Canadian Wheat Board v. United States

Slip Op. 09-92

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

[Defendants’ motion for reconsideration denied; plaintiffs’ and

plaintiff-intervenors’ motion for reconsideration granted]

Dated: September 1, 2009

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, John M. Ryan,

and Peter J.S. Kaldes), and Wilmer Cutler Pickering Hale and Dorr

LLP (Seth P. Waxman, Randolph D. Moss, Mark C. Fleming, and

Danielle G. Spinelli), for plaintiff Government of Canada.

Arnold & Porter LLP (Lawrence A. Schneider), for plaintiff-

intervenor Government of Alberta.

Hogan & Hartson LLP (Mark S. McConnell, H. Deen Kaplan, and

Jonathon T. Stoel), for plaintiff-intervenor Government of

Ontario.

Cameron & Hornbostel LLP (Michele Sherman Davenport), for

Consol. Court No. 07-00058 Page 2

plaintiff-intervenor Government of Saskatchewan.

Tony West, 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 motion

of defendants, the United States and the United States Department

of Commerce (“Commerce” or “the Department”), for

reconsideration, and the joint motion of plaintiffs, Canadian

Wheat Board (“CWB”) and the Governments of Canada1 (collectively,

“plaintiffs”) for clarification. See Defs.’ Mot. Reconsideration

(“Defs.’ Mot.”); Mot. Clarification (“Pls.’ Mot.”). These motions

follow the court’s decision in Canadian Wheat Board v. United

States, 32 CIT __, 580 F. Supp. 2d 1350 (2008) (“Wheat Board

II”),2 which held: (1) that Commerce must liquidate all of CWB’s

pre-Timken notice entries, whose liquidation has been suspended,

1

Plaintiff the Federal Government of Canada originally

filed a 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 the provinces of Saskatchewan, Alberta, and

Ontario. Each was granted plaintiff-intervenor status in Consol.

Court No. 07-00058. In this opinion, and in Canadian Wheat Board

v. United States, 32 CIT __, 580 F. Supp. 2d 1350 (2008), the

Federal Government of Canada together with the governments of

Saskatchewan, Alberta, and Ontario are referred to as the

“Governments of Canada.”

2

Familiarity with the court’s October 20, 2008 opinion is

presumed.

Consol. Court No. 07-00058 Page 3

without regard to duties; and (2) that the Governments of Canada

lacked standing to sue under Article III of the Constitution.

As set forth at length in Wheat Board II, jurisdiction lies

under 28 U.S.C. § 1581(i)(4). See 32 CIT at __, 580 F. Supp. 2d

at 1357-64; see also Canadian Wheat Bd. v. United States, 31 CIT

__, 491 F. Supp. 2d 1234 (2007) (“Wheat Board I”). Because the

motions ask the court to consider important questions not

previously addressed, it will treat them both as motions for

reconsideration.3 For the following reasons, defendants’ motion

for reconsideration is denied, and plaintiffs’ motion for

reconsideration is granted.

STANDARD OF REVIEW

The granting of a motion for reconsideration is within the

court’s sound discretion. See Yuba Natural Res., Inc. v. United

States, 904 F.2d 1577, 1583 (Fed. Cir. 1990); Kerr-McGee Chem.

Corp. v. United States, 14 CIT 582, 583 (1990) (not reported in

the Federal Supplement).

3

See Pls.’ Mot. 3 n.1 (“Should this Court conclude that

this issue is more properly addressed by means of a motion for

modification or reconsideration, we respectfully request that the

Court treat this submission as such a motion.”).

Consol. Court No. 07-00058 Page 4

DISCUSSION

I. Defendants’ Motion

In Wheat Board II the court considered questions relating to

the liquidation of CWB’s entries of hard red spring [HRS] wheat

from Canada. By its motion the United States, on behalf of

Commerce, makes a new argument that the court was statutorily

barred from hearing plaintiffs’ claims. In making its argument,

defendants assert that “the statute upon which the Court

concluded that Commerce had suspended liquidation of entries of

hard red spring wheat from Canada . . . [19 U.S.C.

§ 1516a(g)(5)(C)4], expressly prohibits any judicial action with

4

This provision states:

(C) Suspension of Liquidation

(i) Notwithstanding the provisions of subparagraph (B),

in the case of a determination described in clause

(iii) or (vi) 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 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). As set out in Tembec, Inc. v.

United States, 30 CIT 1519, 1524-25, 461 F. Supp. 2d 1355, 1360-

61 (2006), judgment vacated by Tembec, Inc. v. United States, 31

CIT __, 475 F. Supp. 2d 1393 (2007), this subsection was designed

to provide an injunction-like suspension of liquidation upon an

appeal to a NAFTA binational panel of two types of final

(continued...)

Consol. Court No. 07-00058 Page 5

respect to Commerce’s actions concerning the statutory suspension

of liquidation.” Defs.’ Mot. 4 (citing 19 U.S.C.

§ 1516a(g)(5)(C)(iv)5) (internal citation omitted). Central to

defendants’ claim are their assertions that liquidation of CWB’s

merchandise was suspended pursuant to the provisions of 19 U.S.C.

§ 1516a(g)(5)(C) and that the court in Wheat Board II unlawfully

reviewed Commerce’s “actions” taken pursuant to that subsection.

Thus, defendants’ motion is dependent upon two sets of alleged

facts: (1) that the court in Wheat Board II found that

liquidation of CWB’s merchandise had been suspended under

§ 1516a(g)(5)(C); and (2) that, in its Wheat Board II decision,

the court was reviewing actions taken by Commerce pursuant to

§ 1516a(g)(5)(C).

Plaintiffs dispute both of these assertions. First,

plaintiffs insist:

4

(...continued)

determinations made by Commerce so that liquidation results, in a

NAFTA context, would parallel those that would result had an

appeal been taken to this Court, i.e., liquidation would be made

in accordance with the final NAFTA panel results.

5

Title 19 U.S.C. § 1516a(g)(5)(C)(iv) provides that:

Any action taken by the administering

authority or the United States Customs

Service under this subparagraph 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.

Consol. Court No. 07-00058 Page 6

[A]s the United States is well aware, the CWB

entries at issue in this action were never

suspended pursuant to section 1516a(g)(5)(C).

That section provides for “continued

suspension of liquidation” of entries during

an appeal to a NAFTA panel of the results of

an administrative review or scope

determination. The hard red spring wheat

entries at issue here were never the subject

of an administrative review or scope

determination. Rather, the entries were

suspended pursuant to 19 U.S.C. § 1675 when

the CWB requested an administrative review

and, subsequently, by this Court’s injunction

when the request for administrative review

was withdrawn. Because the entries at issue

were not suspended under section

1516a(g)(5)(C), the limitation on judicial

review of continued suspensions in

subparagraph (C)(iv) does not apply.

Pls.’ Resp. Defs.’ Mot. Reconsideration (“Pls.’ Resp.”) 2

(citations omitted). Thus, plaintiffs argue that defendants are

factually incorrect in claiming that liquidation of CWB’s

merchandise was suspended pursuant to § 1516a(g)(5)(C).

As to defendants’ contention that Wheat Board II purported

to review actions of Commerce made pursuant to 19 U.S.C.

§ 1516a(g)(5)(C), plaintiffs maintain:

[T]he United States’ argument fails even on

its own (counterfactual) terms. Section

1516a(g)(5)(C)(iv) operates only to bar

judicial review of action taken by Commerce

under 1516a(g)(5)(C), i.e., action taken to

continue suspension of liquidation. It would

not oust this Court of jurisdiction over

actions under 28 U.S.C. § 1581(i) like this

one, which do not challenge the continued

suspension of liquidation, but rather

Commerce’s failure to liquidate entries in

accordance with the final NAFTA panel

decision in the case.

Consol. Court No. 07-00058 Page 7

Pls.’ Resp. 2-3. Put another way, plaintiffs claim that

§ 1516a(g)(5)(C)(iv) prohibits judicial review only of specified

actions taken by Commerce pursuant to § 1516a(g)(5)(C)(i).

According to plaintiffs, in this case no such actions were taken

and hence the court was not reviewing any action taken under

§ 1516a(g)(5)(C)(i).

The court finds that plaintiffs are correct in both of their

contentions. First, despite defendants’ claims to the contrary,

in Wheat Board II liquidation of CWB’s merchandise was not

suspended pursuant to 19 U.S.C. § 1516a(g)(5)(C). Rather,

liquidation was suspended or enjoined pursuant to other

provisions of law. See Wheat Board II, 32 CIT at __, 580 F.

Supp. 2d at 1355-56 (“Plaintiff CWB’s entries were made in

September 2004 . . . . Liquidation of these entries was

suspended on October 31, 20056, when CWB filed a request for

administrative review of the AD/CVD Orders . . . . 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 . . . .”) (citations

6

A request for an administrative review results in the

continuation of the suspension of liquidation. See Tembec, Inc.

v. United States, 30 CIT , 461 F. Supp. 2d 1355, 1361 (2006),

judgment vacated by Tembec, Inc. v. United States, 31 CIT __, 475

F. Supp. 2d 1393 (2007).

Consol. Court No. 07-00058 Page 8

omitted). That liquidation of CWB’s entries was never suspended

pursuant to § 1516a(g)(5)(C) is apparent since that subsection

provides for an injunction-like suspension of liquidation

following a final determination of an administrative review or

scope determination. Here, there was no scope determination and

there was also no administrative review because the request for

such review was withdrawn. See Wheat Board II, 32 CIT at __, 580

F. Supp. 2d at 1356.

Next, defendants argue that the court was barred from

reviewing the effect of its notice of revocation, (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 Revocation”)),7 because 19 U.S.C.

§ 1516(a)(g)(5)(C) (iv) expressly precludes judicial review of

“any action” taken by Commerce “under this subparagraph.” For

the court, the operative word is “action.” See Defs.’ Mot. 6

(citing 19 U.S.C. § 1516 (a)(g)(5)(C)(iv)). An examination of

the subparagraph reveals that the “action” that Commerce is

authorized to undertake under § 1516(a)(g)(5)(C)(i) is to “order

the continued suspension of liquidation of those entries of

merchandise” that are the subject of a completed administrative

7

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.

Consol. Court No. 07-00058 Page 9

review or scope determination. See 19 U.S.C.

§ 1516(a)(g)(5)(C)(i). It is clear that the purpose of this

subsection is to bar this Court from reviewing decisions of

Commerce in a precise set of circumstances relating to the

continuation of a suspension of liquidation following the

completion of two specific administrative procedures. These

continuations of the suspension of liquidation are the only

actions authorized by the subsection. See 19 U.S.C.

§ 1516a(g)(5)(C)(i); 19 U.S.C. §§ 1516a(2)(B)(iii) and (vi). In

this case, no party has challenged any action relating to the

continued suspension of liquidation under § 1516a(g)(5)(C), nor

could they, simply because there was no suspension of liquidation

under that subsection.

Defendants endeavor to bolster their position by, for the

first time, recharacterizing the Notice of Revocation as a

“decision not to grant the benefit of section 1516a(g)(5)(C)

suspensions to certain entries of subject merchandise.” Defs.’

Mot. 6. This recharacterization does not save defendants’

argument. First, as noted, under the facts of this case there

was no suspension of liquidation under 19 U.S.C.

§ 1516a(g)(5)(C). Second, this “decision,” if in fact there ever

was one, is simply not an action authorized by § 1516a(g)(5)(C).

Finally, the court notes language in Wheat Board II that may

have led to a misunderstanding of the role played by 19 U.S.C.

Consol. Court No. 07-00058 Page 10

§ 1516a(g)(5)(C) in that decision. First, the court’s assertion

that, “[f]or CWB, the exception found in § 1516a(g)(5)(C)

applies,” (Wheat Board II, 32 CIT at __, 580 F. Supp. 2d at

1367), is a misstatement to the extent it suggests that CWB

relied on the suspension of liquidation found in § 1516a(g)(5)(C)

in its arguments. As noted, the liquidation of CWB’s merchandise

was the result of other provisions of law.

In addition, in reaching its conclusions in Wheat Board II,

the court relied on the reasoning found in Tembec, Inc. v. United

States, 30 CIT 1519, 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”).8 In that case,

suspension of liquidation of some of the entries at issue was

accomplished pursuant to § 1516a(g)(5)(C). As has been noted,

however, liquidation of none of CWB’s entries was suspended

pursuant to § 1516a(g)(5)(C), and plaintiffs have never asserted

otherwise. Rather, the reason that 19 U.S.C. § 1516a(g)(5)(C)

had such a prominent place in both Tembec II and Wheat Board

II is that its language and legislative history demonstrate

Congress’s intent that a suspension of liquidation preserves

entries for liquidation in accordance with a NAFTA panel’s final

8

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 11

determination. In order to make this point, the court in Wheat

Board II referred to Tembec II by stating that (1) the court

“expressly adopts the Tembec II panel’s analysis,” and (2) the

court adopted Tembec II’s observation “that the ‘continued’

suspension of liquidation provided for in § 1516a(g)(5)(C) ‘acts

as the equivalent of an injunction against liquidation and thus

halts liquidation until the suspension expires.’” Wheat Board

II, 32 CIT at __580 F. Supp. 2d at 1368-70 (citation omitted);

see also Tembec II, 30 CIT at __, 461 F. Supp. 2d at 1365-66

(“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.”).

The purpose of citing to these portions of Tembec II was to

make the point that a suspension of liquidation under

§ 1516a(g)(5)(C) would preserve entries for liquidation in

accordance with a final NAFTA panel ruling. It is, however, the

fact of suspension that commands this result, not the means. In

other words, suspension for any reason would have the same effect

as suspension under § 1516a(g)(5)(C). As a result, even though

none of the entries that were the subject of Wheat Board II were

suspended in accordance with § 1516a(g)(5)(C), because

liquidation was suspended under other provisions, they must be

liquidated in accordance with the NAFTA panel’s final ruling.

Consol. Court No. 07-00058 Page 12

With this further explanation, the court finds that the

holding and reasoning of Wheat Board II remain intact, i.e.,

“Commerce is obligated to liquidate all of CWB’s pre-Timken

Notice entries, whose liquidation has been suspended, without

regard to duties.” See Wheat Board II, 32 CIT at __, 580 F.

Supp. 2d at 1370. Further, “[t]his 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.” Id. at __, 580 F. Supp. 2d

at 1370. Accordingly, defendants’ motion is denied.

II. Plaintiffs’ Motion

Plaintiffs ask the court to address that portion of Wheat

Board II that dismissed the claims of the Governments of Canada

for lack of Article III standing. See Pls.’ Mot. 2; see also

Wheat Board II, 32 CIT at __, 580 F. Supp. 2d at 1364-1366. The

Canadian government plaintiffs do not dispute their dismissal as

plaintiffs for lack of Article III standing, however, they seek

to remain in this case as plaintiff-intervenors. Pls.’ Mot. 2.

Plaintiffs argue that when “an intervenor brings the same claims

and seeks the same relief as the original plaintiff, the

intervenor need not independently have Article III standing.”

Pls.’ Mot. 5. In other words, plaintiffs argue that although any

independent legal action brought by the Governments of Canada

Consol. Court No. 07-00058 Page 13

might be dismissed for lack of Article III standing, they should

not be dismissed from CWB’s case because they are properly

plaintiff-intervenors. For the reasons that follow, the court

finds that the Governments of Canada may take part in this case

as permissive plaintiff-intervenors.

A. Background

In Wheat Board II the court dismissed the Federal Government

of Canada’s complaint for lack of standing. See Wheat Board II,

32 CIT at __, 580 F. Supp. 2d at 1366. In doing so the court

held that none of the Governments of Canada had demonstrated

“injury-in-fact” independent of CWB’s claimed injury. Wheat

Board II, 32 CIT at __, 580 F. Supp. 2d at 1366. As plaintiffs

point out, however, Wheat Board II examined Article III standing

to bring separate actions, but not in the context of

participating in the case as intervenors. See Pls.’ Mot. 2

B. Statutory Authorization and Intervention

Intervention before this Court is authorized by statute.

See 28 U.S.C. § 2631(j)(1) (“Any person who would be adversely

affected or aggrieved by a decision in a civil action pending in

the Court of International Trade may, by leave of court,

intervene in such action . . . .”). As noted in Ontario Forest

Industr. Assoc. v. United States, 30 CIT __, __, 444 F. Supp. 2d

Consol. Court No. 07-00058 Page 14

1309, 1322 (2006), this statute has been given a broad

construction: “The phrase ‘adversely affected or aggrieved,’

which mirrors the language in numerous statutes, including of

Administrative Procedure Act, 5 U.S.C. § 702, represents a

‘congressional intent to cast the [intervention net] broadly –

beyond the common-law interests and substantive statutory rights’

traditionally known to law. Fed. Election Comm'n v. Akins, 524

U.S. 11, 19 (1998)).”

Each Canadian entity has alleged an interest sufficient to

demonstrate that it has been “affected” or “aggrieved” by

Commerce’s action within the meaning of 28 U.S.C. § 2631(j)(1).

Cf. Mot. Intervene of Gov’t of Canada 3 (“. . . as a NAFTA Party

and frequent party to U.S. AD/CVD actions against Canadian

products, the [Federal] Government of Canada has broad concerns

with the policy and practice of the United States of continuing

to apply an AD or CVD order, to unliquidated pre-Timken Notice

entries despite the invalidation through NAFTA binational panel

review of an agency determination that was an essential

underpinning of the order.”). Although not NAFTA parties, the

complaints of the governments of Saskatchewan, Ontario and

Alberta make allegations similar to those of the Federal

Government of Canada.

Consol. Court No. 07-00058 Page 15

C. Intervention Under Rule 24

USCIT Rule 24 (“Rule 24”), governs the right to intervene in

actions brought before this Court. See USCIT Rule 24. Rule 24

applies to intervention as a matter of right and to permissive

intervention.9 Id. Here, the Governments of Canada move in the

alternative for intervention as of right or by permission. See

Pls.’ Reply Supp. Mot. Clarification (“Pls.’ Reply”) 7, 7 n.3.

Because it finds that the Governments of Canada may proceed by

permission, the court will address permissive intervention only.

In March of 2007 the Federal Government of Canada and the

provinces of Alberta, Ontario and Saskatchewan each filed motions

to intervene in the case brought by CWB. See Consent Mot.

Intervene as Plaintiff-Intervenor by Gov’t of Canada; Consent

Mot. Intervene by Gov’t of Alberta; Consent Mot. Intervene by

Gov’t of Ontario; Consent Mot. Intervene as Plaintiff-Intervenor

by Gov’t of Saskatchewan. Each of these motions was accompanied

by a complaint. Id. Each motion was consented to by defendants,

although this consent stated that it was for “procedural

convenience . . . , without waiving any argument concerning

9

USCIT Rule 24(b) states in pertinent part:

(b) Permissive Intervention

Upon timely application anyone may be

permitted to intervene in an action . . .

when an applicant’s claim or defense and the

main action have a question of law or fact in

common . . . .

Consol. Court No. 07-00058 Page 16

standing or any other issue.” See, e.g., Consent Mot. Intervene

as Plaintiff-Intervenor by Gov’t of Canada 4. While defendants

claim that the Governments of Canada may not proceed in this case

as intervenors because they lack Article III standing, defendants

have made no argument that they have not satisfied the

requirements of USCIT Rule 24. The granting of permissive

intervention is discretionary with the Court. Manuli

Autoadesivi, S.p.A. v. United States, 9 CIT 24, 26, 602 F. Supp.

96, 98 (1985).

Permissive intervention under USCIT Rule 24(b) requires that

an applicant’s claim and that of the main action share a common

question of law or fact. USCIT Rule 24(b). Here, the facts of

the case are necessarily shared by all entities interested in the

case. In addition, the respective complaints of the Governments

of Canada are, in every material respect, the same as that of

CWB. That being the case, the requirements of USCIT Rule 24(b)

are satisfied.

As noted, defendants made no argument that the Governments

of Canada failed to qualify as permissive intervenors at the time

they consented to their intervention. Even now, defendants’ only

claim is that intervenors must have Article III standing in order

to intervene. In other words, defendants appear to concede that

the Governments of Canada have met the requirements of 28 U.S.C.

§ 2631(j)(1) and of USCIT Rule 24(b).

Consol. Court No. 07-00058 Page 17

D. Article III Standing

As far as can be determined, the question of whether

independent Article III standing is required for permissive

intervenor status under USCIT Rule 24 or for that matter under

Fed. R. Civ. P. 2410 is a question of first impression for the

Federal Circuit. See Landmark Land Co. v. FDIC, 256 F.3d 1365,

1382 (Fed. Cir. 2001) (“Landmark”). As will be seen, the other

Circuits are split on this question.

For its part, the United States Supreme Court appears to

favor a finding that Article III standing is not required for an

intervenor to participate in an action. While no case is

directly on point, the Court has addressed questions related to

the issue. See Diamond v. Charles, 476 U.S. 54, 68 (1986)

(“Diamond”). In Diamond, several physicians challenged the

constitutionality of an Illinois abortion statute. Id. at 56-57.

The State of Illinois defended the statute’s constitutionality,

and a pediatrician who supported the law filed a motion to

intervene on the side of the State. Id. at 57. Thereafter, the

district court enjoined certain provisions of the Illinois

statute and the Court of Appeals for the Seventh Circuit

affirmed. Id. at 61. The state of Illinois did not file a

10

Because both the Federal Rules of Civil Procedure and

the rules of this Court are undergoing drafting revisions, the

text of Fed. R. Civ. P. 24 has newly revised language while USCIT

Rule 24 retains the old wording. At the time the Governments of

Canada made their motions to intervene the rules were, in all

material respects, the same.

Consol. Court No. 07-00058 Page 18

petition for a writ of certiorari, but the intervening

pediatrician did seek to appeal to the Supreme Court. Id.

The Court held that, because the State of Illinois did not

appeal the circuit court’s decision, there was no longer an

Article III “case” or “controversy” to be heard. Id. at 63-64.

In reaching its conclusion, the Court found that intervention,

whether permissive or as of right, does not confer a status

sufficient to keep a case alive absent an independent showing of

Article III standing. Id. at 68 (“Although intervenors are

considered parties entitled, among other things, to seek review

by this Court, an intervenor’s right to continue a suit in the

absence of the party on whose side intervention was permitted is

contingent upon a showing by the intervenor that he fulfills the

requirements of Art. III.”) (citations omitted); see also id. at

68, n.21 (noting the split of authority among circuit courts on

this issue).

In deciding Diamond, the Court explicitly stated that it was

not deciding whether those seeking to intervene on the side of a

party that has demonstrated Article III standing must show that

they too satisfy the case or controversy requirement.

We need not decide today whether a party

seeking to intervene before a District Court

must satisfy not only the requirements of

Rule 24(a)(2)11, but also the requirements of

Art. III. To continue this suit in the

11

This subsection is “Intervention of Right.”

Consol. Court No. 07-00058 Page 19

absence of Illinois, Diamond himself must

satisfy the requirements of Art. III. The

interests Diamond asserted before the

District Court in seeking to intervene

plainly are insufficient to confer standing

on him to continue this suit now.

See Diamond, 476 U.S. at 68-69. Nonetheless, the Court stated

that: “[h]ad the State sought review, . . . [the pediatrician],

as an intervening defendant below, also would be entitled to seek

review, enabling him to file a brief on the merits, and to seek

leave to argue orally.” Id. at 64. In addition, the Court

observed that the “ability to ride ‘piggyback’ on the State’s

undoubted standing exists only if the State is in fact an

appellant before the Court; in the absence of the State in that

capacity, there is no case for Diamond to join.” Id. at 64. In

other words, the Supreme Court appears to accept the idea that,

if the party with which it is aligned has demonstrated Article

III standing, an intervenor, despite the inability to demonstrate

independent Article III standing, may participate in the case.

Likewise, in Trbovich v. United Mine Workers of America, 404

U.S. 528 (1972) (“Trbovich”), the Supreme Court allowed a

plaintiff-intervenor to remain in a case even though his

participation as a plaintiff was barred by statute.12 Thus,

12

The Secretary of Labor had instituted the action under

29 U.S.C. § 402(b) of the Labor Management Reporting and

Disclosure Act (“LMRDA”). Trbovich, 404 U.S. 528 at 529, 531.

(“This Court has held that § 403 [of LMRDA] prohibits union

members from initiating a private suit to set aside an

election.”). Thus, the intervenor had no independent standing to

(continued...)

Consol. Court No. 07-00058 Page 20

while the intervenor could not independently satisfy the case or

controversy requirement, the Court found that he too could

“piggyback” on the standing of another so long as the

intervention was limited to the claims presented by that party.

i. Federal Circuit Authority

As noted, the only Federal Circuit case that touches on this

issue is Landmark, 256 F.3d at 1365. In Landmark, the Federal

Deposit Insurance Corporation (“FDIC”) sought to intervene in an

action brought against the United States. Id. at 1379-80. The

trial court granted FDIC’s motion to intervene. Id. at 1380. On

appeal, the Federal Circuit dismissed the FDIC as an intervenor

because its claims were unrelated to those of the party on whose

side it sought to intervene. Id. at 1382.

As to Article III standing, the Court found a lack of a

justiciable controversy between the FDIC and defendant the United

States because “[H]ere at no time were the FDIC and the United

States truly adverse parties.” Landmark, 256 F. 3d at 1380. As

a result, the FDIC could not demonstrate that it had standing

under Article III. The Federal Circuit, however, went on to

observe:

The FDIC intervened in this case. Whether an

intervening party must satisfy the case-or-

controversy requirement independently of the

12

(...continued)

sue.

Consol. Court No. 07-00058 Page 21

claims brought by the other plaintiffs is an

open question. We conclude, however, that

because the FDIC’s claims are unrelated to

those brought by [the plaintiff], it would be

improper to permit the FDIC to proceed given

the lack of a justiciable controversy with

respect to the claims.

Id. (citations omitted). Thus, the Federal Circuit in Landmark

has left open the possibility that an intervenor need not satisfy

the Article III case or controversy requirement so long as its

claims are the same as those of a party that has satisfied the

test.

ii. Circuits Holding That An Intervening Party Does

Not Need To Have Independent Article III Standing

Unlike the Federal Circuit, other Circuits have taken a

definitive position on this issue. In United States Postal

Service v. Brennan, (“Brennan”), 579 F.2d 188, 190 (2d Cir.

1978), the Second Circuit stated that intervening parties need

not establish independent standing, so long as there is a case or

controversy within the meaning of Article III between the

plaintiff and defendant. Brennan involved a challenge to the

constitutionality of the Private Express Statutes13 and

applicable Postal Service Regulations. The dispute arose when

the United States Postal Service filed an action to permanently

13

The statutes limited the ability of private parties to

compete with the United States mail. See Air Courier Conference

v. Am. Postal Workers Union, 498 U.S. 517, 519 (1991).

Consol. Court No. 07-00058 Page 22

enjoin the Brennans from running a mail delivery business. Id.

The National Association of Letter Carriers (“NALC”), a union

representing Postal Service employees, filed a motion to

intervene. The district court denied the motion because NALC

could not demonstrate Article III standing. Id.

On appeal, the Second Circuit affirmed the denial14 of

NALC’s motion to intervene but disagreed with the district court

on the significance of standing. Id. The Court stated that the

question of standing was to be considered in the framework of

Article III, which restricts judicial power to “cases” and

“controversies.” Id. The Court went on to observe: “[t]he

existence of a case or controversy having been established as

between the Postal Service and the Brennans, there was no need to

impose the standing requirement upon the proposed intervenor.”

Id. (citations omitted).

In Ruiz v. Estelle, 161 F.3d 814, 830 (5th Cir. 1998)

(“Ruiz”), the Fifth Circuit similarly held that Article III does

not require intervenors to possess independent standing “where

the intervention is into a subsisting and continuing Article III

case or controversy . . . .” The Ruiz Court reasoned that, once

a valid Article III case or controversy is present, a court’s

jurisdiction vests and the presence of additional parties,

14

The Court of Appeals found that NALC, having intervened

as a matter of right under Fed. R. Civ. P. 24(a)(2) failed to

demonstrate “any inadequacy of representation.” Brennan, 579 F.2d

at 191.

Consol. Court No. 07-00058 Page 23

although they alone could not independently satisfy the Article

III requirements, does not affect the jurisdiction that is

already established. Id. at 832 (footnote omitted).

Recently, the Tenth Circuit also held that parties seeking

to intervene under Rule 24 need not establish Article III

standing, “so long as another party with constitutional standing

on the same side as the intervenor remains in the case.” San

Juan County, Utah v. United States, 503 F.3d 1163, 1172 (10th

Cir. 2007) (en banc) (quotation and citation omitted).

The Sixth and Eleventh Circuits have echoed the view that an

intervening party need not establish standing under Article III.

See Purnell v. City of Akron, 925 F.2d 941, 948 (6th Cir. 1991);

Dillard v. Chilton County Comm’n, 495 F.3d 1324, 1336 (11th Cir.

2007).

iii. Circuits Holding That An Intervening Party Must

Establish Independent Article III Standing In

Order To Intervene In An Action

By way of contrast, the Seventh, Eighth and D.C. Circuits

have held that an intervening party must establish Article III

standing in addition to meeting Rule 24’s intervention

requirements. See Jones v. Prince George’s County, Maryland, 348

F.3d 1014, 1017 (D.C. Cir. 2003) (per curiam) (“Jones”); Fund for

Animals, Inc., v. Norton, 322 F.3d 728, 731-32 (D.C. Cir. 2003)

(“Fund for Animals”); Mausolf v. Babbitt, 85 F.3d 1295, 1300 (8th

Consol. Court No. 07-00058 Page 24

Cir. 1996) (“Mausolf”); Solid Waste Agency v. United States Army

Corps of Eng’rs, 101 F.3d 503, 507 (7th Cir. 1996) (“Solid Waste

Agency”). In articulating their reasoning, these Circuits have

found that intervenors must establish Article III standing

because they seek to participate on an equal footing with the

original parties to the action. See, e.g., Mausolf, 85 F.3d at

1300 (“An Article III case or controversy is one where all

parties have standing, and a would-be intervenor, because he

seeks to participate as a party, must have standing as well.”);

see also Fund for Animals, 322 F.3d at 731-732; Jones, 348 F.3d

at 1017; Solid Waste Agency, 101 F.3d at 507.

E. The Governments of Canada Have Standing as Plaintiff-

Intervenors

Plaintiffs’ motion asks the court to permit the Governments

of Canada to remain in this action as plaintiff-intervenors. See

Pls.’ Reply Mem. 7, 7 n.3. As noted, plaintiffs contend that

because they are bringing “precisely the same claims and seek

precisely the same relief” as CWB, they need not establish

independent Article III standing, and should be allowed to

continue in the ongoing litigation as plaintiff-intervenors.

Pls.’ Mot. 7.

The court finds that the Governments of Canada may

participate in the ongoing litigation as permissive plaintiff-

intervenors. This conclusion results from the clear indication

Consol. Court No. 07-00058 Page 25

of the Supreme Court in Diamond that this would be the outcome

should it address the issue, and from the Federal Circuit

decision in Landmark, suggesting this as a possible result. In

reaching its conclusion the court relies, in particular, on the

discussion in Ruiz:

We find the better reasoning in those cases

which hold that Article III does not require

intervenors to possess standing. These cases

recognize that the Article III standing

doctrine serves primarily to guarantee the

existence of a “case” or “controversy”

appropriate for judicial determination. . . .

Once a valid Article III case-or-controversy

is present, the court’s jurisdiction vests.

The presence of additional parties, although

they alone could independently not satisfy

Article III’s requirements, does not of

itself destroy jurisdiction already

established.

161 F.3d at 832 (citations and footnote omitted).

In other words, Article III establishes the jurisdictional

requirement that the court address cases or controversies. Once

that jurisdictional requirement is met, so long as the parties

with standing remain in the case, the court’s jurisdiction

continues regardless of the presence of intervenors. Here, the

court has a case or controversy before it brought by CWB against

the United States and Commerce. The Governments of Canada have

met the requirements of USCIT Rule 24(b) and their claims and

prayers for relief are identical to those of CWB on whose side

they seek to intervene. No party would be burdened by granting

Consol. Court No. 07-00058 Page 26

the Governments of Canada plaintiff-intervenor status, nor would

the court. Therefore, the Governments of Canada may remain in

this case as permissive plaintiff-intervenors despite being

unable to demonstrate independent Article III standing.

F. Remedies

Finally, in Wheat Board II the court directed the parties to

“consult and jointly submit to the court the form of a judgment

comporting with this opinion . . . .” Wheat Board II, 32 CIT at

__, 580 F. Supp. 2d at 1371. While this instruction has since

been modified by a subsequent court order,15 a dispute has arisen

concerning the relief the order should grant. CWB and the

Governments of Canada insist that the judgment should “award all

of the injunctive and declaratory relief requested by CWB and the

Canadian federal and provincial governments as plaintiff-

intervenors.” Pls.’ Mot. 8. Plaintiffs argue that this relief

should include a declaration that:

The Tariff Act of 1930, as amended, requires

unliquidated entries to be liquidated in

accordance with the final and conclusive

results of binational panel review, and 19

U.S.C. § 1516a(g)(5)(B) does not require or

permit such entries to be liquidated in

accordance with an ITC or Commerce

determination finally and conclusively

invalidated pursuant to binational panel

review.

15

Canadian Wheat Board v. United States, Consol. Ct. No.

07-00058 (Nov. 21, 2008) (order granting defendants’ motion for

relief from filing a judgment).

Consol. Court No. 07-00058 Page 27

Pls.’ Mot. 8, App. A at 4.

Plaintiffs insist that this remedy is appropriate because

“If the judgment does not clearly grant declaratory relief,

Defendants may contend that the judgment has no bearing on their

conduct in future proceedings, resulting in future attempts to

liquidate entries in accordance with AD or CVD determinations

invalidated by binational panels.” Pls.’ Mot. 8. In other

words, plaintiffs would have the court grant declaratory relief

for use in future disputes in the event a situation arises with

facts that are substantially the same as those presented here.

The defendants oppose declaratory relief.16

The authority to grant a declaratory judgment is found in

the Declaratory Judgment Act, (28 U.S.C. § 2201(a)), and the

rules of this Court. See 28 U.S.C. § 2201(a) (“[A]ny court of

the United States, upon the finding of an appropriate pleading,

may declare the rights and other legal relations of any

interested party seeking such declaration, whether or not further

relief is or could be sought.”); USCIT Rule 57.

The Supreme Court has explained that “[w]hile the courts

should not be reluctant” to grant relief in appropriate cases,

16

The defendants assert that: “The Declaratory Judgment

Act prohibits the issuance of declaratory judgments ‘in any civil

action involving an antidumping or countervailing duty proceeding

regarding a class or kind of merchandise of a free trade area

country.’” Defs.’ Resp. Pls.’ Mot. Clarification 8 (quoting 28

U.S.C. § 2201(a)). Because the court declines to issue a

declaratory judgment it does not address this argument.

Consol. Court No. 07-00058 Page 28

the declaratory judgment statute “is an enabling Act, which

confers a discretion on the courts rather than an absolute right

upon the litigant.” Pub. Serv. Comm’n v. Wycoff Co., 344 U.S.

237, 241, 243 (1952); see also Wilton v. Seven Falls Co., 515

U.S. 277, 288 (1995) (“By the Declaratory Judgment Act, Congress

sought to place a remedial arrow in the district court’s quiver;

it created an opportunity, rather than a duty, to grant a new

form of relief to qualifying litigants.”); Green v. Mansour, 474

U.S. 64, 72 (1985).

The court will not exercise its discretion to enter a

declaratory judgment. This case concerns the return of deposits

now held by the United States government. Plaintiffs will

ultimately have a judgment directing the return of their

deposits. Plaintiffs have presented nothing to indicate that

they have any reasonable belief that they will not receive their

money or that they will be injured in the future in the same way

by defendants’ conduct. In this respect, the facts here can be

contrasted with those in Canadian Lumber Trade Alliance v. United

States, 30 CIT 892, 895, 441 F. Supp. 2d 1259, 1263 (2006), where

the Court found “that future injury to Plaintiffs from

Defendant’s conduct is certain.” Thus, the court is unable to

find that declaratory judgment, having prospective effect, is

appropriate here.

Finally, plaintiffs seek injunctive relief, although they

Consol. Court No. 07-00058 Page 29

make no argument for this remedy in their moving papers. In

addition, in their complaints none of the parties ask for

mandatory injunctive relief. Because plaintiffs fail to make any

argument with respect to their request for an injunction their

application for this relief is denied. See eBay Inc. v.

MercExchange, L.L.C., 547 U.S. 388, 391 (2006) (“According to

well-established principles of equity, a plaintiff seeking a

permanent injunction must satisfy a four-factor test before a

court may grant such relief.”).

CONCLUSION

For the foregoing reasons, the court denies defendants’

motion for reconsideration and grants plaintiffs’ motion for

reconsideration. The parties are hereby ordered to contact Casey

Ann Cheevers, Case Manager, United States Court of International

Trade, One Federal Plaza, New York, New York, 10278, within five

days of the issuance of this opinion to set the date for a

hearing as to the form of judgment.

/s/ Richard K. Eaton

Richard K. Eaton

Dated: September 1, 2009

New York, New York