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No. 07-1470

In the Supreme Court of the United States

UNITED STATES STEEL CORPORATION, ET AL., PETITIONERS

v.

CANADIAN LUMBER TRADE ALLIANCE, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

EDWIN S. KNEEDLER
Acting Solicitor General
Counsel of Record
GREGORY G. KATSAS
Assistant Attorney General
JEANNE E. DAVIDSON
FRANKLIN E. WHITE, JR.
MICHAEL J. DIERBERG
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTIONS PRESENTED

1. Whether the court of appeals erred in holding that Section 102(c) of the North American Free Trade Agreement Implementation Act (NAFTA Implementa tion Act), 19 U.S.C. 3312(c), did not bar plaintiffs' chal lenge of the United States Bureau of Customs and Bor der Protection's interpretation of the Continued Dump ing and Subsidy Offset Act of 2000, Pub. L. No. 106-387, App.-H.R. 5426, Tit. X, 114 Stat. 1549A-72, as applying to antidumping duties collected upon Canadian goods.

2. Whether Section 408 of the NAFTA Implementa tion Act is an impermissible legislative entrenchment provision.

3. Whether petitioners, who intervened as defen dants in actions brought by plaintiffs whose complaints were dismissed, are proper parties to seek certiorari from a judgment in favor of another plaintiff whose claims were consolidated with the actions in which peti tioners intervened.

 

 

In the Supreme Court of the United States

No. 07-1470

UNITED STATES STEEL CORPORATION, ET AL., PETITIONERS

v.

CANADIAN LUMBER TRADE ALLIANCE, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-49a) is reported at 517 F.3d 1319. The opinions of the United States Court of International Trade (Pet. App. 50a-176a) are reported at 425 F. Supp. 2d 1321 and 441 F. Supp. 2d 1259.

JURISDICTION

The judgment of the court of appeals was entered on February 25, 2008. The petition for a writ of certiorari was filed on May 27, 2008 (the Tuesday following Memo rial Day). The jurisdiction of this Court is invoked un der 28 U.S.C. 1254(1).

STATEMENT

1. Congress approved and implemented the North American Free Trade Agreement (NAFTA or Agree ment), 32 I.L.M. 605 (1993), through the North Ameri can Free Trade Agreement Implementation Act (NAFTA Implementation Act or NIA), Pub. L. No. 103- 182, 107 Stat. 2057, 19 U.S.C. 3301 et seq. Section 408 of the NIA provides that any amendment to United States antidumping and countervailing duty law "enacted after the Agreement enters into force with respect to the United States * * * shall apply to goods from a NAFTA country only to the extent specified in the amendment." 19 U.S.C. 3438. Section 102(c) of the NIA states, in part, that "[n]o person other than the United States * * * shall have any cause of ACTION or defense under * * * the Agreement or by virtue of Congressio nal approval thereof." 19 U.S.C. 3312(c)(1)(A).

2. In 2000, Congress modified the disbursal of funds collected pursuant to antidumping and countervailing duty orders through enactment of the Continued Dump ing and Subsidy Offset Act of 2000 (CDSOA), Pub. L. No. 106-387, App.-H.R. 5426, Tit. X, 114 Stat. 1549A- 72. 19 U.S.C. 1675c (2000). Pursuant to the CDSOA, the United States placed funds received from antidumping and countervailing duty orders in special sub-accounts within the United States Treasury, and later disbursed the funds to qualifying domestic producers that were affected by the unfair trade practices that gave rise to the antidumping or countervailing duty. 19 U.S.C. 1675c. The CDSOA did not expressly state that its pro visions applied to Canadian or Mexican merchandise. On February 8, 2006, Congress repealed the CDSOA, with effect on all goods imported on or after October 1, 2007. Pub. L. No. 109-171, Tit. VII, subtit. F, § 7601(a) & (b), 120 Stat. 154.

3. In 2005, Canadian producers of softwood lumber, magnesium, and red wheat-merchandise subject to countervailing or antidumping duty orders-commenced separate actions in the Court of International Trade, challenging the application of the CDSOA to duties col lected on their Canadian merchandise. Pet. App. 11a.1 The Government of Canada brought a similar action, seeking general relief with respect to Canadian mer chandise subject to countervailing or antidumping du ties. Ibid. Specifically, plaintiffs alleged that United States Bureau of Customs and BORDER Protection (Cus toms) is not permitted to disburse to domestic producers CDSOA monies resulting from antidumping and coun tervailing duties imposed upon Canadian merchandise because Congress did not intend the CDSOA to apply to goods from Canada. Ibid. Plaintiffs requested a declar atory judgment, a permanent injunction against further distributions to domestic producers, and disgorgement of prior distributions to domestic producers. Id. at 11a- 12a.

Petitioners intervened in the respective actions con cerning disbursement of duties of which they were recip ients. Petitioner U.S. Magnesium intervened in the ac tion brought by respondent Norsk Hydro Canada Inc. with respect to distribution of duties to domestic produc ers of pure and alloy magnesium, including U.S. Magne sium. 05-cv-00325 Docket entry No. 17 (Ct. Int'l Trade July 5, 2005); id., entry No. 24 (July 12, 2005). Peti tioner United States Steel intervened in the brought by the Government of Canada, which encom passed distribution of duties to domestic producers of corrosion-resistant carbon steel flat products, cut-to- length carbon steel plate, and oil country tubular goods, all of which were produced by United States Steel. 05- cv-00327 Docket entry No. 28 (Ct. Int'l Trade July 5, 2005); id., entry No. 41 (July 7, 2005). Neither peti tioner sought to intervene in the brought by the Canadian Wheat Board (Board), which challenged Cus toms' application of the CDSOA to duties collected on Canadian spring red wheat. After petitioners had inter vened in the individual Norsk Hydro Canada and Gov ernment of Canada actions, all the Canadian actions were consolidated in the Court of International Trade. See 05-cv-00324 Docket entry No. 29 (Ct. Int'l Trade July 13, 2005).

Following briefing and a factual hearing on the issue of injury for purposes of Article III standing, the Court of International Trade held that the private Canadian plaintiffs, but not the Government of Canada, possessed standing. Pet. App. 102a, 107a. The court further held that the private plaintiffs' claims were not barred by Section 102(c) of the NIA, 19 U.S.C. 3312(c). Pet. App. 119a-137a. The court reasoned that the bar against causes of or defenses "under * * * the Agree ment or by virtue of Congressional approval thereof," 19 U.S.C. 3312(c)(1)(A), made CLEAR that "neither the Agreement or Congress' consent thereto [in NIA Sec tion 101(a), 19 U.S.C. 3311(a)], would create a right of under NAFTA itself," but did "not foreclose rights of under" other provisions of the NIA that "separately implemented portions of that Agreement by enacting specific provisions into domestic law." Pet. App. 130a-131a.

On the merits, the trial court held that Section 408 of the NAFTA Implementation Act, 19 U.S.C. 3438, "function[s] as [a] BACKGROUND canon[] of interpretation of which Congress [was] presumptively aware" when it enacted the CDSOA, Pet. App. 148a (quoting Lockhart v. United States, 546 U.S. 142, 148 (2005) (Scalia, J., con curring)). The court found neither a "necessary" nor even a "fair" implication that Congress intended the CDSOA to apply in contravention of the interpretive guidance of Section 408, and on that basis it concluded that Congress did not intend to apply the CDSOA to antidumping and countervailing duties collected upon products from Canada and Mexico. Id. at 147a. With respect to remedies, the court declined to order dis gorgement of duties that had already been disbursed to domestic industries by Customs. Id. at 158a-173a. The court entered a declaratory judgment that the CDSOA "does not apply to antidumping and countervailing du ties assessed on imports of goods from Canada or Mex ico," id. at 160a, 175a, and also ordered prospective in junctive relief, id. at 160a-161a, 175a-176a. Because it had dismissed the claims of the Government of Canada, the Court of International Trade expressly limited its injunctive relief to future distributions of duties derived from softwood lumber, hard red spring wheat, and mag nesium imported from Canada. Id. at 175a-176a.

4. The United States appealed the trial court's hold ing that the private Canadian plaintiffs possessed stand ing, the Government of Canada appealed the trial court's holding that it lacked standing, and petitioners and cer tain other domestic producers that had intervened in the trial court appealed that court's holdings that: (1) the private Canadian plaintiffs possessed standing; (2) Sec tion 102(c) of the NAFTA Implementation Act did not bar the private plaintiffs' claims; and (3) the CDSOA does not apply to antidumping and countervailing duties collected upon merchandise from Canada and Mexico. The private Canadian plaintiffs did not appeal the judg ment of the Cou> t of International Trade to the extent it denied their request for disgorgement of already dis tributed duties. Pet. App. 36a. The North Dakota Wheat Commission, the one domestic entity that had intervened in the Court of International Trade in the proceeding brought by the Canadian Wheat Board, with drew its intervention on July 13, 2006, and did not ap peal. See 05-cv-00324 Docket entry No. 142 (Ct. Int'l Trade).

The court of appeals vacated the trial court's judg ment and remanded with directions to dismiss as to the claims brought by all but one of the private Canadian plaintiffs because their suits had become moot. Pet. App. 36a-37a. The court of appeals affirmed the judg ment with respect to the remaining plaintiff. Id. at 48a- 49a. With respect to the claims by the Canadian produc ers of softwood lumber and magnesium, the court held that post-judgment developments had rendered their claims moot. Id. at 36a-37a. The court noted that two significant actions occurred shortly after the Court of International Trade's judgment. First, the United States and Canada had entered into an Executive Agreement in which the United States agreed to revoke, retroactive to May 2002, the antidumping and counter vailing duty orders concerning Canadian softwood lum ber. Id. at 15a. Second, pursuant to that Executive Agreement, the Department of Commerce had instruc ted Customs to cease collecting duty deposits on soft wood lumber as of October 12, 2006, to liquidate all un liquidated entries without regard to the revoked orders, and to refund to the importers of record any deposits that had been collected pursuant to the revoked orders. Id. at 15a-16a. The court of appeals held that, because there was "no threat of further injury to the Canadian Producers in the softwood lumber industry," the claims of the Canadian softwood lumber producers for declara tory and injunctive relief were moot. Id. at 36a.

The court of appeals likewise held that the claims of the sole Canadian magnesium producer had become moot. Pet. App. 36a-37a. The court noted that the coun tervailing duty orders on pure and alloy magnesium from Canada had been revoked on July 6, 2006, shortly after the Court of International Trade's judgment, and that the sole plaintiff with respect to that product, Norsk Hydro Canada, had announced its intent to close its Canadian plant during the first half of 2007. Id. at 16a. In light of those developments, the court of appeals held that Norsk Hydro Canada no longer could claim likely competitive injury based on CDSOA distributions and that its claims for declaratory and injunctive relief were therefore moot. Id. at 37a. The court of appeals also affirmed the Court of International Trade's conclu sion that the Government of Canada lacked standing, although on different grounds from those relied upon by the trial court. See id. at 28a-34a.

The court determined that the Canadian Wheat Board alone among the plaintiffs had standing to assert claims that were not moot. Pet. App. 20a, 37a. The court affirmed the Court of International Trade's find ing of fact that the promotional activities of the North Dakota Wheat Commission had been responsible for helping domestic wheat producers take market share from the Canadian Wheat Board, and its determination that receipt by the Commission of as much as $180,000 in CDSOA distributions was likely to further injure the Board. Id. at 25a, 37a.

Turning to the substance of the dispute, the court of appeals affirmed the Court of International Trade's con clusion that Section 102(c) of the NAFTA Implementa tion Act, 19 U.S.C. 3312(c), did not preclude the Cana dian Wheat Board from pursuing its challenge to distri bution of duties to the North Dakota Wheat Commission under the CDSOA. The court of appeals reasoned that "section 102(c)'s bar against causes of action based on 'the Agreement or by virtue of congressional approval thereof,' reads most naturally as barring only those suits brought under NAFTA itself or under section 101" of the NAFTA Implementation Act, 19 U.S.C. 3311, in which Congress approved NAFTA. Pet. App. 39a. Because the Board's suit was not brought under NAFTA or Section 101 of the NAFTA Implementation Act, the court of appeals concluded that Section 102(c) did not preclude judicial review of the Board's claim. Id. at 43a.

On the merits, the court of appeals affirmed the Court of International Trade's conclusion that Congress did not intend the CDSOA to apply to antidumping and countervailing duties collected on Canadian and Mexican merchandise. Pet. App. 43a-48a, 49a. In reaching that conclusion, the court relied upon the reasoning of the Court of International Trade. Id. at 44a. The court re jected the contention that because the CDSOA does not expressly except goods from NAFTA countries, the court "must infer from this silence that Congress in tended the CDSOA to apply to goods from NAFTA countries regardless of section 408 of the NIA." Id. at 45a. The court reasoned, to the contrary, that the more reasonable inference from Congress's silence was that, "being aware of its earlier enactment of section 408 of the NIA, [Congress] chose not to supercede section 408 nor to exempt the CDSOA from it." Id. at 46a. Finally, the court rejected the argument that Section 408 did not apply because the CDSOA was enacted as part of an appropriations bill and therefore constituted an exercise of Congress's spending power that was only tangentially related to the Tariff Act of 1930, ch. 497, 46 Stat. 590 and outside the reach of Section 408 of the NIA. The court noted that the CDSOA directs the creation of spe cial accounts in the Treasury for deposit of antidumping or countervailing duties and distribution of funds in the special accounts to qualified domestic producers, such that deposited amounts would only rarely, if ever, reach the Treasury's general fund. Id. at 47a. The court therefore concluded that "the Canadian Wheat Board does in fact have recourse to challenge Customs' actions in this case." Id. at 48a.

Although the court of appeals affirmed the substance of the Court of International Trade's judgment, it struck that court's injunctive relief beyond that relating to Ca nadian wheat. Pet. App. 48a-49a. The court of appeals noted that "[t]he Canadian Wheat Board does not have standing to seek an injunction against distribution of duties assessed on softwood lumber or magnesium," but only with respect to "duties assessed on hard red spring wheat from Canada." Id. at 37a-38a n.22. The court of appeals therefore directed that the injunction be modi fied to strike the relief granted with respect to distribu tion of duties relating to softwood lumber and magne sium. Id. at 49a.

ARGUMENT

Petitioners contend that Section 102(c) of the NAFTA Implementation Act, 19 U.S.C. 3312(c), pre cludes any private party from invoking any provision of the NAFTA Implementation Act. The court of appeals correctly rejected that argument. Moreover, the court's holding on the merits concerns the construction of a statute that has been repealed, and the underlying dis pute arose in the context of an international trade dis pute that has been resolved in significant part by Execu tive Agreement. That holding therefore does not war rant this Court's review.

Nor does petitioners' challenge to Section 408 of the NIA as an impermissible legislative entrenchment war rant this Court's review because the court of appeals did not apply Section 408 in that fashion. Rather, it treated the provision as a guide to legislative interpretation that was not overcome by any contrary indications. We note, in addition, that if the Court were to grant the petition for a writ of certiorari, it would, before reaching the questions presented by petitioners, need to resolve the threshold question of whether petitioners, who inter vened in defense against claims asserted by plaintiffs whose complaints have since been dismissed by the lower courts, are proper parties to seek review of the court of appeals' judgment.

1. The court of appeals correctly rejected the sweep ing construction of Section 102(c) of the NIA offered by petitioners, and its holding does not warrant this Court's review.

a. Section 102(c) of the NIA provides, in relevant part, that "[n]o person other than the United States * * * shall have any cause of action or defense under * * * the Agreement or by virtue of Congressional ap proval thereof." 19 U.S.C. 3312(c)(1)(A). In enacting that provision, Congress made it clear that NAFTA does not constitute enforceable domestic law except in a suit brought by the United States. Congress intended NAF TA to be viewed as a government-to-government agree ment that, with certain exceptions not relevant here, cannot be enforced by private individuals and, thus, can not provide the basis for any private claim or defense asserted in domestic courts. Section 102(c) confirms that Congress intended NAFTA to be viewed as an agreement that generally affects only the rights and obligations of the sovereign nations and that therefore cannot provide the basis for any private claim or defense asserted in domestic courts. Kwan v. United States, 272 F.3d 1360, 1362-1363 (Fed. Cir. 2001) (citing Edye v. Robertson, 112 U.S. 580, 598 (1884)) (additional citations omitted).

Petitioners challenge the court of appeals' character ization of Section 102(c) "as barring only those suits brought under NAFTA itself or under section 101 of the [NIA]." Pet. 25 (quoting, with added emphasis, Pet. App. 39a). See Pet. 26 (describing the court of appeals' decision as holding that Section 102(c) "only bars causes of action that arise under Section 101(a) of the NAFTA Implementation Act"). The United States agrees that the quoted language could, depending on how it is ap plied in future cases, give too cramped a reading to Sec tion 102(c). The section's reference to "defense[s]" in addition to "cause[s] of action," 19 U.S.C. 3312(c)(1)(A), and its further prohibition against challenging govern ment action or inaction "on the ground that such action or inaction is inconsistent with the Agreement," 19 U.S.C. 3312(c)(2), reflects that Congress intended not only to preclude suits asserting purported causes of ac tion based directly on NAFTA or Section 101 of the im plementing legislation, but more broadly to preclude private parties from relying on the provisions of NAFTA in support of a claim or defense, even when the suit is brought under a general statutory provision such as the APA. To the extent the court of appeals' decision can be read to suggest that Section 102(c) is inapposite merely because "the Canadian Wheat Board instituted this suit under" the APA, Pet. App. 38a, such a reading of Section 102(c) would be erroneous.

Contrary to petitioners' suggestion, however, the act ual holding of the court of appeals was the narrower one that Section 102(c) does not preclude a private party-in a suit contesting application of the CDSOA to Canadian goods-from invoking the interpretive guidance pro vided by Section 408 of the NIA. To be sure, there is room for debating the precise question whether Section 408 should be regarded, in light of the policies reflected in Section 102(c), as the type of statutory provision that Congress intended to be invoked by private parties or merely as reflecting the sovereign-to-sovereign commit ments undertaken in NAFTA Article 1902. See Gov't Reply in Support of Its Motions to Dismiss 3-7. But that is because of the particular nature of the undertaking in Article 1902 of NAFTA, 32 I.L.M. 682, which states a rule similar to that in Section 408, see Pet. App. 40a, not because of a categorical rule that no provision of the implementing legislation can be invoked by private par ties. In the court of appeals, the United States argued, for example, that the private plaintiffs lacked prudential standing because Section 408 should not be construed as intending to protect the interests of private producers. See Gov't C.A. Br. 46-49.2 The court of appeals rejected that contention, see Pet. App. 28a, and petitioners do not seek review of that narrow question of statutory con struction.

b. Petitioners argue that Section 102(c) broadly pre cludes any private party from attempting to give any legal effect to any provision of federal law that was en acted as part of the NAFTA Implementation Act. See Pet. 32 (urging that Congressional "approval" in Section 102(c) should be equated with "implementing legisla tion"). That construction of Section 102(c) is mistaken.

Section 102(c) does not categorically preclude private parties from relying on any and all federal statutory provisions that were enacted as part of the NAFTA Im plementation Act. By its terms, the relevant text of Sec tion 102(c) precludes suits or defenses "under the Agreement or by virtue of Congressional approval thereof." 19 U.S.C. 3312(c)(1)(A). As the court of ap peals noted, Pet. 39a, "Congressional approval" of the Agreement was accomplished in Section 101(a) of the NIA, 19 U.S.C. 3311(a) ("the Congress approves - (1) the North American Free Trade Agreement" (emphasis added)); see 19 U.S.C. 3301(1) (defining the term "Agreement" as "the North American Free Trade Agreement approved by the Congress under section 3311(a) of this title" (emphasis added)). The substantive provisions of the NAFTA Implementation Act by which Congress implemented the United States' international obligations under NAFTA do not constitute Congress's "approval" of the Agreement, but rather its implementa tion of the Agreement. See Pet. App. 40a. As this Court recently noted, "implementing legislation passed by Congress" is how Congress gives "domestic effect" to treaties that might not otherwise have "automatic do mestic effect as federal law upon ratification." Medellin v. Texas, 128 S. Ct. 1346, 1356-1357 n.2 (2008). By anal ogy, NAFTA is the equivalent of the treaty negotiated by the President and congressional approval in Section 101(a) of the INA the equivalent of Senate consent to ratification. Section 102(c) makes clear that neither of those actions gives rise to privately enforceable rights. Under petitioners' reading of Section 102(c), however, that provision not only precludes private individuals from relying on "the Agreement or * * * Congressio nal approval thereof," 19 U.S.C. 3312(c)(1)(A), but also from relying on the implementing legislation by which Congress gave domestic legal effect to the United States' international commitments under NAFTA. Nothing in the text of Section 102(c) supports that con clusion.

Nor, contrary to petitioners' contentions (Pet. 28-31), does the legislative history provide a basis for adding to the text of Section 102(c) in a way that would deprive the implementing legislation of enforceable legal effect. Rather, as the court of appeals observed, both the State ment of Administrative Action, in which the Executive explained the effect of the NIA, and the House Report that accompanied the bill confirm that Section 102(c)'s reference to "Congressional approval" means the ap proval effectuated by Section 101(a). See Pet. App. 41a; H.R. Doc. No. 159, 103d Cong., 1st Sess. Vol. I, at 462 (1993) (explaining that NIA Section 102(c) precludes "private right[s] of action based on the NAFTA, or on Congressional approval of the Agreement in section 101(a)") (emphasis added); H.R. Rep. No. 361, 103d Cong., 1st Sess. Pt. I, at 18 (1993) (Section 102(c) con tains a "general prohibition on private right[s] of action arising from the NAFTA, the supplemental agreements, or approval of the NAFTA by Congress under section 101(a) of the bill") (emphasis added).

c. Petitioners urge the Court to grant the petition in order to resolve an asserted conflict between the court of appeals' decision and the non-precedential decision of the United States Court of Appeals for the Ninth Circuit in Bronco Wine Co. v. ATF, 168 F.3d 498 (Table), No. 98-15444, 1999 WL 68632 (Feb. 11, 1999), cert. denied, 528 U.S. 950 (1999). Because that decision is non-pre cedential, and because the United States' position with respect to the scope of provisions such as Section 102(c) of the NIA has changed since the Bronco Wine decision, there is no need for this Court to resolve the purported conflict.

In Bronco Wine, the plaintiff alleged that the Bureau of Alcohol, Tobacco and Firearms' application to the plaintiff's wines of the place-of-origin regulations in 27 C.F.R. 4.39, was inconsistent with the Lanham Act, 15 U.S.C. 1052(a), as amended by the Uruguay Round Agreements Act (URAA), Pub. L. No. 103-465, 108 Stat. 4809. The district court held that judicial review of the plaintiff's cause of action was precluded by Section 102(c) of the URAA, 19 U.S.C. 3512(c)(1)(A), which is in substance identical to Section 102(c) of the NAFTA Im plementation Act, 19 U.S.C. 3312(c)(1)(A). Bronco Wine Co. v. United States Dept. of Treasury, 997 F. Supp. 1318, 1321-1323 (E.D. Cal. 1997). On appeal, the Ninth Circuit affirmed in a non-precedential memorandum opinion. Bronco Wine, 1999 WL 68632, *1. Without fur ther explanation, the Ninth Circuit agreed with the dis trict court that "the Lanham Act does not provide a cause of action under which Bronco could bring a claim," ibid. (citing 19 U.S.C. 3512(c)(1)(A)'s language that no private party "shall have a cause of action under the [Uruguay Round] Agreement").

As the court of appeals noted in its opinion below, it is difficult to understand the precise reasoning of the Ninth Circuit in Bronco Wine. Pet. App. 42a-43a. It is possible, in light of the opinion's reference to 19 U.S.C. 3512(c)(1)(A)'s bar on causes of action "under the Agree ment" and its omission of any reference to that section's bar on causes of action based on "Congressional ap proval" of the agreement, that the Ninth Circuit "con flated the URAA with the Uruguay Round Agreements" and "affirm[ed] the district court's dismissal of claims brought under the URAA on the grounds-true but irrelevant-that section 102(c) bars claims brought un der the Agreements themselves." Ibid. Because the Ninth Circuit's decision is not precedential, a future panel of the Ninth Circuit would not be bound by that decision and would be free to align itself instead with the Federal Circuit's decision in this case. For that reason, and because the reasoning of Bronco Wine is unclear, there is no need for this Court to grant review in order to resolve any asserted conflict.

The possibility that the Ninth Circuit would not fol low the holding in Bronco Wine is particularly high be cause the position of the United States has changed since the time Bronco Wine was decided. As petitioners note (Pet. 16-17 n.7), in the Government's brief in oppo sition to a petition for a writ of certiorari in Bronco Wine, the United States asserted that 19 U.S.C. 3512(c)(1)(A) barred any claim by a private party that government action was inconsistent with a provision of law enacted as part of the URAA. See Bronco Wine, supra, Br. for Resps. in Opp. 8-11 (No. 99-119). As ex plained above, see supra 13-15, the United States no longer interprets that language as establishing a cate gorical bar to a private party invoking a federal statu tory provision that was enacted as part of the legislation that implemented the NAFTA and Uruguay Round Agreements in domestic law.

d. Review by this Court is particularly unnecessary in light of the fact that the trade dispute that gave rise to this litigation has been largely resolved. The statute about which the Government of Canada and private plaintiffs complained, the CDSOA, has been repealed, and the only remaining issues under it regard the distri bution to qualifying domestic producers of duties col lected on imports before October 1, 2007. Moreover, the particular product that gave rise to the largest duties on Canadian goods subject to distribution under the CDSOA, Canadian softwood lumber, were resolved by an Executive Agreement pursuant to which countervail ing and antidumping duty orders on Canadian softwood lumber were rescinded, collection of countervailing and antidumping duties on such lumber ceased as of October 12, 2006, and deposits previously collected under the revoked orders were refunded to the importers. See pp. 6-7, supra. In light of the fact that the trade dispute has been largely resolved by Executive and Congressional action, there is no need for this Court to address the legal issues further by writ of certiorari.

2. The second issue on which petitioners seek review by this Court is whether what they call the "'magic pass word' provision" in Section 408 of the NAFTA Imple mentation Act "is an impermissible legislative entrench ment provision that restricts Congress' power of the purse." Pet. i. The court of appeals did not, however, hold that Section 408 binds later Congresses to use par ticular words in order to apply future amendments to the unfair trade laws to other NAFTA parties. Instead, the court of appeals merely treated Section 408 as a tool of interpretation that was not overcome by congressio nal "silence," as petitioners had urged. Pet. App. 45a. Although the court of appeals' own analysis of the point is not extensive, it noted its reliance upon the reasoning of the Court of International Trade. See id. at 44a-45a. That court acknowledged "that 'no magical password' is necessarily required" to overcome Section 408, but de termined that there was, in this case, neither "any 'neces sary implication,' [n]or even 'fair' implication, that Con gress intended to trump Section 408 when enacting" the CDSOA. Id. at 147a. The court treated Section 408 as a "background canon[] of interpretation of which Con gress [was] presumptively aware" when it enacted the CDSOA, id. at 148a (quoting Lockhart, 546 U.S. at 148 (Scalia, J., concurring)), not as an impermissible attempt by one Congress to bind another. The second question presented by the petition does not, therefore, warrant this Court's review.

3. Finally, we note that the petition raises a thresh old question whether petitioners are proper parties to seek a writ of certiorari from this Court with respect to the judgment below. Petitioners U.S. Magnesium and United States Steel intervened, respectively, as defen dants in the actions by Norsk Hydro Canada and the Government of Canada, in light of petitioners' interest in their rights to distributions under the CDSOA of du ties collected on Canadian magnesium and steel. But the complaints of Norsk Hydro Canada and the Govern ment of Canada were dismissed for mootness and lack of standing. Pet. App. 48a-49a. Petitioners never inter vened with respect to the action of the remaining plain tiff with claims that were not moot-the Canadian Wheat Board. Moreover, the court of appeals specifi cally held that the Canadian Wheat Board lacked stand ing to seek injunctive relief with respect to products other than wheat, and the court expressly directed that the injunction be modified to reflect that it only pre cluded distribution of duties under the CDSOA with re spect to wheat. Ibid. Thus, the judgment of the court of appeals does not, by its own force, preclude distribution of duties to domestic producers of other products, in cluding steel and magnesium products with respect to which petitioners have an interest.

Although Customs has indicated that, in light of the court of appeals' opinion's precedential effect, Customs will cease distribution of duties under the CDSOA with respect to other Canadian and Mexican goods as well, 71 Fed. Reg. 57,000 (2006), the judgment in this case does not itself enjoin the government to do so. If the Court were to grant the petition, it would need to address, at the threshold, whether the Court of International Trade's consolidation order made petitioners parties to the action by the Canadian Wheat Board-even though they had no dispute with the Board-and are thereby bound by the declaratory judgment that was entered in favor of that plaintiff. See Pet. App. 49a.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

EDWIN S. KNEEDLER
Acting Solicitor General
GREGORY G. KATSAS
Assistant Attorney General
JEANNE E. DAVIDSON
FRANKLIN E. WHITE, JR.
MICHAEL J. DIERBERG
Attorneys

 

 

JULY 2008

1 Plaintiffs' suit, brought pursuant to 28 U.S.C. 1581(i), was governed by the Administrative Procedure Act, 5 U.S.C. 702. See 28 U.S.C. 2640(e); Pet. App. 11a.

2 In the Court of International Trade, the United States had urged that the Government of Canada's and private plaintiffs' claims, while styled as relying on Section 408 of the NIA, were in fact attempts to give impermissible direct judicial effect to NAFTA Article 1902(2), 32 I.L.M. 682. See Gov't Reply in Support of Its Motions to Dismiss 5-7. In the Court of International Trade's opinion, it made clear that it was not relying on "the Agreement itself," Pet. App. 135a, but relying on Section 408 only as a statutory guide to interpreting a subsequent enactment, id. at 148a. Because the United States does not regard such reliance on Section 408 as inconsistent with Section 102(c), the United States did not appeal the court's holding as inconsistent with Section 102(c). Instead, the United States contested only whether the private plaintiffs had prudential standing to invoke Section 408. See Gov't C.A. Br. 46-49.