Int’l, Inc. v. United States, 22 CIT 1094,

1096, 33 F. Supp. 2d 1104, 1107 (1998). As plaintiffs’ case

hinges on pure questions of law, resolution by summary judgment

is appropriate. Furthermore, the court must apply the standard

of review set forth in 5 U.S.C. § 706 (i.e., the APA) to an

action instituted pursuant to 28 U.S.C. § 1581(i). See, e.g.,

Miami Free Zone Corp. v. Foreign-Trade Zones Bd., 136 F.3d 1310,

1312-1313 (Fed. Cir. 1998). Accordingly, “[t]o the extent

5
Section 1581(i)(4) grants this Court exclusive
jurisdiction 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 . . . administration and
enforcement with respect to the matters referred to in paragraphs
(1)-(3) of this subsection and subsections (a)-(h) of this
section.” 28 U.S.C. § 1581(i)(4).
Consol. Court No. 07-00058 Page 11

necessary to decision and when presented,” the court shall, in

pertinent part, “decide all relevant questions of law;”

“interpret constitutional and statutory provisions;” and “hold

unlawful and set aside agency action, findings, and conclusions

found to be . . . arbitrary, capricious, an abuse of discretion,

or otherwise not in accordance with law . . . .” See generally 5

U.S.C. § 706.

DISCUSSION

I. Jurisdiction

The court will first consider whether it has the statutory

and constitutional power to hear plaintiffs’ case by addressing

two issues. First, the court will examine plaintiffs’ statutory

right to bring suit in this Court under 28 U.S.C. § 1581.

Second, it will determine if the Governments of Canada have

standing under Article III of the United States Constitution.

“In the absence of Article III standing, a court lacks

jurisdiction.” Samsung Elecs. Co. v. Rambus, Inc., 523 F.3d

1374, 1378 (Fed. Cir. 2008) (citation omitted).

A. Subject Matter Jurisdiction

Plaintiffs claim that the court may hear this case under

this Court’s residual provision of jurisdiction set forth in 28

U.S.C. § 1581(i). See CWB Br. 8; Can. Br. 7. The important
Consol. Court No. 07-00058 Page 12

caveat to finding jurisdiction under this provision is that

“[s]ection 1581(i) jurisdiction may not be invoked when

jurisdiction under another subsection of § 1581 is or could have

been available, unless the remedy provided under that other

subsection would be manifestly inadequate.” Miller & Co. v.

United States, 824 F.2d 961, 963 (Fed. Cir. 1987) (citations

omitted). In keeping with this caveat, the court must address

defendant’s contention that plaintiffs are precluded from

litigating this action under 28 U.S.C. § 1581(i)(4) because

jurisdiction to hear their claims was available under 28 U.S.C.

§ 1581(c). That subsection grants this Court exclusive

jurisdiction over final reviewable determinations listed in 19

U.S.C. § 1516a (governing judicial review of countervailing duty

and antidumping duty administrative proceedings).

1. Notice of Revocation and Reviewability Pursuant to
19 U.S.C. § 1516a

Defendant claims that the Notice of Revocation constitutes a

reviewable determination under 19 U.S.C. § 1516a and thus

judicial review was available pursuant to 28 U.S.C. § 1581(c).

For their part, plaintiffs insist that the Notice of Revocation

does not contain a reviewable final determination under 19 U.S.C.

§ 1516a and thus its review lies outside the Court’s 28 U.S.C.
Consol. Court No. 07-00058 Page 13

§ 1581(c) jurisdiction.6 While plaintiffs acknowledge that the

Notice of Revocation contains a legal conclusion, they maintain

that the notice did not announce a final determination within the

meaning of 19 U.S.C. § 1516a. See Can. Br. 14-18.

In making their arguments, plaintiffs state that they “seek

to correct Commerce’s unlawful failure to implement the ITC’s

negative remand determination, which, once affirmed by the

binational panel, necessarily required Commerce to revoke the

AD/CVD orders that now had no legal basis . . . .” Reply Pl.

Gov’t Canada and Pl.-Ints. Canadian Provincial Gov’ts (“Can.

Reply Br.”) 8. Further, plaintiffs assert that, because the

Notice of Revocation reflects Commerce’s administration and

enforcement of the antidumping and countervailing duty laws, its

review falls squarely within this Court’s 28 U.S.C. § 1581(i)(4)

jurisdiction. See Can. Br. 11-14 (stating that Commerce’s

“actions or failures to act [by not revoking the AD/CVD Orders ab

initio and not refunding paid cash deposits] are quintessentially

6
For defendant, the Notice of Revocation falls within the
terms of 19 U.S.C. § 1516a(a)(2)(B)(i), which provides for
judicial review of:

[f]inal affirmative determinations by the
administering authority and by the Commission
under section 1671d [final determinations
regarding countervailable subsidies] or 1673d
[final determinations regarding sales at less
than fair value] of this title, including any
negative part of such a determination . . . .

19 U.S.C. § 1516a(a)(2)(B)(i); see also Def.’s Br. 5.
Consol. Court No. 07-00058 Page 14

a part of Commerce’s administration and enforcement of the AD/CVD

laws”).

As noted, defendant’s primary objection to plaintiffs’

assertion of § 1581(i) jurisdiction is that the “[p]laintiffs

could have challenged the Notice of Revocation under 28 U.S.C.

§ 1581(c) . . . .” Def.’s Br. 4. Underlying defendant’s

position is its contention that the Notice of Revocation is a

reviewable determination under 19 U.S.C. § 1516a(a)(2)(B)(i), and

therefore judicial review of the notice was available at the time

of its issuance. See Def.’s Br. 5. Thus, defendant asserts that

the exercise of jurisdiction under 28 U.S.C. § 1581(i) is

prohibited because plaintiffs could have obtained the same remedy

they now seek had they proceeded earlier under 28 U.S.C.

§ 1581(c). See Def.’s Br. 4-5 (citing Int’l Custom Prods., Inc.

v. United States, 467 F.3d 1324, 1327 (Fed. Cir. 2006)).

Specifically, defendant states that, in issuing the Notice

of Revocation:

. . . Commerce reapplied the antidumping duty
statutes with respect to the issuance of
antidumping duty orders and concluded that
the orders should be revoked only
prospectively. In essence, Commerce amended
its determinations in the investigations,
which pursuant to [Freeport Minerals Co. v.
United States, 758 F.2d 629 (Fed. Cir.
1985)],7 were reviewable pursuant to 19

7
As support for its position, defendant relies on the
Federal Circuit’s decision in Freeport Minerals Co. v. United
(continued...)
Consol. Court No. 07-00058 Page 15

U.S.C. § 1516a and 28 U.S.C. § 1581(c).

Def.’s Br. 7.

In keeping with this argument, defendant further asserts

that plaintiffs untimely commenced their action. Def.’s Br. 5.

According to defendant:

Plaintiffs are impermissibly attempting [to]
bring claims that they could have brought
pursuant to 28 U.S.C. § 1581(c) [more than a
year ago], when the Notice of Revocation was
issued. Such claims are untimely pursuant to
19 U.S.C. § 1516a(a)(2)(A), and plaintiffs
may not circumvent that statutory bar by

7
(...continued)
States, 758 F.2d 629 (Fed. Cir. 1985) (“Freeport Minerals”).
Although it recognizes that in granting CWB’s motion for a
preliminary injunction this court held that Freeport Minerals
“was not controlling here,” defendant insists that the case is
binding precedent because both it and this case “involve
challenges to notices of revocation that were issued in response
to final remand determinations that were sustained by a NAFTA
panel and this Court respectively.” See Def.’s Br. 7-8.

The court again finds defendant’s reliance on Freeport
Minerals misplaced. The controversy here involves a legal
conclusion found in the Notice of Revocation, but not contained
in Commerce’s final determination. In Freeport Minerals, on the
other hand, the revocation notice did not state any new legal
conclusions, but merely announced the results of a final
determination. Such final determinations are indeed reviewable
under 19 U.S.C. § 1516a. As in Tembec, Inc. v. United States, 30
CIT __, __, 441 F. Supp. 2d 1302, 1316 n.19 (2006) (“Tembec I”),
defendant misstates the matter to be reviewed. Here, the matter
is the validity of the administration and enforcement of a final
determination, not the validity of the final determination
itself. See id. at , 441 F. Supp. 2d at 1318 (“Plaintiffs have
brought a challenge to the administration and enforcement of a
determination, not to the validity of the determination itself.
Consequently, the availability of a remedy under § 1581(c) as to
the underlying determination does not bar suit under
§ 1581(i).”). Thus, the court again finds that the teaching of
Freeport Minerals does not apply.
Consol. Court No. 07-00058 Page 16

attempting to invoke the Court’s jurisdiction
pursuant to section 1581(i).

Def.’s Br. 5.8 Thus, defendant insists that, because plaintiffs

waited more than a year from the publication of the Notice of

Revocation to sue, their claims are barred by the statute of

limitations applicable to determinations reviewable under 19

U.S.C. § 1516a. See Def.’s Br. 5.

The court finds that the Notice of Revocation was not a

reviewable final determination under 19 U.S.C. § 1516a and, as a

result, plaintiffs had no remedy available to them under 28

U.S.C. § 1581(c). First, while the Department may have had

8
Pursuant to 19 U.S.C. § 1516a(a)(2)(A):

Within thirty days after--

(i) the date of publication in the
Federal Register of . . .

(II) an antidumping or
countervailing duty order
based upon any
determination described
in clause (i) of
subparagraph (B) . . .

an interested party who is a party to the
proceeding in connection with which the
matter arises may commence an action in the
United States Court of International Trade by
filing a summons, and within thirty days
thereafter a complaint, each with the content
and in the form, manner, and style prescribed
by the rules of that court, contesting any
factual findings or legal conclusions upon
which the determination is based.

19 U.S.C. § 1516a(a)(2)(A).
Consol. Court No. 07-00058 Page 17

internal discussions regarding the contents of the Notice of

Revocation, its legal conclusion that the revocation of the

orders should be prospective only, was reached without notice,

public hearings or briefing by the parties, and was outside of

the reviewable determinations found in 19 U.S.C. § 1516a. In

other words, the Notice of Revocation “was not made during any

proceeding that would culminate in a determination for which

judicial review is provided under 19 U.S.C. § 1516a and 28 U.S.C.

§ 1581(c).” Ceramica Regiomontana, S.A. v. United States, 5 CIT

23, 26, 557 F. Supp. 596, 600 (1983) (emphasis in original); see

also Consol. Fibers, Inc. v. United States, 30 CIT , , 465 F.

Supp. 2d 1338, 1341 (2006) (finding no jurisdiction under 28

U.S.C. § 1581(c) to hear plaintiff’s claim challenging ITC’s

denial of their request for reconsideration of ITC final

determination and stating that “[h]ad the Commission commenced a

reconsideration proceeding, then the resulting reconsideration

determination would have been reviewable under 28 U.S.C.

§ 1581(c). . .”). Furthermore, the statutory provisions for

antidumping duty and countervailing duty investigations (as

distinct from those for reviews) do not contain provisions for

revocation of unfair trade orders, let alone a statutory

directive to determine the effective date of the revocation. See

19 U.S.C. §§ 1671, 1673; see also Parkdale Int’l Ltd. v. United

States, 32 CIT __, __, Slip Op. 08-111 at 17-18 (Oct. 20, 2008).
Consol. Court No. 07-00058 Page 18

Morever, the court finds without merit defendant’s

contention that Commerce “reapplied the antidumping statutes with

respect to the issuance of antidumping duty orders and concluded

that the orders should be revoked only prospectively,” thus

making the Notice of Revocation a final determination reviewable

under § 1516a. Def.’s Br. 7. In making this argument, defendant

claims that, because Commerce revoked the AD/CVD Orders for all

entries made on or after January 2, 2006, and reaffirmed the

orders’ application to all other entries, it “amended its

determinations in the investigations” and therefore the Notice of

Revocation is a reviewable determination as defined by 19 U.S.C.

§ 1516a(a)(2)(B)(i). See Def.’s Br. 5-7.

Under 19 U.S.C. § 1516a(a)(2)(B), this Court may review

final affirmative and negative determinations made by Commerce

regarding countervailable subsidies or sales at less than fair

value. See 19 U.S.C. § 1516a(a)(2)(B). Here, defendant is

essentially claiming that the Notice of Revocation was a final

affirmative determination to the extent that it reasserted the

legal effect of the affirmative determinations in the AD/CVD

Orders with respect to entries made prior to January 2, 2006, and

was a negative determination with respect to subject entries made

after that date. In other words, defendant claims that the

Notice of Revocation contains both a final affirmative and a

final negative determination.
Consol. Court No. 07-00058 Page 19

Defendant’s contentions are impossible to credit. In Norsk

Hydro Canada, Inc. v. United States, 472 F.3d 1347, 1355 (Fed.

Cir. 2006), the Federal Circuit instructed this Court to “look to

the true nature of [an] action.” (internal quotations and

citation omitted). Here, the true nature of plaintiffs’ case can

be seen by examining what it is not. That is, it is not a case

“contesting any factual findings or legal conclusions” contained

in the final determinations of either the ITC or Commerce

following their investigations. 19 U.S.C. § 1516a(a)(1).

Indeed, these determinations contained findings and conclusions

of the sort one would expect: (1) for Commerce, relating to

subsidization and dumping, and (2) for the ITC, relating to

injury. The Notice of Revocation touched on none of these

matters. It contained no factual findings, and its only legal

conclusions related to the date of revocation.

Moreover, as the prevailing parties, plaintiffs had no

dispute with the ITC’s final negative determination that resulted

in the Notice of Revocation, and thus had no reason to appeal

that determination. That being the case, the teaching of

Consolidated Bearings Co. v. United States, 348 F.3d 997 (Fed.

Cir. 2003) (“Consolidated Bearings”), is useful.

In Consolidated Bearings, an importer challenged Commerce’s

liquidation instructions to Customs, seeking to compel the

application of the antidumping duty rates from the Department’s
Consol. Court No. 07-00058 Page 20

final determination to their merchandise. The Federal Circuit

confirmed jurisdiction under 28 U.S.C. § 1581(i) after finding

that “Consolidated [did] not object to the final results. Rather

Consolidated [sought] application of those final results to its

entries . . . .” Consol. Bearings, 348 F.3d at 1002. The

Federal Circuit based its holding on its conclusion that the

plaintiff’s “case involve[d] a challenge to [Commerce’s] 1998

instructions, which is not an action defined under [19 U.S.C.

§ 1516a].” Id. The Consolidated Bearings Court further found

that “[b]ecause Consolidated [was] not challenging the final

results, [28 U.S.C. § 1581(c)] is not and could not have been a

source of jurisdiction for this case.” Id. After concluding

that jurisdiction did not lie pursuant to § 1581(c), the Federal

Circuit held the case to be “squarely within the provisions of

subsection (i).” Id. Specifically, the Court observed that

“Commerce’s liquidation instructions direct Customs to implement

the final results of administrative reviews. Consequently, an

action challenging Commerce’s liquidation instructions is not a

challenge to the final results, but a challenge to the

‘administration and enforcement’ of those final results.” Id.

Likewise, the Federal Circuit found in Shinyei Corporation

of America v. United States, 355 F.3d 1297 (Fed. Cir. 2004), that

Commerce’s liquidation instructions were reviewable under 28

U.S.C. § 1581(i)(4):
Consol. Court No. 07-00058 Page 21

As we have recently held, a challenge to
Commerce instructions on the ground that they
do not correctly implement the published,
amended administrative review results, “is
not an action defined under [19 U.S.C.
§ 1516a] of the Tariff Act.” [19 U.S.C.
§ 1516a] is limited on its face to the
judicial review of “determinations” in
countervailing duty and antidumping duty
proceedings.

Id. at 1309 (quoting Consol. Bearings, 348 F.3d at 1002); see

also Shinyei Corp. of Am. v. United States, 524 F.3d 1274, 1277

(2008) (“If an importer believes that the liquidation

instructions issued by Commerce to Customs do not correctly

reflect the final determination, the importer may challenge those

instructions in the Court of International Trade under the

[APA] . . . .”).

Finally, the recent case of American Signature, Inc. v.

United States, No. 2007-1216 (Fed. Cir. Nov. 30, 2007) (not

reported in the Federal Reporter), available at 2007 WL 4224210

(“American Signature”), is persuasive. That case involved an

antidumping investigation in which Commerce amended the dumping

margin several times during the course of its investigation.

Each time the dumping margin was changed, Commerce instructed

that the deposit rates be changed. See id. at *1-2.

Following the issuance of its final results, Commerce issued

liquidation instructions directing “Customs to assess duties at

the cash deposit rates in effect at the time of entry.” Id.
Consol. Court No. 07-00058 Page 22

As a result, for entries between the date of
the preliminary determination and the amended
preliminary determination, and for entries
between the date of the final determination
and the amended final determination, duties
were assessed at the cash deposit rates
erroneously calculated by Commerce. In
short, although Commerce admitted errors in
its calculated dumping margins, it did not
correct for the overpayment of cash deposits
when it issued liquidation instructions.

Id. at 2-3. The plaintiff in American Signature sued to have

Commerce’s liquidation instructions “retroactively apply the

reduced margin rates . . . .” Id.

As in this case, the government argued that “the true nature

of [the plaintiff’s] claim is a challenge to Commerce’s

underlying final determination, not the liquidation instructions

. . . .” Id. at *2. “According to the government, [the

plaintiff’s] claim should have been brought under 28 U.S.C.

§ 1581(c)” and therefore the government maintained that the

plaintiff’s case was time barred and should be dismissed for lack

of jurisdiction. See id.

The American Signature Court held: “The mere fact that

Commerce addressed the implementation of antidumping rates in its

final determination does not make the implementation itself a

reviewable determination under § 1516(a). The true nature of

[plaintiff’s] claim remains a challenge to Commerce’s liquidation

instructions.” Id. Thus, citing Consolidated Bearings, the

Federal Circuit found that this Court had jurisdiction to hear
Consol. Court No. 07-00058 Page 23

the plaintiff’s claim under § 1581(i). See id. (citation

omitted).

The case law from the Federal Circuit, therefore, confirms

that the Notice of Revocation is not a reviewable determination

within the meaning of 19 U.S.C. § 1516a and thus plaintiffs’

challenge to its contents could not be heard by this Court

pursuant to 28 U.S.C. § 1581(c). That is, the publication of the

date of revocation is no more part of Commerce’s final

determination than are its liquidation instructions. Thus, if a

legal conclusion, found in liquidation instructions based on

Commerce’s own final determination, is reviewable under 28 U.S.C.

§ 1581(i), then a legal conclusion found in the Notice of

Revocation resulting from a negative ITC final determination is

as well. This is because the “true nature” of plaintiffs’ case

is a challenge to the administration and enforcement of a final

determination——not a challenge to the determination itself.

Accordingly, the court finds that the Notice of Revocation

implemented the ITC’s final determination that domestic wheat

producers were not injured or threatened with injury by imports

of Canadian HRS wheat. As a result, although containing a legal

conclusion with respect to the prospective application of the

revocation, the Notice of Revocation is not a final affirmative

determination subject to judicial review under 19 U.S.C.

§ 1516a(a)(B)(i) and 28 U.S.C. § 1581(c).
Consol. Court No. 07-00058 Page 24

2. Choice of Forum and its Impact on Jurisdiction

The court now turns to the question of whether plaintiffs’

decision to challenge the original ITC affirmative injury

determination before a NAFTA panel rather than in this Court

precludes jurisdiction here. Defendant asserts that § 1581(i)

jurisdiction is unavailable because: (1) plaintiffs could have

proceeded in this Court under § 1581(c), and (2) the NAFTA

Implementation Act bars enforcement of NAFTA panel decisions in

the Court of International Trade. See Def.’s Br. 11-12.

First, defendant insists that plaintiffs could “have

obtained an adequate remedy by challenging the ITC’s original

2003 determination in this Court pursuant to section 1581(c) . .

. section 1581(i) jurisdiction is unavailable . . . .” Def.’s

Br. 8. Put another way, defendant maintains that, by choosing to

appeal the Commission’s original affirmative injury determination

to a NAFTA panel, plaintiffs are now “foreclosed from seeking

relief from the Court, pursuant to 28 U.S.C. § 1581(i), to

enforce the NAFTA panel decision or to obtain relief that they

might have obtained had they elected to proceed in this Court in

the first place.” Def.’s Br. 8.

Defendant makes this argument while recognizing that

similar reasoning was found wanting by this Court in Tembec, Inc.

v. United States, 30 CIT __, 441 F. Supp. 2d 1302 (2006) (“Tembec
Consol. Court No. 07-00058 Page 25

I”).9 The Tembec I Court found that plaintiffs’ appeal of a

final determination to a NAFTA panel did not preclude the

exercise of jurisdiction by this Court to hear a separate cause

of action challenging to the United States Trade Representative’s

(“USTR”) actions to administer and enforce a separate ITC

affirmative injury determination under Section 129 of the Uruguay

Round Agreements Act (“Section 129”).10 That is, although the

9
In support of its contention that the Tembec I rationale
with respect to jurisdiction no longer applies, defendant cites
the Federal Circuit’s decision in International Custom Products,
Inc. v. United States, 467 F.3d 1324 (Fed. Cir. 2006) (“ICP”).
In Commerce’s view, the Tembec I Court incorrectly focused on the
nature of plaintiffs’ claims instead of examining the remedies
available under the other subsections of section 1581. Here,
Commerce maintains that the Federal Circuit’s holding in ICP
precludes the exercise of jurisdiction under 28 U.S.C. § 1581(i)
because “[r]elief was ‘otherwise available,’ but plaintiffs
simply elected not to pursue such relief.” Def.’s Br. 9.
Commerce further asserts that here, when determining the
propriety of exercising jurisdiction under 28 U.S.C. § 1581(i),
the court must, in accordance with ICP, “focus upon the remedies
available and upon the fact that plaintiffs could have received
the same remedy that they seek here, had they originally
challenged the ITC’s 2003 injury determination,” in this court.
See Def.’s Br. 10-11.

The court finds nothing in ICP requiring it to abandon the
reasoning in Tembec I. The Tembec I Court found that a party’s
decision to challenge, before a NAFTA panel, the substance of a
final determination made pursuant to § 1516a does not preclude it
from contesting the administration and enforcement of a separate
Section 129 determination in this Court. Indeed, as has been
previously noted, plaintiffs’ challenge is to a legal conclusion
found in the Notice of Revocation, which is not a final
determination within the meaning of 19 U.S.C. § 1516a.
10
The enforcement mechanism at issue was Section 129 of
the Uruguay Round Agreements, which has been described as
follows:
(continued...)
Consol. Court No. 07-00058 Page 26

Section 129 determination itself was subject to judicial review

under 28 U.S.C. § 1581(c), plaintiffs’ separate cause of action

arose under § 1581(i) because it concerned the administration and

enforcement of the Section 129 determination, rather than the

substance of that determination. Tembec I, 30 CIT at __, 441 F.

Supp. 2d at 1315-17 (“[T]he availability of a remedy under §

1581(c) as to the underlying determination does not bar suit

under § 1581(i).”).

The Tembec I Court acknowledged the general rule reiterated

by the Federal Circuit in International Custom Products, Inc. v.

United States, 467 F.3d 1324, 1327 (Fed. Cir. 2006), that

“section 1581(i) jurisdiction may not be invoked when

jurisdiction under another subsection of § 1581 is or could have

10
(...continued)
Section 129 of the Uruguay Round Agreements
Act, 19 U.S.C. § 3538 (2006), provides the
USTR with mechanisms to respond to adverse
WTO panel decisions regarding ITC injury
determinations, Commerce duty orders, and the
like. It includes the ability to ask the ITC
(under § 129(a)(1)) or Commerce, under
§ 129(b)(1) to decide whether anything can be
done compatible with U.S. law to make the
subject determination consistent with the WTO
panel decision. Id. § 3538(a)(1), (b)(2).
If so, the USTR may ask the ITC (under
§ 129(a)(4)) or Commerce (under § 129(b)(2))
to issue a determination to that effect. Id.
§ 3538(a)(4), (b)(2).

Jeanne E. Davidson and Zachary D. Hale, Developments During 2006
Concerning 28 U.S.C. § 1581(i), 39 Geo. J. Int’l. L. 127, 145 n.
108 (2007).
Consol. Court No. 07-00058 Page 27

been available, unless the remedy provided under that other

subsection would be manifestly inadequate.” Tembec I, 30 CIT at

__, 441 F. Supp. 2d at 1317 (quotations, citations and alteration

omitted). Nonetheless, the Tembec I Court held that “[t]his

constraint does not mean . . . that Plaintiffs must forgo their

right to NAFTA panel review of the substance of [an ITC

determination] in order to seek review of a completely separate

action taken to administer and enforce [a Section 129

determination].” Id. at , 441 F. Supp. 2d at 1317.

In keeping with the holding in Tembec I, the court finds

that a party may appeal a determination to a NAFTA panel without

forfeiting its right to have heard in this Court a separate cause

of action concerning the administration and enforcement of agency

actions implementing that determination. As noted, the court has

found that plaintiffs are not challenging a final determination

within the meaning of § 1516a. Therefore, the court holds that

plaintiffs’ challenge to the ITC’s original affirmative injury

determination before a NAFTA panel did not oust this Court of

jurisdiction to entertain their separate cause of action

challenging Commerce’s legal conclusion found in the Notice of

Revocation under § 1581(i).

In like manner, the court finds without merit defendant’s

argument that the NAFTA Implementation Act bars enforcement of

NAFTA panel decisions in the courts of the United States. See
Consol. Court No. 07-00058 Page 28

Def.’s Br. 11-12. According to defendant, plaintiffs cannot

elect to present their substantive case to a NAFTA panel but then

ask this Court to review the panel’s decision.11 Def.’s Br. 11.

What defendant fails to recognize is that plaintiffs are not

seeking a review of the NAFTA panel’s decision. Rather, the

“true nature” of plaintiffs’ claim is an APA cause of action

challenging Commerce’s legal conclusion found in the Notice of

Revocation. Thus, plaintiffs are not seeking review of the ITC’s

action or the NAFTA panel’s action (nor would they wish to as the

prevailing parties), but rather they challenge Commerce’s failure

to implement the ITC’s negative remand determination. See Tembec

I, 30 CIT at __, 411 F. Supp. 2d at 1318 (reasoning that NAFTA

Implementation Act provisions are “irrelevant . . . because

Plaintiffs’ claims do not arise from the NAFTA.”); see also

Canadian Lumber Trade Alliance v. United States, 517 F.3d 1319,

1336 (2008), cert. denied, 2008 WL 4454382 (U.S. Oct. 6, 2008)

11
To support this argument, defendant cites to 19 U.S.C.
§ 1516a(g)(7)(A), which provides:

Any action taken by the administering
authority or the Commission under this
paragraph [concerning actions on remand from
NAFTA binational panels] shall not be subject
to judicial review, and no court of the
United States shall have power or
jurisdiction to review such action on any
question of law or fact by an action in the
nature of mandamus or otherwise.

See Def.’s Br. 11 (citations omitted).
Consol. Court No. 07-00058 Page 29

(No. 07-1470) (noting that election only bars a plaintiff from

proceeding “on the same claim” in two different fora) (citation

omitted).

Therefore, the court finds that defendant’s arguments do not

present a bar to jurisdiction over plaintiffs’ claim pursuant to

28 U.S.C. § 1581(i)(4). See 28 U.S.C. § 1581(i)(4).

B. The Governments of Canada Lack Standing Under Article
III of the Constitution

Having held that this Court has jurisdiction over

plaintiffs’ claims, the next question is whether the Governments

of Canada have standing under Article III of the Constitution.

Article III limits the jurisdiction of the federal courts to the

resolution of “cases” and “controversies.” U.S. Const. art. III,

§ 2, cl. 1; see DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342

(2006).

It is worth noting at the outset that defendant only

disputes the standing of the Canadian Federal Government——not the

Provincial Governments.12 Nevertheless, standing is an essential

element of plaintiffs’ case, and the court is obligated to ensure

that both the Canadian Federal and Provincial Governments have

standing. See United States v. Hays, 515 U.S. 737, 742 (1995)

(“The federal courts are under an independent obligation to

12
Defendant likewise does not challenge CWB’s standing.
Because CWB’s entries are at issue here, however, CWB’s standing
as a proper party to bring suit is apparent.
Consol. Court No. 07-00058 Page 30

examine their own jurisdiction, and standing ‘is perhaps the most

important of [the jurisdictional] doctrines.’”) (quoting FW/PBS,

Inc. v. Dallas, 493 U.S. 215, 230-231 (1990) (citations

omitted)).

The Governments of Canada have the burden of proof on

standing because they are the parties seeking to invoke the

court’s jurisdiction. See Lujan v. Defenders of Wildlife, 504

U.S. 555, 560-61 (1992); Int’l Labor Rights Fund v. United

States, 29 CIT 1050, 1053, 391 F. Supp. 2d 1370, 1373 (2005)

(“The question of standing involves the determination of whether

a particular litigant is entitled to invoke the jurisdiction of

the federal court in order to decide the merits of a dispute or

of particular issues.”) (citation omitted).

“The standing inquiry focuses on whether the plaintiff is

the proper party to bring this suit . . . .” Raines v. Byrd, 521

U.S. 811, 818 (1997) (citation omitted). In other words, the

question is whether the Governments of Canada have “a direct

enough interest” in the case’s outcome. See David D. Siegal, New

York Practice 1089 (4th ed. 2005). The Federal Circuit, in

Canadian Lumber Trade Alliance v. United States, 517 F.3d 1319,

1331 (2008), cert. denied, 2008 WL 4454382 (U.S. Oct. 6, 2008)

(No. 07-1470) (“Canadian Lumber”), recently set forth the proper

Article III standing analysis:

[T]he irreducible constitutional minimum of
Consol. Court No. 07-00058 Page 31

standing contains three elements. First, the
plaintiff must have suffered an “injury in
fact”-an invasion of a legally protected
interest which is (a) concrete and
particularized, and (b) actual or imminent,
not “conjectural” or “hypothetical.” Second,
there must be a causal connection between the
injury and the conduct complained of-the
injury has to be “fairly . . . trace[able] to
the challenged action of the defendant, and
not . . . the result [of] the independent
action of some third party not before the
court.” Third, it must be “likely,” as
opposed to merely “speculative,” that the
injury will be “redressed by a favorable
decision.”

(quoting Lujan, 504 U.S. at 560-61 (citations omitted and

emphasis added)). Canadian Lumber also involved Canadian goods,

Canadian producers, and the Canadian Federal Government. In that

case, the Federal Circuit made clear that the Federal Government

of Canada must “demonstrate[] an injury-in-fact independent of

injury to the Canadian Producers . . . .” Canadian Lumber, 517

F.3d at 1338 (emphasis added). Ultimately, the Federal Circuit

found that the Federal Government of Canada did not have

standing. See id.

In this case, defendant’s primary argument is that “Canada

has not plead, nor could it establish standing upon the basis

that there is a likelihood of future harm or that a redressable

injury would stem[] from liquidation of a Canadian exporter’s

entries of wheat.” Reply Supp. Def.’s Mot. Dismiss and Resp.

Pls.’ Mots. (“Def.’s Reply Br.”) 17. The court agrees with

defendant and finds that, because the Governments of Canada have
Consol. Court No. 07-00058 Page 32

failed to meet the “injury-in-fact” test, they do not have

Article III standing in this case.

In reaching this conclusion, the court is mindful of

plaintiffs’ argument that CWB and the Federal Government of

Canada have a close business relationship. See Issues and

Decision Memorandum for the Final Countervailing Duty

Determinations of the Investigations of Certain Durum Wheat and

HRS Wheat from Canada (Dep’t of Commerce Aug. 28, 2003),

available at 2003 WL 24153856, at *2-11 (the “I&D Memo”). CWB is

a “shared governance” corporation in which five of the fifteen

seats on CWB’s board of directors are appointed by a federal

official. Id. In addition, the Federal Government of Canada

approves CWB’s incurrence of indebtedness, guarantees borrowing

by CWB, and guarantees certain credit offered by CWB to wheat

purchasers.

What is not present in these arrangements, however, is any

clear showing that the Federal Governemnt of Canada would suffer

a separate “injury-in-fact” if CWB’s deposits were not returned.

In other words, the Federal Government of Canada is analogous to

a business associate or guarantor who might suffer if its

associate or principal does not prosper, but whose stake in a

case is not enough to bring suit on its own. See Russell v.

Financial Capital Equities, 158 Fed. Appx. 953, 955-56 (10th Cir.

2005) (not published in the Federal Reporter) (holding that a
Consol. Court No. 07-00058 Page 33

business partner lacked a “concrete and particularized interest”

in his partner’s acquisition of debt and therefore did not have

standing to bring suit claiming that loans made to his partner

violated federal law); Quarles v. City of East Cleveland, 202

F.3d 269 (table), 1999 WL 1336112 at *4 (6th Cir. 1999) (“[I]n

order to obtain standing to assert a claim, a guarantor’s injury

must not stem from the harm done to the corporation. Instead,

any redressable injury must flow from individualized harm done to

the plaintiff, separate from any claims that the corporation may

assert.”); Frierdich v. United States, 985 F.2d 379, 382 (7th

Cir. 1993) (holding that a guarantor of a taxpayer’s debt had an

interest that was too remote to confer standing to challenge a

levy on the taxpayer’s property and reasoning that a creditor

does not have “the kind of stake that has ever been thought to

entitle him to act as if he owned the property”). Any injury

that the Federal Government of Canada might suffer, therefore, is

simply too conjectural to constitute “an injury-in-fact

independent of injury to the Canadian Producers,” as is required

by Canadian Lumber. See Canadian Lumber, 517 F.3d at 1338.

Thus, the court finds that the Canadian Federal Government has

not met the injury-in-fact standard for purposes of Article III

standing.

The Governments of Canada, collectively, further allege

that Commerce’s failure to refund deposits to CWB “reduces
Consol. Court No. 07-00058 Page 34

farmers’ incomes and results in damage to [both] Canada’s and the

Provinces’ tax revenues and economies.” See Can. Br. 33. Again,

these claims are simply too conjectural and hypothetical to

provide Article III standing. The court is aware that cases have

suggested otherwise, including this Court’s decision in Tembec I.

See 30 CIT at __, 441 F. Supp. 2d at 1313-14 (citing Mount Evans

Co. v. Madigan, 14 F.3d 1444, 1451-52 (10th Cir.1994). Tembec I,

however, was decided before Canadian Lumber, and here, as in that

case, the Federal and Provincial Governments of Canada do “not

explain what benefit [they have] been deprived of - i.e., what

injury [they have] suffered.” See Canadian Lumber, 517 F.3d at

1338; Clinton v. City of New York, 524 U.S. 417, 459 (1998)

(reasoning that “conjectural or hypothetical injuries do not

suffice for Article III standing”) (citation omitted).

In order to establish Article III standing, the Governments

of Canada would have to establish an injury-in-fact such that

they could bring suit on their own——without CWB’s involvement.

See Hui Yu v. U.S. Dep’t of Homeland Sec., 568 F. Supp. 2d 231,

234 (D. Conn. 2008) (“A plaintiff can only assert his own

rights.”) (citing Warth v. Seldin, 422 U.S. 490, 499 (1975)).

They have not done so here. See Bennett v. Spear, 520 U.S. 154,

166 (1997) (stating that an “injury in fact” for purposes of

Article III standing must involve “an invasion of a judicially

cognizable interest which is (a) concrete and particularized and
Consol. Court No. 07-00058 Page 35

(b) actual or imminent, not conjectural”); McKinney v. U.S. Dept.

of Treasury, 799 F.2d 1544, 1550 (Fed. Cir. 1986) (“‘[A]bstract,’

‘conjectural,’ or ‘hypothetical’ injury is insufficient to meet

the Article III requirement for injury. . . . Nor is an interest

in a problem, no matter how longstanding the interest or how

qualified the litigant in matters relating to the problem,

sufficient to satisfy the injury requirement.”) (quotations and

citations omitted). Thus, while the Governments of Canada have

some interest in this case, they “[are] not entitled to special

solicitude that would temper the injury-in-fact requirement.”

See Canadian Lumber, 517 F.3d at 1338.

Accordingly, the claims of the Governments of Canada are

dismissed for lack of standing.13

II. Prospective Revocation of AD/CVD Orders

Having established jurisdiction, the court turns to the

merits of this action. CWB’s substantive case involves the

question of whether the United States may lawfully retain cash

13
Given the court’s dismissal of the Governments of
Canada’s complaints on standing grounds, it need not address
defendant’s claim that the United States has not waived its
sovereign immunity here. Nevertheless, it is apparent that,
jurisdiction having been established under § 1581, sovereign
immunity has been waived. See Humane Soc’y of the U.S. v.
Clinton, 236 F.3d 1320, 1328 (Fed. Cir. 2001) (“[Section] 1581
not only states the jurisdictional grant to the Court of
International Trade, but also provides a waiver of sovereign
immunity over the specified classes of cases.”).
Consol. Court No. 07-00058 Page 36

deposits paid on its entries of HRS wheat even though the injury

determination underlying the AD/CVD Order has been wholly

invalidated. The parties agree that the resolution of this issue

hinges on the interpretation and application of 19 U.S.C.

§§ 1516a(g)(5)(B) and (C). Section 1516a(g)(5)(B) contains the

general rule for the liquidation of pre-Timken Notice entries and

provides:

In the case of a determination for which
binational panel review is requested pursuant
to article 1904 of the NAFTA or of the
Agreement, entries of merchandise covered by
such determination shall be liquidated in
accordance with the determination of the
administering authority or the Commission, if
they are entered, or withdrawn from
warehouse, for consumption on or before the
date of publication in the Federal Register
by the administering authority of [the
Timken] notice of a final decision of a
binational panel, or of an extraordinary
challenge committee, not in harmony with that
determination. Such notice of a decision
shall be published within 10 days of the date
of the issuance of the panel or committee
decision.

19 U.S.C. § 1516a(g)(5)(B). Section 1516a(g)(5)(C), however,

entitled “Suspension of liquidation,” contains an exception to

the general rule. This provision states:

Notwithstanding the provisions of
subparagraph (B), in the case of a
determination described in clause (iii)
[administrative review] or (vi) [scope
ruling] of subsection (a)(2)(B) of this
section for which binational panel review is
requested pursuant to article 1904 of the
NAFTA or of the Agreement, the administering
Consol. Court No. 07-00058 Page 37

authority, upon request of an interested
party who was a party to the proceeding in
connection with which the matter arises and
who is a participant in the binational panel
review, shall order the continued suspension
of liquidation of those entries of
merchandise covered by the determination that
are involved in the review pending the final
disposition of the review.

19 U.S.C. § 1516a(g)(5)(C)(i).

For defendant, the language of § 1516a(g)(5)(B) applies here

and therefore, all of CWB’s entries made prior to the publication

of the Timken Notice are to be liquidated in accordance with the

deposit rates found in the AD/CVD Orders, even though the orders

have been revoked. See Def.’s Reply Br. 19-20. For CWB, the

exception found in § 1516a(g)(5)(C) applies and its entries were

preserved for liquidation without unfair trade duties following

revocation of the AD/CVD Orders. See CWB Br. 9-11.

In other words, CWB contends that its request for an

administrative review suspended liquidation of its merchandise

entered before publication of the Timken Notice. As a result,

CWB insists that all of its entries, whose liquidation was

suspended, must be liquidated at a rate of zero as a result of

the revocation of the AD/CVD Orders. Plaintiff relies on Tembec

II to support this position.

In Tembec II, this Court found that 19 U.S.C.

§ 1516a(g)(5)(B) was inapplicable to pre-Timken notice entries

when liquidation of those entries had been suspended. The Court
Consol. Court No. 07-00058 Page 38

held that, in those circumstances, 19 U.S.C. § 1516a(g)(5)(C)

controlled. See Tembec II, 30 CIT at , 461 F. Supp. 2d at 1367

(“Entries, the liquidation of which has been suspended, cannot,

then, be liquidated with AD/CV duties under these

conditions . . . . Rather, Congress provided for a suspension of

liquidation to keep entries available for liquidation in

accordance with law.”). Therefore, the Tembec II Court ordered

Commerce to instruct Customs to liquidate plaintiffs’ pre-Timken

notice entries without the imposition of unfair trade duties.

See id.

The court cannot discern a substantial difference between

the legal and factual issues presented in this case and those

faced by the Court in Tembec II. In each case, (1) the ITC made

an affirmative injury determination; (2) after an appeal to a

NAFTA panel, the ITC made a negative injury determination; (3)

liquidation of contested entries was suspended by request for

administrative review; and (4) the AD/CVD orders were revoked.

Therefore, the court will follow Tembec II and order that all of

CWB’s entries, whose liquidation has been suspended, be

liquidated in accordance with the ITC’s final negative

determination.

In assessing the parties’ arguments, and concluding that the

plaintiffs should prevail, the Tembec II Court reasoned that the

“continued” suspension of liquidation provided for in
Consol. Court No. 07-00058 Page 39

§ 1516a(g)(5)(C) “acts as the equivalent of an injunction against

liquidation and thus halts liquidation until the suspension

expires.” Id. at __, 461 F. Supp. 2d at 1360. In reaching its

conclusion, the Tembec II Court examined the legislative history

of 19 U.S.C. §§ 1516a(g)(5)(B) and (C). The Tembec II panel

concluded that the legislative history of these provisions

revealed “that they were enacted to achieve the goals of prompt

liquidation of uncontested entries and the ultimate liquidation

of contested entries in accordance with the final litigation

results.” Id. at __, 461 F. Supp. 2d at 1363. The Court

continued: “Viewed in the context of the law as it existed when

the subsections were drafted, it becomes apparent that

§ 1516a(g)(5)(B) operates more narrowly than Defendants argue,

and that the operation of § 1516a(g)(5)(C) is necessarily

broader.” Id. at __, 461 F. Supp. 2d at 1363.

Tembec II explains that §§ 1516a(g)(5)(B) and (C) “first

appeared in the United States-Canada Free-Trade Agreement

Implementation Act of 1988 (‘CAFTA’).” Id. at __, 461 F. Supp.

2d at 1363 (citing Pub.L. No. 100-449, 102 Stat. 1851 (1988)).

Further, the Court noted that CAFTA’s Statement of Administrative

Action (“US-CFTA SAA”) demonstrated that § 1516a(g) “was enacted

to reflect the law relating to appeals to [the United States

Court of International Trade] as it existed at that time:

‘Article 1904(15)(d) of the Agreement requires that the United
Consol. Court No. 07-00058 Page 40

States and Canada amend their respective laws in order to ensure

that existing procedures concerning the refund, with interest, of

duties operate to give effect to a final binational panel

decision.’” Tembec II, 30 CIT at __, 461 F. Supp. 2d at 1363

(quoting US-CFTA SAA at 265-66). In light of that language, the

Tembec II panel concluded that Congress wished to set up a system

in which appeals to both NAFTA binational panels and to this

Court “would result in the same relief with respect to refunds”

of cash deposits. See id. at __, 461 F. Supp. 2d at 1363.

The Court additionally looked to US-CFTA SAA’s explanation:

In order to enable a successful plaintiff to
reap the fruits of its victory . . . the
statute authorizes the CIT [United States
Court of International Trade] to enjoin the
liquidation of entries of merchandise covered
by certain types of challenged AD/CVD
determinations upon request for such relief
and a proper showing that the relief should
be granted under the circumstances. 19 U.S.C.
1516a(c)(2). Under existing caselaw,
injunctive relief is granted automatically
upon request in cases involving challenges to
AD/CVD determinations made during the
assessment stage of an AD/CVD proceeding.
Zenith Radio Corp. v. United States, 710 F.2d
806 (Fed. Cir. 1983). However, injunctive
relief is rarely, if ever, granted in cases
involving challenges to AD/CVD determinations
made during the initial investigation stage
of an AD/CVD proceeding. See, e.g., American
Spring Wire Corp. v. United States, 578 F.
Supp. 1405 (CIT 1984).

See id. at __, 461 F. Supp. 2d at 1363-64 (footnote omitted).

Accordingly, the Court reasoned that the subsections’ legislative
Consol. Court No. 07-00058 Page 41

history confirmed that Congress “intended subsections

1516a(g)(5)(B) and (C) to provide for the same liquidation

results when appeals were taken to a NAFTA panel, as when appeals

of final determinations were taken to this Court.” Id. at __,

461 F. Supp. 2d at 1364.

The Tembec II panel elaborated:

Because a NAFTA panel would have no equity
powers . . . the device used to achieve [the
same liquidation results when appeals were
taken either to a NAFTA panel or to this
Court] was an injunction-like suspension of
liquidation. Hence, because injunctions were
“rarely, if ever, granted” when appeals were
taken to this Court following final
determinations at the initial investigation
stage, i.e., the process leading to an AD/CVD
order, § 1516a(g)(5)(B) makes no provision
for a suspension of liquidation when such
final determinations are appealed to NAFTA
panels. On the other hand, because
injunctions were viewed by Congress as
automatic when requested following the appeal
of a periodic review to this Court,
§ 1516a(g)(5)(C) makes the “continued”
suspension of liquidation automatic when
these results are appealed to a NAFTA panel.

Id. at __, 461 F. Supp. 2d at 1364 (footnotes omitted). Thus,

the Tembec II panel concluded that the simultaneously enacted

§§ 1516a(g)(5)(B) and (C) were designed to “codify Congress’s

understanding of the law” at the time and that “[a]n examination

of contemporaneous judicial decisions . . . serve[s] to clarify

how they apply to the[se] facts . . . .” Id. at __, 461 F. Supp.

2d at 1364-65.
Consol. Court No. 07-00058 Page 42

Looking to caselaw at the time the statutes were enacted,

the Tembec II panel explained that “[w]hen the subsections were

drafted, there was no disagreement that if a periodic review were

requested and an injunction granted, all unliquidated merchandise

would be liquidated in accordance with the ultimate determination

of: (1) the appeal of the periodic review; or (2) the appeal of

the underlying AD duty order.” Id. at __, 461 F. Supp. 2d at

1365 (footnote omitted). To illustrate this point, Tembec II

cites Sonco Steel Tube Div., Ferrum, Inc. v. United States, 12

CIT 990, 993, 698 F. Supp. 927, 930 (1988) (“Apparently, there is

agreement that where requested annual reviews have not been

completed before a court decision finding an affirmative

antidumping determination invalid there is no basis for

liquidation with antidumping duties. Therefore, a court order

totally invalidating an [agency’s] original determination, which

order occurs in the midst of an annual review, will result in the

suspended entries being liquidated with no antidumping duties,

[even without an injunction and] even though they were entered

prior to the court’s decision.”). See also Asociacion Colombiana

de Exportadores de Flores v. United States, 916 F.2d 1571, 1577

(Fed. Cir. 1990) (“The flaw in the government’s argument is that

without a valid antidumping determination in the original order,

there can be no valid determination in a later annual review.”).

Tembec II explained:
Consol. Court No. 07-00058 Page 43

Once the first periodic review of an AD/CVD
order was completed, an appeal of the review
determination to this Court would result in
the entry of an injunction against
liquidation. This injunction would protect
unliquidated entries from premature
liquidation and ensure the victor the fruits
of its victory resulting from its appeals.
Under the facts of this case, there can be
little doubt that Congress intended that the
suspension of liquidation found in
§ 1516a(g)(5)(C), which substituted for a
court-ordered injunction, would serve to
prevent premature liquidation of pre-Timken
notice entries. While Defendants may
characterize this as retroactive relief, it
is the result that would have obtained upon
the entry of a court-ordered injunction at
the time §§ 1516a(g)(5)(B) and (C) were
enacted. It necessarily follows that
Congress, having intended parallel remedies,
intended that the suspension of liquidation
provided for in § 1516a(g)(5)(C) would
provide the same result following a NAFTA
panel decision, as would an injunction issued
by this Court.

Tembec II, 30 CIT at __, 461 F. Supp. 2d at 1365-66.14

Therefore, as the court expressly adopts the Tembec II panel’s

analysis, it finds that Commerce is obligated to liquidate all of

CWB’s pre-Timken Notice entries, whose liquidation has been

14
The Tembec II Court found further support for its
conclusion that liquidation should occur in accordance with a
NAFTA panel’s final decision based upon the absence of language
in § 1516a(g)(5)(C) permitting an order of liquidation during or
after the appeals process. “The absence of an express
liquidation provision in 19 U.S.C. § 1516a(g)(5)(C) demonstrates
that, in implementing Chapter 19 of NAFTA into U.S. law, Congress
relied upon the principle that a final appellate decision applies
to all entries of subject merchandise for which liquidation has
been suspended.” Tembec II, 30 CIT at __, 461 F. Supp. 2d at
1366 (citations and quotations omitted).
Consol. Court No. 07-00058 Page 44

suspended, without regard to duties.

This result is demanded by both logic as well as the

statute. That is, because the subject imports caused no injury

during any time relevant to this inquiry, CWB should owe no

duties. Indeed, while defendant claims that the pre-Timken

Notice duty deposits may be kept by the United States, the Notice

of Revocation appears to agree with the court. The notice reads:

This revocation does not affect the
liquidation of entries made prior to January
2, 2006. Any entries of subject merchandise
entered before January 2, 2006, are subject
to administrative review. If no review is
requested we will liquidate at the rate in
effect at the time of entry pursuant to 19
CFR 351.212(c).

Notice of Revocation, 71 Fed. Reg. at 8,275 (emphasis added).

Defendant focuses on the first sentence of this paragraph and

insists that, because Commerce stated that the “revocation does

not affect the liquidation” of pre-Timken Notice entries, those

entries must be liquidated under the now-invalidated AD/CVD

Orders. As noted, however, an administrative review was

requested in this case. The clear import of the last two

sentences of this paragraph, therefore, is that, if a review is

requested, then the entries will be liquidated in accordance with

the review results. See 19 C.F.R. § 351.212(b)(1) (stating that,

afer a review of an antidumping duty order, Commerce “will

instruct the Customs Service to assess antidumping duties by

applying the assessment rate to the entered value of the
Consol. Court No. 07-00058 Page 45

merchandise”); 19 C.F.R. § 351.212(b)(2) (stating that, after an

review of a countervailing duty order, Commerce “normally will

instruct the Customs Service to assess countervailing duties by

applying the rates included in the final results of the review to

the entered value of the merchandise”). Here, the necessity of a

review being obviated by the revocation of the AD/CVD Orders, the

notice clearly anticipates that the merchandise be liquidated

without unfair trade duties.

The purpose of collecting antidumping and countervailing

duties is to level the playing field so that producers can

compete fairly in the marketplace. That purpose would not be

advanced by allowing the United States to keep CWB’s deposits

when it has been conclusively established that the domestic

industry has suffered no material injury from the subject

imports.

CONCLUSION

Based on the foregoing, the court denies defendant’s motion

to dismiss in part and grants defendant’s motion in part,

dismissing the complaints of the Governments of Canada for lack

of standing; denies the Governments of Canada’s motion for

summary judgment; and, grants CWB’s motion for summary judgment.

It is hereby

ORDERED that the parties consult and jointly submit to the

court the form of a judgment comporting with this opinion on or
Consol. Court No. 07-00058 Page 46

before November 3, 2008. The parties’ submission shall be made

to Casey Ann Cheevers, Case Manager, United States Court of

International Trade, One Federal Plaza, New York, New York,

10278.

/s/Richard K. Eaton
Richard K. Eaton

Dated: October 20, 2008
New York, New York