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CIT Reinstates Canadian Lumber Exporters' Exclusion From CVD Order After CAFC Reversal

The Court of International Trade in a Nov. 20 opinion granted the motion from a group of Canadian exporters to reinstate their exclusion from the countervailing duty order on softwood lumber from Canada after the U.S. Court of Appeals for the Federal Circuit reversed a CIT ruling that overturned an expedited review that excluded them from the duties. The court also made the exclusion of the exporters effective back to August 2021, when the companies were first subjected to the order.

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Judge Mark Barnett said that while the second clause of Rule 60(b)(5) was not the proper basis for granting this request, the rule's third clause was, since the enforcement of the court's previous order subjecting the companies to CVD cash deposits is no longer equitable. This clause allows a party to ask a court to vacate a judgment if "'a significant change either in factual conditions or in law' renders continued enforcement 'detrimental to the public interest.'"

The exporters -- Scierie Alexandre Lemay & Fils, Les Produits Forestiers D&G, Marcel Lauzon and North American Forest Products -- had sought the reinstatement of the exclusion after the CAFC's reversal, and the U.S. consented to the motion. Petitioner Committee Overseeing Action for Lumber International Trade Investigations or Negotiations opposed the motion, arguing that the exporters failed to show that continued enforcement of the judgment led to inequity.

Barnett disagreed. "The Federal Circuit’s reversal of this court’s judgment constitutes a sufficient change in the factual and legal basis for retaining movants in the CVD Order, and the Government’s consent to the request for relief demonstrates that continued enforcement of this court’s judgment following reversal by the Federal Circuit is not necessary to protect the public interest," the opinion said.

In the case, the trade court originally found that there was no proper statutory basis to conduct expedited CVD reviews, which were the means by which the Canadian exporters were excluded from the order following the issuance of the initial CVD order. The Federal Circuit disagreed, saying the Commerce Department has the authority to conduct the reviews (see 2304250061). As a result of CIT's original opinion, the exporters had to start paying CVD cash deposits before moving to have their initial exclusion from the order reinstated based on the CAFC decision.

After agreeing with the parties, Barnett then said he had to decide whether to make this ruling effective from the trade court's first order subjecting the companies to duties, or from Nov. 20, the date of the present court order. The judge said he saw "no reason to limit movants' relief to the date of this Opinion and Order." When assessing the proper scope of relief, "the court must account for the distinctive way in which trade cases operate at both the administrative and judicial levels," the opinion noted.

Here, excluding exporters from the CVD order from the date of the present opinion "would require the same mechanism" as excluding them from the date of the first opinion -- a Federal Register notice and instructions from Commerce to CBP. As a result, the trade court won't limit relief for the Canadian companies, the opinion said.

Barnett also briefly addressed why the second clause of Rule 20(b)(5) wasn't appropriate for granting relief. The judge said that this clause, which provides relief from a final judgment that was based on an earlier judgment that had been reversed, is inapplicable. "Movants do not seek relief from a judgment that was based on a distinct, now-reversed judgment" but one that was later reversed, the court said.

(Committee Overseeing Action for Lumber International Trade Investigations or Negotiations v. U.S., Slip Op. 23-163, CIT # 19-00122, dated 11/20/23; Judge: Mark Barnett; Attorneys: Andrew Kentz of Picard Kentz for plaintiff Committee Overseeing Action for Lumber INternational Trade Investigations or Negotiations; Elizabeth Speck for defendant U.S. government; Yohai Baisburd of Cassidy Levy for defendant-intervenor Scierie Alexandree Lemay & Fils Inc.; Edward Lebow of Haynes and Boone for defendant-intervenors Les Produits Forestiers D&G Ltée and Marcel Lauzon Inc.; Rajib Pal of Sidley Austin for defendant-intervenors led by North American Forest Products)