Nucor Corp. v. U.S.

• Decision Date: 26 September 2007
• Docket Number: Slip Op. 07-144.,Court No. 07-00174.
• Citation: 516 F.Supp.2d 1348
• Parties: NUCOR CORPORATION, Plaintiff, v. UNITED STATES, Defendant.
• Court: U.S. Court of International Trade

Page 1348

516 F.Supp.2d 1348

NUCOR CORPORATION, Plaintiff, v. UNITED STATES, Defendant.

Slip Op. 07-144.

Court No. 07-00174.

United States Court of International Trade.

September 26, 2007.

Wiley Rein LLP (Timothy C. Brightbill and Alan H. Price) for plaintiff Nucor Corporation.

Vinson & Elkins LLP (Christopher Dunn and David T. Hardin) for proposed plaintiff-intervenor Stelco Inc.

Hunton & Williams LLP (William Silverman, Douglas J. Heffner, and Richard P. Ferrin) for proposed plaintiff-intervenors Dofasco Inc., Sorevco Inc., and Do Sol Galva Ltd.

Stewart and Stewart (Terence P. Stewart and Eric P. Salonen) for proposed plaintiff-intervenor Mittal Steel USA Inc.

Skadden, Arps, Slate, Meagher and Flom LLP (Robert E. Lighthizer, John J. Mangan, and Jeffrey D. Gerrish) for proposed plaintiff-intervenor United States Steel Corporation.

Peter D. Keisler, Assistant Attorney General, Jeanne E. Davidson, Director, Patricia M. McCarthy, Assistant. Director, Commercial Litigation Branch, Civil Division, United States Department of Justice (Richard P. Schroeder and David S. Silverbrand, and Stephen C. Tosini); Mark B. Lehnardt, Office of Chief Counsel for Import Administration, United States Department of Commerce, of counsel, for defendant.

OPINION

TIMOTHY C. STANCEU, Judge.

Plaintiff Nucor Corporation ("Nucor"), a domestic producer of steel products, initiated this action under 19 U.S.C. § 1516a (2000) to contest a final determination ("Final Results") issued by the International Trade Administration, United States Department of Commerce ("Commerce" or the "Department") in an administrative review of an antidumping duty order on certain corrosion-resistant carbon steel flat products from Canada. See Certain Corrosion-Resistant Carbon Steel Flat Products from Canada: Final Results of Antidumping Duty Administrative Review, 72 Fed.Reg. 12,758 (Mar. 19, 2007).

Before the court are motions to intervene as a matter of right on behalf of Stelco Inc. ("Stelco"), Dofasco Inc. ("Dofasco"), Sorevco Inc. ("Sorevco"), Do Sol Galva Ltd. ("Do Sol Galva"), Mittal Steel USA Inc. ("Mittal Steel USA"), and United States Steel Corporation ("U.S. Steel") (collectively "proposed plaintiff-intervenors"). Plaintiff Nucor moves for a preliminary injunction to prevent liquidation by Customs of the entries of certain corrosion-resistant carbon steel flat products ("subject merchandise") from Canada manufactured by producers Stelco, Dofasco, Sorevco, and Do Sol Galva. Defendant United States moves to dismiss this action pursuant to USCIT Rule 12(b)(1) for lack of jurisdiction, alleging that Nucor did not participate as a party in the administrative review that concluded in the issuance of the Final Results and therefore lacks standing.

Because Nucor did not participate in the Department's proceeding culminating in the Final Results to the extent necessary to qualify as a party to that proceeding, the court concludes that Nucor lacked standing to bring a cause of action under 19 U.S.C. § 1516a. Accordingly, the court must deny Nucor's motion for a preliminary injunction. Because intervention could not cure the defect in subject matter jurisdiction caused by Nucor's failure to establish standing to bring its claim, the court also must deny the motions to intervene and grant the motion to dismiss this action.

I. BACKGROUND

Nucor filed a summons on May 21, 2007, a complaint on June 20, 2007, and an amended complaint on June 29, 2007. In the amended complaint, Nucor challenges as contrary to law the Department's rejection of the requests of certain parties for rescission of the administrative review and the resulting continuation of that administrative review. Am. Compl. ¶ 6. Nucor seeks a ruling holding the Final Results to be unsupported by substantial record evidence and otherwise not in accordance with law and an order remanding the Final Results to Commerce for, redetermination. Id. at 3, REQ. FOR J. AND RELIEF ¶¶ 1-2.

On July 19 and 20, 2007, the six proposed plaintiff-intervenors moved for intervention as a matter of right, all on the side of plaintiff Nucor. See 28 U.S.C. § 2631(j)(1)(B) (2000); USCIT R. 24(a). In its motion, Stelco states that it is a Canadian producer and exporter of the subject merchandise and that it fully participated in the administrative review. Mot. to Intervene As A Matter of Right on the Side of Pl. 2 ("Stelco's Mot. to Intervene"). In a joint motion filed July 20, 2007, Dofasco, Sorevco, and Do Sol Galva state that they are Canadian producers of subject merchandise and that they participated as respondents in the administrative review.¹ Partial Consent Mot. to Intervene as of Right as Pl.-Intervenor ¶ 2 ("Dofasco, Sorevco, Do Sol Galva Mot. to Intervene"). In its motion filed the same day, U.S. Steel states that it is a producer of the domestic like product and that it participated in the administrative review.² Mot. to Intervene as of Right as Pl.-Intervenor ¶ 2 ("U.S. Steel Mot. to Intervene"). In its motion, also filed July 20, 2007, Mittal Steel USA states that it is a domestic producer of corrosion-resistant steel flat products and that it participated in the administrative review. Partial Consent Mot. of Applicant Pl.-Intervenor Mittal Steel USA Inc. to Intervene as of Right 2 ("Mittal Steel USA Mot. to Intervene"). Defendant United States did not consent to any of the motions to intervene. According to the motions of certain proposed plaintiff-intervenors, defendant refused to consent on the ground that Nucor is not a proper party plaintiff and the court therefore lacks jurisdiction over plaintiffs claim. See Stelco's Mot. to Intervene 1; Dofasco, Sorevco, Do Sol Galva Mot. to Intervene ¶ 5; U.S. Steel Mot. to Intervene ¶ 5. On September 7, 2007, defendant submitted, with a motion for leave to file out of time, a response in opposition to the intervention of Mittal Steel USA, alleging that Mittal Steel USA was not a party to the proceeding below and therefore does not qualify for intervention as a matter of right. Def.'s Resp. to Mittal Steel USA's Mot. to Intervene; see Mittal Steel USA Mot. to Intervene.

On July 20, 2007, Nucor moved for a preliminary injunction "to enjoin the liquidation of any and all entries of certain corrosion-resistant carbon steel flat products from Canada manufactured by Dofasco Inc., Sorevco Inc., Do Sol Galva Ltd., and Stelco Inc." Mot. for Prelim. Inj. 1. Nucor stated in support of its motion that it had obtained the consent of Stelco, Dofasco, Sorevco, Do Sol Galva, and U.S. Steel to the entry of a preliminary injunction.³ Id. at 2. On August 3, 2007, defendant, alleging that Nucor lacks standing, moved to dismiss this action for lack of subject matter jurisdiction and opposed plaintiff's motion for a preliminary injunction. Def.'s Mot. to Dismiss and Opp'n to Pl.'s Mot. for a Prelim. Inj. 1 ("Def.'s Mot. to Dismiss").

II. DISCUSSION

A. Nucor Has Not Established Standing to Contest the Final Results

To contest the Final Results, Nucor must satisfy the requirements of 19 U.S.C. § 1516a(a), on which it relies for its cause of action, and 28 U.S.C. 2631(c), which governs standing in suits brought before the Court of International Trade. See Am. Compl. ¶ 1, 3. Under 19 U.S.C. § 1516a(a)(2)(A), an action may be commenced by "an interested party who is a party to the proceeding in connection with which the matter arises...." 19 U.S.C. 1516a(a)(2)(A). In parallel, 28 U.S.C. 2631(c) provides that "[a] civil action contesting a determination listed in [19 U.S.C. § 1516a] may be commenced in the Court of International Trade by any interested party who was a party to the proceeding in connection with which the matter arose." 28 U.S.C. 2631(c).

Nucor alleges in its amended complaint (and defendant does not contest) that Nucor is a manufacturer of the domestic like product and therefore is an "interested party" within the meaning of 19 U.S.C. § 1516a(f)(3) and § 1677(9)(C) (2000). Am. Compl. ¶ 3; see 19 U.S.C. 1516a(f)(3) (defining "interested party" by reference to 19 U.S.C. § 1677(9)); 19 U.S.C. § 1677(9)(C) (defining "interested party" to include "a manufacturer, producer, or wholesaler in the United States of a domestic like product"). Nucor further alleges that it participated in the administrative review "through actions including entering a notice of appearance, regularly monitoring the status of the proceeding, and reviewing all of the documents that were submitted or issued in the underlying proceeding." Am. Compl. ¶ 3. In further support of its claim of standing, Nucor states that "Plaintiff also participated in discussions (including telephone conferences) with other parties regarding various issues including case strategy, case settlement, and the parties' decisions to withdraw their requests for administrative review, which Plaintiff supported." Id. In its opposition to the motion to dismiss, Nucor makes the additional argument that Commerce implicitly recognized its status as a party to the proceeding by making available to Nucor's representatives the business proprietary information of other parties and the Department's preliminary calculations. Pl.'s Resp. to Def.'s Mot. to Dismiss 4-5. Based on the various factual allegations in its amended complaint, Nucor seeks to invoke the court's subject matter jurisdiction under 28 U.S.C. § 1581(c) (2000), under which the Court of International Trade is granted exclusive jurisdiction of any civil action commenced under 19 U.S.C. § 1516a. See 28 U.S.C. 1581(c).

Nucor has failed to allege facts from which the court could consider Nucor to qualify as a "party to the proceeding" in connection with which the matter arose. 19 U.S.C. § 1516a(a)(2);. 28 U.S.C. § 2631(c). The court concludes that Nucor's claimed level of participation does not satisfy any reasonable construction of the "party to the proceeding" requirement that Congress imposed as a condition for obtaining judicial review.

Although the term "party to...