United States District Court, District of Columbia
E. BOASBERG, UNITED STATES DISTRICT JUDGE
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.
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).
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).
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.
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.
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
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).
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.
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 ...