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Trade Court Says Non-Selected Companies Can Intervene in AD/CVD Suits as 'Matter of Right'

The Court of International Trade on Feb. 15 said companies that submit requests for administrative review in antidumping and countervailing duty proceedings can intervene as a matter of right at the Court of International Trade.

The U.S. opposed the intervention of a host of importers, exporters and foreign producers in a suit on the 2021 AD review of softwood lumber products from Canada after over three decades of consenting to the intervention of similarly situated companies in AD/CVD cases. Judge Jennifer Choe-Groves rejected the change, rooting her opinion in the decades of trade cases in which these companies have intervened without objection.

The court said the government's interpretation of the Commerce Department's regulations, which would bar intervention for the companies, "now holds little sway with the Court given that for decades, the Government has consented to intervention and only started to oppose intervention for the first time in this case.”

The judge opened the opinion by noting that the case carries "wide implications for whether litigants will have standing to intervene as a matter of right" at CIT. Choe-Groves noted that the non-individually examined companies are limited to what they can appeal at the trade court since they don't file case briefs, given that Commerce only looks at mandatory respondent-specific data, and the companies are barred by the requirement to exhaust administrative remedies. These entities are limited to "me too"-type claims in support of the plaintiff's legal arguments, Choe-Groves said, adding that these claims don't "place additional burdens on the Court due to the overlap in issues."

The court found that without intervention, these companies wouldn't be able to reap any court-ordered benefits from "changes to the all-others rate." The only "practical consequence of denying non-selected companies the right to intervene is that they will be unable to benefit from any favorable court decisions."

Turning to the legal arguments, Choe-Groves laid out the statute allowing intervention at CIT, which says that only an interested party that was "a party to the proceeding" may intervene as a matter of right. To satisfy this standard, companies must have "reasonably conveyed their separate status and provided Commerce with notice of their concerns," the court said, stating the rule.

The U.S. argued that the flurry of companies seeking to intervene here didn't provide adequate notice since they didn't submit factual information or make written arguments in the review. After first questioning the sudden change in position after over 30 years of not taking issue with this type of intervention, Choe-Groves said that by "requesting administrative reviews of themselves," the companies voiced their disagreement with the existing AD rates, announced their interest in getting a better rate, and let it be known "their willingness to provide more information" if selected for review, and have information that helped the agency pick mandatory respondents.

Choe-Groves said it "is simply not credible or reasonable in the context of international trade litigation, after decades under the same statutory framework, that here Commerce did not understand the significance" of the companies' review requests. The government's position cuts against "decades of Commerce’s practice regarding intervention as a matter of right for non-selected respondents," the brief said.

The court also took issue with the conflict between Commerce's regulation defining "party to the proceeding" and the statute allowing for intervention. The government heavily relied on a 2022 CIT decision, Dongkuk Steel Mill v. U.S., in interpreting Commerce's regulation. That opinion said that a domestic producer's review request didn't include factual information in support of allegations under the agency's definition of "written arguments" and "factual information," and that the petitioner didn't have standing. Choe-Groves distinguished Dongkuk on the grounds that it involved a petitioner's motion to intervene while the bids here involve importers, exporters and foreign producers, who have drastically different "legal and economic interests."

Also, the court doesn't use Commerce's regulation in determining standing, the judge added. While the statute doesn't define "party to the proceeding," Congress' intent is clear: the term covers any person who participated in the proceeding. The term was meant to "expand access to the CIT for a wider category of litigants," the judge said. In all, Commerce's regulations conflict with the statute by attempting to regulate an area "squarely within the Court's purview," adding requirements that don't appear in the statute and cutting against congressional intent.

(Government of Canada v. United States, Slip Op. 24-17, CIT # 23-00187, dated 02/15/24; Judge: Jennifer Choe-Groves; Attorneys: Eric Parnes of Blank Rome for plaintiff Gov't of Canada; Lynn Fischer Fox of Arnold & Porter for plaintiff Gov't of Alberta; Nancy Noonan of ArentFox Schiff for plaintiff Gov't of Quebec; Amy Lentz of Steptoe & Johnson for plaintiff British Columbia Lumber Trade Council; Mark Lehnardt of Law Offices of David L. Simon for plaintiff Fontaine; Diana Dimitriuc-Quaia of ArentFox Schiff for plaintiffs led by Interfor Corp. and plaintiff-intervenor Chaleur Forest Products; Jay Campbell of White & Case for plaintiff-intervenor J.D. Irving; Rudi Planert of Morris Manning for consolidated plaintiff-intervenors led by Canfor Corp.; Henry Almond of Arnold & Porter for consolidated plaintiffs led by Tolko Industries; Elliot Feldman of Baker Hostetler for consolidated plaintiffs led by Resolute FP Canada; Harold Kaplan of Hogan Lovells for plaintiff-intervenor Gov't of Ontario; Jeffrey Grimson of Mowry & Grimson for plaintiff-intervenors led by Carrier Forest Products; Donald Harrison of Dunn & Crutcher for plaintiff-intervenor West Fraser Mills; Rajib Pal of Sidley Austin for plaintiff-intervenors led by Delco Forest Products; Myles Getlan of Cassidy Levy for plaintiff-intervenors led by AJ Forest Products; Stephen Tosini for defendant U.S. government; Zachary Walker of Picard Kentz for defendant-intervenor Committee Overseeing Action for Lumber International Trade Investigations or Negotiations; David Ross of Wilmer Cutler for defendant-intervenor Sierra Pacific Industries)