Sumitomo Metal Industries, Ltd. v. Babcock & Wilcox Co.

• Decision Date: 21 January 1982
• Docket Number: Appeal No. 81-35.
• Citation: 669 F.2d 703
• Parties: SUMITOMO METAL INDUSTRIES, LTD., Appellant, v. BABCOCK & WILCOX CO., and The United States, Appellees.
• Court: U.S. Court of Customs and Patent Appeals (CCPA)

669 F.2d 703

SUMITOMO METAL INDUSTRIES, LTD., Appellant, v. BABCOCK & WILCOX CO., and The United States, Appellees.

Appeal No. 81-35.

United States Court of Customs and Patent Appeals.

January 21, 1982.

Charles R. Stevens, Milo G. Coerper and Jerry L. Siegel, Washington, D. C., and New York City, for appellant.

Stephen M. Creskoff, Brian E. McGill, Washington, D. C., for appellee Babcock & Wilcox.

J. Paul McGrath, Asst. Atty. Gen., Washington, D. C., David M. Cohen, Director, New York City, and Francis J. Sailer, Washington, D. C., for appellee United States.

Before MARKEY, Chief Judge, and RICH, BALDWIN, MILLER and NIES, Judges.

NIES, Judge.

This appeal is from two orders of the United States Court of International Trade dated September 18, 1981, and October 5, 1981, denying Sumitomo Metal Industries, Ltd., (SMI) leave to intervene as a matter of right under 28 U.S.C. § 2631(j)(1)(B). We affirm.

International Trade Commission Proceedings

Babcock & Wilcox Co. (B&W), a domestic producer of steel pipes and boiler tubes, filed petitions on February 28, 1980, with the Department of Commerce (Commerce) and the International Trade Commission (Commission), alleging that certain steel pipes and tubes imported from Japan were being sold to United States importers at less than fair value by SMI and another foreign producer in contravention of the antidumping provisions of the Trade Agreements Act of 1979, Pub.L.No.96-39, 93 Stat. 144 (1979). The particular complaint considered here is the fourth in a series of unsuccessful attempts since August 23, 1979, by B&W to secure sanctions against such imports.

The Commission determined that of the four products subject to investigation (i.e., three seamless pipe and tube products and one welded pipe and tube product), only with respect to the welded product was there a reasonable indication of material injury to the domestic industry producing a like product. With respect to the three seamless products, the Commission, by a 3-2 vote, determined that there was no reasonable indication of material injury or the threat of material injury to the domestic industry producing a like product, thus terminating that portion of the antidumping investigation. 45 Fed.Reg. 27581 (1980).¹ After receiving corrected data which revealed a decline in imports of welded products, the Commission made a negative determination with respect to welded products as well. 45 Fed.Reg. 47769 (1980).

Proceedings in the Court of International Trade

On May 5, 1980, B&W commenced an action against the United States in the Customs Court (now the Court of International Trade) in accordance with 19 U.S.C. § 1516a, seeking judicial review of the Commission's negative injury determination regarding the seamless products. On July 25, 1980, B&W instituted a second action seeking judicial review of the negative injury determination regarding the welded product. The two actions were consolidated as Court of International Trade Consolidated Civil Action No. 80-5-00772.

By order entered July 16, 1980, SMI was granted leave to appear as amicus curiae supporting the Government's position.

Following various procedural motions, B&W filed a motion in the consolidated action for "review of administrative determination upon an agency record" and the Government cross-moved for affirmance of the Commission's determinations. SMI filed briefs amicus curiae. These cross-motions were ruled upon in Slip Op. 81-75.² In an accompanying order dated August 20, 1981 the August 20, 1981 decision and accompanying order are hereinafter referred to as "Slip Op. 81-75", the court remanded the case to the Commission, ordering it both to reopen its investigation, which had treated the seamless products as a single industry, and to attempt to obtain discrete information on the three seamless product lines separately (or formally determine that such information was unavailable) in order that the court would have such findings in the record in deciding the appeal. The order also set aside the Commission's negative injury determination with respect to the importation of the welded pipe and tube product.

On September 15, 1981, SMI applied to intervene pursuant to Rule 24(a),³ relying on the statutory right to intervene given to a person who would be adversely affected or aggrieved by a decision in an action pending in the Court of International Trade under 28 U.S.C. § 2631(j)(1)(B). SMI sought intervention for the purpose of seeking rehearing of Slip Op. 81-75 in its entirety or, in the alternative, to seek appellate review thereof. At the same time SMI filed a motion for rehearing of Slip Op. 81-75,⁴ apparently on the assumption that its motion to intervene would be granted pro forma. By order of September 18, 1981, SMI was denied leave to intervene. No action was specifically taken on its motion for rehearing.

Thereafter, B&W and the United States filed a joint motion seeking the suspension of all judicial and administrative proceedings pending the filing of a new antidumping petition by B&W and the institution by Commerce of a new antidumping investigation covering steel pipe and tube products from Japan.

Attached to the joint motion was a stipulation between B&W and the United States pursuant to which, inter alia, the parties agreed to a dismissal of the pending proceedings before the Court of International Trade upon the institution of a new antidumping investigation by Commerce. In addition, B&W and the United States stipulated that upon the Court of International Trade's dismissal of Consolidated Civil Action No. 80-5-00772 (assuming a new proceeding is instituted by Commerce), they will jointly move the Court of International Trade for an order vacating Slip Op. 81-75.

Upon learning of the joint motion, on October 1, 1981, SMI filed a motion for reconsideration of the order denying intervention. As added grounds, SMI asserted it wished to oppose the joint motion. SMI's motion was denied October 5, 1981.⁵ The joint motion was granted October 7, 1981, on condition that within 90 days B&W file a new petition acceptable to Commerce.

SMI appeals the lower court's denial of intervention.⁶ Without the status of an intervenor, SMI is unable to seek rehearing by the court below of Slip Op. 81-75 and the order granting the joint motion and/or appellate review by this court of these orders.

On October 27, 1981, this court stayed the order in Slip Op. 81-75 and the order granting the joint motion pending this appeal. In view of our holding, these stays are lifted.

The Decision of the Court of International Trade Denying Intervention

The Court of International Trade denied SMI leave to intervene on two grounds. First, the court viewed the language of 28 U.S.C. § 2631(j)(1)(B)⁷ as allowing intervention only if SMI had applied "before the court's decision in Slip Op. 81-75 was rendered." Emphasis in original. The court, thus, held that SMI's application for intervention was untimely as it was filed more than 16 months after the proceedings began, and after Slip Op. 81-75 was rendered. Second, the court below held that SMI "waived any right it would otherwise have had to intervene" by participating in the capacity of amicus curiae.

OPINION

On appeal SMI maintains that, given a statutory right to intervene, that right may be exercised whenever its interests are no longer adequately represented by a party to the litigation.⁸ This position must fail. SMI is not measuring timeliness based on the statutory right from the proper point of reference — SMI seeks to eliminate a time gap rather than to justify it. In any event, we do not agree that its interests are no longer adequately represented. See n. 17, infra.

Two Rights, Not One

Rule 24(a) provides:

(a) Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute of the United States confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.

It is apparent that Rule 24(a) embodies not one, but two rights of intervention. Rule 24(a)(1) deals with an express statutory right, an unconditional right to intervene. Rule 24(a)(2) deals with a right to intervene, not expressly provided by statute, but nevertheless, intervention as of right rather than as a permissive matter, the latter covered by Rule 24(b). Different considerations flow not only from Rule 24(a) and Rule 24(b) but also from the different provisions within Rule 24(a).

Thus, where a proposed intervenor contends that intervention is of right under a particular part of Rule 24(a), courts have been careful to note that intervention as of right under another part of Rule 24(a) is not asserted. See, e.g., Cascade Natural Gas Corp. v. El Paso Natural Gas Co., 386 U.S. 129, 144, 87 S.Ct. 932, 941, 17 L.Ed.2d 814 (1967) (Stewart, J., dissenting); Illinois v. Outboard Marine Corp., 619 F.2d 623, 630-32 (CA 7 1980), vacated on other grounds, 453 U.S. 917, 101 S.Ct. 3152, 69 L.Ed.2d 1000 (1981); Mir v. Smith, 521 F.Supp. 446, 448 (N.D.Ga.1981).

So far as we are aware, this case is one of first impression. We have not been cited to, nor have we found, any case ruling on whether a motion to intervene under Rule 24(a)(1) was untimely.

Timeliness Factors

The question of timeliness is largely committed to the discretion of the trial court and will not be overturned unless it can be shown that that discretion was abused. NAACP v. New York, 413 U.S. 345, 366, 93 S.Ct. 2591, 2603, 37 L.Ed.2d 648 (1973). In passing upon the timeliness of applications, the following factors must be weighed:⁹

(1) the length of time during which the would-be intervenor actually knew or

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