Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Resolute Forest Products, Inc. v. United States Department of Agriculture

United States District Court, District of Columbia

December 12, 2019




         Like two heavyweight fighters trying to mount a late-career comeback, the parties here return to the ring three years after what appeared to be the conclusion of their long-running bout over the United State Department of Agriculture's Softwood Lumber Checkoff Order. The Court has thrice issued decisions finding deficiencies in the same portion of the Order -- the so-called “de minimis threshold, ” which exempts certain market participants from a mandatory assessment administered by the agency to fund industry-wide initiatives. After finally remedying the problematic aspect of the Checkoff Order, USDA now seeks to enforce it against Plaintiff Resolute Forest Products, Inc. Crying foul, Plaintiff argues that the Court's prior Opinions preclude USDA's current enforcement efforts. A court, not a party, however, “is generally the authoritative interpreter of its own remand.” AT&T Wireless Servs., Inc. v. FCC, 365 F.3d 1095, 1099 (D.C. Cir. 2004). After engaging in the self-interpretation required here, the Court finds that USDA did, in fact, comply with its mandate on remand; it will thus deny Plaintiff's Motion to Enforce the Judgment along with its Contempt Motion.

         I. Background

         A. Statutory Background

         The Commodity Promotion, Research and Information Act is one of more than a dozen federal statutes aimed at encouraging the sale of agricultural commodities, and it does so, in part, by facilitating “generic promotion” campaigns. See 7 U.S.C. §§ 7411-7425; see Avocados Plus, Inc. v. Veneman, 370 F.3d 1243, 1245 (D.C. Cir. 2004). Given the limited product differentiation in the agricultural industry, such generic promotion of any commodity (e.g., “Got Milk?”) advances demand across the industry, regardless of brand. In order to fund these campaigns, the CPRIA authorizes the Secretary of Agriculture to establish checkoff programs, which collect assessments from domestic manufacturers and foreign importers of a commodity to pay for generic marketing initiatives. See 7 U.S.C. § 7413. Among the commodities covered by the CPRIA are “products of forestry, ” including softwood lumber. Id. § 7412(1)(D).

         The assessments created by these checkoff programs, however, are not imposed on every manufacturer or importer of a given commodity, regardless of size. Instead, the Secretary is authorized “to exempt from the order any de minimis quantity of an agricultural commodity otherwise covered by the order.” Id. § 7415(a)(1). Determining this number is no easy task. As the Court previously explained in great detail, the Softwood Lumber Checkoff Order promulgated by USDA in 2011 exempted from assessment all entities that shipped or imported fewer than 15 million board feet per fiscal year. See, e.g., Resolute Forest Prods., Inc. v. USDA (Resolute I), 130 F.Supp.3d 81, 86-88 (D.D.C. 2015).

         B. Procedural History

         Resolute is an American importer of softwood lumber that became subject to the Checkoff Order's mandatory assessment in 2012. Id. at 88. In December 2014, it brought suit against Defendants, raising multiple challenges to the Checkoff Order under both the U.S. Constitution and the Administrative Procedure Act. See ECF No. 1 (Complaint), ¶¶ 123-200. The Court granted USDA's Motion for Summary Judgment on all of Resolute's APA counts save one: Plaintiff's claim that Defendants' selection of 15 million board feet as the de minimis quantity to be exempted from the assessment was arbitrary and capricious in violation of the APA. See Resolute I, 130 F.Supp.3d at 100-03. The Court remanded without vacatur to the agency for a “a reasoned and coherent treatment of the decision to select a 15 million-board-feet-per-year exemption as the ‘de minimis quantity' exemption.” Id. at 105.

         This was more easily said than done, and the suit soon evolved into a veritable hamster wheel of challenges and remands. USDA responded to the Court's first decision with an explanation for the 15-million figure that raised more questions than it answered. See Resolute Forest Prods., Inc. v. USDA (Resolute II), 2016 WL 1714312, at *2 (D.D.C. Feb. 2, 2016). The Court again remanded without vacatur to the agency, hoping for an adequate justification. Id. at *3-4. This remand, like the one before it, proved fruitless. Having provided the agency with two opportunities to defend the de minimis exception, the Court held that USDA's promulgation of the Checkoff Order was “arbitrary and capricious” and therefore unlawful. See Resolute Forest Prods., Inc. v. USDA (Resolute III), 187 F.Supp.3d 100, 124 (D.D.C. 2016). The Court, however, left determination of the proper remedy for another day, ordering the parties to attend a hearing “to discuss the appropriate next steps concerning the remedies sought by Plaintiff.” Id. The precise contours of the remedy subsequently prescribed by the Court constitute the latest bone of contention in this long-running dispute.

         In the spirit of investor Warren Buffet's “Rule No. One: Never Lose Money, ” and his “Rule No. 2: Never Forget Rule Number One, ” the parties focused their arguments at the remedies stage on the money Resolute had already forked over since 2012 under the invalid de minimis threshold -- i.e., $1.1 million -- and whether it was entitled to a refund in whole or in part. Regarding the future of the Checkoff Order itself, conversely, Resolute argued only that “[w]ere the Court to find that vacatur is required for Resolute to recover the assessments it paid[, ] . . . governing precedent compels vacating the Checkoff Order.” ECF No. 45 (Pl. Mem on Remedies) at 10 (emphasis added). The Court sided with Resolute as to the refund but did not touch the vacatur question, merely “remand[ing] the case and direct[ing] the Secretary to issue Plaintiff a full refund of its assessments.” Resolute Forest Prods., Inc. v. USDA (Resolute IV), 219 F.Supp.3d 69, 80 (D.D.C. 2016).

         On remand, the agency complied with its prior representation to the Court that it would “diligently work[] on an economic analysis to select a de minimis threshold, and [would] establish that threshold via notice-and-comment rulemaking once its analysis [was] complete.” ECF No. 49 (Def. Response on Remedies) at 1-2. After analyzing several potential thresholds, as well as the possibility of having no threshold at all, the Secretary proposed that the de minimis threshold be yet again set at 15 million board-feet per year. See ECF No. 59 (Def. Opp. to Pl. Motion to Enforce the Judgment) at 2. Upon evaluating the almost-universally supportive comments -- Resolute, for its part, declined to participate -- the agency issued a final rule establishing that very exemption. See 82 Fed. Reg. 49, 485 (Oct. 26, 2017). During this period, USDA continued to enforce the mandatory assessment and to grant softwood-lumber manufacturers and importers the benefit of the de minimis exception -- i.e., it did not collect from entities producing or importing less than 15 million board feet. The re-established de minimis rule became effective in November 2017. Id. As required by law, in 2018 the Secretary conducted a referendum on the Checkoff Order, and the industry overwhelmingly approved of the Order's continuance. See 83 Fed. Reg. 5955 (Feb. 12, 2018).

         USDA next sought to wield its newly sharpened axe against Resolute. Defendants alerted Plaintiff that it was now subject to the Checkoff Order's mandatory assessment, and two years of back and forth between the parties ensued. Finally, USDA filed an administrative complaint to enforce assessments against Resolute dating back to December 2017. See Def. Opp. to Pl. MEJ at 2. Resolute now moves for this Court to bar USDA's actions as contrary to its prior judgments in the above-chronicled string of decisions. It additionally moves for an Order demanding that USDA show cause as to why it should not be held in contempt for the alleged violation of the Court's Orders. As Defendants ultimately prevail on the former Motion, they certainly cannot be held in contempt, thereby mooting the latter.

         II. Analysis

         As one of their myriad responsibilities, district courts retain the “authority to enforce the terms of their mandates.” Anglers Conservation Network v. Ross, 387 F.Supp.3d 87, 93 (D.D.C. 2019) (quoting Flaherty v. Pritzker, 17 F.Supp.3d 52, 55 (D.D.C. 2014)). A court should grant a motion to enforce the judgment if a “prevailing plaintiff demonstrates that a defendant has not complied with a judgment entered against it.” Flaherty, 17 F.Supp.3d at 55 (quoting Heartland Hosp. v. Thompson, 328 F.Supp.2d 8, 11 (D.D.C. 2004)). By contrast, if a plaintiff ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.