CIT Refuses to Compel Refunds of CVD Cash Deposits for Canadian Lumber Exporters

The case concerns the expedited CVD review on Canadian softwood lumber, which Barnett remanded for the Commerce Department to review its decision not to attribute subsidies received by lumber suppliers to respondents (see 2404230031). The case had returned to CIT after the U.S. Court of Appeals for the Federal Circuit reversed the trade court's finding that expedited CVD reviews aren't allowed under U.S. law (see 2304250061).

After the CAFC decision, the trade court said it wasn't fair to make exporters who were originally excluded from the CVD order in the expedited review subject to the consequences of the order. Barnett told the U.S. to stop collecting CVD cash deposits on shipments made on or after Aug. 28, 2021. The excluded companies said the U.S. continued to withhold the deposits, prompting the companies to ask the court to revise the language of the order accompanying its decision to clarify the government's obligation to provide the refunds (see 2411190038).

Barnett refused this request, which the excluded companies requested under either CIT Rule 60(a) or Rule 60(b)(5).

Rule 60(a) lets the court correct a clerical mistake or mistake arising from oversight or omission whenever one is found in a judgment, order or other part of the record so the relevant document can conform with the intentions of the court and the parties. Barnett said that under this order, the excluded companies "effectively seek an affirmative injunction requiring CBP to issue, on request, pre-liquidation refunds."

The judge said this is a "substantially different form of relief from the issuance of refunds via liquidation in the normal course." Barnett said the companies suggest in their filings that they were "mistaken in their expectations" about what CBP would do as a result of the order. Yet these "erroneous expectations are not" a "basis for relief under Rule 60(a)."

Barnett then declined to use Rule 60(b)(5), which lets the court "relieve a party or its legal representative from a final judgment, order, or proceeding” when “applying [the judgment or order] prospectively is no longer equitable.” While the court used this rule in its last decision telling the U.S. to stop collecting the CVD cash deposits, the judge said he can't use it this time around.

The court said the excluded companies "fail to persuade the court that any harm arising from the Government’s retention of cash deposits pending liquidation outweighs this administrative burden.” The companies' "assertions of harm are conclusory and unsupported by affidavits or other evidence." Barnett said he's aware that suspension of the subject entries remains in place and may stay that way pending litigation of a parallel antidumping review.

"“The interest on any excess cash deposits paid will continue to accrue until liquidation, providing the statutorily provided offset to any harm arising from the unavailability of the funds until that time," the court said.

(Committee Overseeing Action for Lumber International Trade Investigations or Negotiations v. United States, Slip Op. 25-47, CIT Consol. # 19-00122, dated 04/18/25; Judge: Mark Barnett; Attorneys: Sophia Lin of Picard Kentz for plaintiff Committee Overseeing Action for Lumber International Trade Investigations or Negotiations; Stephen Tosini for defendant U.S. government; Edward Lebow of Haynes and Boone for defendant-intervenors Les Produits Forestiers D&G and Marcel Lauzon; Rajib Pal of Sidley Austin for defendant-intervenors North American Forest Products, Parent-Violette Gestion and Le Group Parent; and Yohai Baisburd of Cassidy Levy for defendant-intervenor Scierie Alexandre Lemay & Fils Inc.)