Changzhou Trina Solar Energy Co. v. United States

• Decision Date: 14 March 2016
• Docket Number: Consol. Court No. 15–000681,Slip Op. 16–22
• Citation: 161 F.Supp.3d 1343
• Court: U.S. Court of International Trade
• Parties: Changzhou Trina Solar Energy Co., Ltd. and Trina Solar (Changzhou) Science & Technology Co., Ltd., Plaintiffs, v. United States, Defendant.

161 F.Supp.3d 1343

Changzhou Trina Solar Energy Co., Ltd. and Trina Solar (Changzhou) Science & Technology Co., Ltd., Plaintiffs,

v.United States, Defendant.

Slip Op. 16–22

Consol. Court No. 15–000681

United States Court of International Trade.

March 14, 2016

Joanne E. Osendarp, Matthew R. Nicely, Lynn G. Kamarck, and Alan G. Kashdan, Hughes, Hubbard & Reed, LLP, of Washington, DC, for the Government of Canada.

Matthew J. Clark, Nancy A. Noonan, and Julia L. Diaz, Arent Fox LLP, of Washington, DC, for the Government of Québec.

Lawrence A. Schneider, Michael T. Shor, and Andrew Treaster, Arnold & Porter LLP, of Washington, DC, for the Government of Alberta.

Spencer Griffith and Bernd G. Janzen, Akin Gump Strauss Hauer & Feld LLP, of Washington, DC, for the Government of British Columbia.

Michele Sherman Davenport, Davenport & James PLLC, of Washington, DC, for the Government of Manitoba and the Government of Saskatchewan.

Donald B. Cameron, Jr., Julie C. Mendoza, and Brady W. Mills, Morris, Manning & Martin, LLP, of Washington, DC, for the Government of New Brunswick.

Robert C. Cassidy, Jr., Jack A. Levy, Christopher Kent, Christopher J. Cochlin, and Thomas M. Beline, Cassidy Levy Kent LLP, of Washington, DC, for the Government of Nova Scotia.

Mark S. McConnell, H. Deen Kaplan, Deborah M. Wei, and Mary Van Houten, Hogan Lovells LLP, of Washington, DC, for the Government of Ontario.

Melissa M. Devine, Trial Attorney, 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 Shelby M. Anderson, Attorney, Office of the Chief Counsel for Trade Enforcement & Compliance, U.S. Department of Commerce, of Washington, DC.

OPINION

Pogue

, Senior Judge:

This consolidated action arises from the United States Department of Commerce's (“Commerce”) countervailing duty (“CVD”) investigation of certain crystalline silicon photovoltaic products (“solar panels”) from the People's Republic of China (“China”).² Before the court is a motion by the Government of Canada and the Governments of Québec, Alberta, British Columbia, Manitoba, New Brunswick, Nova Scotia, Ontario, and Saskatchewan (hereinafter collectively referred to as the “Canadian Governments”) to jointly submit a brief in this matter as amicus curiae, pursuant to USCIT Rule 76

.³ Defendant United States opposes this motion.⁴

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)

,⁵ and 28 U.S.C. § 1581(c) (2012).

As explained below, because the Canadian Governments' proposed contribution does not seek to provide impartial information on a matter of law about which there is doubt, but instead seeks to advance advocacy interests that are already adequately represented, the motion is denied.

STANDARD OF REVIEW

USCIT Rule 76

provides that “[t]he filing of a brief by an amicus curiae may be allowed on motion made as prescribed by Rule 7, or at the request of the court.”⁶ Rule 76

also provides that the movants must “identify [their] interest” and “state the reasons why an amicus curiae is desirable.”⁷

Amicus curiae , of course, means “friend of the court,”⁸ “as distinguished from an advocate before the court.”⁹ Historically, courts have accepted amicus curiae briefs that “provide impartial information on matters of law about which there was doubt, especially in matters of public interest.”¹⁰ Courts may be particularly inclined to permit amicus participation “if the court is concerned that one of the parties is not interested in or capable of fully presenting one side of the argument.”¹¹ Thus traditionally “an amicus curiae is an impartial individual who suggests the interpretation and status of the law, gives information concerning it, and whose function is to advise in order that justice may be done, rather than to advocate a point of view so that a cause may be won by one party or another.”¹² In contrast to such legal advice, arguments against specific determinations made by Commerce in the context of particular CVD proceedings may and must generally be presented to the agency in the first instance, through participation in the adversarial administrative process below.¹³

While it is no longer required that an amicus curiae be totally disinterested in the outcome of the litigation¹⁴ —indeed, “it is not easy to envisage an amicus who is ‘disinterested’ but still has an ‘interest’ in the case”¹⁵ —where a purported amicus is in fact an interested party that could and should have presented its arguments to Commerce in the first instance at the administrative level, permitting such arguments to effectively circumvent the administrative participatory requirements “deprives [Commerce] of an opportunity to consider the matter, make its ruling, and state the reasons for its action,”¹⁶ and is therefore not appropriate.¹⁷ Moreover, amicus curiae participation that merely duplicates the arguments of one or more of the represented parties is in any event not “desirable.”¹⁸

DISCUSSION

Here, the Canadian Governments identify their interest as advocating in support of the Plaintiffs' challenge to Commerce's determinations in this solar panels CVD proceeding.¹⁹ Specifically, the Governments seek to secure a favorable precedent for Canadian companies facing similar issues in a separate CVD proceeding concerning supercalendered paper from Canada.²⁰ “Looking ahead, Canadian governments and companies are understandably concerned regarding how [Commerce] will treat [Canadian companies facing similar issues] in future countervailing duty investigations.”²¹ The Canadian Governments contend that their amicus curiae brief is desirable here because it will “provide[ ] the Court [with] an opportunity to view [Commerce]'s [challenged] practice from the perspective of foreign governments whose unique interests will augment those represented by the private party litigants,” and because “the resolution of this question will have a major impact on foreign governments and companies who will be respondents in future U.S. countervailing duty proceedings.”²²

In particular, the Canadian Governments refer to Commerce's treatment of a Canadian company—Resolute FP Canada Inc. (“Resolute”)—in the Canadian supercalendered paper proceeding.²³ This Court recently denied Resolute's own motion in this case to file an amicus curiae brief that sought to augment Plaintiffs' arguments against Commerce's determinations.²⁴ Resolute argued that it should be heard in this case “because the Court's decision with respect to Plaintiffs' challenge ... will have implications for Resolute and other respondents in Commerce's recent investigation of Supercalendered Paper from Canada , where Resolute was a mandatory respondent.”²⁵ In denying Resolute's motion, the court explained that, “[b]ecause the movant does not ‘provide impartial information on matters of law about which there [is] doubt, especially in matters of public interest,’ and is instead a party seeking to advance its interest in another proceeding (upon which the decision in this case will have neither res judicata nor collateral estoppel nor even precedential effect), permitting their participation as amicus here would simply allow for the circumvention of administrative participation requirements.”²⁶

Specifically, Resolute's interest was ultimately to challenge Commerce's use of similar reasoning in the Canadian supercalendered paper proceeding.²⁷ But each CVD proceeding is based on its own unique record of factual evidence and arguments presented to the agency.²⁸ As an interested party to the Canadian supercalendered paper proceeding, Resolute must present its specific challenges to Commerce in the first instance, in the context of the particular CVD proceeding in which its interests are implicated—i.e., in the Canadian supercalendered paper proceeding. “A reviewing court usurps the agency's function when it sets aside [an] administrative determination upon a ground not theretofore presented and deprives the [agency] of an opportunity to consider the matter, make its ruling, and state the reasons for its action.”²⁹

The situation is the same with respect to the Canadian Governments' motion here. As with Resolute, the Canadian Governments' interest is to present a challenge to Commerce's determinations in this solar panels proceeding that reflects their concerns regarding what the agency did in the separate supercalendered paper proceeding, which addresses an order covering a different product from a different country, involving its own unique set of facts.³⁰ Like Resolute, the Canadian Governments qualify as “interested parties” to that other proceeding,³¹ and as such could and should present their specific challenges to Commerce's decisions in that proceeding directly to the agency, following the established procedure for participating at the administrative level, thereby permitting the agency to consider their arguments in the first instance in the context of the relevant factual record specific to that proceeding. Thus, like Resolute, the Canadian Governments do not seek to “provide impartial information on matters of law about which there [is] doubt, especially in matters of public interest,”³² but are instead effectively seeking to advance their interests in other proceedings. Moreover, there is no indication that the Plaintiffs in this case are unable or unwilling to adequately frame their side of the relevant legal issues.

Accordingly, as with Resolute, the Canadian Governments' proposed contribution in this case does not meet the definition of amicus curiae, and is therefore not appropriate. Certainly the court, and the agency, may have an interest in being informed of the considered opinions of our country's important trading partners, even if such opinions...