72 F.Supp.3d 1378 (CIT 2015), 13-00012, Jiangsu Jiasheng Photovoltaic Technology Co. v. United States

Docket Nº:Consol. Court 13-00012 [1]
Citation:72 F.Supp.3d 1378
Opinion Judge:Pogue, Senior Judge:
Party Name:JIANGSU JIASHENG PHOTOVOLTAIC TECHNOLOGY CO., LTD., Plaintiff, v. UNITED STATES, Defendant
Attorney:Consol. Court No. 13-00012 [1] 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 Defenda...
Judge Panel:Before: Donald C. Pogue, Senior Judge.
Case Date:June 16, 2015
Court:Court of International Trade
 
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72 F.Supp.3d 1378 (CIT 2015)

JIANGSU JIASHENG PHOTOVOLTAIC TECHNOLOGY CO., LTD., Plaintiff,

v.

UNITED STATES, Defendant

Consol. Court No. 13-00012 1

United States Court of International Trade

June 16, 2015

Denying Motion To Intervene Out of Time.

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.

Before: Donald C. Pogue, Senior Judge.

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OPINION AND ORDER

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 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).

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As explained below, because Sumec has not shown good 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 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

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

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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 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

DISCUSSION

USCIT Rule 24(a)(3), which governs intervention in actions challenging Commerce's antidumping determinations,23 provides that interested parties may intervene

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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

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...

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