Dofasco Ins v. U.S.

519 F.Supp.2d 1284

DOFASCO INS., Sorevco Inc., and Do Sol Galva Ltd., Plaintiffs, and United States Steel Corporation, Plaintiff-Intervenor, v. UNITED STATES, Defendant, and United States Steel Corporation, Defendant-Intervenor.

Slip Op. 07-149.

Court No. 07-00135.

United States Court of International Trade.

October 12, 2007.

Hunton & Williams LLP (William Silverman, Douglas J. Heffner, and Richard P. Ferrin), Washington, DC, for Plaintiffs Dofasco Inc., Sorevco Inc., and Do Sol Galva Ltd.

Skadden, Arps, Slate, Meagher and Flom LLP (Robert E. Lighthizer, John J. Mangan, and Jeffrey D. Gerrish), Washington, DC, for Plaintiff-Intervenor and Defendant-Intervenor United States Steel Corporation.

Wiley Rein LLP (Timothy C. Brightbill and Alan H. Price), Washington, DC, for proposed Plaintiff-Intervenor and proposed Defendant-Intervenor Nucor Corporation.

Peter D. Keisler, Assistant Attorney General, Jeanne E. Davidson, Director, Patricia M. McCarthy, Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice (Michael D. Panzera, David S. Silverbrand, and Stephen C. Tosini); Mark B. Lehnardt, Office of Chief Counsel for Import

Administration, United States Department of Commerce, of counsel, for Defendant.

OPINION AND ORDER

STANCEU, Judge.

Dofasco Inc., Sorevco Inc., and Do Sol Galva Ltd. ("plaintiffs") initiated this action under 19 U.S.C. § 1516a (2000) to contest a final determination ("Final Results") issued by the International Trade Administration, United States Department of Commerce ("Commerce" or the "Department") in an administrative review of an antidumping duty order on imports of certain corrosion-resistant carbon steel flat products from Canada ("subject merchandise"). Compl. ¶¶ 1-2; see Certain Corrosion-Resistant Carbon Steel Flat Products from Canada: Final Results of Antidumping Duty Administrative Review, 72 Fed.Reg. 12,758 (Mar. 19, 2007). Nucor Corporation ("Nucor"), a domestic producer of steel products, filed a motion seeking permissive intervention and an amended motion for intervention as a matter of right. For the reasons stated in this opinion, the court concludes that Nucor did not participate in the Department's administrative review proceeding culminating in the Final Results to the extent necessary to qualify as a party to that proceeding. Accordingly, the court will deny Nucor's motions.

I BACKGROUND

On April 24, 2007, Plaintiffs commenced this action under 19 U.S.C. § 1516a, asserting two claims. They claim that Commerce unlawfully continued and completed the administrative review after the parties that had requested the administrative review had withdrawn their requests. Compl. ¶¶ 10-14. Plaintiffs also challenge the value that Commerce assigned to a production input, iron ore fluxed pellets, that Dofasco purchased and used in producing the subject merchandise in Canada. Id. ¶¶ 15-19. Plaintiffs invoked subject matter jurisdiction under 28 U.S.C. § 1581(c) (2000). Id. ¶ 2.

On May 29, 2007, Nucor moved for permissive intervention according to 28 U.S.C. § 2631(j) and USCIT R. 24(b). Mot. to Intervene as Pl.-Intervenor and as Def. Intervenor 2 ("Mot. to Intervene"). Nucor sought to intervene on the side of plaintiffs on the claim that the administrative review was unlawfully continued and on the side of defendant United States on the claim that the Department's valuation of the iron ore fluxed pellets was contrary to law. See id.; Compl. ¶¶ 10-19. Arguing that it has standing according to 19 U.S.C. § 1516a(d) (2000), Nucor alleged in its motion that it "entered an appearance in the Department's proceeding" and that it is a domestic manufacturer of corrosion-resistant carbon steel flat products that could be adversely affected or aggrieved by the court's decision in this case. Mot. to Intervene 1-2.

In its June 11, 2007 response to Nucor's motion, defendant opposed Nucor's intervention, arguing that Nucor was not a party to the Department's administrative review proceeding that preceded the issuance of the Final Results and therefore lacked standing to intervene. Def.'s Resp. to Nucor's Mot. to Intervene 1-2 ("Resp. to Mot."). While acknowledging that "Nucor submitted a notice of appearance," defendant asserted that "Nucor did not participate in the underlying administrative proceeding by making a written submission containing factual information or argument." Id. at 1, 3.

On August 15, 2007, Nucor moved to amend its original motion and submitted an amended motion in which Nucor sought intervention as a matter of right instead of permissive intervention. Compare Am. Mot. to Intervene as a Matter of Right 1 ("Am. Mot. to Intervene") with Mot. to Intervene 2. Nucor argued in its amended motion that as a party to the proceeding it "has standing to appear as a party in interest before this Court pursuant to 19 U.S.C. § 1516a(d) (2000), and may intervene as a matter of right pursuant to 28 U.S.C. § 2631(j)(l)(B)." Am. Mot. to Intervene 3. In support of its assertion, Nucor stated that

Nucor actively participated in settlement negotiations concerning the subject merchandise. These negotiations took place among several of the parties to this appeal, and with the knowledge of the Department. The discussions occurred late in the proceeding, after the filing of case and rebuttal briefs. Thus, although Nucor did not submit any written filings to the Department, Nucor was unquestionably a "party to the proceeding"' in the eyes of all of the other parties to the administrative review.

Id. at 2-3.

Defendant filed an opposition to Nucor's motion to amend on August 29, 2007. Def.'s Resp. to Nucor's Am. Mot. to Intervene ("Resp. to Am. Mot."). Defendant argued that Nucor's amended motion is either an untimely new intervention motion or an impermissible reply to defendant's opposition to Nucor's existing motion and, in either event, is in violation of USCIT Rules. Id. at 2. Defendant maintained that because Nucor did not timely seek leave to reply to defendant's response to the original motion, it should not be permitted to do so in an amended motion filed months later. Id. at 3. Defendant also objected to Nucor's amended motion on the ground that Nucor did not consult with the defendant prior to filing the motion. Id. Finally, defendant reasserted the objection set forth in its original response, contending that Nucor's actions in the underlying administrative review did not suffice to qualify Nucor as a party to the proceeding. Id. at 4-6.

II. DISCUSSION

In 28 U.S.C. § 2631(j) (2000), Congress established a right to intervene in actions commenced under 19 U.S.C. § 1516a. The statute provides that

[a]ny 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, except that. — ... (B) in a civil action under [19 U.S.C. § 1516a], only an interested party who was a party to the proceeding in connection with which the matter arose may intervene, and such person may intervene as a matter of right."

28 U.S.C. § 2631(j)(1). According to the plain meaning of 28 U.S.C. § 2631(j)(1)(B), the right to intervene established thereunder is the only means by which Nucor may intervene in this case, and that right is an unconditional right. See id.; U.S. Magnesium LLC v. United States, 31 CIT ___, ___, 2007 WL 1502123, *1 (May 24, 2007) (denying permissive intervention because a party may intervene only as a matter of right in a cause of action under 28 U.S.C. § 1581(c)); Ontario Forest Indus. Assoc. v. United States, 30 CIT ___, ___ n. 12, 444 F.Supp.2d 1309, 1322 n. 12 (2006) ("... under 28 U.S.C. § 1581(c), intervention may only be sought as a matter of right."); Geum Poong Corp. v. United States, 26 CIT 908, 910, 217 F.Supp.2d 1342, 1344 (2002) ("[u]nder 28 U.S.C. § 2631(j) ..., permissive intervention is apparently unavailable in unfair trade actions brought under 19 U.S.C. § 1516a."). Therefore, to intervene in this case, Nucor must qualify to intervene as a matter of right under the requirements set forth in 28 U.S.C. § 2631(j)(1)(B) and USCIT Rule 24(a), (c); if Nucor does not so qualify, permissive intervention under 28 U.S.C. § 2631(j)(2) and USCIT Rule 24(b) is unavailable. Although Nucor's original motion to intervene incorrectly sought permissive intervention, Nucor cited 28 U.S.C. 2631(j) in that motion as well as USCIT Rule 24(b). See Mot. to Intervene 2. For these reasons, the court in its discretion will construe Nucor's original motion as a motion to intervene as a matter of right under 28 U.S.C. 2631(j)(1)(B) and USCIT Rule 24(a).

Under USCIT Rule 24(a), a party may intervene in an action upon timely application "when a statute of the United States confers an unconditional right to intervene." Nucor's motion to intervene in this case was timely. See USCIT R. 24(a) (providing that an application to intervene in an action described under 28 U.S.C. § 1581(c) is timely if it is made no later than thirty days after the date of service of the complaint).

To succeed upon its motion, Nucor must show that it is an "interested party" and "a party to the proceeding in connection with which the matter arose." 28 U.S.C. 2631(j)(1)(B). Under 19 U.S.C. 1516a(d), "lalily interested party who was a party to the proceeding . . . shall have the right to appear and be heard as a party in interest before the United States Court of International Trade." 19 U.S.C. 1516a(d). "Interested party" is defined for purposes of § 1516a by 19 U.S.C. § 1677(9), which states that an "interested party" is, inter alia, "a manufacturer, producer, or wholesaler in the United States of a domestic like product." 19 U.S.C. 1516a(f)(3), 1677(9)(C). Nucor identified itself as "a domestic manufacturer of certain corrosion-resistant carbon steel flat products." Mot. to Intervene 1. Defendant acknowledged Nucor's interested-party status, stating that "[i]t is...