California Steel Industries, Inc. v. United States

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Case: 21-2172 Document: 61 Page: 1 Filed: 09/08/2022

United States Court of Appeals for the Federal Circuit ______________________

CALIFORNIA STEEL INDUSTRIES, INC., Plaintiff-Appellee

UNITED STATES, Defendant-Appellee

UNITED STATES STEEL CORPORATION, Defendant-Appellant ______________________

2021-2172 ______________________

Appeal from the United States Court of International Trade in 1:21-cv-00015-MMB, Judge M. Miller Baker.

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NORTH AMERICAN INTERPIPE, INC., Plaintiff-Appellee

UNITED STATES, Defendant-Appellee

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UNITED STATES STEEL CORPORATION, Defendant-Appellant ______________________

2021-2180 ______________________

Appeal from the United States Court of International Trade in No. 1:20-cv-03825-MMB, Judge M. Miller Baker.

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EVRAZ INC. NA, Plaintiff-Appellee

UNITED STATES, Defendant-Appellee

UNITED STATES STEEL CORPORATION, Defendant-Appellant ______________________

2021-2181 ______________________

Appeal from the United States Court of International Trade in No. 1:20-cv-03869-MMB, Judge M. Miller Baker.

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AM/NS CALVERT LLC, Plaintiff-Appellee

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UNITED STATES, Defendant-Appellee

UNITED STATES STEEL CORPORATION, Defendant-Appellant ______________________

2021-2182 ______________________

Appeal from the United States Court of International Trade in No. 1:21-cv-00005-MMB, Judge M. Miller Baker.

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VALBRUNA SLATER STAINLESS, INC., Plaintiff-Appellee

UNITED STATES, Defendant-Appellee

ELECTRALLOY/G.O. CARLSON, Defendant-Appellant ______________________

2021-2183 ______________________

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Appeal from the United States Court of International Trade in No. 1:21-cv-00027-MMB, Judge M. Miller Baker.

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VOESTALPINE HIGH PERFORMANCE METALS CORP., EDRO SPECIALTY STEELS, INC., Plaintiffs-Appellees

UNITED STATES, Defendant-Appellee

ELECTRALLOY/G.O. CARLSON, CRUCIBLE INDUSTRIES LLC, ELLWOOD CITY FORGE COMPANY, ELLWOOD SPECIALTY STEEL, Defendants-Appellants ______________________

2021-2185 ______________________

Appeal from the United States Court of International Trade in No. 1:21-cv-00093-MMB, Judge M. Miller Baker. ______________________

Decided: September 8, 2022 ______________________

SANFORD M. LITVACK, Chaffetz Lindsey LLP, New York, NY, argued for all plaintiffs-appellees. Plaintiff-ap- pellee California Steel Industries, Inc. also represented by ROBERT MATTHEW BURKE, ANDREW POPLINGER.

CRAIG A. LEWIS, Hogan Lovells US LLP, Washington, Case: 21-2172 Document: 61 Page: 5 Filed: 09/08/2022 CALIFORNIA STEEL INDUSTRIES, INC. v. US 5

DC, for plaintiffs-appellees North American Interpipe, Inc., Evraz Inc. NA, Valbruna Slater Stainless, Inc. Also repre- sented by HAROLD DEEN KAPLAN, NICHOLAS LANEVILLE.

ROBERT ALAN LUBERDA, Kelley Drye & Warren, LLP, Washington, DC, for plaintiff-appellee AM/NS Calvert LLC. Also represented by JOSHUA MOREY, PAUL C. ROSENTHAL.

MATTHEW MOSHER NOLAN, ArentFox Schiff LLP, Washington, DC, for plaintiffs-appellees voestalpine High Performance Metals Corp., Edro Specialty Steels, Inc. Also represented by JESSICA R. DIPIETRO, NANCY NOONAN, LEAH N. SCARPELLI.

ANN MOTTO, Commercial Litigation Branch, Civil Divi- sion, United States Department of Justice, Washington, DC, argued for defendant-appellee. Also represented by BRIAN M. BOYNTON, TARA K. HOGAN, PATRICIA M. MCCARTHY, STEPHEN CARL TOSINI.

JAMES EDWARD RANSDELL, IV, Cassidy Levy Kent (USA) LLP, Washington, DC, argued for defendants-appel- lants. Also represented by THOMAS M. BELINE, NICOLE BRUNDA, CHASE DUNN, JACK ALAN LEVY; MICHELLE ROSE AVRUTIN, BENJAMIN JACOB BAY, NICHOLAS J. BIRCH, CHRISTOPHER CLOUTIER, ELIZABETH DRAKE, WILLIAM ALFRED FENNELL, LUKE A. MEISNER, KELSEY RULE, ROGER BRIAN SCHAGRIN, Schagrin Associates, Washington, DC; JOHN ROBERT MAGNUS, TradeWins LLC, Washington, DC; MATTHEW MCCONKEY, CHARLES ALAN ROTHFELD, Mayer Brown LLP, Washington, DC. ______________________

Before MOORE, Chief Judge, NEWMAN and HUGHES, Circuit Judges. Opinion for the court filed by Circuit Judge HUGHES.

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Dissenting opinion filed by Circuit Judge NEWMAN. HUGHES, Circuit Judge. Before the United States Court of International Trade, several domestic importers challenged the United States Department of Commerce’s denials of their requests to be excluded from paying certain national security tariffs and to obtain refunds for such paid tariffs. Domestic steel pro- ducers United States Steel Corporation, Electralloy/G.O. Carlson, Crucible Industries LLC, Ellwood City Forge Company, and Ellwood Specialty Steel moved to intervene as of right, arguing that these exclusion-request disputes implicated their interests. The Court of International Trade denied their motions. N. Am. Interpipe, Inc. v. United States, 519 F. Supp. 3d 1313 (Ct. Int’l Trade 2021) (Decision). The proposed intervenors appeal from the court’s denial. We affirm. I Section 232 of the Trade Expansion Act of 1962 author- izes the President to restrict imports of goods to safeguard national security. 19 U.S.C. § 1862. Pursuant to this au- thority, in March 2018, “the President imposed a 25 per- cent ad valorem tariff on imports of certain steel products.” Decision, 519 F. Supp. 3d at 1319 (citing Proclama- tion No. 9705, Adjusting Imports of Steel into the United States, 83 Fed. Reg. 11,625 (Mar. 8, 2018)). Domestic im- porters could request a tariff exclusion, however, either if the imported steel product was “not produced in the United States in a satisfactory quality,” or “for a specific national security consideration.” Id. (quoting Requirements for Sub- missions Requesting Exclusions, 83 Fed. Reg. 12,106, 12,110 (Mar. 19, 2018)). Likewise, “[a]ny individual or or- ganization that manufactures steel articles in the United States” could then object to any such exclusion requests, providing domestic steel producers the opportunity to show that they either have or could have quickly produced a suf- ficient quantity of the same or similar quality product. Id.

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at 1320 (quoting Submissions of Exclusion Requests and Objections to Submitted Requests for Steel and Aluminum, 83 Fed. Reg. 46,026, 46,058 (Sept. 11, 2018) (alteration in original)). Plaintiffs-appellees, here, are domestic manufacturers or distributors who had imported steel products subject to this § 232 ad valorem tariff. Id. These importers sought ex- clusions from the tariff. Id. In response, several domestic steel producers objected to the exclusion requests, assert- ing that “they could satisfactorily produce all of, or suffi- cient substitutes for, the material that was the subject of the exclusion requests.” Id. Commerce denied the exclusion requests, and the importers “paid the challenged duties and imported the steel products in question notwithstand- ing the exclusion denials.” Id. The importers then filed lawsuits alleging Administra- tive Procedure Act violations under the Court of Interna- tional Trade’s residual jurisdiction, see 28 U.S.C. § 1581(i), “contending that Commerce failed to consider relevant fac- tors and evidence, failed to give adequate explanations for its decisions, and in some instances considered legally ir- relevant factors.” Decision, 519 F. Supp. 3d at 1321. The importers requested either that a refund be issued or that the case be remanded to Commerce for further proceedings. Id. The domestic steel producers, who had objected to the importers’ tariff exclusion requests before Commerce, moved to intervene as party defendants in the importers’ lawsuits. 1 They all “move[d] to intervene as a matter of

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at 1322 (citation omitted). Because “U.S. Steel [had] dis- claim[ed] seeking any relief separate from that sought by the government” in North American Interpipe’s action (No. 20-3825) and in Evraz’s action (No. 20-3869), the court found that U.S. Steel had “established its piggyback stand- ing.” Id. But the court determined that none of the pro- posed intervenors had “address[ed], much less establish[ed], either their independent constitutional standing or their piggyback standing” in the remaining four cases (Nos. 21-5, 21-15, 21-27, 21-93). Id. Having determined that U.S. Steel had standing, the court then considered whether it was entitled to interven- tion under Rule 24(a)(2), applying the following four-part test: (1) the motion must be timely; (2) the moving party must claim an interest in the property or transac- tion at issue that is “‘legally protectable’—merely economic interests will not suffice”; (3) “that inter- est’s relationship to the litigation must be ‘of such a direct and immediate character that the interve- nor will either gain or lose by the direct legal oper- ation and effect of the judgment”; and (4) “the movant must demonstrate that said interest is not adequately addressed by the government’s partici- pation.” Decision, 519 F. Supp. 3d at 1323 (first quoting Wolfsen Land & Cattle Co. v. Pac. Coast Fed’n of Fishermen’s Ass’ns, 695 F.3d 1310, 1315 (Fed. Cir. 2012); then quoting Am. Mar. Transp., Inc. v. United States, 870 F.2d 1559, 1562 (Fed. Cir. 1989)). 2 Applying this standard, the court

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participation could add some material aspect beyond what is already present.” Id. at 1327 (cleaned up). The court con- cluded that U.S. Steel had made no such showing, having “assert[ed] only that the government’s sovereign interest in maintaining the Section 232 exclusion process does not en- compass their proprietary interests in these specific trans- actions.” Id. The court further observed that the proposed interve- nors had contended that “they [could] make ‘factual contri- butions’ that w[ould] cure ‘imperfect administrative records.’” Id. at 1328. But the court gave no weight to such contentions, having instead determined that any such “‘fac- tual contributions’ would not ‘add some material aspect to the case beyond what is already present’” since “judicial re- view is confined to the existing administrative records in these matters.” Id. (quoting Wolfsen, 694 F.3d at 1318). The Court of International Trade concluded that the proposed intervenors were not entitled to intervention as a matter of right under Rule 24(a)(2), id., and also decided that they were not eligible for permissible intervention un- der Rule 24(b)(1), see id. at 1329–35. 3 The court thus de- nied the motions to intervene. The proposed intervenors appeal. “Denial of a motion to intervene is a final judgment and immediately appealable.” Wolfsen, 695 F.3d at 1314. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(5). II “This court has not previously identified the standard to be applied when reviewing a trial court’s denial of a mo- tion to intervene as of right.” Wolfsen, 695 F.3d at 1314. The proposed intervenors and the government assert that we should review a denial of intervention de novo. The im- porters disagree, contending that we should review for

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abuse of discretion and pointing out that we have “ex- pressly noted” this in an earlier, unpublished opinion. Plaintiffs-Appellees’ Answering Br. 11 (citing Abbott Lab’ys v. Diamedix Corp., No. 94-1345, 1994 WL 782247, at *2 (Fed. Cir. July 26, 1994)). But we had noted, in Wolfsen, that the regional circuits “are split on the ques- tion, though slightly more courts favor de novo review.” 695 F.3d at 1314. There, we found no need to decide the issue because we “would affirm under both proposed stand- ards of review,” and so “the question of the standard to ap- ply [was] non-dispositive.” Id. We reach the same conclusion here. We review questions of standing de novo. Shukh v. Seagate Tech., LLC, 803 F.3d 659, 663 (Fed. Cir. 2015). III The Court of International Trade denied the following motions to intervene for lack of standing: U.S. Steel’s mo- tions to intervene in the cases brought by AM/NS Calvert (No. 21-5) and California Steel (No. 21-15); Electral- loy/G.O. Carlson’s motions to intervene in the cases brought by Valbruna (No. 21-27) and Voestalpine and Edro (No. 21-93); and Crucible’s, Ellwood City Forge’s, and Ellwood Specialty Steel’s motion to intervene in the case brought by Voestalpine and Edro (No. 21-93). While the court found that U.S. Steel had standing in the remaining two cases—brought by North American Interpipe (No. 20-3825) and by Evraz (No. 20-3869)—the Court of In- ternational Trade still denied U.S. Steel’s motions to inter- vene in those cases since U.S. Steel had not established it was entitled to intervention under Court of International Trade Rule 24(a)(2). The proposed intervenors challenge the Court of International Trade’s denials, arguing that in all cases they both have standing and are entitled to inter- vene under Rule 24(a)(2). Although we ultimately affirm the Court of Interna- tional Trade’s decision denying all of the motions to

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intervene for lack of entitlement under Rule 24(a)(2), we begin by addressing the court’s decisions on standing be- cause standing is a threshold jurisdictional question. See Town of Chester, N.Y. v. Laroe Estates, Inc., 137 S. Ct. 1645, 1648, 1650–51 (2017). A The proposed intervenors contend that the Court of In- ternational Trade erred in concluding that they must es- tablish standing to intervene. They also assert that, even if standing were necessary to intervene, the proposed inter- venors have established such standing. Although we agree with the trial court that all of the intervenors must estab- lish standing, we conclude that they did so here. 1 “For all relief sought, there must be a litigant with standing, whether that litigant joins the lawsuit as a plain- tiff, a coplaintiff, or an intervenor of right.” Town of Ches- ter, 137 S. Ct. at 1651. This means that, “at the least, an intervenor of right must demonstrate Article III standing when it seeks additional relief beyond that which the plain- tiff requests.” Id. While the proposed intervenors admit that a plaintiff- intervenor must have standing to intervene, see id., in their view, “it is unnecessary for prospective defendant-interve- nors to establish Article III standing” since “intervention on the side of the defendant at the trial court level neces- sarily does not expand the claims at issue,” Appellants’ Opening Br. 17–18. They reason that this is because the plaintiff or plaintiff-intervenor is “the party invoking fed- eral jurisdiction” who “bears the burden of establishing” standing. Id. at 18 (quoting Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016)). So, since “[h]ere, the justiciable case or controversy between plaintiff and defendant satisfies Arti- cle III,” the proposed intervenors assert that “a party seek- ing to intervene need not demonstrate that he has

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standing.” Id. at 18 (quoting Chiles v. Thornburgh, 865 F.2d 1197, 1213 (11th Cir. 1989)). We disagree. The proposed intervenors’ only basis for distinguishing between plaintiff- and defendant-intervenors rests on the premise that intervenors’ motivations to join a suit align with the motivations of the traditional parties to the case. Based on that premise, they argue that a defendant-inter- venor should be treated like a defendant. But a defendant- intervenor does not enter litigation in the same way as a traditional defendant. Though it is true that “Article III standing is not a threshold determination that courts nor- mally make before allowing a defendant to enter a case,” this is because “[t]he standing inquiry is generally ‘directed at those who invoke the court’s jurisdiction,’ and most de- fendants are pulled into a case unwillingly.” Crossroads Grassroots Pol’y Strategies v. Fed. Election Comm’n, 788 F.3d 312, 316 (D.C. Cir. 2015) (citation omitted). A defendant-intervenor does not fit the same mold as the traditional unwilling defendant. Rather, a defendant- intervenor actively seeks to participate in the resolution of a case in which the plaintiff did not bring a claim against or request any relief from the proposed intervenor. Thus, “where a party tries to intervene as another defendant,” that defendant-intervenor must “demonstrate Article III standing.” Id. 2 The proposed intervenors assert that the Court of In- ternational Trade erred in determining that they lacked standing in the suits brought by AM/NS Calvert (No. 21-5), California Steel (No. 21-15), Valbruna (No. 21-27), and Voestalpine and Edro (No. 21-93). In their view, “a simple comparison of the [g]overnment’s prayer for relief with those [in the proposed intervenors’] Proposed Answers es- tablishes that” the proposed intervenors and the govern- ment seek the same relief, thereby conferring standing

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upon the proposed intervenors. Appellants’ Opening Br. 19. We agree. Because in each of these cases the proposed interve- nors’ requested relief is largely identical to the govern- ment’s prayer for relief, the proposed intervenors have established piggyback standing. 4 Compare Appx4833 (“U.S. Steel respectfully requests that judgment be entered sustaining the decision of Commerce to deny [§] 232 steel tariff exclusions requested by Calvert, and granting such other and further relief as may be just and appropriate.”), and Appx7232 (same), with Appx4883 (Government “re- quests that the Court enter judgment in its favor, order that the complaint be dismissed, and grant defendant such other and further relief as the Court may deem just and proper.”), and Appx7297 (same); see also Appx9371, Appx11628, Appx11719, Appx11745 (Electralloy/G.O. Carlson, Ellwood City, Ellwood Specialty Steel, and Cruci- ble requesting relief in the lawsuits brought by Valbruna or Voestalpine and Edro identical to the relief requested by U.S. Steel in the lawsuits brought by Calvert or California Steel).

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B Although the proposed intervenors have established standing, they must still identify a legally protectable in- terest to qualify as intervenors under Rule 24(a)(2). The proposed intervenors contend that they have a legally pro- tectable interest in Commerce’s denials of the importers’ exclusion requests, considering the proposed intervenors’ “administrative participation, direct economic stake, and position as intended beneficiaries” of the President’s ad valorem tariff. Appellants’ Reply Br. 1. They assert that (1) “participation in adversarial administrative proceed- ings bestows a Rule 24(a)(2) interest in the result ob- tained,” id. at 8, (2) “actions to undo tariffs that specifically protect domestic producers give rise to economic interests that unfavorable judgments would impair,” id. at 15, and (3) “judgments removing tariff protection may practically impair the interests of direct beneficiaries of those tariffs,” id. at 22. We disagree. Even if the proposed intervenors “were active adminis- trative parties, consistent with Commerce’s regulations,” as they claim, id. at 10, this is an insufficient basis to find that the proposed intervenors have a legally protectable in- terest in this case. As the Court of International Trade cor- rectly observed, § 232 permits Commerce to hear from domestic parties before considering whether to grant or deny an exclusion request, but it “does not require Com- merce to do so, nor does it impose any requirement that Commerce—much less th[e] Court [of International Trade]—permit outsiders to voice objections to any exclu- sions that the Department might grant.” Decision, 519 F. Supp. 3d at 1324. And Commerce’s decision to hear such objections “is, in effect, an act of administrative grace that creates no protected legal interests.” Id. at 1324–25. Like- wise, “Commerce’s administrative scheme implementing [§] 232 permits any domestic person or entity to voice ob- jections to exclusions requests,” but the statute “does not require Commerce to” hear from domestic entities. Id. at

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1324–25. So, “[f]or purposes of Rule 24(a)(2), any scheme such as Commerce’s here that effectively permits anyone to participate in administrative proceedings confers a legally protectable interest on no one.” Id. (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 577 (1992) (holding that Congress may not “convert the undifferentiated public interest in ex- ecutive officers’ compliance with the law into an individual right vindicable in the courts” (cleaned up))). That the pro- posed intervenors chose to seize on Commerce’s adminis- trative grace and object to the pertinent requests does not transform their participation during the administrative proceedings into a legally protectable interest during sub- sequent judicial proceedings. And the proposed interve- nors’ alleged economic interests cannot suffice either. Wolfsen, 695 F.3d at 1315 (explaining that “mere[] eco- nomic interests will not suffice” to establish that a pro- posed intervenor has a legally protectable interest). Since the proposed intervenors failed to identify a le- gally protectable interest, as is required to establish inter- vention as of right under Rule 24(a)(2), the Court of International Trade rightly denied the motions to inter- vene. And without an identifiable, legally protectable inter- est, the proposed intervenors’ arguments about the practicable impairment of their interests have no merit. See Nat. Res. Def. Council v. U.S. Nuclear Regul. Comm’n, 578 F.2d 1341, 1345 (10th Cir. 1978) (“[T]he question of im- pairment is not separate from the question of existence of an interest.”). Further, the proposed intervenors must show that their “participation could add some material aspect beyond what is already present.” Wolfsen, 695 F.3d at 1318. And they make no such demonstration here. The proposed in- tervenors admit that they seek the same relief as the gov- ernment and emphasize only their potential “factual contributions”—given that they are better situated to prove their production capabilities compared to the govern- ment—which are irrelevant since the administrative

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record is generally closed once before the judiciary. See Ax- iom Res. Mgmt., Inc. v. United States, 564 F.3d 1374, 1379– 80 (Fed. Cir. 2009). Without more, the proposed interve- nors fail to show that their participation could add any ma- terial aspect beyond what is already present. IV The Court of International Trade should have found that the proposed intervenors established piggyback stand- ing in all six cases before us on appeal. Notwithstanding this error, the court correctly determined that none of the proposed intervenors had identified a legally protectable interest. We accordingly affirm the Court of International Trade’s decision denying the motions to intervene. AFFIRMED

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United States Court of Appeals for the Federal Circuit ______________________

CALIFORNIA STEEL INDUSTRIES, INC., Plaintiff-Appellee

UNITED STATES, Defendant-Appellee

UNITED STATES STEEL CORPORATION, Defendant-Appellant ______________________

2021-2172 ______________________

Appeal from the United States Court of International Trade in 1:21-cv-00015-MMB, Judge M. Miller Baker.

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NORTH AMERICAN INTERPIPE, INC., Plaintiff-Appellee

UNITED STATES, Defendant-Appellee

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UNITED STATES STEEL CORPORATION, Defendant-Appellant ______________________

2021-2180 ______________________

Appeal from the United States Court of International Trade in No. 1:20-cv-03825-MMB, Judge M. Miller Baker.

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EVRAZ INC. NA, Plaintiff-Appellee

UNITED STATES, Defendant-Appellee

UNITED STATES STEEL CORPORATION, Defendant-Appellant ______________________

2021-2181 ______________________

Appeal from the United States Court of International Trade in No. 1:20-cv-03869-MMB, Judge M. Miller Baker.

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AM/NS CALVERT LLC, Plaintiff-Appellee

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UNITED STATES, Defendant-Appellee

UNITED STATES STEEL CORPORATION, Defendant-Appellant ______________________

2021-2182 ______________________

Appeal from the United States Court of International Trade in No. 1:21-cv-00005-MMB, Judge M. Miller Baker.

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VALBRUNA SLATER STAINLESS, INC., Plaintiff-Appellee

UNITED STATES, Defendant-Appellee

ELECTRALLOY/G.O. CARLSON, Defendant-Appellant ______________________

2021-2183 ______________________

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Appeal from the United States Court of International Trade in No. 1:21-cv-00027-MMB, Judge M. Miller Baker.

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VOESTALPINE HIGH PERFORMANCE METALS CORP., EDRO SPECIALTY STEELS, INC., Plaintiffs-Appellees

UNITED STATES, Defendant-Appellee

ELECTRALLOY/G.O. CARLSON, CRUCIBLE INDUSTRIES LLC, ELLWOOD CITY FORGE COMPANY, ELLWOOD SPECIALTY STEEL, Defendants-Appellants ______________________

2021-2185 ______________________

Appeal from the United States Court of International Trade in No. 1:21-cv-00093-MMB, Judge M. Miller Baker.

______________________

NEWMAN, Circuit Judge, dissenting. This appeal concerns the right of certain domestic steel producers to intervene in the appeal of tariff proceedings (here a tariff whose purpose is to support domestic steel manufacturing capacity for products critical to national se- curity) by imposing a tariff on corresponding imported steel. The court now denies these domestic steel producers

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the right to participate in the appeal to the Court of Inter- national Trade concerning requests for relief from those tariffs. 1 The panel majority rules that although these do- mestic steel producers have standing to intervene, they do not have a legally protectable interest. Maj. Op. at 17. However, the authorizing statute contemplates participa- tion by affected domestic industries, in service to the na- tional security purposes of this statute. From the denial of the requested interventions, I respectfully dissent. BACKGROUND Presidential Proclamation No. 9705, Adjusting Imports of Steel into the United States, was issued in 2018 and de- clared that: [S]teel articles are being imported into the United States in such quantities and under such circum- stances as to threaten to impair the national secu- rity of the United States. 83 Fed. Reg. at 11,625 (Mar. 8, 2018). The Proclamation, applying Section 232 of the Trade Expansion Act of 1962, 19 U.S.C. § 1862, imposes: a global tariff of 24 percent on imports of steel arti- cles in order to reduce imports to a level that the Secretary assessed would enable domestic steel producers to use approximately 80 percent of exist- ing domestic production capacity and thereby

¹ North American Interpipe, Inc. v. United States, No. 03825; Evrz Inc. NA v. United States, 20-03869; AM/NS Calvert LLC v. United States, 21-0005; California Steel Indus., Inc. v. United States, 21-00015; Valrbuna Slater Stainless, Inc. v. United States, 21-00027; and Voestalpine High Performance Metals Corp. v. United States, 519 F. Supp. 3d 1313 (Ct. Int’l Tr. 2021).

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achieve long-term economic viability through in- creased production. Id. The Commerce Department is charged with adminis- tering the tariff. Id. Commerce established a procedure whereby domestic companies importing the listed steel products can seek ex- clusion from the Section 232 tariff. 83 Fed. Reg. at 46,057– 58 (Sept. 11, 2018) (allowing “individuals or organizations located in the United States . . . using steel in business ac- tivities” to file tariff exclusion requests). Importers seeking such tariff exclusion are required to demonstrate that steel produced in the United States cannot meet their needs be- cause the specific item is not produced in adequate quality or amount. Id. California Steel and other importers (collectively, “Cal. Steel”) sought exclusion from the Section 232 tariff for hun- dreds of steel items during the 2018–2020 period. Cal. Steel asserted that domestic producers were unable to meet their needs for particular products or purposes. U.S. Steel and other domestic steel producers (collectively, “U.S. Steel”) opposed those exclusion requests on the ground that domestic producers could provide all the needed steel, and that the Section 232 tariff should be applied. When Commerce denied Cal. Steel’s requests for tariff exclusion, the importers paid the duties, and now seek re- funds in the Court of International Trade (“CIT”). U.S. Steel seeks to intervene under CIT Rule 24, which allows intervention when economic interests are affected and the intervenor’s interest is not adequately represented by any party to the action. The CIT denied intervention, leading to this appeal. DISCUSSION My colleagues hold that although the would-be interve- nors have standing, they do not have a legally protectable

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interest. In my view, the requested intervention should be permitted. United States Steel Corp. and other domestic steel pro- ducers participated as objectors 2 to requested tariff exclu- sions, having the right to participate in the Commerce proceedings. 83 Fed. Reg. at 12,111 (Mar. 19, 2018) (“Any individual or organization in the United States may file ob- jections to steel exclusion requests . . . .”). An objector does not lose that right when appeal is taken. Although the panel majority states that the regulation does not “effec- tively permit[] anyone to participate” in a subsequent ap- peal, Maj. Op. at 17, all of these would-be intervenors were participants in the Commerce proceeding and are directly affected by the tariff. U.S. Steel argues that it has a legally protectable interest and the right to participate under CIT Rule 24 as well as under the statute governing this tariff, 19 U.S.C. § 1862. Intervention under CIT Rule 24 requires that the mo- vant “claim some interest in the property affected by the case” where “that interest’s relationship to the litigation must be ‘of such a direct and immediate character that the intervenor will either gain or lose by the direct legal oper- ation and effect of the judgment.’” Wolfsen Land & Cattle Co. v. Pac. Coast Fed’n of Fishermen’s Ass’ns, 695 F.3d 1310, 1315 (Fed. Cir. 2012) (quoting Am. Marine Transp., Inc. v. United States, 870 F.2d 1559, 1561 (Fed. Cir. 1989) (emphases in original)). “These requirements are con- strued in favor of intervention.” Wolfsen, 695 F.3d at 1315. U.S. Steel argues that Rule 24 provides objectors with the

² The parties to tariff request proceedings are re- ferred to as “requesters” or “objectors” in the administra- tive proceedings. 15 C.F.R. § 705 Supp. 1(b).

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right to defend the results of a proceeding in which it par- ticipated and by which it is affected. Intervention by non-parties has been analyzed in a va- riety of circumstances. See, e.g., In re Sierra Club, 945 F.2d 776, 779–80 (4th Cir. 1991), where the court allowed inter- vention in the district court in a dispute over the constitu- tionality of a regulation. The Fourth Circuit explained that because the court’s enjoining of parts of an environmental regulation would “impede Sierra Club’s ability to protect its interest in the [related] administrative proceeding,” Si- erra Club had the right to intervene. Id. at 779. CIT Rule 24 does not authorize intervention as of right when the “existing parties adequately represent [the inter- venor’s] interest.” However, “[t]he requirement of the Rule is satisfied if the applicant shows that representation of his interest ‘may be’ inadequate; and the burden of making that showing should be treated as minimal.” Trbovich v. United Mine Workers of Am., 404 U.S. 528, 538 n.10 (1972). Here, the United States explicitly “take[s] no position as to whether the United States adequately represents the man- ufacturers’ interests.” Gov’t Br. 23. This statement rebuts the “presumption that the government as sovereign ade- quately represents the interest of citizens concerning mat- ters that invoke ‘sovereign interests.’” Wolfsen, 695 F.3d at 1319 (Reyna, J., concurring). Nor can the government be charged with knowledge of the economic interests of the in- tervenors, sufficient to adequately represent those inter- ests. The multiplicity of imported products and the impact on the various domestic producers weigh in favor of permit- ting intervention. The U.S. Steel objectors have clear eco- nomic interests in these tariff exclusion requests, and meet the requirements of Rule 24(a)(2) that they have “an inter- est relating to the property or transaction that is the

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subject of the action,” and no “existing parties adequately represent that interest.” Fair judicial process favors permitting affected voices to be heard. The domestic producers meet the intervention standards of Rule 24. I discern no reason to deny interven- tion to the entities that were objectors and are directly af- fected by the imposition of this tariff. From my colleagues’ contrary ruling, I respectfully dissent.

Footnotes

[1] United States Steel Corporation sought to inter- vene in four cases, brought by California Steel Industries, Inc. (No. 21-15), North American Interpipe Inc. (No. 20-3825), Evraz Inc. NA and Evraz Inc. NA Canada (No. 20-3869), and AM/NS Calvert LLC (No. 21-5); Elec- tralloy/G.O. Carlson sought to intervene in two cases, 8 CALIFORNIA STEEL INDUSTRIES, INC. v. US right under [United States Court of International Trade] Rule 24(a)(2) (based on a claimed interest in the transac- tions at issue) and, alternatively, for permissive interven- tion under Rule 24(b)(1)(B) (based on a claimed shared defense).” Id. Proposed intervenor U.S. Steel also “move[d] for permissive intervention under Rule 24(b)(1)(A) (based on a claimed conditional right to intervene by statute).” Id. The Court of International Trade denied intervention in all six cases. Id. at 1335. The court first addressed “the threshold question of the proposed intervenors’ standing,” and denied motions to in- tervene in four of the six cases for lack of standing. Id. at 1321–22. In the court’s view, “Article III requires as a threshold matter that a proposed intervenor—regardless of the basis upon which intervention is sought—demonstrate independent constitutional standing insofar as the pro- posed intervenor seeks any relief that is different from that sought by the existing parties to the case.” Id. at 1321. This means, the court explained, that the proposed intervenor must either show “its independent constitutional standing or its ‘piggyback standing,’ i.e., standing based on seeking the same relief sought by an existing party to the case.” Id. brought by Valbruna Slater Stainless, Inc. (No. 21-27), and Voestalpine High Performance Metals Corporation and Edro Special Steels, Inc. (No. 21-93); and Crucible Indus- tries, LLC, Ellwood City Forge Company, and Ellwood Spe- cialty Steel sought to intervene in the case brought by Voestalpine and Edro (No. 21-93). In addition, four mem- bers of the American Line Pipe Producers Association— American Cast Iron Pipe Company, Berg Steel Pipe Corpo- ration, Berg Spiral Pipe Corporation, and Stupp Corpora- tion—sought to intervene in their individual capacities in the case brought by Evraz (No. 20-3869), but they have not appealed the Court of International Trade’s decision deny- ing their motion to intervene.

[2] Although Wolfsen and American Maritime involved Court of Federal Claims Rule 24—rather than CIT Rule 24—the Court of International Trade determined that “the 10 CALIFORNIA STEEL INDUSTRIES, INC. v. US found the motions timely but concluded that “they fail[ed] to satisfy the other three elements of the Federal Circuit’s test for intervention as a matter of right under Rule 24(a)(2).” Id. at 1328. The court found no legally protectable interests in Commerce’s denials of the importers’ § 232 exclusion re- quests. Id. at 1325–26. “The problem with [U.S. Steel’s] ar- guments,” the court explained, “is that upholding Commerce’s exclusions will not provide the [proposed] in- tervenors with sales opportunities” since, “despite denial of the exclusion requests, U.S. Steel did not subsequently supply the products at issue to [the importers].” Id. at 1326. So “the only ‘interest’ identified by U.S. Steel in this matter is the indirect economic benefit U.S. Steel believes it would receive by ensuring that [the importers are] injured by un- fair tariff treatment.” Id. The results here, the court determined, “would be the same even if, hypothetically, the imports in question were suspended and gathering dust in port warehouses pending the outcome of this litigation.” Id. Thus, any gain would “be both indirect and contingent, resulting not from the direct effect of the judgment but instead from [the importers’] choice to purchase from the proposed intervenors rather than completing the imports.” Id. The court went on, because U.S. Steel seeks “the same relief as the government, their entry into these cases is pre- sumptively barred unless they demonstrate that their rationale of Wolfsen and American Maritime [is] directly controlling in the Court of International Trade” because “the Federal Circuit applied authorities that interpreted Federal Rule of Civil Procedure 24” and “[t]he relevant Court of Federal Claims rule is—like th[e] [CIT’s] Rule 24—drawn verbatim from Federal Rule of Civil Procedure 24.” Decision, 519 F. Supp. 3d at 1323 n.15.

[3] The proposed intervenors do not challenge any per- missive intervention determinations.

[4] Even if it were unclear whether the proposed inter- venors requested additional relief beyond what the govern- ment requested, the appropriate action would have been for the Court of International Trade to request clarification from the parties before sua sponte raising and deciding the standing inquiry. See Town of Chester, 137 S. Ct. at 1652 & n.4 (finding that the proposed intervenors’ statements “at best le[ft] it ambiguous whether” the proposed interve- nor sought damages for itself or was simply seeking the same damages as the party it moved to join; noting that “[t]his confusion needs to be dispelled” and that the court is “not inclined to resolve it in the first instance”; vacating the judgment and remanding the case since “the Court of Appeals did not resolve this ambiguity”).