OPINION
Plaintiff Nucor Corporation (“Nucor”), a domestic producer of steel products, 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 certain corrosion-resistant carbon steel flat products from Canada. See Certain Corrosion-Resistant Carbon Steel Flat Products from Canada: Final Results of Anti-dumping Duty Administrative Review, 72 Fed.Reg. 12,758 (Mar. 19, 2007).
Before the court are motions to intervene as a matter of right on behalf of Stelco Inc. (“Stelco”), Dofasco Inc. (“Do-fasco”), Sorevco Inc. (“Sorevco”), Do Sol Galva Ltd. (“Do Sol Galva”), Mittal Steel USA Inc. (“Mittal Steel USA”), and United States Steel Corporation (“U.S. Steel”) (collectively “proposed plaintiff-interve-nors”). Plaintiff Nucor moves for a preliminary injunction to prevent liquidation by Customs of the entries of certain corrosion-resistant carbon steel flat products (“subject merchandise”) from Canada manufactured by producers Stelco, Dofasco, Sorevco, and Do Sol Galva. Defendant United States moves to dismiss this action pursuant to USCIT Rule 12(b)(1) for lack of jurisdiction, alleging that Nucor did not participate as a party in the administrative review that concluded in the issuance of the Final Results and 'therefore lacks standing.
Because Nucor did not participate in the Department’s proceeding culminating in the Final Results to the extent necessary to qualify as a party to that proceeding, the court concludes that Nucor lacked standing to bring a cause of action under 19 U.S.C. § 1516a. Accordingly, the court must deny Nucor’s motion for a preliminary injunction. Because intervention could not cure the defect in subject matter jurisdiction caused by Nucor’s failure to establish standing to bring its claim, the court also must deny the motions to intervene and grant the motion to dismiss this action.
I. Background
Nucor filed a summons on May 21, 2007, a complaint on June 20, 2007, and an amended complaint on June 29, 2007. In the amended complaint, Nucor challenges as contrary to law the Department’s rejection of the requests of certain parties for rescission of the administrative review and the resulting continuation of that adminis
On July 19 and 20, 2007, the six proposed plaintiff-intervenors moved for intervention as a matter of right, all on the side of plaintiff Nucor. See 28 U.S.C. § 2631(j)(l)(B) (2000); USCIT R. 24(a). In its motion, Stelco states that it is a Canadian producer and exporter of the subject merchandise and that it fully participated in the administrative review. Mot. to Intervene As A Matter of Right on the Side of PL 2 (“Stelco’s Mot. to Intervene”). In a joint motion filed July 20, 2007, Dofasco, Sorevco, and Do Sol Galva state that they are Canadian producers of subject merchandise and that they participated as respondents in the administrative review. 1 Partial Consent Mot. to Intervene as of Right as Pl.-Intervenor ¶ 2 (“Dofasco, Sorevco, Do Sol Galva Mot. to Intervene”). In its motion filed the same day, U.S. Steel states that it is a producer of the domestic like product and that it participated in the administrative review. 2 Mot. to Intervene as of Right as Pl.-Inter-venor ¶ 2 (“U.S. Steel Mot. to Intervene”). In its motion, also filed July 20, 2007, Mittal Steel USA states that it is a domestic producer of corrosion-resistant steel flat products and that it participated in the administrative review. Partial Consent Mot. of Applicant Pl.-Intervenor Mittal Steel USA Inc. to Intervene as of Right 2 (“Mittal Steel USA Mot. to Intervene”). Defendant United States did not consent to any of the motions to intervene. According to the motions of certain proposed plaintiff-intervenors, defendant refused to consent on the ground that Nucor is not a proper party plaintiff and the court therefore lacks jurisdiction over plaintiffs claim. See Stelco’s Mot. to Intervene 1; Dofasco, Sorevco, Do Sol Galva Mot. to Intervene ¶ 5; U.S. Steel Mot. to Intervene ¶ 5. On September 7, 2007, defendant submitted, with a motion for leave to file out of time, a response in opposition to the intervention of Mittal Steel USA, alleging that Mittal Steel USA was not a party to the proceeding below and therefore does not qualify for intervention as a matter of right. Def.’s Resp. to Mittal Steel USA’s Mot. to Intervene; see Mittal Steel USA Mot. to Intervene.
On July 20, 2007, Nucor moved for a preliminary injunction “to enjoin the liquidation of any and all entries of certain corrosion-resistant carbon steel flat products from Canada manufactured by Dofas-co Inc., Sorevco Inc., Do Sol Galva Ltd., and Stelco Inc.” Mot. for Prelim. Inj. 1. Nucor stated in support of its motion that it had obtained the consent of Stelco, Do-fasco, Sorevco, Do Sol Galva, and U.S. Steel to the entry of a preliminary injunction.
3
Id.
at 2. On August 3, 2007, defendant, alleging that Nucor lacks standing, moved to dismiss this action for lack of subject matter jurisdiction and opposed plaintiffs motion for a preliminary injunction. Def.’s Mot. to Dismiss and Opp’n to
II. Discussion
A. Nucor Has Not Established Standing to Contest the Final Results
To contest the Final Results, Nucor must satisfy the requirements of 19 U.S.C. § 1516a(a), on which it relies for its cause of action, and 28 U.S.C. 2631(c), which governs standing in suits brought before the Court of International Trade. See Am. Compl. ¶¶ 1, 3. Under 19 U.S.C. § 1516a(a)(2)(A), an action may be commenced by “an interested party who is a party to the proceeding in connection with which the matter arises.... ” 19 U.S.C. § 1516a(a)(2)(A). In parallel, 28 U.S.C. 2631(c) provides that “[a] civil action contesting a determination listed in [19 U.S.C. § 1516a] may be commenced in the Court of International Trade by any interested party who was a party to the proceeding in connection with which the matter arose.” 28 U.S.C. 2631(c).
Nucor alleges in its amended complaint (and defendant does not contest) that Nucor is a manufacturer of the domestic like product and therefore is an “interested party” within the meaning of 19 U.S.C. § 1516a(f)(3) and § 1677(9)(C) (2000). Am. Compl. IT 3; see 19 U.S.C. § 1516a(f)(3) (defining “interested party” by reference to 19 U.S.C. § 1677(9)); 19 U.S.C. § 1677(9)(C) (defining “interested party” to include “a manufacturer, producer, or wholesaler in the United States of a domestic like product”). Nucor further alleges that it participated in the administrative review “through actions including entering a notice of appearance, regularly monitoring the status of the proceeding, and reviewing all of the documents that were submitted or issued in the underlying proceeding.” Am. Compl. ¶ 3. In further support of its claim of standing, Nucor states that “Plaintiff also participated in discussions (including telephone conferences) with other parties regarding various issues including case strategy, case settlement, and the parties’ decisions to withdraw their requests for administrative review, which Plaintiff supported.” Id. In its opposition to the motion to dismiss, Nucor makes the additional argument that Commerce implicitly recognized its status as a party to the proceeding by making available to Nucor’s representatives the business proprietary information of other parties and the Department’s preliminary calculations. Pl.’s Resp. to Def.’s Mot. to Dismiss 4-5. Based on the various factual allegations in its amended complaint, Nu-cor seeks to invoke the court’s subject matter jurisdiction under 28 U.S.C. § 1581(c) (2000), under which the Court of International Trade is granted exclusive jurisdiction of any civil action commenced under 19 U.S.C. § 1516a. See 28 U.S.C. 1581(c).
Nucor has failed to allege facts from which the court could consider Nucor to qualify as a “party to the proceeding” in connection with which the matter arose. 19 U.S.C. § 1516a(a)(2); 28 U.S.C. § 2631(c). The court concludes that Nu-cor’s claimed level of participation does not satisfy any reasonable construction of the “party to the proceeding” requirement that Congress imposed as a condition for obtaining judicial review.
Although the term “party to the proceeding” is not defined by statute, the Department’s regulations define the term as “any interested party that actively participates, through written submissions of factual information or written argument, in a segment of a proceeding.” 19 C.F.R. § 351.102(b) (2006). Nucor acknowledges that it presented no written factual material or written argument to the Department by admitting that “it did not make written submissions as required under 19 C.F.R.
Nucor’s argument for standing does not address the question of whether the definition of “party to the proceeding” in the Department’s regulations, which requires active participation through at least one written submission setting forth factual information or argument, could be controlling if applied to resolve a fundamental question of the extent of the court’s jurisdiction. Nor does Nucor, although citing
Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc.,
From Nucor’s pleadings and submissions, the court must conclude that Nu-cor’s entire correspondence with Commerce was limited to what it terms a “notice of appearance” and an application to receive information under an administrative protective order (“APO”). Filing of each of these documents does not itself constitute meaningful participation in the Department’s proceeding; such filings are merely procedural steps that communicate nothing of substance on any matter to be addressed in the administrative review. 4
Nucor’s allegations that it engaged in certain other activities, ie., that it monitored the status of the proceeding and participated in case strategy sessions and settlement negotiations with other parties to the review, do not remedy the deficiency in Nucor’s claim of standing. As important as those activities may have been to Nucor at the time, they were distinct from actual participation in the proceeding that Commerce was conducting.
The statutory scheme indicates that Congress intended to require, as a condition for obtaining judicial review, some level of participation before the agency beyond the steps identified by Nucor.
5
The
Congress specified that the party seeking standing to challenge a determination must have been “a party to the proceeding” and not, for example, merely an “interested party,” as defined in 19 U.S.C. § 1677(9). Procedural steps such as a notice of appearance and an application to receive business proprietary information under an APO are more in the nature of preparation for participation than participation itself. Were the court to treat them as sufficient to confer standing, it would so weaken the “party to the proceeding” requirement as to render it practically meaningless.
The court does not find merit in Nu-cor’s argument that Commerce implicitly acknowledged Nucor’s party status in granting Nucor’s representatives access to business proprietary information and disclosing preliminary calculations. In support of this argument, Nucor points to 19 U.S.C. § 1677f(c)(l)(A) (2000), under which Commerce must “make all business proprietary information presented to, or obtained by it, during a proceeding ... available to interested parties who are parties to the proceeding under a protective order....”
See
Pl.’s Resp. to Def.’s Mot. to Dismiss 4. Nucor points to 19 C.F.R. § 351.224(b) (2006), under which regulation Commerce is to “disclose to a party to the proceeding calculations performed, if any, in connection with a preliminary determination.... ”
See id.
The plain language of 19 U.S.C. § 1677f(c)(l)(A) does not preclude Commerce from releasing business proprietary information to a person’s qualified representatives under
an
APO prior to the person’s doing all that is required to obtain status as a party to the proceeding. A person’s representatives, upon proper application, may qualify to obtain proprietary information under an APO prior to the person’s making written submissions of fact or argument. Indeed, it would seem impracticable for Commerce to delay the release of proprietary information until
after
submission of such written fact or argument, which may rely, on such information. In this regard, the Department’s regulations contain separate definitions for the term “party to the proceeding” and the term “authorized applicant.”
See
19 C.F.R. § 351.102(b) (defining an “authorized applicant” as “an applicant that the Secretary has authorized to receive business proprietary information under an APO under [19 U.S.C. § 1677f(c)(l) ].”). For similar reasons, the court is not persuaded by Nucor’s argument that Commerce implicitly recognized Nucor’s status as a party to the proceeding by disclosing to Nucor its preliminary calculations. Neither the statute, in 19 U.S.C. § 1677f(c)(l), nor the Department’s regulations, in 19 C.F.R. § 351.224(b), both of which pertain to the Department’s disclosure of preliminary calculations, preclude the release of preliminary calculations to a
In support of its claim of standing, Nu-cor cites the unpublished opinion of the Court of Appeals for the Federal Circuit in
Laclede Steel Co. v. United States;
In
Laclede Steel Co.,
the Court of Appeals for the Federal Circuit affirmed the Court of International Trade’s allowing the intervention as a matter of right under 28 U.S.C. § 2631(j)(l)(B) of two Korean steel pipe manufacturers, Union Steel Manufacturing Company, Limited (“Union”) and Dongbu Steel Company, Limited (“Dongbu”), in a judicial review of a final Commerce antidumping determination on steel pipe.
In
Specialty Merchandise Corp.,
the Court of International Trade recently held that a plaintiff obtained standing to contest a final determination of Commerce by filing a notice of appearance with comments, albeit untimely, informing Commerce that the plaintiff was joining arguments made by other parties in the administrative proceeding. 477 F.Supp.2d. at 1361-62. Here, Nucor’s pleadings do not allege that Nucor informed Commerce, either orally or in writing, that Nucor was joining in the advocacy of any argument that any party had made or was making in the administrative review. Nucor argues, nevertheless, that its “active and consistent collaboration with other parties to the administrative review, including its visible participation in the settlement negotiations, demonstrate that Nucor provided notice of its concerns.” PL’s Resp. to Def.’s Mot. to Dismiss 5. This argument fails to overcome the problem inherent in Nucor’s allegation of standing, which is that Nucor fails to plead facts from which the court could conclude that Nu-cor communicated with the Department,
Encon Industries, Inc.
also is unavailing as support for plaintiffs standing argument.
See Encon Industries, Inc.,
Nucor quotes language from the opinion American Grape Growers. Pl.’s Resp. to Def.’s Mot. to Dismiss 2. In that case, the Court of International Trade stated that
[o]n the question of participation in the proceeding, the law is satisfied by any form of notification or participation which reasonably conveys the separate status of a party. The participation requirement is obviously intended only to bar action by someone who did not take the opportunity to further its interests on the administrative level.
In summary, Nucor has failed to allege facts from which the court may conclude that Nucor was a party to the administrative proceeding culminating in the issuance of the Final Results. Nucor, therefore, lacks the standing Congress required of any person seeking judicial review under 19 U.S.C. § 1516a.
B. The Motions for Intervention of Right Must Be Denied
The proposed plaintiff-intervenors timely moved to intervene as a matter of right pursuant to 28 U.S.C. § 263Kj)(l)(B) and USCIT Rule 24(a).
See
USCIT R. 24(a) (providing that a motion is timely if made no later than thirty days after the date of service of the complaint); Stelco’s Mot. to Intervene 1, 3; Dofasco, Sorevco, Do Sol Galva Mot. to Intervene ¶¶ 2, 4;
In
Simmons,
the Court of Appeals for the District of Columbia Circuit, upon considering an issue similar to that presented by this case, dismissed for lack of subject matter jurisdiction a cause of action in a judicial proceeding brought under the Hobbs Act, 28 U.S.C. § 2344.
The Court distinguished its holding from that of the Court of Appeals for the Third Circuit in
United States Steel Corp. v. EPA,
Nucor filed its summons on May 21, 2007, the last day on which such a filing was timely within the thirty-day period in which a party could have sought judicial review of the Final Results in the Court of International Trade under 19 U.S.C. § 1516a(a)(5).
See
19 U.S.C. § 1516a(a)(2), (5). The motions to intervene, although timely under USCIT Rule 24, were filed after the time period in which an original plaintiff could have invoked the court’s jurisdiction under 28 U.S.C. § 1581(c) to review the Final Results. Because the only party that attempted to invoke the subject matter jurisdiction of the court during that thirty-day period lacked standing to maintain a cause of action, that jurisdiction never attached to Nucor’s claim.
See Simmons,
C. The Motion for an Injunction Against Liquidation Must Be Denied
Nucor moves under 19 U.S.C. § 1516a(c)(2) for a preliminary injunction against liquidation of entries of subject merchandise produced by Stelco, Dofasco, Sorevco, and Do Sol Galva. Mot. for Prelim. Inj. 2 (stating that “Plaintiff moves to enjoin liquidation as a matter of right pursuant to 19 U.S.C. § 1516a(c)(2).”). The court may order an injunction against liquidation “[i]n the case of a determination described in [19 U.S.C. § 1516a(a)(2) ]” only “upon a request by an interested party for such relief and a proper showing that the requested relief should be granted under the circumstances.” 19 U.S.C. § 1516a(c)(2). The determination contested in this case, the Final Results in an administrative review issued under 19 U.S.C. § 1675 (2000), is within the scope of § 1516a(a)(2) and Nucor, as a domestic producer of the like product, is an “interested party” at least for purposes of 19 U.S.C. § 1677(9)(C). Nucor, however, is unable to satisfy the other requirement of § 1516a(c)(2), which is “a proper showing that the requested relief should be granted under the circumstances.”
Id.
The controlling circumstance is that subject matter jurisdiction did not attach to Nucor’s cause of action and, for the reasons discussed previously, the court must dismiss this case despite the motions to intervene. Nucor argues that the court should grant Nucor’s motion to enjoin liquidation because it has satisfied the four requirements for a preliminary injunction,
i.e.,
that Nucor will be immediately and irreparably injured, that there is a likelihood of success on the merits, that the public interest would be better served by the relief requested, and that the balance of hardship on all the parties favors movant Nucor. Mot. for Prelim. Inj. 2-3 (citing
U.S. Ass’n of Imps. of Textiles & Apparel v. United States,
III. Conclusion
The court concludes that subject matter jurisdiction does not exist over this action and that defendant’s motion to dismiss therefore must be granted. The court will deny the motions to intervene, deny the motion of plaintiff for a preliminary injunction, grant the motion of defendant to dis
JUDGMENT
In conformity with the Opinion issued in this case on this day, and in consideration of all papers and proceedings herein, it is hereby
Ordered that defendant’s motion to dismiss this action for lack of subject matter jurisdiction, filed on August 8, 2007, is Granted, and it is further
Ordered that this action be, and hereby is, dismissed.
Notes
. Dofasco, Sorevco, and Do Sol Galva are plaintiffs in
Dofasco Inc. v. United States,
Court No. 07-00135,
. On May 29, 2007, U.S. Steel was granted status as a plaintiff-intervenor and as a defendant-intervenor in Dofasco Inc. v. United States, Court No. 07-00135.
.Nucor stated in its motion for a preliminary injunction that it had obtained the consent of all proposed plaintiff-intervenors but does not state that it obtained the consent of Mittal Steel USA. Mot. for Prelim. Inj. 2.
. Nucor does not indicate in its pleading what it stated in its notice oí appearance or under what regulatory provision it filed this notice. The court observes that 19 C.F.R. § 351.103(c) allows interested parties to request to be included on the service list for a segment of a proceeding. See 19 C.F.R. § 351.103(c).
. Defendant cites certain legislative history of the Trade Agreements Act of 1979, which generally equates party status with participation in the administrative proceeding. Def.'s Mot. to Dismiss 4 (citing S.Rep. No. 96-249, at 249-51 (1979), reprinted in 1979 U.S.C.C.A.N. 381, 635-37). However, the parties have not directed the court to pertinent legislative history for guidance on the question of whether Congress, in requiring a plaintiff to have been a party to the administrative proceeding, intended a lower threshold of participation than that required by 19 C.F.R. § 351.102(b). The court’s own research has not uncovered any such legislative history.
. In arguing that Nucor’s lack of standing requires the court to dismiss this action for lack of jurisdiction, defendant cites
Bhullar v. United States,