Primesource Bldg. Prods., Inc. v. United States

Decision Date20 January 2021
Docket Number Court No. 20-00047, Court No. 20-00053,Consol. Court No. 20-00037, Court No. 20-00052, Court No. 20-00066,Court No. 20-00032,Slip Op. 21-6,Court No. 20-00046, Court No. 20-00098, Court No. 20-00118, Court No. 20-00048, Court No. 20-00049, Court No. 20-00056
Citation494 F.Supp.3d 1307
Parties PRIMESOURCE BUILDING PRODUCTS, INC., Plaintiff, v. UNITED STATES, et al., Defendants. Oman Fasteners, LLC, Plaintiff, v. United States, et al., Defendants. Astrotech Steels Private Ltd., Plaintiff, v. United States, et al., Defendants. Trinity Steel Private Ltd., Plaintiff, v. United States, et al., Defendants. New Supplies Co., Inc., et al., Plaintiffs, v. United States, et al., Defendants. Aslanbas Nail and Wire Co., et al., Plaintiffs, v. United States, et al., Defendants. J. Conrad LTD, Plaintiff, v. United States, et al., Defendants. Metropolitan Staple Corporation, Plaintiff, v. United States, et al., Defendants. SouthernCarlson, Inc., et al., Plaintiffs, v. United States, et al., Defendants. Tempo Global Resources, LLC, Plaintiff, v. United States, et al., Defendants. Farrier Product Distribution, Inc., Plaintiff, v. United States, et al., Defendants. Geekay Wires, Ltd., Plaintiff, v. United States, et al., Defendants.
CourtU.S. Court of International Trade
OPINION AND ORDER

Before the court are motions submitted by the American Steel Nail Coalition (the "Coalition") to intervene as a party defendant in each of these twelve actions, in which plaintiffs challenge the legality of a presidential proclamation ("Proclamation 9980" or the "Proclamation") that imposed 25% duties on imports of certain articles made of steel, including steel nails. Six plaintiffs oppose the Coalition's motions to intervene, while others consented, deferred to the discretion of the Court, or did not respond to the Coalition's motions. Ruling that the individual members of the Coalition fail to qualify for intervention as of right or for permissive intervention, the court denies these motions, both as to the Coalition and as to its member companies.

I. BACKGROUND

Proclamation 9980, issued by President Trump on January 24, 2020 with an effective date of February 8, 2020, imposed duties of 25% ad valorem on imports of what it identified as "derivatives" of aluminum articles and of steel articles, including steel nails. See Adjusting Imports of Derivative Aluminum Articles and Derivative Steel Articles Into the United States , 85 Fed. Reg. 5,281 (Exec. Office of the President Jan. 29, 2020) (" Proclamation 9980 "). As authority for this action, the Proclamation cited section 232 of the Trade Expansion Act of 1962, as amended ("Section 232"), under which the President, upon a report of the Secretary of Commerce and subject to certain procedures and conditions, may adjust the imports of an article that is "being imported into the United States in such quantities or under such circumstances as to threaten to impair the national security." 19 U.S.C. § 1862(c).

The plaintiffs in these twelve actions, which were brought during the period of February 4 to June 4, 2020, variously challenge the issuance of the Proclamation on multiple grounds, including that the President did not comply with statutory procedures and thereby exceeded his delegated authority, that the Secretary of Commerce, in taking actions under Section 232, failed to comply with requirements of the Administrative Procedure Act, 5 U.S.C. § 551 et. seq., that Section 232 is an unconstitutional delegation of legislative authority, that the issuance of the Proclamation resulted in a denial of due process, and that the issuance of the Proclamation resulted in a denial of equal protection. See, e.g. , Am. Compl. (Ct. No. 20-00032) 19–24 (Feb. 11, 2020), ECF Nos. 21 (conf.) & 22 (pub.); Compl. (Consol. Ct. No. 20-00037) 23–31 (Feb. 7, 2020), ECF No. 2. The Coalition filed motions to intervene as a party defendant in each of the twelve cases during the period of February 27 to June 15, 2020. See , e.g. , Mot. to Intervene as Def.-Intervenor (Ct. No. 20-00032) (Feb. 27, 2020), ECF No. 47 ("Coalition's Mot.").

The Coalition describes itself as a group of domestic manufacturers of steel nails.1 With respect to the twelve pending actions, the Coalition claims an interest in defending Proclamation 9980 from judicial challenge. The Coalition has filed proposed answers to the complaints, proposed motions for judgment on the pleadings, and various briefs in the twelve cases.2 It also has filed answers to the court's inquiries relating to its status. Some plaintiffs have opposed the Coalition's intervention.3

II. DISCUSSION

As it applies here, section 2631(j)(1) of Title 28, United States Code, provides that "[a]ny person who would be adversely affected or aggrieved by a decision in a civil action pending in the Court of International Trade may, by leave of court, intervene in such action," with certain exceptions not here pertinent. 28 U.S.C. § 2631(j)(1). The statute further provides that "[i]n those civil actions in which intervention is by leave of court, the Court of International Trade shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties." Id. § 2631(j)(2).

The Coalition moves to intervene as of right under USCIT Rule 24(a) and, in the alternative, moves for permissive intervention under USCIT Rule 24(b).

A. The Coalition Does Not Meet the Requirements for Intervention As of Right

As pertinent to the pending motions, USCIT Rule 24(a) provides that "the court must permit anyone to intervene who ... claims an interest relating to the ... transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest." USCIT R. 24(a)(2).

The Coalition claims an economic interest in maintaining the 25% tariffs on imports of the steel nails subject to Proclamation 9980 on the ground that its members produce steel nail products in the United States that compete with those imports. But neither the Coalition nor any of its individual members have demonstrated that defendant United States will not adequately represent any interest the Coalition or its member companies have, or could have, in the tariffs imposed upon the import transactions that are the subject of the twelve cases for which intervention is sought. The President imposed the 25% tariffs on the subject steel nails based on the President's finding that such action is required so that these imports do not threaten to impair the national security. See Proclamation 9980 ¶ 9, 85 Fed. Reg. at 5,283 ("Based on the Secretary's assessments, I have concluded that it is necessary and appropriate in light of our national security interests to adjust the tariffs imposed by previous proclamations to apply to the derivatives of aluminum articles and steel articles described in Annex I and Annex II to this proclamation."). Because the government has but one interest in this litigation—maintaining Proclamation 9980 —it reasonably can be expected to act vigorously to defend that interest, which Proclamation 9980 has stated to be grounded in removing a threatened impairment of the national security of the United States.

The Coalition argues that its interests, being private and commercial, are not coincident with the government's public and enforcement-oriented interests. Coalition's Mot. 5 (quoting Vivitar Corp. v. United States , 7 C.I.T. 165, 168–69, 585 F. Supp. 1415, 1418–19 (1984) ). The respective motivations may be different, but the Coalition's overall interest in seeking to intervene is in defending Proclamation 9980 from judicial challenge, and in that critical respect its interest is aligned with that of defendants. The Coalition argues that "evidence exists that the interests of the Coalition may not be adequately represented in this action," Coalition's Mot. 5, pointing out that in two of the cases, the government has consented to a preliminary injunction against the collection of duties, actions that, it argues, "directly undermine the intended effects of the Proclamation, including the economic benefits members of the Coalition are intended to receive," id. at 6 (citing the entry of a consented preliminary injunction order in Ct. No. 20-00032, ECF Nos. 39 (conf.) & 40 (pub.); Ct. No. 20-00037, ECF Nos. 28 (conf.) & 29 (pub.)). The Coalition also points to a third case in which the government consented to an order that enjoins liquidation of affected entries while litigation is pending but does not prevent the collection of estimated duties. Coalition Mot. 6 (citing the entry of a consented-to order in Ct. No. 20-00048, ECF No. 18). The Coalition's argument is not persuasive. The orders to which the Coalition objects enjoined the collection of cash deposits based on required bonding that the United States deemed sufficient to protect its interests for the period of time the cases are being adjudicated on the merits. In summation, the interest of the United States in litigating these cases is at least as compelling as that claimed by the would-be intervenors.

Nor have the members of the Coalition shown that they will be in a position to make arguments other than those the government has made, or will make, in the litigation of the twelve cases. The claims of the various plaintiffs raise various questions of constitutional law and statutory interpretation. Similarly, the Coalition's own proposed submissions indicate that its arguments would raise questions of law should it be permitted to intervene. See, e.g. , Mot. for J. on the Pleadings (Ct. No. 20-00032) (Mar. 20, 2020), ECF No. 61; Mot. for Partial J. on the Pleadings (Consol. Ct. No. 20-00037) (Mar. 20, 2020), ECF No. 56. To the extent any questions of fact will be material to a resolution of these actions, they necessarily would pertain to matters of record pertaining to the issuance of Proclamation...

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