Habas Sinai Ve Tibbi Gazlar Istihsla v. U.S.

• Decision Date: 10 April 2006
• Docket Number: Slip Op. 06-51. Court No. 05-00613.
• Parties: BABAS SINAI VE TIBBI GAZLAR ISTIHSAL ENDUSTRISI A.S., Plaintiff, v. UNITED STATES, Defendant.
• Court: U.S. Court of International Trade

425 F.Supp.2d 1374

BABAS SINAI VE TIBBI GAZLAR ISTIHSAL ENDUSTRISI A.S., Plaintiff, v. UNITED STATES, Defendant.

Slip Op. 06-51. Court No. 05-00613.

United States Court of International Trade.

April 10, 2006.

Law Offices of David L. Simon (David L. Simon), Washington, DC, for Plaintiff.

Peter D. Keisler, Assistant Attorney General; David M. Cohen, Director Jeanne E. Davidson, Deputy Director, and Patricia M. McCarthy, Assistant Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice (David S. Silverbrand); Ada L. Loo, Office of the Chief Counsel, for Import Administration, U.S. Department of Commerce, for Defendant, of counsel.

Wiley Rein & Fielding LLP (Alan H. Price and John R. Shane), Washington, DC, for Proposed Defendant-Intervenors.

OPINION

RIDGWAY, Judge:

At issue in this action are the final results of the U.S. Department of Commerce's administrative review of the antidumping duty order covering certain steel concrete reinforcing bars ("rebar") from Turkey for the period April 1, 2003 through March 31, 2004. See Certain Steel Concrete Reinforcing Bars from Turkey: Final Results, Rescission of Antidumping Duty Administrative Review in Part, and Determination to Revoke in Part, 70 Fed.Reg. 67,665 (Nov. 8, 2005) ("Final Results"). Plaintiff Habas Sinai ye Tibbi Gazlar Istihsal Endustrisi A.S., a Turkish producer of the subject merchandise, challenges the Final Results, asserting that Commerce erred in using annual cost (rather than quarterly cost) in calculating Habas' cost of production, and that Commerce erred in treating invoice dates (rather than contract dates) as Habas' dates of sale.

Now pending before the Court is the out-of-time Motion to Intervene As A Matter of Right filed by domestic producers and proposed Defendant-Intervenors Nucor Corporation, Gerdau AmeriSteel Corporation, and Commercial Metals Company ("Domestic Producers"). See also Domestic Producers' Motion for Leave to File Out of Time ("Dom.Prods. Brief'). The Government consents to the proposed intervention, but plaintiff Habas objects. See Plaintiffs Opposition to Motion of Nucor et al. For Leave to File Motion to Intervene Out of Time ("Habas Brief') at 4.

For the reasons set forth below, the Domestic Producers' motion to intervene is granted.

I. Background

On November 8, 2005, Commerce published the Final Results of its administrative review of the antidumping duty order on steel concrete rebar from Turkey for the 2003-2004 period of review. See Final Results, 70 Fed.Reg. 67,665. Habas filed its Summons and Complaint challenging the Final Results a mere two days later, on November 10, 2005. Habas and the Government then negotiated and submitted a Proposed Briefing Schedule, which the Court adopted in its Scheduling Order entered on February 3, 2006.

The Domestic Producers' Motion to Intervene was filed on February 6, 2006— nearly three full months after service of Habas' Complaint.¹ It is undisputed that the motion was filed late. It is also undisputed that the Domestic Producers otherwise satisfy all criteria for intervention as a matter of right in this action. See generally Dom. Prods. Motion to Intervene As A Matter of Right at 1; 19 U.S.C. § 1561a(d) (2000); 28 U.S.C. § 2631(j)(1)(B) (2000).

The Domestic Producers assert that their failure to timely intervene "is entirely due to inadvertence," and should therefore be excused. See Dom. Prods. Brief at 2. According to the Domestic Producers:

[W]hile the records of the Domestic Producers' attorneys show that the summons and complaint were served, the summons and complaint were inadvertently left unentered into the pleading files and electronic document system of the attorneys' firm. Therefore, although the documents had been properly served, there was no indication of the documents' existence either in the hard copy pleading binder or electronic document system.

Dom. Prods. Brief at 2.²

II. Analysis

In a case such as this, a motion to intervene as a matter of right must be filed "no later than 30 days after the date of service of the complaint," except where "good cause" is shown for delay. USCIT Rule 24(a). "Good cause" is defined as "mistake, inadvertence, surprise or excusable neglect." Id.³ The Domestic Producers here characterize their excuse as "inadvertence." See Dom. Prods. Brief at 1-4.⁴

The relevant caselaw is not particularly robust. Indeed, as the Domestic Producers note, there are no cases interpreting "inadvertence" in the context of USCIT Rule 24(a). See Dom. Prods. Brief at 3 (acknowledging that "the court does not appear to have ever considered the definition of `inadvertence' in the context of Rule 24"). See generally Siam Food Prods. Public Co., 22 CIT 826, 24 F.Supp.2d 276 (interpreting "excusable neglect" in context of Rule 24(a) and denying motion to intervene); Co-Steel Raritan. Inc. v. U.S. Int'l Trade Comm'n, 26 CIT 1131, 1132-34 (2002), rev'd on other grounds, 357 F.3d 1294 (2004) (denying motion to intervene, finding no "good cause"; no specific discussion of "mistake, inadvertence, surprise or excusable neglect"); Geum Poong Corp. v. United States, 26 CIT 908, 217 F.Supp.2d 1342 (2002) (dissolving order granting out-of-time motion to intervene, finding no "good cause"; no specific discussion of "mistake, inadvertence, surprise or excusable neglect"); see also Tung Fong Indus. Co. v. United States, 29 CIT ___, ___, 366 F.Supp.2d 1308, 1312 n. 7 (2005) (finding no "surprise" to excuse outof-time motion to intervene).⁵

The Domestic Producers point to a line of cases interpreting "inadvertence" in the context of "challenges to the liquidation of entries under the now repealed 19 U.S.C. § 1520(c)"—a statute that "permitted challenges to any liquidation premised upon or involving `a clerical error, mistake of fact, or other inadvertence.'" See Dom. Prods. Brief at 3-4 (emphasis added). But there is some danger in importing wholesale into Rule 24(a), from some entirely different context, a line of authority defining the term "inadvertence" (or, for that matter, "mistake," "surprise," or "excusable neglect"). That is not to say that caselaw from other contexts is of no utility in interpreting Rule 24(a), but only that such caselaw must be analyzed with great care— particularly where the other rule (or statute) does not include all four of Rule 24(a)'s terms ("mistake, inadvertence, surprise or excusable neglect") but, rather, uses only one of the terms in isolation.⁶

In any event, there is no need here to expressly define "inadvertence," or any of the other three types of "good cause" listed in Rule 24(a).⁷ Habas does not argue that the specific facts set forth by the Domestic Producers cannot constitute "good cause" within the meaning of Rule 24(a).⁸ Instead, Habas contends that it is prejudiced by the Domestic Producers' tardiness. According to Habas:

Nucor et al. have waited to file their motion to intervene until after the parties to this litigation, i.e., Habas and the Government, agreed upon a schedule for these proceedings. Habas' position, during the discussion with the Government concerning the schedule, was predicated on the fact that the only parties to this litigation were Habas and the Government. If Nucor et al. are permitted to intervene at this late date, then Habas will be compelled to rebut the arguments of two defendants, the Government and now Nucor et al., rather than just one, which changes considerably Habas' view of the amount of time it will need for its response brief.

Habas Brief at 1.

Habas properly does not argue that the mere addition of another opposing party, in and of itself, constitutes prejudice. The addition of another party to the case is the consequence of any intervention (whether late or not); and Rule 24(a) plainly contemplates that late intervention is permitted under certain circumstances. Thus, the mere fact of the addition of another party to a case (with the concomitant additional expense) can never constitute prejudice for purposes of analyzing an untimely motion to intervene.

The argument that Habas makes is slightly more nuanced. As set forth above, Habas claims that, in proposing the briefing schedule for this action, it assumed that its reply brief would be addressing only a single response brief (i.e., that of the Government). Habas suggests that it would have sought more time for the filing of its reply if it were required to address two response briefs. See Habas Brief at 1.

Any such prejudice, however, can be readily remedied by according Habas an opportunity to propose an amended briefing schedule. Habas offers no reason why such an opportunity would not restore it to the position in which it would have been had the Domestic Producers timely sought to intervene.

Habas nevertheless maintains that "as a matter of equity Nucor et al. should not be allowed to take advantage of their own errors, whether negligent or inadvertent." Habas Brief at 1. Habas asserts that "[i]f Nucor wishes to make its views known to the Court, it may attempt to participate as amicus, but it should not be granted party status at this time." Id. at 2. In their initial brief, the Domestic Producers argued that amicus status is inadequate, emphasizing that "[a]micus cannot raise issues, but may only respond to issues raised by other parties" (and thus intimating that they believed that they could raise new issues of their own if granted status as an intervenor). See Dom. Prods. Brief at 3. However, it is clear beyond cavil that defendant-intervenors such as the Domestic Producers here must take a case as they find it. See, e.g., Siam Food Prods. Public Co., 22 CIT at 830, 24 F.Supp.2d at 280 ("Movants ... are time barred from bringing their own case and thus even as intervenors before the CIT may not bring their own challenges to the Secretary's determination. Their role will be in support of the defendant.") (citations omitted).⁹ Cf. Charles A. Wright, Arthur R. Miller & Mary...