Coalition for Fair Lumber Imports, Executive Committee v. United States of America , Et Al .

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 8, 2006 Decided December 12, 2006
No. 05-1366
COALITION FOR FAIR LUMBER I MPORTS, EXECUTIVE
COMMITTEE ,
PETITIONER
v.
UNITED STATES OF AMERICA , ET AL .,
RESPONDENTS
CANADIAN LUMBER TRADE ALLIANCE , I NC ., ET AL .,
I NTERVENORS
Harvey Kurzweil argued the cause for petitioner. With
him on the briefs was Alexander M. Kayne. Kevin M.
Dempsey entered an appearance.
Douglas Letter, Litigation Counsel, U.S. Department of
Justice, argued the cause for respondents. With him on the
briefs were Jeffrey S. Bucholtz, Acting Assistant Attorney

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General, and Gregory G. Katsas, Deputy Associate Attorney
General.
Seth P. Waxman argued the cause for intervenors
Government of Canada, et al. in support of respondent. With
him on the brief were Randolph D. Moss, Mark C. Fleming,
Danielle M. Spinelli, M. Jean Anderson, Warren E. Connelly,
Spencer S. Griffith, Mark S. McConnell, H. Dean Kaplan,
Michael L. Stevens, and Keith R. Marino. Lorane F. Hebert,
Courtney E. Smothers, and Lawrence A. Schneider entered
appearances.
Elliot J. Feldman was on the brief for amicus curiae
Canadian American Business Council in support of
respondent.
Elliot J. Feldman, Michael S. Snarr, Mark A. Moran, and
Michael A. Vatis were on the brief for intervenors the
Canadian Lumber Trade Alliance, Inc., et al. in support of
respondents. Bryan J. Brown entered an appearance.
Steven E. Becker was on the brief for amicus curiae
Government of Mexico in support of respondents.
Before: RANDOLPH and TATEL , Circuit Judges, and
EDWARDS , Senior Circuit Judge.
Opinion for the Court filed PER CURIAM.
PER CURIAM: This case presents a constitutional
challenge to the binational panel review provisions of the
United States-Canada Free-Trade Agreement Implementation

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Act of 1988 and the North American Free Trade Agreement
Implementation Act of 1993. As we explain in this opinion,
we lack jurisdiction and therefore dismiss the complaint.
I.
This case arises from a trade dispute between the United
States and Canada regarding softwood lumber imports. In
2001, the Coalition for Fair Lumber Imports, an association
representing U.S. lumber producers, and other interested
parties petitioned the Department of Commerce seeking
imposition of antidumping and countervailing duties
(AD/CVDs) on Canadian softwood lumber imports. The
Coalition alleged that Canadian provincial governments were
unfairly subsidizing their local lumber industries by charging
below-market timber fees for lumber harvested on
government-owned land. Under 19 U.S.C. §§ 1671b and
1673b, antidumping and countervailing duties may be
imposed only if the U.S. government makes two findings,
each called a “determination.” As we have previously
explained in American Coalition for Competitive Trade v.
Clinton, 128 F.3d 761 (D.C. Cir. 1997), “the Department of
Commerce determines whether dumping has occurred or
whether an exporting nation has provided a subsidy. If the
Commerce Department finds dumping or a subsidy, the
United States International Trade Commission then
determines whether the importer’s behavior has actually
injured or threatened to injure a U.S. industry.” Id. at 762
(citations omitted); see also 19 U.S.C. §§ 1671b(a), 1673b(a).
In most situations, a party may seek judicial review of
Commerce Department and International Trade Commission

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(ITC) determinations only in the U.S. Court of International
Trade (CIT). 19 U.S.C. § 1516a(a)(1).
The United States-Canada Free-Trade Agreement
Implementation Act of 1988, Pub. L. No. 100-449, 102 Stat.
1851 (1988), and the North American Free Trade Agreement
Implementation Act of 1993, Pub L. No. 103-182, 107 Stat.
2057 (1993), however, created an optional alternative review
process for Commerce Department and ITC determinations
regarding goods imported from either Canada or Mexico.
Again, as we explained in American Coalition for Competitive
Trade:
Under this scheme, any “interested party” that
appeared in the administrative proceedings
before the Commerce Department or the
International Trade Commission may request
a binational panel to review the decisions
those domestic agencies made. Panel
members are selected by the United States and
the other nation involved, with the United
States Trade Representative appointing this
country’s panel candidates. These panels
apply the substantive law of the importing
country.
128 F.3d at 763 (citations omitted); see also 19 U.S.C. §§
1516a(g)(8), 3432(d); North American Free Trade
Agreement, U.S.-Can.-Mex., art. 1904(2), Dec. 17, 1992, 32
I.L.M 605, 683 (hereinafter NAFTA); NAFTA Annex 1901.2,
32 I.L.M. at 687. If a binational panel rules that a
determination fails to comply with U.S. law, the panel

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remands the matter to the agency, which “shall . . . take action
not inconsistent with the decision of the panel.” 19 U.S.C. §
1516a(g)(7)(A). A country may appeal a BNP decision to a
binational Extraordinary Challenge Committee (ECC)—again
made up of appointees from each country. See NAFTA art.
1904(13), 32 I.L.M. at 683; NAFTA Annex 1904.13, 32
I.L.M. at 688. BNP or ECC decisions, as well as agency
actions in compliance with these decisions, are not usually
reviewable by United States courts. 19 U.S.C. § 1516a(g)(2),
(g)(7)(A). Critical to the issues before us, however, Congress
gave this court original jurisdiction for facial constitutional
challenges to the binational panel system itself:
An action for declaratory judgment or
injunctive relief, or both, regarding a
determination on the grounds that any
provision of . . . the North American Free
Trade Agreement Implementation Act
implementing the binational dispute
settlement system . . . violates the Constitution
may be brought only in the United States
Court of Appeals for the District of Columbia
Circuit, which shall have jurisdiction of such
action.
19 U.S.C. § 1516a(g)(4)(A).
The softwood lumber dispute proceeded through each of
these steps. In April 2002, Commerce issued two final
determinations finding that Canadian softwood lumber
products were being sold below market value, i.e., dumped,
and were receiving countervailable subsidies. See Certain

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Softwood Lumber Prods. from Canada, 67 Fed. Reg. 15,539
(Dep’t of Commerce Apr. 2, 2002) (notice of final
determination of sales at less than fair value); Certain
Softwood Lumber Prods. from Canada, 67 Fed. Reg. 15,545
(Dep’t of Commerce Apr. 2, 2002) (notice of final affirmative
countervailing duty determination). After the ITC
subsequently determined that these imports “threaten[] with
material injury” the U.S. lumber industry, see Softwood
Lumber from Canada, 67 Fed. Reg. 36,022 (Int’l Trade
Comm. May 22, 2002), the Commerce Department imposed
duties on Canadian softwood lumber, see Certain Softwood
Lumber Prods. from Canada, 67 Fed. Reg. 36,068 (Dep’t of
Commerce May 22, 2002) (notice of amended final
determination of sales at less than fair value and antidumping
duty order); Certain Softwood Lumber Prods. from Canada,
67 Fed. Reg. 36,070 (Dep’t of Commerce May 22, 2002)
(notice of amended final affirmative countervailing duty
determination and notice of countervailing duty order). The
Canadian government and other Canadian parties then
challenged the ITC’s material threat determination by
invoking the binational panel process. The BNP, in turn,
issued several opinions, ultimately remanding the matter to
the ITC with instructions to find that the record evidence
“does not support a finding of threat of material injury.”
Certain Softwood Lumber Prods. from Canada: Final
Affirmative Threat of Injury Determination, No. USA-CDA-
2002-1904-07, 2004 FTAPD LEXIS 8, at *15 (Aug. 31 2004).
Complying with the panel’s decision, the ITC issued the
required determination. See Views of the U.S. International
Trade Commission on Remand (Third) at 13-14, Certain
Softwood Lumber from Canada, USITC Pub. 3815, Inv. Nos.
701-TA-414, 731-TA-928 (Sept. 10, 2004). The United

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States requested review of the BNP decision by an ECC,
which in turn affirmed the panel’s decision. See Certain
Softwood Lumber Prods. from Canada, No. ECC-2004-1904-
01USA, 2005 FTAPD LEXIS 6 (Aug. 10, 2005). The
Coalition then brought this action under 19 U.S.C. §
1516a(g)(4)(A), alleging that the binational panel system
violates various provisions of the U.S. Constitution, including
the Due Process Clause, Appointments Clause, and Article III.
II.
After oral argument, the United States and Canada, with
the Coalition’s support, entered into the Softwood Lumber
Agreement (SLA), pursuant to which the United States
revoked its antidumping and countervailing duty orders
“without possibility of reinstatement.” See Certain Softwood
Lumber Prods. from Canada, 71 Fed. Reg. 61,714 (Dep’t of
Commerce Oct. 19, 2006) (notice of rescission of
antidumping duty reviews and revocation of antidumping duty
order); Certain Softwood Lumber Prods. from Canada, 71
Fed. Reg. 61,714 (Dep’t of Commerce Oct. 19, 2006) (notice
of rescission of countervailing duty reviews and revocation of
countervailing duty order). The United States and Canada
then moved to dismiss this action, arguing that revocation of
the AD/CVD orders deprives the Coalition of Article III
standing. Conceding that the SLA renders its claim for
injunctive relief unnecessary, the Coalition responds that the
agreement does not moot its claims for declaratory relief.
According to the Coalition, declaring the binational panel
system unconstitutional would make it “less likely that the
Government of Canada will prematurely terminate the SLA,”
Resp. to Mot. to Dismiss 4, because absent an agreement

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Canada would no longer be protected by a “biased BNP
forum.” Id. The Coalition also contends that even if no party
violates the SLA, once the agreement expires the Coalition
“fully expects that it will be forced to participate in a BNP
proceeding.” Id. at 5.
We need not resolve this debate, however, as the SLA
deprives us of statutory jurisdiction. United States ex rel.
Long v. SCS Bus. & Tech. Inst., Inc., 173 F.3d 890, 893 (D.C.
Cir. 1999) (“As between two jurisdictional issues, there
ordinarily is no obligation to decide one before the other.”);
see also Steel Co. v. Citizens for a Better Env't, 523 U.S. 83,
100 n.3 (1998) (noting cases where Supreme Court chose
between jurisdictional issues). Congress designed the BNP
process as an alternative to litigation in U.S. courts. See, e.g.,
H.R. Rep. No. 100-816, pt. 4, at 1 (1988) (describing panels
as an optional “substitute[] for judicial review”). With very
limited exceptions, it broadly stripped the jurisdiction of
courts to hear claims arising from the binational panel
process. See 19 U.S.C. § 1516a(g)(2) (stripping jurisdiction
from CIT and all other courts when a binational panel review
of a determination is requested); but see, e.g., 19 U.S.C. §
1516a(g)(3)(A)(iii) (allowing judicial review in CIT of
determinations that were the result of a remand from the CIT,
not a BNP).
One of those exceptions is this Court’s carefully
circumscribed jurisdiction to hear facial constitutional
challenges to the binational panel system. 19 U.S.C. §
1516(g)(4)(A). Congress provided jurisdiction to hear such
constitutional claims only for an “action for declaratory
judgment or injunctive relief, or both, regarding a

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determination . . . .” Id. (emphasis added). After the SLA,
however, there is no determination left on which to hang our
hat. By permanently revoking the AD/CVD orders, the SLA
renders the underlying ITC determination void. To do as the
Coalition requests—to keep this case either because it might
ensure that the parties adhere to their agreement or because
the parties may be subject to some future
determination—would read the words “regarding a
determination” out of the statute. Absent a determination, this
suit amounts to a free-standing challenge to the
constitutionality of the binational panel system—a challenge
Congress expressly chose not to permit. Lacking jurisdiction
over such a claim, we dismiss.
So ordered.

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