Jiangsu Jiasheng Photovoltaic Technology Co. v. United States ( 2015 )

Slip Op. 15 - 
UNITED STATES COURT OF INTERNATIONAL TRADE
JIANGSU JIASHENG PHOTOVOLTAIC
TECHNOLOGY CO., LTD.,
Plaintiff, Before: Donald C. Pogue,
Senior Judge
v.
Consol. Court No. 13-000121
UNITED STATES,
Defendant.
OPINION and ORDER
[denying motion to intervene out of time]
Dated: June 16, 2015
Gregory S. Menegaz, J. Kevin Horgan, and John J.
Kenkel, deKieffer & Horgan, PLLC, of Washington, DC, for the
movant.
L. Misha Preheim, Senior Trial Counsel, Commercial
Litigation Branch, Civil Division, U.S. Department of Justice,
of Washington, DC, for the Defendant. Also on the brief were
Benjamin C. Mizer, Principal Deputy Assistant Attorney General,
Jeanne E. Davidson, Director, and Reginald T. Blades, Jr.,
Assistant Director. Of counsel was Rebecca Cantu, Senior
Attorney, Office of the Chief Counsel for Trade Enforcement &
Compliance, U.S. Department of Commerce.
Pogue, Senior Judge: This consolidated action arises
from the United States Department of Commerce’s (“Commerce”)
antidumping (“AD”) investigation of crystalline silicon
photovoltaic cells (“CSPC” or “subject merchandise”) from the
1
This action is consolidated with SolarWorld Americas, Inc.
v. United States, Ct. No. 13-00006. Order June 12, 2013,
ECF No. 18.
Consol. Ct. No. 13-00012 Page 2
People’s Republic of China (“PRC” or “China”).2 Before the court
is a motion by Sumec Hardware & Tools Company, Limited (“Sumec”)
– an exporter of subject merchandise that participated in the
investigation – to intervene in this action, notwithstanding the
passage of more than two years since the litigation began.3
The court has jurisdiction pursuant to
Section 516A(a)(2)(B)(i) of the Tariff Act of 1930, as amended,
19 U.S.C. § 1516a(a)(2)(B)(i) (2012),4 and 28 U.S.C.
§ 1581(c) (2012).
As explained below, because Sumec has not shown good
2
See [CSPC], Whether or Not Assembled into Modules, from the
[PRC], 77 Fed. Reg. 63,791 (Dep’t Commerce Oct. 17, 2012) (final
determination of sales at less than fair value, and affirmative
final determination of critical circumstances, in part) (“Final
Results”) and accompanying Issues & Decision Mem., A-570-979,
AD Investigation (Oct. 9, 2012).
3
See Mot. for Intervention Pursuant to Rule 24(a)(3),
ECF No. 101 (“Sumec’s Mot.”) (filed on May 14, 2015); Compl.,
Ct. No. 13-00006 (consolidated with this action, see supra
note 1), ECF No. 8 (filed on February 1, 2013, challenging,
inter alia, the AD cash deposit rate established for Sumec in
this investigation; certifying service of the complaint on
Sumec’s counsel). Pursuant to USCIT R. 24(a)(3), “[i]n an
action described in 28 U.S.C. § 1581(c), a timely motion [to
intervene] must be made no later than 30 days after the date of
service of the complaint . . ., unless for good cause shown at
such later time for the following reasons: (i) mistake,
inadvertence, surprise or excusable neglect; or (ii) under
circumstances in which by due diligence a motion to intervene
under this subsection could not have been made within the 30-day
period.”
4
Further citations to the Tariff Act of 1930, as amended, are to
the relevant provisions of Title 19 of the U.S. Code,
2012 edition.
Consol. Ct. No. 13-00012 Page 3
cause for filing its motion more than two years past the 30-day
time limit for intervention, Sumec’s motion to intervene out of
time in this action is therefore denied.
BACKGROUND
Because Commerce considers the PRC to be a non-market
economy (“NME”),5 when investigating merchandise from China, the
agency presumes that the export operations of all Chinese
producers and exporters are controlled by the PRC government,
unless respondents show otherwise.6 As a result, Commerce’s
practice is to assign to all exporters from the PRC a single
“countrywide” antidumping duty rate unless they affirmatively
establish eligibility for a “separate rate” by demonstrating
both de jure (in law) and de facto (in fact) autonomy during the
5
See [CSPC], Whether or Not Assembled into Modules, from the
[PRC], 76 Fed. Reg. 70,960, 70,962 (Dep’t Commerce
Nov. 16, 2011) (initiation of antidumping duty investigation)
(“The presumption of NME status for the PRC has not been revoked
by [Commerce] and, therefore, in accordance with [19 U.S.C.
1677(18)(C)(i)], remains in effect for purposes of the
initiation of this investigation.”).
6
See [CSPC], Whether or Not Assembled into Modules, from the
[PRC], 77 Fed. Reg. 31,309, 31,315 (Dep’t Commerce May 25, 2012)
(preliminary determination of sales at less than fair value,
postponement of final determination and affirmative preliminary
determination of critical circumstances) (“Prelim. Results”)
(“In proceedings involving NME countries, [Commerce] has a
rebuttable presumption that all companies within the country are
subject to government control and thus should be assessed a
single AD rate.”) (citation omitted) (unchanged in the
Final Results, 77 Fed. Reg. at 63,794).
Consol. Ct. No. 13-00012 Page 4
period of investigation.7 Here, Commerce initially determined
that Sumec had adequately established its eligibility for a
separate rate.8 On February 1, 2013, however, SolarWorld
Americas Inc. (formerly SolarWorld Industries America, Inc.9)
(“SolarWorld”) – a U.S. manufacturer of the domestic like
product and a petitioner in the underlying investigation10 –
filed (and served on Sumec) a complaint challenging this
determination (among other challenges to the final results of
this investigation).11 Although a number of the
producers/exporters whose separate rate status was challenged in
SolarWorld’s complaint timely moved to intervene in this action,
Sumec was not among them.12
7
Prelim. Results, 77 Fed. Reg. at 31,315 (unchanged in the
Final Results, 77 Fed. Reg. at 63,794).
8
See Final Results, 77 Fed. Reg. at 63,796.
9
See Order Nov. 5, 2014, ECF No. 88 (granting SolarWorld’s
motion to amend the caption of this proceeding “to reflect the
change in name of SolarWorld Industries America, Inc. to
SolarWorld Americas Inc.”).
10
Compl., Ct. No. 13-00006 (consolidated with this action,
see supra note 1), ECF No. 8, at ¶ 3.
11
Id. at ¶¶ 12-14, Certificate of Service.
12
See Order Feb. 22, 2013, Ct. No. 13-00006, ECF No. 15;
Order Mar. 5, 2013, Ct. No. 13-00006, ECF No. 27; Order Mar. 13,
2013, Ct. No. 13-00006, ECF No. 33 (each order granting timely
motions to intervene); cf. Siam Food Prods. Pub. Co. v. United
States, 22 CIT 826, 829, 24 F. Supp. 2d 276, 280 (1998)
(“Parties with identified interests in the results of a review
have the option to protect those interests by intervening in the
(footnote continued)
Consol. Ct. No. 13-00012 Page 5
After the close of briefing, on June 4, 2014, the
court docketed a list of questions for the parties to address at
the oral argument to be held on June 18, 2014.13 Among the
court’s questions were a number of inquiries regarding
SolarWorld’s challenge to Commerce’s grant of separate rate
status to certain of respondents in this investigation,
including Sumec.14 Upon review of these questions, Commerce
decided to “reconsider and reevaluate its determination to grant
a separate rate to four respondents,”15 including Sumec,16 and
accordingly moved for a voluntary remand “to reevaluate the
evidence and reconsider the separate rate eligibility of[, inter
alia, Sumec].”17 This motion was unopposed.18 Finding the motion
to have been based on a substantial and legitimate concern, the
court granted Commerce’s request for a voluntary remand to
proceedings.”) (citing USCIT R. 24).
13
See Letter from Ct. Re Oral Arg., ECF No. 80.
14
See id. at 9-15.
15
Def.’s Mot. for Voluntary Remand, ECF No. 81 (“Def.’s Mot. for
Remand”) at 1.
16
Id. at 2.
17
Id. at 3.
18
See ECF Nos. 81-89; see also Oral Arg. Tr., ECF No. 83, at 20
(SolarWorld’s counsel “welcom[ing] the United States’ motion for
a voluntary remand”).
Consol. Ct. No. 13-00012 Page 6
reconsider the separate rate eligibility of, inter alia, Sumec.19
At no point during this process did Sumec seek to intervene to
protect its interests in retaining its separate rate.
On remand, Commerce determined that Sumec failed to
affirmatively establish its de facto independence from
government control, and hence concluded that Sumec was not
eligible for a rate separate from the China-wide entity.20
Finding itself aggrieved by this determination, Sumec then moved
to intervene in this action, outside of the 30-day window
afforded for intervention as a matter of right,21 arguing that
Commerce’s determination on remand was a “surprise” within the
meaning of USCIT Rule 24(a)(3)(i).22
19
Jiangsu Jiasheng Photovoltaic Tech. Co. v. United States,
__ CIT __, 28 F. Supp. 3d 1317, 1340-41 (2014). See id. at 1340
n.113 (quoting SKF USA Inc. v. United States, 254 F.3d 1022,
1029 (Fed. Cir. 2001) (“[E]ven if there are no intervening
events, the agency may request a remand (without confessing
error) in order to reconsider its previous position.
. . . [I]f the agency’s concern is substantial and legitimate,
a remand is usually appropriate.”), and noting that Commerce’s
stated concern was “consistency of agency action with other
pending cases where a similar issue is presented” (quotation
marks and citation omitted)).
20
Final Results of Redetermination Pursuant to Ct. Order,
ECF Nos. 97-1 (conf. version) & 98-1 (pub. version) (“Remand
Results”) at 8, 10-11, 23-25.
21
Sumec’s Mot., ECF No. 101.
22
Id. at 4; see USCIT R. 24(a)(3)(i) (defining “good cause” for
tardy intervention in actions challenging Commerce’s antidumping
determinations as including, inter alia, “surprise”).
Consol. Ct. No. 13-00012 Page 7
DISCUSSION
USCIT Rule 24(a)(3), which governs intervention in
actions challenging Commerce’s antidumping determinations,23
provides that interested parties may intervene as a matter of
right within 30 days after the date of service of the complaint,
and “expresses a clear mandatory standard that the court may
waive the 30-day limit only if good cause is shown.”24 “Good
cause” is defined as either (1) “mistake, inadvertence, surprise
or excusable neglect,” or (2) “circumstances in which by due
diligence a motion to intervene under this subsection could not
have been made within the 30–day period.”25
23
USCIT R. 24(a)(3) (covering “action[s] described in 28 U.S.C.
§ 1581(c)”); 28 U.S.C. § 1581(c) (“The Court of International
Trade shall have exclusive jurisdiction of any civil action
commenced under [19 U.S.C. § 1516a].”); 19 U.S.C. § 1516a
(providing causes of action for judicial review of
countervailing duty and antidumping duty proceedings); 19 U.S.C.
§ 1516a(a)(2)(B)(i) (providing cause of action for review of
Commerce’s determinations in antidumping investigations such as
the one at issue here); 28 U.S.C. § 2631(j)(1)(B) (“Any 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 . . . 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[.]”).
24
Siam Food Prods., 22 CIT at 827, 24 F. Supp. 2d at 278 (citing
USCIT R. 24(a)).
25
USCIT R. 24(a)(3). Sumec does not argue that it could not
have, by due diligence, filed its motion to intervene within the
30-day period. See Sumec’s Mot., ECF No. 101.
Consol. Ct. No. 13-00012 Page 8
Here, Sumec argues that good cause exists for its
tardy intervention because, notwithstanding Sumec’s actual
knowledge of SolarWorld’s pending legal challenge to Sumec’s
separate rate status in the investigation, Sumec believed that
the challenge was meritless, and hence saw no need to intervene
until the “surprise” of Commerce’s decision on remand.26 But
adopting this interpretation of “surprise” as good cause for
tardy intervention within the meaning of Rule 24(a)(3) would
essentially render that provision’s 30-day time limit
meaningless. For under this interpretation, all would-be
Defendant-Intervenors could claim good faith (subjective) belief
in the legality of Commerce’s favorable determination, and thus
unpredictably delay their intervention until the outcome of the
litigation begins to appear unfavorable. Such an interpretation
“would render the actual time limit [for intervention]
superfluous.”27
26
See Sumec’s Mot., ECF No. 101, at 1-2 (explaining that Sumec
“did not appeal or intervene” within the 30-day period because
it “was not [yet] adversely affected” by Commerce’s decision);
id. at 3 (“Sumec Hardware was not aggrieved in the original
final results [of the underlying AD investigation] and could not
have reasonabl[y] predicted that the litigation would result in
the denial of its separate rate.”); id. at 4 (“[Sumec] had no
reason to seek appeal [or intervene] [but] has now been
significantly aggrieved by a decision it could not predict. The
decision was a ‘surprise.’”) (quoting USCIT R. 24(a)(3)(i)).
27
See Siam Food Prods., 22 CIT at 830, 24 F. Supp. 2d at 281;
see also id. (“Under such a scenario [where tardy strategic
(footnote continued)
Consol. Ct. No. 13-00012 Page 9
That Sumec was subjectively surprised by the turn of
events in the course of this litigation does not negate its
awareness, at the time that SolarWorld served its complaint,
that Sumec’s interests in the outcome of this AD investigation
may be adversely affected by this litigation. Thus this is not
a case of surprise, but rather an example of a failed litigation
strategy. Sumec knew its interests were at stake, and yet made
a conscious decision to risk letting the litigation play out
without Sumec’s intervention. Sumec not only did not intervene
within the 30-day time limit, but Sumec also did not seek to
intervene at any point during the briefing of SolarWorld’s
challenge to Sumec’s separate rate, nor even once it became
apparent that Commerce itself was seeking an unopposed voluntary
remand to reconsider the evidence on this issue. That this
strategy turned out to be unwise is neither surprising nor
excusable.28 It does not constitute “good cause” within the
intervention is permitted so long as the movant files early
enough to continue the action without too much prejudice to the
opposing parties], existing parties and the court might not know
when to expect intervention, the proceedings on the merits could
be interrupted and/or delayed by motions to intervene, and extra
adjudication could be routinely required for parties who choose
to file late. The court assumes the 30-day limit added [to
USCIT Rule 24(a)(3)] in 1993 was intended to avoid this result.
The time limit cannot be so easily avoided, even if some
prejudice to the late filer results from denial of the
motion.”).
28
See USCIT Rule 24(a)(3)(i); cf. GPX Int’l Tire Corp. v. United
(footnote continued)
Consol. Ct. No. 13-00012 Page 10
meaning of USCIT Rule 24(a)(3).
Nor is this a case of excusable neglect.29 Here the
reason for Sumec’s tardiness was not neglect, but rather Sumec’s
conscious decision not to intervene until the outcome of the
litigation began to appear unfavorable.30 As in GPX, Sumec “had
notice of the substantive issues raised by the appeal[] and
could have moved to intervene.”31 Instead, “it delayed its
decision on its involvement,”32 awaiting the outcome of the
remand determination. As in GPX and Siam Products, this does
not constitute “excusable neglect,” but rather “a conscious
decision not to intervene timely.”33 As in Siam Products,34 this
States, 33 CIT 114, 116-17 (2009) (not reported in the Federal
Supplement) (declining to find good cause for tardy intervention
where the movant was aware of the litigation affecting its
interests but made a conscious decision to delay intervention
and assume the risk that the litigation may adversely affect its
interests).
29
See Sumec’s Mot., ECF No. 101, at 3 (suggesting that the court
apply the Supreme Court’s interpretation of “excusable neglect”
to Sumec’s tardy intervention (citing Pioneer Inv. Servs. Co. v.
Brunswick Assocs. LP, 507 U.S. 380, 395 (1993) (discussing
“excusable neglect” in the context of Federal Rule of Civil
Procedure 60(b)(1) (permitting courts to reopen judgments for
reasons of “mistake, inadvertence, surprise, or excusable
neglect”))).
30
See supra note 27 (quoting and citing Sumec’s motion).
31
GPX, 33 CIT at 117.
32
See id.
33
Id. (quoting Siam Food Prods., 22 CIT at 830, 24 F. Supp. 2d
at 280) (internal quotation marks omitted).
Consol. Ct. No. 13-00012 Page 11
was not a case of neglect at all, but rather a deliberate
decision that turned out to have been imprudent.
CONCLUSION
For all of the foregoing reasons, having shown no good
cause for delaying its intervention until after completion of
Commerce’s voluntary remand, Sumec has not established a basis
for exception from Rule 24(a)(3)’s general requirement that
interventions must be made within 30 days of the service of the
complaint. Sumec’s untimely motion to intervene – now that the
matter has been fully briefed, argued, opined upon, and
reconsidered on remand – therefore must be, and hereby is,
denied.
It is SO ORDERED.
____/s/ Donald C. Pogue______
Donald C. Pogue, Senior Judge
Dated: June 16, 2015
New York, NY
34
See Siam Food Prods., 22 CIT at 830, 24 F. Supp. 2d at 280
(“There is simply no ‘neglect.’ There was a conscious decision
not to intervene . . . .”).