North American Interpipe, Inc. v. United StatesNorth American Interpipe, Inc. v. United States
Before: M. Miller Baker, Judge
OPINION
[Denying motions to intervene.]
Dated: May 25, 2021
Roger B. Schagrin, Christopher T. Cloutier, Elizabeth J. Drake, and Luke A. Meisner, Schagrin Associates of Washington, DC, on the papers for Proposed Defendant-Intervenor United States Steel Corporation in Court No. 20-3869.
Timothy C. Brightbill, Laura El-Sabaawi, Tessa V. Capeloto, and Adam M. Teslik, Wiley Rein LLP of Washington, DC, on the papers for Proposed Defendant-Intervenors American Cast Iron Pipe Company, Berg Steel Pipe Corp., Berg Spiral Pipe Corp., and Stupp Corporation in Court No. 20-3869.
Thomas M. Beline and James E. Ransdell, Cassidy Levy Kent (USA) LLP of Washington, DC, on the papers for Proposed Defendant-Intervenor United States Steel Corporation in Court Nos. 21-00005 and 21-00015.
John R. Magnus, TradeWins LLC of Washington, DC, on the papers for Proposed Defendant-Intervenor Electralloy/G.O. Carlson in Court Nos. 21-00027 and 21-00093, as well as for Proposed Defendant-Intervenors Crucible Industries LLC, Ellwood City Forge Company, and Ellwood Specialty Steel in Court No. 21-00093.
H. Deen Kaplan, Craig A. Lewis, and Nicholas W. Laneville, Hogan Lovells US LLP of Washington, DC, on the papers for Plaintiffs North American Interpipe, Inc., in Court No. 21-00005 and Evraz Inc. NA and Evraz Inc. NA Canada in Court No. 20-03869. Messrs. Lewis and Laneville were also on the papers for Plaintiff Valbruna Slater Stainless, Inc., in Court No. 21-00027.
Paul C. Rosenthal, R. Alan Luberda, Joshua Morey, and Julia A. Kuelzow, Kelley Drye & Warren LLP of Washington, DC, on the papers for Plaintiff AM/NS Calvert LLC in Court No. 21-00005.
Sanford Litvack, Andrew L. Poplinger, and R. Matthew Burke, Chaffetz Lindsey LLP of New York, NY, on the papers for Plaintiff California Steel Industries, Inc., in Court No. 21-00015.
Matthew M. Nolan, Nancy A. Noonan, Leah N. Scarpelli, and Jessica R. DiPietro, Arent Fox LLP of Washington, DC, on the papers for Plaintiffs Voestalpine High Performance
Tara K. Hogan, Assistant Director, Brian M. Boynton, Acting Assistant Attorney General, and Jeanne E. Davidson, Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice of Washington, DC, on the papers for Defendant United States in all six cases. The following counsel were also on the papers for Defendant United States in the specified matters: Kyle S. Beckrich, Trial Attorney, Cases 20-03825 and 21-00005; Joshua E. Kurland, Trial Attorney, Case 20-03869; Ann C. Motto, Trial Attorney, Cases 21-00015 and 21-00093; and Stephen C. Tosini, Senior Trial Counsel, Case 21-00027. Of counsel on the papers for Defendant United States in all six matters were Anthony D. Saler and Kimberly Hsu, Office of Chief Counsel for Industry & Security, U.S. Department of Commerce of Washington, DC.
Baker, Judge: In these six cases, domestic entities that imported steel subject to national security tariffs challenge the Department of Commerce‘s denial of their requests to be excluded (exempted) from paying such tariffs and seek refunds of tariffs so paid. Several domestic steel producers that objected to Plaintiffs’ exclusion requests before Commerce now seek to intervene in this litigation on the side of the government. The Court concludes that the proposed intervenors are ineligible to intervene as a matter of law and therefore denies their motions for the reasons explained below. Nevertheless, the Court reiterates its willingness to entertain motions to appear as amici curiae. See
Statutory and Regulatory Background
Section 232 of the Trade Expansion Act of 1962 authorizes the President to restrict imports of goods to “[s]afeguard[ ] national security.”
Proclamation 9705 also directed the Secretary of Commerce to exclude from the proclamation‘s duties “any steel article determined not to be produced in the United States in a sufficient and reasonably available amount or of a satisfactory quality” and further authorized the Secretary “to provide such relief based upon specific national security considerations.” Id. at 11,627 ¶ 3.
Commerce accordingly issued an interim final rule authorizing U.S. importers to request an exclusion from Section 301 duties of any “[a]rticle [that] is not produced in the United States in a sufficient and reasonably available amount, is not produced in the United States in a satisfactory quality, or for a specific national security consideration.” Requirements for Submissions Requesting Exclusions from the Remedies Instituted in Presidential Proclamations Adjusting Imports of Steel into the United States and Adjusting Imports of Aluminum into the United States; and the Filing of Objections to Submitted Exclusion Requests for Steel and Aluminum, 83 Fed. Reg. 12,106, 12,110 (Dep‘t Commerce Mar. 19, 2018) (cleaned up).
The interim final rule also allows “[a]ny individual or organization that manufactures steel articles in the United States” to object to exclusion requests. Submissions of Exclusion Requests and Objections to Submitted Requests for Steel and Aluminum, 83 Fed. Reg. 46,026, 46,058 (Dep‘t Commerce Sept. 11, 2018). Insofar as an objector asserts “that it is not currently producing the steel identified in an exclusion request but can produce the steel within eight weeks,” the objector “must identify how it will be able to produce the article within eight weeks.” Id.
Factual Background
Plaintiffs in these six cases are domestic manufacturers and one domestic distributor that import various types of steel subject to Section 232 tariffs.2 The plaintiffs applied to Commerce for exclusions from the tariffs, and other domestic companies objected to the requests on various grounds, typically based on the claim that they could satisfactorily produce all of, or sufficient substitutes for, the material that was the subject of the exclusion requests.
Commerce subsequently denied all (or, in one case, substantially all) of Plaintiffs’ exclusion requests on various grounds. Significantly for present purposes, the plaintiff(s) in each case paid the challenged duties and imported the steel products in question notwithstanding the exclusion denials.3
The plaintiffs then brought these six suits under this Court‘s residual jurisdiction.
The Pending Intervention Motions
Several domestic parties that asserted objections to Plaintiffs’ exclusion requests before Commerce now move to intervene in these cases as party defendants and have tendered proposed answers. United States Steel Corporation seeks to intervene in four of these cases;4 four members of the American Line Pipe Producers Association seek to intervene in their individual capacities5 (collectively, “Pipe Producers“) in a single case;6 Electralloy/G.O. Carlson seeks to intervene in two others;7 and Crucible Industries LLC, Ellwood City Forge Company, and Ellwood Specialty Steel all seek to intervene in a single case.8
The plaintiffs oppose intervention. The government filed papers that fail to take a direct position but express doubts on the propriety of intervention.9
Discussion
All proposed intervenors move to intervene as a matter of right under Rule 24(a)(2) (based on a claimed interest in the transactions at issue) and, alternatively, for permissive intervention under Rule 24(b)(1)(B) (based on a claimed shared defense). Some of the intervenors also move for permissive intervention under Rule 24(b)(1)(A) (based on a claimed conditional right to intervene by statute).10 The Court considers each ground in turn, but first addresses the threshold question of the proposed intervenors’ standing.
I. Intervenors’ Article III standing burden
In a district court and the CIT, Article III requires as a threshold matter that a proposed intervenor—regardless of the basis upon which intervention is sought—demonstrate independent constitutional standing insofar as the proposed intervenor seeks any relief that is different from that sought by the existing parties to the case. See PrimeSource, 494 F. Supp. 3d at 1319–20 (Baker, J., concurring) (discussing Town of Chester, N.Y. v. Laroe Estates, Inc., 137 S. Ct. 1645 (2017), and Little Sisters of the Poor Saints Peter & Paul Home v. Pennsylvania, 140 S. Ct. 2367 (2020)). In view of this principle, a putative intervenor has the burden of demonstrating either its independent constitutional standing or its “piggyback standing,” i.e., standing based on seeking the same relief sought by an existing party to the case. See id.11
In two of these cases, U.S. Steel disclaims seeking any relief separate from that sought by the government and has therefore established its piggyback standing.12 On the other hand, in two of the other cases in which it seeks to intervene,13 U.S. Steel ignores the issue. Electralloy, Crucible, and Ellwood likewise ignore the issue in motions that are largely verbatim copies of the latter two filings from U.S. Steel. Therefore, the Court denies the latter two motions from U.S. Steel, as well as those from Electralloy, Crucible, and Ellwood, because they fail to even address, much less establish, either their independent constitutional standing or their piggyback standing as required by Article III.
In Case 20-3869, the Pipe Producers stated at the time of their filing that they did “not know what relief, if any, Defendant intends to seek with respect to each of Plaintiff‘s claims.” Case 20-3869, ECF 30, at 2. That said, however, the Pipe Producers made clear that “[t]he only relief that Proposed Defendant-Intervenors seek is for Plaintiff‘s [i.e., Evraz‘s] line pipe [exclusion] claims to be denied.” Id. at 3. As the government‘s since-filed answer also seeks rejection of those claims, see Case 20-3869, ECF 45, the Pipe Producers have satisfied their Article III burden of establishing their piggyback standing.14
II. Intervention as of right (Rule 24(a)(2))
All the proposed intervenors invoke
Intervention of Right. On timely motion, the court must permit anyone to intervene who:
. . .
. (2) . . . claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant‘s ability to protect its interest, unless existing parties adequately represent that interest.
This language is borrowed from
A. Whether the proposed intervenors have legally protectable interests
The proposed intervenors all claim to have legally protectable interests in Commerce‘s denials of the plaintiffs’ Section 232 exclusion requests. The reasons offered fall into two categories.
First, several of the proposed intervenors claim that they have various economic interests in preventing the plaintiffs from escaping Section 232 steel tariffs.17 In two cases, U.S. Steel implies, without directly stating, that it has an economic interest by arguing that it has a “direct interest” in Commerce‘s decision on the exclusion requests because “U.S. Steel can produce the exact products Plaintiff sought exclusions for” and because “Plaintiff sought to undermine the purpose of the Section 232 tariffs and deprive U.S. Steel and other domestic producers of the benefits of the Section 232 tariffs.” Case 20-3825, ECF 22, at 6; Case 20-3869, ECF 32, at 6 (same). Such economic interests, however, do not establish a “legally protectable interest” under Rule 24. See Wolfsen, 695 F.3d at 1315 (“mere[] economic interests will not suffice“).
The Pipe Producers, in contrast, analogize these cases to antidumping or countervailing duty proceedings because Commerce‘s exclusion procedure is “an adversarial administrative procedure through which interested parties in the United States could request and object to product-specific exclusions from Section 232 tariffs.” Case 20-3869, ECF 30, at 6. “Like antidumping and countervailing duty proceedings, and unlike the Proclamation at issue in PrimeSource, this framework ‘provide[s] specific rights to domestic producers to participate in administrative proceedings culminating in final agency action’ either granting or denying exclusions from Section 232 duties.” Id. at 7 (brackets in original) (quoting PrimeSource, 494 F. Supp. 3d at 1325 (Baker, J., concurring)).
For purposes of Rule 24(a)(2)‘s “protectable interest” inquiry, however, Section 232 and its administrative scheme, differ in at least two critical respects from the Tariff Act of 1930,
Second, the Tariff Act only permits narrowly defined parties—“interested parties“—to participate in antidumping and countervailing duty administrative proceedings. See above note 19. In contrast, Commerce‘s administrative scheme implementing Section 232 permits any domestic person or entity to voice objections to exclusion requests. For purposes of Rule 24(a)(2), any scheme such as Commerce‘s here that effectively permits anyone to participate in administrative proceedings confers a legally protectable interest on no one. Cf. Lujan v. Defs. of Wildlife, 504 U.S. 555, 577 (1992) (stating that Congress may not “convert the undifferentiated public interest in executive officers’ compliance with the law into an individual right vindicable in the courts . . . .“) (cleaned up).
In short, because Section 232 confers no statutory right to object to any exclusions that Commerce might grant, and because Commerce‘s administrative scheme indiscriminately permits anyone to voice such objections, the Court concludes that the Pipe Producers—the only proposed intervenors that made this argument—have no legally protectable interests for purposes of Rule 24(a)(2) notwithstanding their participation in Commerce‘s administrative proceedings.
B. Whether the proposed intervenors will gain or lose by the direct legal operation and effect of the judgment
Even if the proposed intervenors have legally protected interests in defending Commerce‘s denials of the plaintiffs’ exclusion requests, the intervenors must also establish that they “‘will either gain or lose by the direct legal operation and effect of the judgment.‘” Wolfsen, 695 F.3d at 1315 (quoting Am. Mar., 870 F.2d at 1561) (emphasis in Am. Mar.). They cannot satisfy this requirement.
In two of these cases, U.S. Steel argues that it has a “direct and immediate” interest because a ruling for Plaintiffs “will harm U.S. Steel‘s ability to protect its interest as a leading domestic market participant.” Case 20-3825, ECF 22, at 9.21 U.S. Steel argues that it is the party “best placed to address” evidence about “its own ability to produce the subject products in sufficient quantities and qualities, and its delivery times.” Id. U.S. Steel claims that if the Court orders Commerce to grant the requested exclusions, the result would be to “block U.S. Steel‘s reinvestment in domestic steel production, depress market prices, and necessarily foreclose sales opportunities, [which] would negatively impact U.S. Steel‘s production utilization.” Id.
In the other two cases in which it seeks to intervene, U.S. Steel argues that “the potential adverse impact to U.S. Steel is not mere abstract ‘competition,’ and would occur by ‘the direct legal operation and effect of the judgment’ upon the tariff treatment of the products at issue.” Case 21-15, ECF 12, at 7 (emphasis in original) (quoting Am. Mar., 870 F.2d at 1561).22 U.S. Steel emphasizes its argument that it “was capable of producing and selling slab substantially similar to that which [Plaintiffs] sought to import tariff-free . . . .” Id. at 8. Electralloy, Crucible, and Ellwood copy this argument essentially verbatim. Case 21-27, ECF 9, at 6; Case 21-93, ECF 10, at 10–11, ECF 13, at 10, and ECF 16, at 10–11.
The problem with the proposed intervenors’ arguments is that upholding Commerce‘s exclusions will not provide the intervenors with sales opportunities, because that ship has sailed. Plaintiff North American Interpipe explains the issue well in responding to U.S. Steel‘s allegations about foreclosed “sale opportunities“:
However, despite denial of the exclusion requests, U.S. Steel did not subsequently supply the products at issue to [North American Interpipe]. Thus, the grant or denial of the exclusion requests that are at issue in this appeal will have no particularized impact on U.S. Steel. In reality, the only “interest” identified by U.S. Steel in this matter is the indirect economic benefit U.S. Steel believes it would receive by ensuring that [North American Interpipe] is injured by unfair tariff treatment.
Case 20-3825, ECF 23, at 7. The other plaintiffs make the same point.23
Because the steel in question has long since been imported and used, whether the Court affirms or overturns Commerce‘s exclusion denials can make no difference to the proposed intervenors. Moreover, the result here would be the same even if, hypothetically, the imports in question were suspended and gathering dust in port warehouses pending the outcome of this litigation. In that counterfactual scenario, there would still be no certainty that if Plaintiffs lost they would ship back their imports (if such a thing were even commercially feasible) and instead purchase from the proposed intervenors.
Thus, even if the imports could be rescinded if the government were to prevail and the world could be restored to the status quo ante, the proposed intervenors would still not “gain . . . by the direct legal operation and effect of the judgment,” Wolfsen, 695 F.3d at 1315 (quoting Am. Mar., 870 F.2d at 1561) (emphasis in Am. Mar.). Any such gain would instead be both indirect and contingent, resulting not from the direct effect of the judgment, but instead from Plaintiffs’ choice to purchase from the proposed intervenors rather than completing the imports. Cf. Am. Mar., 870 F.2d at 1561 (observing that a putative
In any event, given that the imports in question were completed long ago with the accompanying payment of duties, the only possible “gain” that the proposed intervenors can possibly obtain here is seeing economic harm inflicted on the plaintiffs as actual or potential competitors. The proposed intervenors, however, do not expressly claim to be competitors with the plaintiffs—rather, they claim that they can supply the products imported by the plaintiffs. But even if the proposed intervenors and the plaintiffs do compete, any competitive benefit—if it can be called that24—to the former resulting from the latter losing here would be both indirect and contingent. See id.
C. Adequacy of government representation
The final element of the test for intervention as of right under
One way to overcome the presumption is to seek different relief than the government, as then the proposed intervenor‘s “specific litigation goals” would not “identically match those of an existing party.”25 Wolfsen, 695 F.3d at 1318. For example, opposing a settlement agreed to by the government would surely constitute a divergence in litigation goals. To that end, the proposed intervenors express alarm that the government might settle these cases, and intimate that they would oppose settlement. See, e.g., Case 20-3825, ECF 22, at 11-12. “But these concerns [regarding potential settlement] are at this point speculative and cannot justify intervention unless and until there is such a settlement.” Wolfsen, 695 F.3d at 1318.
As the proposed intervenors here seek (so far) the same relief as the government, their “entry into [these] case[s] is presumptively barred” unless they “demonstrate that [their] participation could add some material aspect beyond what is already present.” Id.
The proposed intervenors make no such showing here. Instead they assert that the government‘s sovereign interest in maintaining the Section 232 exclusion process does not encompass their proprietary interests in these specific transactions. See, e.g., Case 20-3869, ECF 30, at 10 (Pipe Producers arguing that they “are seeking to protect a more ‘parochial’ financial interest not shared by other citizens” and
Finally, several proposed intervenors claim that they can make “factual contributions” that will cure “imperfect administrative records.”27 The Court disagrees because, as Plaintiffs and the government point out, judicial review is confined to the existing administrative records in these matters. See JSW Steel (USA) Inc. v. United States, 466 F. Supp. 3d 1320, 1328 (CIT 2020) (stating that in APA cases, “judicial review is generally limited to the full administrative record before the agency at the time it rendered its decision” and explaining that the rationale behind this rule is “to guard against courts using new evidence to convert the arbitrary and capricious standard into effectively de novo review” (cleaned up) (citing, for the rationale, Axiom Res. Mgmt., Inc. v. United States, 564 F.3d 1374, 1380 (Fed. Cir. 2009))); Giorgio Foods, Inc. v. United States, 755 F. Supp. 2d 1342, 1346 (CIT 2011) (“In an administrative review case, it is rare that a federal court will consider information outside of the record submitted.“). Because the administrative records are closed, the proposed intervenors’ “factual contributions” would not “add some material aspect to the case beyond what is already present.” Wolfsen, 695 F.3d at 1318.
* * *
In sum, while the proposed intervenors’ motions are timely, they fail to satisfy the other three elements of the Federal Circuit‘s test for intervention as of right under
III. Permissive intervention under Rule 24(b)(1)
As an alternative to intervention as of right, the proposed intervenors seek leave to intervene under
(1) In General. On timely motion, the court may permit anyone to intervene who: (A) is given a conditional right to intervene by a federal statute; or
(B) has a claim or defense that shares with the main action a common question of law or fact.
USCIT R. 24(b)(1).
Thus,
A. Conditional right to intervene by statute (Rule 24(b)(1)(A))
Two of the proposed intervenors invoke the first pathway in
1. Constitutional standing
To be “adversely affected or aggrieved by” a decision of the CIT for purposes of permissive intervention under
Both U.S. Steel (in Cases 20-3825 and 20-3869) and the Pipe Producers assert that they will suffer injury if the Court orders the government to refund the Section 232 duties to the plaintiffs. U.S. Steel‘s supplemental brief in both cases asserts the following facts:
U.S. Steel produces and sells products substantially the same or identical to those that Plaintiffs sought to exclude. Thus, Plaintiff‘s requests to exclude
these products from remedial Section 232 tariffs are adverse to U.S. Steel‘s economic interests. U.S. Steel has a private interest in rejection thereof. As detailed [above], granting Plaintiff‘s requests would depress market prices for slab and downstream products, and foreclose sales to purchasers of imports or derivatives, thus harming U.S. Steel.
Case 20-3825, ECF 22, at 14-15; Case 20-3869, ECF 32, at 15 (same).30
The Pipe Producers, for their part, assert in their supplemental brief that they would suffer “lower prices and lost sales as a result of greater import competition” if “Commerce‘s line pipe product exclusion determinations were nullified.” Case 20-3869, ECF 30, at 14.
Neither U.S. Steel nor the Pipe Producers, however, have submitted any evidentiary materials establishing these facts asserted by counsel.31 Nor have they even alleged these asserted facts in their proffered answers.32
A party with the burden of establishing independent constitutional standing must do so “in the same way as any other matter on which the [party] bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992). Thus, “[a]t the pleading stage, general factual allegations of injury resulting from the defendant‘s conduct may suffice . . . .” Id. But at the summary judgment stage, “the plaintiff can no longer rest on such mere allegations, but must set forth by affidavit or other evidence specific facts . . . .” Id. (cleaned up). And in the final stage, “those facts (if controverted) must be supported adequately by the evidence adduced at trial.” Id. (cleaned up).
In this context of permissive intervention pursuant to
But even if the factual assertions by counsel in U.S. Steel‘s and the Pipe Producers’ motions in Cases 20-3825 and 20-3869 could suffice in the absence of evidentiary submissions or factual allegations
Insofar as U.S. Steel and the Pipe Producers assert (through counsel) that they are injured by not making sales to the plaintiffs, that harm is no longer redressable. As discussed above, both North American Interpipe and Evraz completed the imports in question and paid the relevant duties. Case 20-3825, ECF 23, at 14-15 (“U.S. Steel never actually supplied the required steel inputs, and [North American Interpipe] was forced to pay the 25 percent duties in order to import the steel necessary to maintain its operations . . . .“); Case 20-3869, ECF 33, at 8 (Evraz, same argument as to Pipe Producers). That bell cannot be unrung, and there are no sales opportunities to gain if the Court sustains Commerce‘s exclusions.
Even if that bell could be unrung, there is no certainty that North American Interpipe and Evraz would purchase the products in question from U.S. Steel and the Pipe Producers (rather than proceed with the imports anyway). That uncertainty means that the causation element of standing is also lacking here. Cf. Clapper v. Amnesty Int‘l USA, 568 U.S. 398, 414 (2013) (“We decline to abandon our usual reluctance to endorse standing theories that rest on speculation about the decisions of independent actors.“); Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 42-43 (1976) (holding that plaintiffs lacked standing when it was “purely speculative whether the denials of service specified in the complaint fairly [could] be traced” to the challenged regulation or “instead result[ed] from decisions made by” the third parties and that it was “equally speculative” whether the plaintiffs’ desired injunction would result in them receiving service).
Nor do U.S. Steel‘s and the Pipe Producers’ factual assertions through counsel (if taken as true) establish that they will suffer cognizable competitive injury if the Court orders the government to refund Plaintiffs North American Interpipe and Evraz their duties. To begin with, U.S. Steel and the Pipe Producers do not assert that they compete with North American Interpipe and Evraz as to domestic sales of the imports in question (or otherwise). That alone is reason to find that their counsel have not sufficiently asserted facts that, if taken as true, establish standing.
In any event, on this record, U.S. Steel and the Pipe Producers do not compete with North American Interpipe and Evraz as to the specific products that are the subject of the exclusion requests at issue. The facts are somewhat different in each case, so the Court addresses them separately.
Although North American Interpipe—which alleges that it is an importer and distributor—apparently resells on the domestic market the steel pipe it imports, the import transactions in question have been completed. Insofar as North American Interpipe and U.S. Steel compete in the domestic market as to such products (notwithstanding the lack of any factual assertion to that effect by U.S. Steel), such competition presumably has already occurred. Any decision by the Court requiring the government to refund North American Interpipe‘s duties would not have “a natural price-lowering . . . effect on [U.S. Steel‘s past] sales (compared to what prices . . . would be in the absence of [such ruling]), . . . by directly lowering . . . prices for [North American Interpipe‘s] competing goods.” AVX Corp. v. Presidio Components, Inc., 923 F.3d 1357, 1364 (Fed. Cir. 2019). The Court‘s decision therefore would not cause any injury to U.S. Steel even if it and North American
And insofar as U.S. Steel were to claim that it would suffer “competitive injury” if North American Interpipe obtains its duty refunds because the two companies compete generally as to products other than the transaction-specific steel pipe products at issue in the latter‘s exclusion request, such competitive injury is not cognizable because it is insufficiently “particularized and [ ] concrete.” Already, LLC v. Nike, Inc., 568 U.S. 85, 99 (2013). In Already, a footwear manufacturer contended that it had standing to challenge the validity of a competitor‘s trademark—even though the competitor, Nike, had covenanted not to sue for infringement of the mark—because both companies “compete[d] in the athletic footwear market.” Id. The Supreme Court easily rejected this “boundless theory of standing” that “a market participant is injured for Article III purposes whenever a competitor benefits from something allegedly unlawful.” Id. Already forecloses standing on the part of U.S. Steel to defend Commerce‘s exclusion denials here on the theory that U.S. Steel and North American Interpipe compete outside of the context of the specific import transactions at issue in this case.
Already similarly forecloses standing on the part of proposed intervenors U.S. Steel and the Pipe Producers in Case 20-3869 brought by Evraz. Unlike North American Interpipe in Case 20-3825, Evraz is not a distributor—it is a manufacturer, and it used the imported steel in question for its manufacturing. Case 20-3869, ECF 25, at 2 (referring to Evraz as “a U.S. producer of steel pipe products“). Thus, any competition between U.S. Steel and the Pipe Producers on the one hand and Evraz on the other does not involve the specific products for which the latter sought an exclusion—rather, it involves manufactured products that are necessarily different from the steel inputs that are the subject of Evraz‘s exclusion requests. Just because Evraz would benefit from duty refunds does not give standing to U.S. Steel and the Pipe Producers to challenge those refunds, any more than U.S. Steel and the Pipe Producers would be injured for standing purposes by an IRS tax refund to Evraz that would improve its financial bottom line.
2. Prudential Standing
A proposed intervenor invoking permissive intervention under
One aspect of prudential standing is third-party standing. See id. at 1330-31 (Baker, J., concurring). This principle “limits access to the federal courts to those litigants best suited to assert a particular claim.” Id. at 1330 (cleaned up and quoting Starr Int‘l Co., Inc. v. United States, 856 F.3d 953, 965 (Fed. Cir. 2017)). Assuming a litigant (or, as here, putative litigant) has constitutional standing, i.e., injury in fact, a court may nonetheless
Here, U.S. Steel (in Cases 20-3825 and 20-3869) and the Pipe Producers (in Case 20-3869) seek to defend Commerce‘s denial of Plaintiffs’ exclusion requests, which is a sovereign interest of the government. To have third-party standing to defend the government‘s sovereign interests, U.S. Steel and the Pipe Producers would have to “demonstrate a close relationship with the person who possesses the right, i.e., the government, and a hindrance to the government‘s ability to protect its own interests.” Id. at 1331 (cleaned up). Neither U.S. Steel nor the Pipe Producers make any attempt to satisfy these requirements.
Instead, both U.S. Steel and the Pipe Producers argue in effect that they have first-party standing because Commerce‘s interim rule allowed them to object to Plaintiffs’ exclusion requests. Case 20-3825, ECF 22, at 16-18 (U.S. Steel); Case 20-3869, ECF 32, at 17-18 (U.S. Steel), and ECF 30, at 14-15 (Pipe Producers). According to U.S. Steel and the Pipe Producers, Commerce‘s interim final rule conferred upon them a legally protected interest for standing purposes, and thus they need not satisfy the requirements of third-party standing.
Although Congress “has the power to create new interests, the invasion of which may confer standing,” Diamond v. Charles, 476 U.S. 54, 65 n.17 (1986) (citing Simon, 426 U.S. at 41 n.22), Section 232 confers no rights upon third parties to participate in administrative proceedings involving exclusion requests, much less for such third parties to initiate or participate in subsequent court challenges to the results of those proceedings. That alone defeats any argument that U.S. Steel and the Pipe Producers have any cognizable legal interest here for first-party standing purposes. And while Commerce‘s interim final rule permits anyone to voice objections to exclusion requests, that is as far as it goes. It hardly creates—even assuming the Department could do so unilaterally, absent statutory authori-zation—any cognizable interest in either defending or challenging the results of those proceedings.34
* * *
With the exception of U.S. Steel (in Cases 20-3825 and -3869) and the Pipe Producers, the proposed intervenors have waived any claim to permissive intervention pursuant to
B. Permissive intervention based on a shared defense (Rule 24(b)(1)(B))
The second pathway of
In other words, “claim or defense” in
Plaintiffs seek APA relief against the government for its collection of Section 232 duties. Here, the proposed intervenors share no “defense” with the government for purposes of
Plaintiffs do not seek—and, more importantly, cannot seek—any relief against the proposed intervenors. As Plaintiff California Steel aptly explains, the question for this Court is whether Commerce—not the proposed intervenors—violated the APA when it denied the exclusion requests, and “[o]n that score, [an intervenor] is simply a bystander.” Case 21-15, ECF 18, at 2.
Put differently, how could Plaintiffs possibly sue domestic steel manufacturers for refunds of tariffs paid to the government? Obviously, they cannot. They therefore “have no cognizable ‘claim’ against [Proposed Defendant-Intervenors] within the meaning of the Federal Rules of Civil Procedure and our rules.” PrimeSource, 494 F. Supp. 3d at 1333-34 (Baker, J., concurring).
C. Delay or prejudice
If a putative intervenor seeking permissive intervention is otherwise eligible for permissive intervention under either of
Conclusion
For all the foregoing reasons, the Court will issue a separate order denying the various motions to intervene. See USCIT R. 58(a).
Dated: May 25, 2021
New York, NY
/s/ M. Miller Baker
M. Miller Baker, Judge