Changzhou Hawd Flooring Co. v. United States

Slip Op. 14 - 93
UNITED STATES COURT OF INTERNATIONAL TRADE
CHANGZHOU HAWD FLOORING CO.,
LTD., et al.,
Plaintiffs,
v. Before: Donald C. Pogue,
Senior Judge
UNITED STATES,
Court No. 12-00020
Defendant.
OPINION and ORDER
[motion to file comments as amicus curiae denied]
Dated: August 11, 2014
Gregory S. Menegaz and J. Kevin Horgan, deKieffer &
Horgan, PLLC, of Washington, DC, for Plaintiffs.
Kristin H. Mowry, Jeffrey S. Grimson, Jill A. Cramer,
Sarah M. Wyss, and Daniel R. Wilson, Mowry & Grimson, PLLC, of
Washington, DC, for Plaintiff-Intervenor Fine Furniture
(Shanghai) Ltd.
Harold Deen Kaplan, Craig A. Lewis, and Mark S.
McConnell, Hogan Lovells US LLP, of Washington, DC, for
Plaintiff-Intervenor Armstrong Wood Products (Kunshan) Co., Ltd.
Mark R. Ludwikowski, Arthur K. Purcell, Michelle L.
Mejia, and Kristen S. Smith, Sandler, Travis & Rosenberg, PA, of
Washington, DC, for Plaintiff-Intervenors Lumber Liquidators
Services, LLC, and Home Legend, LLC.
Ronald M. Wisla and Lizbeth R. Levinson, Kutal Rock
LLP, of Washington DC, for Movants Alliance for Free Choice and
Jobs in Flooring.
Alexander V. Sverdlov, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Department of
Justice, of Washington, DC, for Defendant. Appearing with him
Court No. 12-00020 Page 2
were Stuart F. Delery, Assistant Attorney General, Jeanne E.
Davidson, Director, and Claudia Burke, Assistant Director. Of
counsel was Shana Hofstetter, Attorney, International Office of
the Chief Counsel for Trade Enforcement and Compliance, U.S.
Department of Commerce, of Washington, DC.
Jeffrey S. Levin, Levin Trade Law, P.C., of Bethesda,
MD, for the Defendant-Intervenor Coalition for American Hardwood
Parity.
Pogue, Senior Judge: This is an action challenging an
antidumping duty rate established by the Department of Commerce
(“Commerce” or “the Defendant”). Currently before the court is
a motion from the primary members1 of the Alliance for Free
Choice and Jobs in Flooring (“AFCJF” or “Movants”)2 seeking
amicus curiae status in this action and submitting a proposed
amicus brief. Mot. to Appear, ECF No. 77 at 1. The court has
jurisdiction in the underlying action pursuant to
§ 516A(a)(2)(B)(i) of the Tariff Act of 1930, as amended,
1 See Mot. to Appear as Amicus Curiae, ECF No. 77 (“Mot. to
Appear”) at 1-2 (“The current primary members of the [Alliance
for Free Choice and Jobs in Flooring] who directly import the
subject merchandise from China include: Swiff Train Co.,
Metropolitan Hardwood Floors, Inc., Real Wood Floors, LLC,
Galleher Corp., Cresent Harwood Supply, Custom Wholesale Floors,
Inc., Urban Global LLC, Pinnacle Interior Elements, Ltd.,
Timeless Design Import LLC, CDC Distributors, Inc., CLBY Inc.
(dba D&M Flooring), Johnson’s Premium Hardwood Flooring, Inc.,
The Master’s Craft Corp., BR Custom Surface, Doma Source LLC,
V.A.L. Floors, Inc., and Struxtur, Inc.”).
2 The AFCJF is “an organization of over 100 American companies
. . . involved in the manufacture, importation, and distribution
of engineered wood flooring from China. The AFCJF membership
includes downstream companies who distribute, retail, and even
install engineered wood flooring . . . .” Mot. to Appear, ECF
No. 77 at 1.
Court No. 12-00020 Page 3
19 U.S.C. § 1516a(a)(2)(B)(i) (2012) and 28 U.S.C. § 1581(c)
(2012).3 Because AFCJ is an interested party that is seeking, in
effect, intervenor not amicus status, and because AFCJF’s brief
is not useful to the court, the motion is DENIED.
BACKGROUND
In this action, Plaintiffs, all separate rate
respondents in the underlying administrative proceedings,
challenge Commerce’s determination of their antidumping duty
deposit rate in Multilayered Wood Flooring from the People’s
Republic of China, 76 Fed. Reg. 64,318 (Dep’t Commerce Oct. 18,
2011) (final determination of sales at less than fair value).
Compl., ECF No. 9. The ensuing litigation4 has produced two
remands5 and two corresponding redeterminations.6 The AFCJF now
3 All further citations to the Tariff Act of 1930, as amended,
are to Title 19 of the U.S. Code, 2012 edition, unless otherwise
noted.
4 This action was consolidated with Court Numbers 11-00452, 12-
00007, and 12-00013, under Consolidated Court Number 12-00007.
Order May 31, 2012, Consol. Ct. No. 12-00007, ECF No. 37. Court
Number 11-00452 was ultimately severed and dismissed. Am. Order
Nov. 27, 2012, Consol. Ct. No. 12-00007, ECF No. 75; Judgment,
Ct. No. 11-00452, ECF No. 68; see Baroque Timber Indus.
(Zhongshan) Co., Ltd. v. United States, __ CIT __, 853 F. Supp.
2d 1290 (2012); Baroque Timber Indus. (Zhongshan) Co., Ltd. v.
United States, __ CIT __, 865 F. Supp. 2d 1300 (2012).
5Baroque Timber Indus. (Zhongshan) Co., Ltd. v. United States,
___ CIT ___, 925 F. Supp. 2d 1332 (2013) (“Baroque III”) and
Baroque Timber Indus. (Zhongshan) Co., Ltd. v. United States, __
CIT __, 971 F. Supp. 2d 1333 (2014) (“Baroque IV”)
Court No. 12-00020 Page 4
moves to participate as amicus curiae pursuant to USCIT Rule 76.
Mot. to Appear, ECF No. 77 at 1.
DISCUSSION
Pursuant to USCIT Rule 76, a nonparty may file a brief
as an amicus curiae on motion to the court or by request of the
court. USCIT Rule 76. A motion to appear as an amicus curiae
“must identify the interest of the applicant and state the
reasons why an amicus curiae is desirable.” Id. The grant or
denial of such a motion is “discretionary with the court.” In re
Opprecht, 868 F.2d 1264, 1266 (Fed. Cir. 1989) (internal
citation omitted).7
6 Final Results of Redetermination Pursuant to Court Order,
Consol. Ct. No. 12-00007, ECF No. 132, and Final Results of
Redetermination Pursuant to Court Order, ECF No. 52
(“Redetermination II”). Following the first remand
determination, Court Numbers 12-00007 and 12-00013 were severed
and final judgment entered. Order Granting Mot. to Sever,
Consol. Ct. No. 12-00007, ECF No. 162; Judgment, Ct. No. 12-
00007, ECF No. 163; Judgment, Ct. No. 12-00013, ECF No. 32.
These have since been appealed by Defendant-Intervenor Coalition
for American Hardwood Parity. Appeal of Judgment, Ct. No. 12-
00007, ECF No. 166; Appeal of Judgment, Ct. No. 12-00013, ECF
No. 33.
7 See also N. Sec. Co. v. United States, 191 U.S. 555, 556 (1903)
(“[D]oubtless it is within our discretion to allow [the filing
of amicus briefs] in any case when justified by the
circumstances”); Nat'l Org. for Women, Inc. v. Scheidler, 223
F.3d 615, 616 (7th Cir. 2000) (“Whether to permit a nonparty to
submit a brief, as amicus curiae, is, with immaterial
exceptions, a matter of judicial grace.”); United States v.
Michigan, 940 F.2d 143, 165 (6th Cir.1991) (“Classical
participation as an amicus to brief and argue as a friend of the
court was, and continues to be, a privilege within the sound
(footnote continued)
Court No. 12-00020 Page 5
I. The Interests of the Applicant
An amicus curiae is meant to be, as the name
indicates,8 a friend of the court.9 While an amicus need not be
totally disinterested,10 there are limits to the availability of
amicus status,11 with a “bright line distinction between amicus
curiae and named parties/real parties in interest.” Siam Food
Products Pub. Co., Ltd. v. United States, 22 CIT 826, 830, 24 F.
Supp. 2d 276, 280 (1998) (quoting United States v. Michigan, 940
F.2d at 165).
Here, Movants seek to blur the line between intervenor
and amicus. Movants are importers and exports many of whom
discretion of the courts . . . .”) (internal quotation marks and
citations omitted).
8 In Latin, amicus, being the masculine singular nominative of
amicus, means “friend” and curiae, being the feminine singular
genitive of curia, means “of the court.” See Black’s Law
Dictionary 102 (10th ed. 2014).
9 See also Clark v. Sandusky, 205 F.2d 915, 917 (7th Cir. 1953)
(an amicus curiae is “a friend of the court whose sole function
is to advise, or make suggestions to, the court”).
10See Neonatology Associates, P.A. v. C.I.R., 293 F.3d 128, 131
(3d Cir. 2002) (“[I]t is not easy to envisage an amicus who is
‘disinterested’ but still has an ‘interest’ in the case.”);
Funbus Sys., Inc. v. State of Cal. Pub. Utilities Comm'n., 801
F.2d 1120, 1125 (9th Cir. 1986) (“[T]here is no rule that amici
must be totally disinterested.”) (internal citation omitted).
11See Ryan v. Commodity Futures Trading Comm'n, 125 F.3d 1062,
1063 (7th Cir. 1997) (“We are beyond the original meaning now;
an adversary role of an amicus curiae has become accepted. But
there are, or at least there should be, limits.”) (internal
citations omitted).
Court No. 12-00020 Page 6
“participated in various facets of [Commerce’s] original
investigation,” including as separate rate respondents. Mot. to
Appear, ECF No. 77 at 2-3. They now seek an “appropriate remedy
from this Court.” Second Remand Comments of Amicus Curiae
[AFCJF], ECF No. 77-3 (“Amicus Br.”) at 10. Specifically, they
want a zero rate for all separate rate respondents. Id.12 While
a pecuniary interest in the outcome of a case does not preclude
a nonparty from amicus standing,13 “an amicus curiae is not a
party to litigation” and is not entitled to seek relief. Miller-
Wohl Co. v. Comm'r of Labor & Indus. State of Mont., 694 F.2d
203, 204 (9th Cir. 1982) (citing Clark, 205 F.2d at 917).14
Amicus standing “should not become a substitute for
12They ask that the court “grant the zero margin not only to the
separate rate respondents that are appellants in this
proceeding, but to all separate rate respondents that
participated in the original investigation.” Id.
13See Neonatology Associates, 293 F.3d at 131-32 (“A quick look
at Supreme Court opinions discloses that corporations, unions,
trade and professional associations, and other parties with
‘pecuniary’ interests appear regularly as amici.”) (citing
Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 3 n. * (1991);
Container Corp. of America v. Franchise Tax Bd., 463 U.S. 159,
161 n. * (1983)).
14See also Doran v. Salem Inn, Inc., 422 U.S. 922, 931 (1975)
(finding that “neither declaratory nor injunctive relief can
directly interfere with enforcement of contested statutes or
ordinances except with respect to the particular federal
plaintiffs”); Corning Gilbert Inc. v. United States,__ CIT __,
837 F. Supp. 2d 1303, 1306 (2012) (USCIT Rule 76 “certainly does
not contemplate general participation at the trial level, with
everything that entails (e.g., procedural motions, discovery
motions, or settlement discussions).”).
Court No. 12-00020 Page 7
intervention.” Stewart-Warner Corp. v. United States, 4 CIT 141,
142 (1982) (not reported in F. Supp.).15 Movants here seek not
so much to be a friend of the court as to compensate for a
failure to timely intervene. See Mot. to Intervene as Intervenor
Pls. Pursuant to Rule 24(a)(3), ECF No. 78. Accordingly,
granting them amicus standing is inappropriate.
II. The Desirability of an Amicus Curiae
Amicus briefs are “solely for the benefit of the
[c]ourt.” Stewart–Warner, 4 CIT at 142. A brief benefits the
court when it “assist[s] the judge[] by presenting ideas,
arguments, theories, insights, facts, or data that are not to be
found in the parties’ briefs.” Voices for Choices v. Illinois
Bell Tel. Co., 339 F.3d 542, 545 (7th Cir. 2003). The court
will deny a motion to file an amicus brief that “essentially
duplicates” a litigant's brief.” Id. at 544.
15Movants explain that “in this unique situation,” the separate
rate companies “participated fully and properly in the initial
investigation, but did not participate in this appeal [as
Plaintiffs or Plaintiff-Intervenors] because at the time of the
final determination there was no cause to appeal the separate
company rate as calculated by [Commerce]. Only after remand
where all mandatory respondents were found to have zero margins
was it apparent that it was possible” that they could receive a
zero rate and be excluded from the order. Amicus Br., ECF No.
77-3 at 10.
Court No. 12-00020 Page 8
Here, the Movants’ brief merely duplicates Plaintiffs’
and Plaintiff-Intervenors’ briefs.16 This is neither desirable
nor useful to the court. See USCIT R. 76 (“The motion for leave
must . . . state the reasons why an amicus curiae is
desirable.”); Ass'n of Am. Sch. Paper Suppliers v. United
States, __ CIT __, 683 F. Supp. 2d 1326, 1328 (2010) (the most
important criterion for deciding whether granting amicus status
is appropriate, is “the usefulness of information and argument
16While Movants claim that the “AFCJF brings a unique and
informative perspective to the [c]ourt,” Mot. to Appear, ECF No.
77 at 3, their proposed amicus brief merely repeats or
incorporates by reference arguments already made before the
court by Plaintiffs and Plaintiff-Intervenors. For a discussion
of the inapplicability of the non-cooperative companies’ rate to
the separate rate respondents, compare Amicus Br., ECF No. 77-3
at 9 (incorporating by reference the arguments of Plaintiff-
Intervenors Fine Furniture (Shanghai), Ltd. and Lumber
Liquidators Services, Ltd.) with Comments of Certain Separate
Rate Appellants to Second Remand Redetermination, ECF No. 69
(“Pls. Comments”) at 13-17, Comments of Fine Furniture
(Shanghai) Ltd. on Dep’t of Commerce May 30, 2014 Final Result
of Redetermination Pursuant to Ct. Order, ECF No. 74 (“Fine
Furniture Comments”)at 5-7, Comments in Opp’n to Dep’t of
Commerce May 29, 2014 Final Results of Redetermination Pursuant
to Ct. Remand, ECF No. 75 (“Armstrong Comments”) at 11-12,
Response of Lumber Liquidators Services, LLC in Opp’n to United
States 2nd Remand Redetermination, ECF No. 76 (“Lumber
Liquidators Comments”) at 7-8. For a discussion of how the only
reasonable method to calculate the separate rate is to average
the mandatory respondents margins, resulting in a de minimis
separate rate, compare Amicus Br., ECF No. 77-3 at 11-13, with
Pls. Comments, ECF No. 69 at 19-31; Fine Furniture Comments, ECF
No. 74, at 25-27; Armstrong Comments, ECF No. 75 at 4-10; Lumber
Liquidators Comments, ECF No. 76 at 7-13.
Court No. 12-00020 Page 9
presented by the potential amicus curiae to the court”).17
Accordingly, Movants’ brief is not of benefit to the court and
leave to file it is denied.
CONCLUSION
For the aforementioned reasons, it is hereby ORDERED
that the AFCJF’s motion to participate as amicus curiae is
DENIED.
IT IS SO ORDERED.
/s/ Donald C. Pogue
Donald C. Pogue, Senior Judge
Dated: August 11, 2014
New York, NY
17See Ryan, 125 F.3d at 1064 (“In an era of heavy judicial
caseloads and public impatience with the delays and expense of
litigation, we judges should be assiduous to bar the gates to
amicus curiae briefs that fail to present convincing reasons why
the parties’ briefs do not give us all the help we need for
deciding the appeal.”); Am. Satellite Co. v. United States, 22
Cl. Ct. 547, 549 (1991) (“Perhaps the most important
[consideration] is whether the court is persuaded that
participation by the amicus will be useful to it, as contrasted
with simply strengthening the assertions of one party.”)
(internal citations omitted).