Jiangsu Jiasheng Photovoltaic Tech. Co. v. United States

Decision Date16 June 2015
Docket NumberSlip Op. 15–60.,Court No. 13–00012.1
PartiesJIANGSU JIASHENG PHOTOVOLTAIC TECHNOLOGY CO., LTD., Plaintiff, v. UNITED STATES, Defendant.
CourtU.S. Court of International Trade

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.

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).

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 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 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 DefendantIntervenors 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

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 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 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.

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.

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,...

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