Comm. Overseeing Action for Lumber Int'l Trade Investigations or Negotiations v. United States

665 F.Supp.3d 1347

COMMITTEE OVERSEEING ACTION FOR LUMBER INTERNATIONALTRADE INVESTIGATIONS OR NEGOTIATIONS, Plaintiff,andFontaine Inc., et al., Consolidated Plaintiffs, v. UNITED STATES, Defendant,andFontaine Inc., et al., Defendant-Intervenors.

Slip Op. 23-163 Consol. Court No. 19-00122

United States Court of International Trade

November 20, 2023

Andrew W. Kentz, Sophia J.C. Lin, Jessica M. Link, Nathaniel Maandig Rickard, Whitney M. Rolig, Zachary J. Walker, and David A. Yocis, Picard Kentz & Rowe LLP, of Washington, DC, for Plaintiff Committee Overseeing Action for Lumber International Trade Investigations or Negotiations.

Elizabeth A. Speck, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, DC, for Defendant United States. With her on the brief were Brian M. Boynton, Principal Deputy Assistant Attorney General, and Patricia M. McCarthy, Director. Of counsel on the brief was Nikki Kalbing, Assistant Chief Counsel, Office of the Chief Counsel for Trade Enforcement and Compliance, U.S. Department of Commerce, of Washington, DC.

Yohai Baisburd, Jonathan M. Zielinski, and James E. Ransdell, Cassidy Levy Kent (USA) LLP, of Washington, DC, for Defendant-Intervenor Scierie Alexandre Lemay & Fils Inc.

Edward M. Lebow, Haynes and Boone, LLP, of Washington, DC, for Defendant-Intervenors Les Produits Forestiers D&G Ltée and Marcel Lauzon Inc.

Rajib Pal, James Mendenhall, and Justin R. Becker, Sidley Austin LLP, of Washington, DC, for Defendant-Intervenors North American Forest Products Ltd., Parent-Violette Gestion Ltée, and Le Groupe Parent Ltée.

OPINION AND ORDER

Barnett, Chief Judge:

This matter is before the court on motion by defendant-intervenors Scierie Alexandre Lemay & Fils Inc. ("Lemay"), Les Produits Forestiers D&G Ltée ("D&G"), Marcel Lauzon Inc. ("MLI"), and North American Forest Products Ltd. and its cross-owned affiliates Parent-Violette Gestion Ltée and Le Groupe Parent Ltée (together, "NAFP") (collectively, "movants") for relief from a final judgment pursuant to U.S. Court of International Trade ("CIT") Rule 60(b)(5). Mot. to Reinstate Exclusion from Countervailing Duty Order Pending Resolution of Litigation ("Mot."), ECF No. 222. Plaintiff, Committee Overseeing Action for Lumber International Trade Investigations or Negotiations ("the Coalition"), opposes the motion. Pl.'s Resp. in Opp'n to [Mot.] ("Pl.'s Resp."), ECF No. 223. Defendant, United States ("the Government"), does not oppose the motion or the terms of the proposed order. Def.'s Resp. to the Ct.'s Order to Respond to [Mot.] ("Def.'s Resp."), ECF No. 228. For the following reasons, the court grants the motion.

BACKGROUND

At issue in this case is the U.S. Department of Commerce's ("Commerce" or "the agency") final results in the countervailing duty ("CVD") expedited review of certain softwood lumber products from Canada. See Certain Softwood Lumber Prods. From Canada, 84 Fed. Reg. 32,121 (Dep't Commerce July 5, 2019) (final results of CVD expedited review) ("Final Results"), ECF No. 99-5.¹ In the Final Results, and relevant to this motion, Commerce calculated de minimis rates for D&G, MLI, Lemay, and NAFP.² 84 Fed. Reg. at 32,122. Commerce therefore stated that it would instruct U.S. Customs and Border Protection ("CBP") "to discontinue the suspension of liquidation and the collection of cash deposits of estimated countervailing duties on all shipments of softwood lumber produced and exported by" those companies that were entered on or after July 5, 2019; "liquidate, without regard to countervailing duties, all suspended entries of shipments of softwood lumber produced and exported by" those companies; and "refund all cash deposits of estimated countervailing duties collected on all such shipments." Id. In other words, effective July 5, 2019, the Final Results provided a basis for excluding the movants from the CVD Order. See id.

Presently, Commerce's Final Results are the subject of five judicial opinions; four from this court and one from the U.S. Court of Appeals for the Federal Circuit ("Federal Circuit"). See Comm. Overseeing Action for Lumber Int'l Trade Investigations or Negots. v. United States ("Coalition I"), 43 CIT —, 393 F. Supp. 3d 1271 (2019) (vacating a temporary restraining order requested by Plaintiff that had barred CBP from liquidating unliquidated entries of softwood lumber produced or exported by Canadian companies that received reduced or de minimis rates in the Final Results and denying the Coalition's corresponding request for a preliminary injunction); Comm. Overseeing Action for Lumber Int'l Trade Investigations or Negots. v. United States ("Coalition II"), 43 CIT —, 413 F. Supp. 3d 1334 (2019) (denying the Government's motion to dismiss and finding jurisdiction pursuant to 28 U.S.C. § 1581(i)); Comm. Overseeing Action for Lumber Int'l Trade Investigations or Negots. v. United States ("Coalition III"), 44 CIT —, 483 F. Supp. 3d 1253 (2020) (remanding the Final Results for Commerce to reconsider the statutory basis for its promulgation of 19 C.F.R. § 351.214(k) (2020)³ and conduct of CVD expedited reviews); Comm. Overseeing Action for Lumber Int'l Trade Investigations or Negots. v. United States ("Coalition IV"), 45 CIT —, 535 F. Supp. 3d 1336 (2021) (following remand, vacating 19 C.F.R. § 351.214(k) and vacating, prospectively, Commerce's Final Results); Comm. Overseeing Action for Lumber Int'l Trade Investigations or Negots. v. United States, 66 F.4th 968 (Fed. Cir. 2023) ("Coalition V") (reversing and remanding Coalition IV after finding statutory authority for 19 C.F.R. § 351.214(k)).

In the judgment accompanying Coalition IV, the court ordered Commerce to "issue a Timken-like Notice rescinding the [Final Results], consistent with the requirements set forth in 19 U.S.C. § 1516a(c)(1); reinstate the excluded companies in the CVD Order prospectively; and, for all companies that were covered by the [Final Results], impose a cash deposit requirement based on the all-others rate from the investigation or the company-specific rate determined in the most recently completed administrative review in which the company was reviewed." [CIT] J., ECF No. 194.⁴ Commerce issued a corresponding notice and instructions to CBP, with an effective date of August 28, 2021. See Certain Softwood Lumber Prods. From Canada, 86 Fed. Reg. 48,396 (Dep't Commerce Aug. 30, 2021) (notice of ct. decision not in harmony with the [Final Results]; notice of rescission of [Final Results]; notice of am. cash deposit rates) ("Notice of Ct. Decision"); Def.'s Resp., Ex. 1 (CBP Message No. 1244401). In the notice, Commerce explained that the agency was "reinstating the CVD Order" for the movants and "reassigning the cash deposit rate for the companies covered by the [Final Results]." Notice of Ct. Decision, 86 Fed. Reg. at 48,396.

The CIT's judgment was later reversed by the Federal Circuit. Coalition V, 66 F.4th at 971. While litigation concerning other aspects of the Final Results remains pending, movants seek reinstatement of their exclusion from the CVD Order. Mot. at 1-2.

JURISDICTION AND STANDARD OF REVIEW

The court exercises jurisdiction pursuant to 28 U.S.C. § 1581(i)(1)(D) (2018 & Supp. II 2020).

CIT Rule 60(b) permits the court, "[o]n motion and just terms," to "relieve a party or its legal representative from a final judgment, order, or proceeding" when "the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable." CIT Rule 60(b)(5). A motion filed pursuant to Rule 60(b)(5) "must be made within a reasonable time." CIT Rule 60(c)(1).

For Rule 60(b)(5), "each of the provision's three grounds for relief is independently sufficient." Horne v. Flores, 557 U.S. 433, 454, 129 S.Ct. 2579, 174 L.Ed.2d 406 (2009).⁵ The second clause, which concerns a final judgment that "is based on an earlier judgment that has been reversed or vacated," CIT Rule 60(b)(5), "is limited to cases in which the present judgment is based on the prior judgment in the sense of claim or issue preclusion," Pirkl v. Wilkie, 906 F.3d 1371, 1381 n.6 (Fed. Cir. 2018) (quoting 11 Charles Alan Wright et al., Federal Practice and Procedure § 2863 (3d ed. 2012)). In other words, because a second final judgment that is based on an earlier judgment "will stand as res judicata" even though "the first judgment [was] subsequently reversed," United States v. Canex Int'l Lumber Sales Ltd., 35 CIT 1025, 1028 (2011) (quoting Reed v. Allen, 286 U.S. 191, 199, 52 S.Ct. 532, 76 L.Ed. 1054 (1932)), Rule 60(b)(5) provides a procedural mechanism for litigants to obtain relief from the second judgment.

The third clause of Rule 60(b)(5) is principally applied to injunctions. See Wright et al., § 2863; cf. Invenergy Renewables LLC v. United States, 44 CIT —, —, 450 F.Supp.3d 1347, 1361-63 (2020) (denying motion to dissolve a preliminary injunction when the defendant failed to show changed circumstances or inequity). This clause is not, however, limited to injunctions; it "applies to any judgment that has prospective effect," Wright et al., § 2863, and "is rooted in the 'traditional power of a court of equity to modify its decree in light of changed circumstances,' " Tapper v. Hearn, 833 F.3d 166, 170 (2nd Cir. 2016) (quoting Frew ex rel. Frew v. Hawkins, 540 U.S. 431, 441, 124 S.Ct. 899, 157 L.Ed.2d 855 (2004)).

Regardless of the basis, any relief provided by these rules is discretionary. See Lazare Kaplan Int'l, Inc. v. Photoscribe Tech., Inc., 714 F.3d 1289, 1295 (Fed. Cir. 2013).

DISCUSSION

I. The Second Clause of Rule 60(b)(5) is Not an Appropriate Basis for Relief

Movants contend that relief is merited pursuant to the second clause of Rule 60(b)(5) because the court "Orders" directing Commerce to reinstate the companies in the CVD Order and "impose cash deposit requirements were 'based on an earlier judgment that has been...