Rhi Refractories Liaoning Co. v. United States

• Decision Date: 31 January 2011
• Docket Number: Slip Op. 11–12.Court No. 10–00309.
• Citation: 752 F.Supp.2d 1377
• Parties: RHI REFRACTORIES LIAONING CO., LTD.,: and RHI Refractories (Dalian) Co., Ltd., Plaintiffs,v.UNITED STATES, Defendant,andResco Products, Inc., Defendant–Intervenor.
• Court: U.S. Court of International Trade

752 F.Supp.2d 1377

RHI REFRACTORIES LIAONING CO., LTD.,: and RHI Refractories (Dalian) Co., Ltd., Plaintiffs,
v.
UNITED STATES, Defendant,andResco Products, Inc., Defendant–Intervenor.

Slip Op. 11–12.Court No. 10–00309.

United States Court of International Trade.

Jan. 31, 2011.

[752 F.Supp.2d 1378]

Iain R. McPhie, Ritchie T. Thomas, and Christine J. Sohar Henter, for Plaintiffs RHI Refractories Liaoning Co., Ltd. and RHI Refractories (Dalian) Co., Ltd.Julie C. Mendoza, Donald B. Cameron, R. Will Planert, Brady W. Mills, and Mary S. Hodgins, Attorneys, Troutman Sanders LLP, for Vesuvius USA Corporation and Yingkou Bayuquan Refractories Co., Ltd.Tony West, Assistant Attorney General; Jeanne E. Davidson, Director; Patricia M. McCarthy, Assistant Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice (Melissa M. Devine), and, of counsel, Whitney M. Rolig and Brian R. Soiset, Attorneys, Office of the Chief Counsel for Import Administration, U.S. Department of Commerce, for Defendant.Robert W. Doyle, Jr., Andre P. Barlow, and Camelia C. Mazard, for Defendant–Intervenor Resco Products Inc.

[752 F.Supp.2d 1379]

OPINION & ORDER

BARZILAY, Judge.

Vesuvius USA Corporation and Yingkou Bayuwuan Refractories Co., Ltd. (collectively, “Vesuvius”) move the court pursuant to Rule 60(b)(6) to reconsider its order which denied them the opportunity to participate in this case as plaintiff-intervenors.¹ During the subject administrative proceeding, Vesuvius filed a combined entry of appearance and request for access to business proprietary information, and requested treatment as a voluntary respondent. Vesuvius Br. 9; Def. Br. 4–5. Vesuvius alleges that the filing of its request to act as a voluntary respondent confers standing on the two companies, even though they later withdrew that request, and that the previous order runs afoul of established Court and Federal Circuit precedent. Vesuvius Br. 2–9. Vesuvius also complains that the U.S. Department of Commerce's (“the Department” or “Commerce”) decision not to examine the companies rendered further participation in the agency proceeding futile. Vesuvius Br. 9–14. The Department contends that the court correctly decided the issue and should not disturb its previous decision. See generally Def. Br. The court denies Vesuvius's motion for the reasons below.

I. Subject Matter Jurisdiction & Standard of Review

The court exercises jurisdiction over this case pursuant to 28 U.S.C. § 1581(c). Before the court sets forth the appropriate standard of the review, it must first address Vesuvius's mistaken reliance upon Rule 60(b)(6) in its request for relief. That rule applies only to “a final judgment, order, or proceeding.” USCIT R. 60(b) (emphasis added); Yancheng Baolong Biochem. Prods. Co. v. United States, 28 CIT 578, 590, 343 F.Supp.2d 1226, 1236 (2004); see Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 373, 101 S.Ct. 669, 66 L.Ed.2d 571 (1981) (describing “final order” as one that “ends the litigation on the merits and leaves nothing for the court to do but execute judgment” (quotation marks & citation omitted)). However, the Federal Circuit has held that an order denying a motion to intervene as of right, such as the court's previous order against Vesuvius, constitutes an “immediately appealable interlocutory order.” In re Sasco Elec., 119 F.3d 14, 1997 WL 355315, at *1 (Fed.Cir. June 3, 1997) (unpublished) (citing R.R. Trainmen v. Baltimore & Ohio R.R. Co., 331 U.S. 519, 524–25, 67 S.Ct. 1387, 91 L.Ed. 1646 (1947)). Therefore, Rule 60(b) does not provide the appropriate grounds for the relief which Vesuvius seeks, and the court instead will examine Vesuvius's request under Rule 59(a)(2). NSK Corp. v. United States, 32 CIT ––––, ––––, 593 F.Supp.2d 1355, 1362 (2008) (“[T]he [c]ourt has the discretion to rehear a motion that results in an interlocutory order pursuant to USCIT Rule 59(a)(2).” (footnote omitted)).

The granting of a motion for reconsideration under Rule 59 rests within the sound...