33 I.T.R.D. (BNA) 1218
Ct. Intl. Trade2011Background
- Vesuvius sought to participate as plaintiff-intervenor in a CST case involving RHI Refractories and the United States.
- The court previously denied Vesuvius' request for voluntary respondent treatment and participation.
- Vesuvius withdrew its request for voluntary respondent treatment during the administrative proceeding.
- The Department indicated it would not calculate separate rates for non-selected companies if mandatory respondents cooperated, leaving open the possibility of future selection.
- Courts require exhaustion of administrative remedies for standing to intervene; withdrawal may defeat exhaustion.
- The court addresses whether Rule 60(b)(6) relief is proper and, in the alternative, whether Rule 59(a)(2) rehearing is appropriate.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Rule 60(b)(6) governs relief here | Vesuvius: relief under Rule 60(b)(6) is appropriate | Court: 60(b)(6) does not apply to interlocutory denial of intervention | Rule 60(b)(6) inapplicable; use Rule 59(a)(2) |
| Whether Vesuvius has standing to intervene | Vesuvius should have standing due to voluntary respondent filing | No standing since withdrawal defeats exhaustion | Vesuvius lacks standing to intervene |
| Whether withdrawal of voluntary respondent request defeats exhaustion | Withdrawal should not bar exhaustion if merits could be pursued | Withdrawal forecloses exhaustion; no further remedies | Withdrawal destroyed exhaustion; no standing to intervene |
| Whether futility excused exhaustion | Futility exceptions may excuse withdrawal | Futility not recognized to excuse non-participation | Futility exception not available; exhaustion remains required |
Key Cases Cited
- In re Sasco Elec., 119 F.3d 14 (Fed. Cir. 1997) (interlocutory appealable order; intervention context)
- Corus Staal BV v. United States, 502 F.3d 1370 (Fed. Cir. 2007) (mere likelihood of adverse decision not enough to avoid exhaustion)
- Nucor Corp. v. United States, 31 CIT 1500 (2007) (participation requires meaningful submission; mere filings insufficient)
- Dofasco Inc. v. United States, 31 CIT 1592 (2007) (filings limited to appearance and protective order do not grant standing)
- UPS Customhouse Brokerage, Inc., 714 F.Supp.2d 1296 (2010) (reconsideration standards under Rule 59(a)(2))