Changzhou Trina Solar Energy Co. v. United States

Slip Op. 16 - 22

UNITED STATES COURT OF INTERNATIONAL TRADE

CHANGZHOU TRINA SOLAR ENERGY
CO., LTD. and TRINA SOLAR
(CHANGZHOU) SCIENCE & TECHNOLOGY
CO., LTD.,
Before: Donald C. Pogue,
Plaintiffs, Senior Judge

v. Consol. Court No. 15-000681

UNITED STATES,

Defendant.

OPINION

[denying motion to file brief as amicus curiae]

Dated: March 14, 2016

Joanne E. Osendarp, Matthew R. Nicely, Lynn G.
Kamarck, and Alan G. Kashdan, Hughes, Hubbard & Reed, LLP, of
Washington, DC, for the Government of Canada.

Matthew J. Clark, Nancy A. Noonan, and Julia L. Diaz,
Arent Fox LLP, of Washington, DC, for the Government of Québec.

Lawrence A. Schneider, Michael T. Shor, and Andrew
Treaster, Arnold & Porter LLP, of Washington, DC, for the
Government of Alberta.

Spencer Griffith and Bernd G. Janzen, Akin Gump
Strauss Hauer & Feld LLP, of Washington, DC, for the Government
of British Columbia.

Michele Sherman Davenport, Davenport & James PLLC, of
Washington, DC, for the Government of Manitoba and the
Government of Saskatchewan.

1 This action is consolidated with SolarWorld Americas, Inc.
v. United States, Ct. No. 15-00085. Order, July 1, 2015,
ECF No. 35, at ¶ 3.
Consol. Ct. No. 15-00068 Page 2

Donald B. Cameron, Jr., Julie C. Mendoza, and Brady W.
Mills, Morris, Manning & Martin, LLP, of Washington, DC, for the
Government of New Brunswick.

Robert C. Cassidy, Jr., Jack A. Levy, Christopher
Kent, Christopher J. Cochlin, and Thomas M. Beline, Cassidy Levy
Kent LLP, of Washington, DC, for the Government of Nova Scotia.

Mark S. McConnell, H. Deen Kaplan, Deborah M. Wei, and
Mary Van Houten, Hogan Lovells LLP, of Washington, DC, for the
Government of Ontario.

Melissa M. Devine, Trial Attorney, Commercial
Litigation Branch, Civil Division, U.S. Department of Justice,
of Washington, DC, for the Defendant. Also on the brief were
Benjamin C. Mizer, Principal Deputy Assistant Attorney General,
Jeanne E. Davidson, Director, and Reginald T. Blades, Jr.,
Assistant Director. Of counsel was Shelby M. Anderson,
Attorney, Office of the Chief Counsel for Trade Enforcement
& Compliance, U.S. Department of Commerce, of Washington, DC.

Pogue, Senior Judge: This consolidated action arises

from the United States Department of Commerce’s (“Commerce”)

countervailing duty (“CVD”) investigation of certain crystalline

silicon photovoltaic products (“solar panels”) from the People’s

Republic of China (“China”).2 Before the court is a motion by

the Government of Canada and the Governments of Québec, Alberta,

British Columbia, Manitoba, New Brunswick, Nova Scotia, Ontario,

and Saskatchewan (hereinafter collectively referred to as the

“Canadian Governments”) to jointly submit a brief in this matter

2 See Certain Crystalline Silicon Photovoltaic Products from the
People’s Republic of China, 79 Fed. Reg. 76,962 (Dep’t Commerce
Dec. 23, 2014) (final affirmative countervailing duty
determination), as amended by 80 Fed. Reg. 8592 (Dep’t Commerce
Feb. 18, 2015) (antidumping duty order; and amended final
affirmative countervailing duty determination and countervailing
duty order).
Consol. Ct. No. 15-00068 Page 3

as amicus curiae, pursuant to USCIT Rule 76.3 Defendant United

States opposes this motion.4

The court has jurisdiction pursuant to

Section 516A(a)(2)(B)(i) of the Tariff Act of 1930, as amended,

19 U.S.C. § 1516a(a)(2)(B)(i) (2012),5 and 28 U.S.C.

§ 1581(c) (2012).

As explained below, because the Canadian Governments’

proposed contribution does not seek to provide impartial

information on a matter of law about which there is doubt, but

instead seeks to advance advocacy interests that are already

adequately represented, the motion is denied.

STANDARD OF REVIEW

USCIT Rule 76 provides that “[t]he filing of a brief

by an amicus curiae may be allowed on motion made as prescribed

by Rule 7, or at the request of the court.”6 Rule 76 also

provides that the movants must “identify [their] interest” and

3 Partial Consent Mot. of the [Canadian Governments] for Leave to
Appear [as] Amici Curiae, ECF No. 48 (“Canadian Gov’ts’ Br.”).
4 Def.’s Opp’n to Canada’s & Canadian Provincial Gov’ts’ Mot. for
Leave to File Br. as Amicus Curiae, ECF No. 62.
5 Further citations to the Tariff Act of 1930, as amended, are to
the relevant provisions of Title 19 of the U.S. Code,
2012 edition.
6 USCIT Rule 76. USCIT Rule 7 in turn requires that the motion
be in writing and that it state with particularity the grounds
for seeking to file the brief. See USCIT Rule 7(b)(1).
Consol. Ct. No. 15-00068 Page 4

“state the reasons why an amicus curiae is desirable.”7

Amicus curiae, of course, means “friend of the court,”8

“as distinguished from an advocate before the court.”9

Historically, courts have accepted amicus curiae briefs that

“provide impartial information on matters of law about which

there was doubt, especially in matters of public interest.”10

Courts may be particularly inclined to permit amicus

participation “if the court is concerned that one of the parties

is not interested in or capable of fully presenting one side of

the argument.”11 Thus traditionally “an amicus curiae is an

impartial individual who suggests the interpretation and status

of the law, gives information concerning it, and whose function

is to advise in order that justice may be done, rather than to

7 USCIT Rule 76. The grant or denial of such motions is
“discretionary with the court.” In re Opprecht, 868 F.2d 1264,
1266 (Fed. Cir. 1989); see also Changzhou Hawd Flooring Co. v.
United States, __ CIT __, 6 F. Supp. 3d 1353, 1356 n.7 (2014)
(providing additional citations).
8 E.g., Changzhou Hawd, __ CIT at __, 6 F. Supp. 3d at 1356 n.8
(quoting Black’s Law Dictionary 102 (10th ed. 2014)).
9 Alexander v. Hall, 64 F.R.D. 152, 155 (D.S.C. 1974) (citations
omitted).
10United States v. Mich., 940 F.2d 143, 164 (6th Cir. 1991)
(emphasis in original) (citations omitted); see also, e.g., Siam
Food Prods. Pub. Co. v. United States, 22 CIT 826, 830, 24 F.
Supp. 2d 276, 280 (1998).
11Am. Satellite Co. v. United States, 22 Cl. Ct. 547, 549 (1991)
(citations omitted).
Consol. Ct. No. 15-00068 Page 5

advocate a point of view so that a cause may be won by one party

or another.”12 In contrast to such legal advice, arguments

against specific determinations made by Commerce in the context

of particular CVD proceedings may and must generally be

presented to the agency in the first instance, through

participation in the adversarial administrative process below.13

12Leigh v. Engle, 535 F. Supp. 418, 420 (N.D. Ill. 1982)
(citations omitted); see also, e.g., Ass’n of Am. Sch. Paper
Suppliers v. United States, 34 CIT 207, 209-10, 683 F. Supp. 2d
1326, 1329 (2010).
13See, e.g., Ad Hoc Shrimp Trade Action Comm. v. United States,
33 CIT 1906, 1918-19, 675 F. Supp. 2d 1287, 1300 (2009) (“If a
party does not exhaust available administrative remedies,
‘judicial review of administrative action is inappropriate.’
. . . ‘In the antidumping [and countervailing duty] context,
Congress has prescribed a clear, step-by-step process for a
claimant to follow, and the failure to do so precludes it from
obtaining review of that issue in the Court of International
Trade.’”) (quoting Sharp Corp. v. United States, 837 F.2d 1058,
1062 (Fed. Cir. 1988) and JCM, Ltd. v. United States, 210 F.3d
1357, 1359 (Fed. Cir. 2000) (citations omitted), respectively).
Here the relevant statute specifically contemplates the
participation of foreign government trading partners in domestic
administrative proceedings, see 19 U.S.C. § 1677(9)(B) (defining
“interested party” to include foreign governments of countries
in which the subject merchandise is produced or from which it is
exported); see also id. at § 1671a(b)(4)(A)(i) (providing that
Commerce must notify the government of any exporting country
named in a CVD petition); id. at § 1671b(f) (requiring Commerce
to notify all interested parties of the agency’s preliminary CVD
determinations before they are finalized, including all “facts
and conclusions on which its determination is based”); 19 C.F.R.
§ 351.309 (2014) (providing for the submission of written
arguments to Commerce from interested parties), and such
participants are generally required to exhaust their available
administrative remedies before being heard in this Court,
see 28 U.S.C. § 2637(d); Nat’l Knitwear & Sportswear Ass’n v.
United States, 15 CIT 548, 557, 779 F. Supp. 1364, 1372 (1991)
(footnote continued)
Consol. Ct. No. 15-00068 Page 6

While it is no longer required that an amicus curiae

be totally disinterested in the outcome of the litigation14 –

indeed, “it is not easy to envisage an amicus who is

‘disinterested’ but still has an ‘interest’ in the case”15 –

where a purported amicus is in fact an interested party that

could and should have presented its arguments to Commerce in the

first instance at the administrative level, permitting such

arguments to effectively circumvent the administrative

participatory requirements “deprives [Commerce] of an

opportunity to consider the matter, make its ruling, and state

the reasons for its action,”16 and is therefore not appropriate.17

(“[T]he courts require exhaustion of administrative remedies to
ensure that the agency and the interested parties fully develop
the facts to aid judicial review.”) (citation omitted).
14See Mich., 940 F.2d at 165 (“Over the years, however, some
courts have departed from the orthodoxy of amicus curiae as an
impartial friend of the court and have recognized a very limited
adversary support of given issues through brief and/or oral
argument.”) (emphasis in original) (citations omitted).
15Neonatology Assocs. P.A. v. Comm’r of Internal Revenue,
293 F.3d 128, 131 (3d Cir. 2002); cf. USCIT Rule 76 (requiring a
movant seeking to file an amicus curiae brief to “identify the
interest of the applicant”).
16Unemployment Comp. Comm’n of Alaska v. Aragon, 329 U.S. 143,
155 (1946) (“The responsibility of applying the statutory
provisions to the facts of the particular case was given in the
first instance to the [administrative agency]. A reviewing
court usurps the agency’s function when it sets aside [an]
administrative determination upon a ground not theretofore
presented and deprives the [agency] of an opportunity to
consider the matter, make its ruling, and state the reasons for
its action.”) (footnote and citations omitted).
Consol. Ct. No. 15-00068 Page 7

Moreover, amicus curiae participation that merely duplicates the

arguments of one or more of the represented parties is in any

event not “desirable.”18

DISCUSSION

Here, the Canadian Governments identify their interest

as advocating in support of the Plaintiffs’ challenge to

Commerce’s determinations in this solar panels CVD proceeding.19

Specifically, the Governments seek to secure a favorable

precedent for Canadian companies facing similar issues in a

separate CVD proceeding concerning supercalendered paper from

Canada.20 “Looking ahead, Canadian governments and companies are

understandably concerned regarding how [Commerce] will treat

[Canadian companies facing similar issues] in future

17Cf. Changzhou Hawd, __ CIT at __, 6 F. Supp. 3d at 1355
(denying motion to file amicus brief where the movant was “an
interested party that [was] seeking, in effect, intervenor not
amicus status”).
18See USCIT Rule 76 (requiring movants to “state the reasons why
an amicus curiae is desirable”); Changzhou Hawd, __ CIT at __,
6 F. Supp. 3d at 1357 (“The court will deny a motion to file an
amicus brief that ‘essentially duplicates’ a litigant’s brief.”)
(quoting Voices for Choices v. Ill. Bell Tel. Co., 339 F.3d 542,
545 (7th Cir. 2003)).
19 Canadian Gov’ts’ Br., ECF No. 48, at 1-2.
20See id. at 2 (explaining that the proposed amici are
“principally interested” in supporting the Plaintiffs’ arguments
against a practice that Commerce applied in the Chinese solar
panels proceeding at issue here, because Commerce used similar
reasoning in the Canadian supercalendered paper proceeding).
Consol. Ct. No. 15-00068 Page 8

countervailing duty investigations.”21 The Canadian Governments

contend that their amicus curiae brief is desirable here because

it will “provide[] the Court [with] an opportunity to view

[Commerce]’s [challenged] practice from the perspective of

foreign governments whose unique interests will augment those

represented by the private party litigants,” and because “the

resolution of this question will have a major impact on foreign

governments and companies who will be respondents in future U.S.

countervailing duty proceedings.”22

In particular, the Canadian Governments refer to

Commerce’s treatment of a Canadian company – Resolute FP Canada

Inc. (“Resolute”) – in the Canadian supercalendered paper

proceeding.23 This Court recently denied Resolute’s own motion

in this case to file an amicus curiae brief that sought to

augment Plaintiffs’ arguments against Commerce’s

determinations.24 Resolute argued that it should be heard in

this case “because the Court’s decision with respect to

Plaintiffs’ challenge . . . will have implications for Resolute

and other respondents in Commerce’s recent investigation of

21 Id. at 3.
22 Id. at 3.
23 Id. at 2.
24 Order, Feb. 8, 2016, ECF No. 61.
Consol. Ct. No. 15-00068 Page 9

Supercalendered Paper from Canada, where Resolute was a

mandatory respondent.”25 In denying Resolute’s motion, the court

explained that, “[b]ecause the movant does not ‘provide

impartial information on matters of law about which there [is]

doubt, especially in matters of public interest,’ and is instead

a party seeking to advance its interest in another proceeding

(upon which the decision in this case will have neither res

judicata nor collateral estoppel nor even precedential effect),

permitting their participation as amicus here would simply allow

for the circumvention of administrative participation

requirements.”26

Specifically, Resolute’s interest was ultimately to

challenge Commerce’s use of similar reasoning in the Canadian

supercalendered paper proceeding.27 But each CVD proceeding is

based on its own unique record of factual evidence and arguments

presented to the agency.28 As an interested party to the

25Mot. for Leave to File Amicus Curiae Br. on Behalf of
[Resolute], ECF No. 43 (“Resolute’s Mot.”), at 2.
26Order, Feb. 8, 2016, ECF No. 61 (quoting Mich., 940 F.2d
at 164) (additional citation omitted).
27 See Resolute’s Mot., ECF No. 43, at 2.
28See, e.g., NSK Ltd. v. United States, 27 CIT 56, 95,
245 F. Supp. 2d 1335, 1367 (2003) (quoting Commerce explaining
its “long-standing policy of treating [different antidumping/
countervailing duty] orders as separate proceedings” based on
unique factual records) (quotation marks and citation omitted);
Clearon Corp. v. United States, Slip Op. 14-88, 2014 WL 3643332,
(footnote continued)
Consol. Ct. No. 15-00068 Page 10

Canadian supercalendered paper proceeding, Resolute must present

its specific challenges to Commerce in the first instance, in

the context of the particular CVD proceeding in which its

interests are implicated – i.e., in the Canadian supercalendered

paper proceeding. “A reviewing court usurps the agency’s

function when it sets aside [an] administrative determination

upon a ground not theretofore presented and deprives the

[agency] of an opportunity to consider the matter, make its

ruling, and state the reasons for its action.”29

The situation is the same with respect to the Canadian

Governments’ motion here. As with Resolute, the Canadian

at *14 (CIT July 24, 2014) (“Although Commerce can and does take
into consideration its policies and methodologies as expressed
in different administrative case precedent when making its
determination, it cannot take the factual information underlying
those decisions into consideration unless those facts are
properly on the record of the proceeding before it.”) (citation
omitted); cf. also Louis Dreyfus Citrus, Inc. v. United States,
31 CIT 964, 980, 495 F. Supp. 2d 1338, 1353 (2007) (“[O]nly
documents and materials directly or indirectly considered by
agency decision-makers become part of the administrative record
[for a particular administrative proceeding].”) (quotation marks
and citation omitted).
29Aragon, 329 U.S. at 155 (footnote and citations omitted).
See also, e.g., Melamine Chems., Inc. v. United States, 2 CIT
113, 116 (1981) (not reported in the Federal Supplement)
(quoting S. Rep. No. 96-249, 96th Cong., 1st Sess. 251, 252
(1979) (“[The statute] . . . exclud[es] de novo review from
consideration as a standard in antidumping and countervailing
duty determinations[,] . . . [by] provid[ing] all parties with
greater rights of participation at the administrative level and
increased access to information upon which the decisions of
[Commerce] . . . are based.”)).
Consol. Ct. No. 15-00068 Page 11

Governments’ interest is to present a challenge to Commerce’s

determinations in this solar panels proceeding that reflects

their concerns regarding what the agency did in the separate

supercalendered paper proceeding, which addresses an order

covering a different product from a different country, involving

its own unique set of facts.30 Like Resolute, the Canadian

Governments qualify as “interested parties” to that other

proceeding,31 and as such could and should present their specific

challenges to Commerce’s decisions in that proceeding directly

to the agency, following the established procedure for

participating at the administrative level, thereby permitting

the agency to consider their arguments in the first instance in

the context of the relevant factual record specific to that

proceeding. Thus, like Resolute, the Canadian Governments do

not seek to “provide impartial information on matters of law

about which there [is] doubt, especially in matters of public

interest,”32 but are instead effectively seeking to advance their

interests in other proceedings. Moreover, there is no

30Compare Resolute’s Mot., ECF No. 43, at 2, with Canadian
Gov’ts’ Br., ECF No. 48, at 2.
31See 19 U.S.C. § 1677(9)(B) (defining “interested party” as,
inter alia, “the government of a country in which [merchandise
subject to a particular antidumping/countervailing duty
proceeding] is produced or manufactured or from which such
merchandise is exported”).
32 Mich., 940 F.2d at 164 (emphasis and citations omitted).
Consol. Ct. No. 15-00068 Page 12

indication that the Plaintiffs in this case are unable or

unwilling to adequately frame their side of the relevant legal

issues.

Accordingly, as with Resolute, the Canadian

Governments’ proposed contribution in this case does not meet

the definition of amicus curiae, and is therefore not

appropriate. Certainly the court, and the agency, may have an

interest in being informed of the considered opinions of our

country’s important trading partners, even if such opinions

align with that of an advocate before the court. But where (as

here) such opinions concern a specific agency practice as

applied to particular factual records, they should be presented

to the agency in the first instance, using the designated

administrative participation procedures, in order to first build

an appropriate foundation for judicial review.

CONCLUSION

For all of the foregoing reasons, the Canadian

Governments’ motion to file a brief as amicus curiae in this

action, ECF No. 48, is denied.

_____/s/ Donald C. Pogue_____
Donald C. Pogue, Senior Judge

Dated: March 14, 2016
New York, NY