Diamond Sawblades Manufacturers Coalition v. United States ( 2009 )

Slip Op 09 - 52
UNITED STATES COURT OF INTERNATIONAL TRADE
:
DIAMOND SAWBLADES :
MANUFACTURERS COALITION, :
:
Plaintiff, :
:
v. : Before: MUSGRAVE, Senior Judge
: Court No. 06-00247
UNITED STATES, :
:
Defendant, :
:
and :
:
ST. GOBAIN ABRASIVES, INC., EHWA :
DIAMOND INDUSTRIAL CO., LTD., and :
SHINHAN DIAMOND INDUS. CO., LTD., :
:
Defendant-Intervenors. :
:
OPINION AND ORDER
[Motion to intervene denied.]
Dated: June 5, 2009
Wiley Rein LLP (Daniel B. Pickard), for the plaintiff.
James M. Lyons, General Counsel, Neal J. Reynolds, Assistant General Counsel, Office of
the General Council, U.S. International Trade Commission (Charles A. St. Charles) for the
defendant.
Akin Gump Strauss Hauer & Feld LLP (Spencer S. Griffith, J. David Park, Jarrod M.
Goldfeder, Lisa W. Ross, and Valerie A. Slater), counsel for the defendant-intervenors Ehwa
Diamond Industrial Co., Ltd. and Shinhan Diamond Industrial Co., Ltd.
Thompson Hine, LLP (Lynn M. Fischer Fox) for the defendant-intervenor Saint-Gobain
Abrasives, Inc.
Court No. 06-00247 Page 2
Alston & Bird LLP (Kenneth G. Weigel and Elizabeth M. Hein), for the applicant Husqvarna
Construction Products North America, Inc.
MUSGRAVE, Senior Judge: Husqvarna Construction Products North America, Inc.
has filed a motion to join this matter, familiarity with which is presumed, alongside the defendant-
intervenors via intervention. The defendant-intervenors consent, but the motion is opposed by the
plaintiff Diamond Sawblades Manufacturers Coalition (“DSMC”) and the defendant U.S.
International Trade Commission (“ITC”).
After issuance of Slip Op. 09-5 (Jan. 13, 2009), a dispositive opinion, each defendant-
intervenor appealed the decision to the Court of Appeals for the Federal Circuit (nos. 2009-1274,
-1275). Separately, and previously, the U.S. Department of Commerce, International Trade
Administration instructed the U.S. Customs and Border Protection to suspend liquidation of entries
of subject imports from Korea and China as of January 23, 2009, see Diamond Sawblades and Parts
Thereof from the People’s Republic of China and the Republic of Korea: Notice of Court Decision
Not In Harmony With Final Determination of the Antidumping Duty Investigations, 74 Fed. Reg.
6570, 6570-71 (Feb. 10, 2009). DSMC thereafter sought a writ of mandamus in this action, which
application is still pending, to compel the ITC “to publish notice of its final affirmative material
threat determination in the Federal Register.” Pl.’s Pet. for Writ of Mandamus at 1.
By its motion, Husqvarna argues it has a right to intervene under USCIT Rule 24(a)
because it “has an interest related to this action and an adverse decision by this Court [on the
application for mandamus] would result in the premature assessment of antidumping duties that
would have a significant economic impact on Husqvarna.” Partial Consent Mot. to Intervene ¶ 2.
Alternatively, Husqvarna argues it should be permitted to intervene under USCIT Rules 24(b) and
Court No. 06-00247 Page 3
28 U.S.C. § 2631(j) “because it would be adversely affected or aggrieved by a decision on [DSMC’s]
Petition and because Husqvarna’s intervention would not unduly delay or prejudice this Court’s
adjudication of the original parties’ rights.” Id. ¶ 3.
Pursuant to section 2631(j)(1)(B) of Title 28 of the United States Code, in a civil
action commenced 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)(B) (2006). See 19 U.S.C. § 1516a, (2006); see also
JCM, Ltd. v. United States, 210 F.3d 1357, 1360 (Fed. Cir. 2000); Qingdao Taifa Group Co., Ltd.
v. United States, 32 CIT ___, ___, 580 F. Supp. 2d 1342, 1343-44 (2008); Dofasco Inc., v. United
States, 31 CIT ___, ___, 519 F. Supp. 2d 1284, 1286 (2007); Matsushita Elec. Indus. Co., Ltd. v.
United States, 2 CIT 254, 529 F. Supp. 664 (1981). Accordingly, because this action was
commenced to contest an administrative proceeding pursuant to 19 U.S.C. § 1516a, and because
Husqvarna concedes that it was not a “party to the proceeding” within the meaning of 28 U.S.C. §
2631(j)(1)(B), Husqvarna is statutorily barred from intervening in this matter. See Quingdao, 580
F. Supp. at 1345-46; Dofasco, 519 F. Supp. 2d at 1286; see also Ontario Forest Indus. Assoc. v.
United States, 30 CIT 1117, 1130 n.12, 444 F. Supp. 2d 1309, 1322 n.12 (2006).
The motion must be, and it hereby is, denied.
So ordered.
/s/ R. Kenton Musgrave
Dated: June 5, 2009 R. KENTON MUSGRAVE, Senior Judge
New Yor, New York