Slip Op. 09-98
UNITED STATES COURT OF INTERNATIONAL TRADE
AD HOC UTILITIES GROUP,
Plaintiff,
v.
Before: Pogue, Judge
UNITED STATES,
Court No. 06-00229
Defendant,
- and -
USEC INCORPORATED, et al.
Defendant-Intervenors.
OPINION
[Plaintiff’s motion for rehearing denied.]
September 15, 2009
Pillsbury Winthrop Shaw Pittman LLP (Nancy A. Fischer and
Joshua D. Fitzhugh) for Plaintiff Ad Hoc Utilities Group.
Tony West, Assistant Attorney General; Jeanne E. Davidson,
Director, Patricia M. McCarthy, Assistant Director, Commercial
Litigation Branch, Civil Division, U.S. Department of Justice
(Stephen C. Tosini) for Defendant United States.
Steptoe & Johnson LLP (Eric C. Emerson, Alexandra E.P. Baj,
Sheldon E. Hochberg, Richard O. Cunningham and Thomas J. Trendl)
for Defendant-Intervenors USEC Inc. and United States Enrichment
Corp.
Akin Gump Strauss Hauer & Feld LLP (Valerie A. Slater,
Margaret C. Marsh, Bernd G. Janzen and Lisa W. Ross) for Defendant-
Intervenors Power Resources, Inc. and Crowe Butte Resources, Inc.
Pogue, Judge: Plaintiff in this case, Ad Hoc Utilities Group
Court No. 06-229 Page 2
(“AHUG”), pursuant to USCIT Rule 59,1 requests rehearing of the
court’s dismissal of Plaintiff’s action for lack of standing. See
Ad Hoc Utils. Group v. United States, Slip Op. 09-56, 2009 Ct.
Intl. Trade LEXIS 60 (CIT June 15, 2009) (“AHUG”).2 In AHUG, the
issue presented was whether “a group of American utility companies
that obtain and use enriched uranium from Russia” had standing “to
challenge the Department of Commerce’s (‘Commerce’) decision not to
terminate its antidumping duty investigation of that uranium.” Id.
at *1-2. The court dismissed AHUG’s action “[b]ecause the utility
companies individually d[id] not each qualify either as producers
or importers of the subject uranium,” id. at *2 (emphasis added),
and, in the alternative, because the companies would, even if
treated as a group, fail to “qualify as a trade or business
association a majority of the members of which are producers or
1
“The court may, on motion, grant a new trial or rehearing
on all or some of the issues -- and to any party -- as follows: .
. . (B) after a nonjury trial, for any reason for which a
rehearing has heretofore been granted in a suit in equity in
federal court.” USCIT R. 59(a)(1). Although the Rule references
“nonjury trial[s],” subsection (B) has been expansively read by
this Court to encompass “rehearing[s] of any matter[s] decided by
the court without a jury,” NSK Corp. v. United States, __ CIT __,
__, 593 F. Supp. 2d 1355, 1362 (2008) (citation and internal
quotation marks omitted), including this court’s grant of
Defendants’ motion to dismiss for lack of standing. See id.; see
also Totes-Isotoner Corp. v. United States, __ CIT __, __, 580 F.
Supp. 2d 1371, 1373-74 (2008), appeal docketed on other grounds,
No. 2009-1113 (Fed. Cir. Dec. 16, 2008); Intercargo Ins. Co. v.
United States, 20 CIT 951, 951-52, 936 F. Supp. 1049, 1049-50
(1996), aff’d, 129 F.3d 135 (Fed. Cir. 1997) (per curiam) (mem.).
2
Familiarity with the decision is presumed. The history
and context of this case is fully explained therein.
Court No. 06-229 Page 3
importers.” Id.
As explained below, as AHUG was correctly decided, and no
individual utility company with standing is a plaintiff herein, the
court denies Plaintiff’s motion.
BACKGROUND
A. The Administrative Proceeding
This dispute arose from AHUG’s 2006 challenge to Commerce’s
second “sunset” review of the suspension of the antidumping duty
investigation of uranium from Russia, pursuant to Uranium from
Kazakhstan, Kyrgyzstan, Russia, Tajikistan, Ukraine, and
Uzbekistan, 57 Fed. Reg. 49,220 (Dep’t Commerce Oct. 30, 1992)
(notice of suspension of investigations and amendment of
preliminary determinations). Commerce determined in its sunset
review that, in the absence of suspension, Russia would likely
continue dumping its enriched uranium in the U.S. market. See
Uranium From the Russian Federation, 71 Fed. Reg. 32,517 (Dep’t
Commerce June 6, 2006) (final results of five-year sunset review of
suspended antidumping duty investigation) and the accompanying
Issues & Decision Memorandum, A-821-802, Sunset Review (May 30,
2006), Admin R. Pub. Doc. 48, available at
http://ia.ita.doc.gov/frn/summary/RUSSIA/E6-8758-1.pdf (last
visited Sept. 9, 2009). AHUG sought court review of Commerce’s
determination.
Defendants United States and USEC moved the court to dismiss
Court No. 06-229 Page 4
the case for lack of standing, putting in play the issue of whether
AHUG could qualify as an “interested party” with a statutory right
to judicial review. See Section 516 of the Tariff Act of 1930, as
amended, 19 U.S.C. § 1516(a)(2)(A).3 The court, however,
consolidated this case with Court No. 06-00228, Techsnabexport v.
United States, and remanded the consolidated case to Commerce.
Techsnabexport v. United States, __ CIT __, 515 F. Supp. 2d 1363
(2007) (“Tenex”).4 To assure consideration of all aspects of the
standing issue, the court instructed that, on remand, Commerce
review its denial, in the agency’s initial proceedings, of
“interested party” status to AHUG. __ CIT at __ n.4, 515 F. Supp.
2d at 1364-65 n.4.5
Commerce subsequently issued its remand results. See Final
Results on Redetermination Pursuant to Court Remand Techsnabexport
v. United States Cons. Court No. 06-00228, Slip Op. 07-143 (Sept.
26, 2007), A-821-802, Suspension Agreement (Dec. 21, 2007), Admin.
R. Pub. Doc. [Technsabexport v. United States] 20, available at
3
Further citations to the Act, unless otherwise noted, are
to the 2006 version of the U.S. Code.
4
Familiarity with this decision is presumed. The Tenex
plaintiff’s standing to seek review in 06-0028 was uncontested.
The two cases were later severed, when, upon the request of the
Tenex plaintiff, that case was dismissed.
5
The court deferred ruling on AHUG’s standing, finding this
to be one of those rare cases in which the questions regarding
jurisdiction were intertwined with the merits of the case, and
that further information would be necessary.
Court No. 06-229 Page 5
http://ia.ita.doc.gov/remands/07-143.pdf (last visited Sept. 9,
2009) (“Remand Results”). Relevant to this litigation, Commerce,
in its volume of future imports analysis, relied on a public report
from the International Trade Commission (“ITC”). See Uranium from
Russia, USITC Pub. 3872, Inv. No. 731-TA-539-C (Second Review)
(Aug. 2006), available at 2006 ITC LEXIS 537. Commerce noted the
ITC report’s mention of certain “contingent contracts” that the
Russian uranium industry had entered into with American utilities.
Remand Results 36-37. Despite the reference to these “contingent
contracts,” Commerce once again denied AHUG status as an
“interested party.” Id. 49-52. First, Commerce determined that
AHUG members were not “producers,” given that AHUG members “do not
contract directly with the Russian [low-enriched uranium (“LEU”)]
producer . . . . [,] can only receive Russian LEU[] from USEC
itself, which USEC purchased from Tenex[,] . . . . [and] have no
control over the Russian producer’s production activities.” Id. 50-
51. Furthermore, Commerce noted that “title to the Russian LEU
from HEU does transfer from Tenex to USEC, belying AHUG’s claim
that it is the only entity that owns the LEU as a whole.” Id. 51.
Second, Commerce found that, because “USEC is the only U.S.
importer of all Russian LEU down-blended from [high-enriched
uranium (“HEU”)],” AHUG members could not qualify as “importers.”
Id.
Court No. 06-229 Page 6
B. The Court’s Dismissal of AHUG’s Complaint
Reviewing Commerce’s remand results, the court considered the
standing issue raised by Defendants United States’ and USEC’s
motions, pursuant to USCIT R. 12(b)(1), to dismiss AHUG’s complaint
for lack of subject matter jurisdiction. See AHUG, 2009 Ct. Intl.
Trade LEXIS 60, at *16-22. Defendants argued that AHUG fails to
qualify as an interested party statutorily authorized to challenge
Commerce’s review decision. In response, AHUG argued that many of
its members have “entered into negotiations and signed agreements
[i.e., contingent contracts] with Techsnabexport . . . or its agent
for the purchase of Russian [enriched uranium product (“EUP”)] or
enrichment services,” and that the contracts confer upon the
utility companies entering into them status as importers of the
subject merchandise.6 (Supplemental Br. of the Ad Hoc Utilities
Group on the Relevance & Effect of Supreme Ct.’s Eurodif Decision
(“AHUG Supplemental Br.”) 5-6); see also 28 U.S.C. § 2631(c); 19
U.S.C. § 1677(9)(A).
The court agreed, in part, with the government and USEC and
accordingly dismissed AHUG’s complaint for lack of standing. In so
doing, the court noted that 28 U.S.C. § 2631(c) and 19 U.S.C. §
1516a(a)(2)(A) require that, in order to obtain judicial review, a
6
AHUG abandoned its argument that it had standing as a
“producer.”
Court No. 06-229 Page 7
party must be “interested” as defined by 19 U.S.C. § 1677(9).7
AHUG, 2009 Ct. Intl. Trade LEXIS 60, at *16-17. After reviewing
the record and the filings before it, the court determined that
under any of the statutory definitions of “importer” --
including either as a group of individual companies or,
arguably, as a trade or business association -- AHUG does
not meet the standing requirements stated by section
2631(c).
Id. at *17. The court reasoned that 19 U.S.C. § 1677(9)(A)
“precludes standing on the part of a group with a majority of
members that are not producers, exporter or importers,” id.
(footnote omitted) (citing Am. Grape Growers Alliance for Fair
Trade v. United States, 7 CIT 389 (1984)), and, accordingly, the
court required AHUG to demonstrate either “that it would be
considered a ‘trade or business association’” or “that it is a
‘multiplied form of a single’ importer.” Id. at *17-18 (quoting Am.
7
“A civil action contesting a determination listed in
section 516A of the Tariff Act of 1930 [19 U.S.C. § 1516a] may be
commenced in the Court of International Trade by any interested
party who was a party to the proceeding in connection with which
the matter arose.” 28 U.S.C. § 2631(c). The meaning of the term
“interested party,” as used in 28 U.S.C. § 2631(c)(2000), is
found in 19 U.S.C. § 1677(9). See 28 U.S.C. § 2631(k)(1) (“In
this section . . . ‘interested party’ has the meaning given such
term in section 771(9) of the Tariff Act of 1930 [19 U.S.C. §
1677(9)].”). 19 U.S.C. § 1677(9) defines “interested party” as,
among other definitions not relevant to this proceeding, “a
foreign manufacturer, producer, or exporter, or the United States
importer, of subject merchandise or a trade or business
association a majority of the members of which are producers,
exporters, or importers of such merchandise.” Id. § 1677(9)(A).
Court No. 06-229 Page 8
Grape Growers, 7 CIT at 389).8 “The former requires only a
majority of members, whereas the latter would require all members,
to qualify as ‘importers’ to gain standing, where no member appears
individually.” Id. at *18 (citing RSI (India) Pvt., Ltd. v. United
States, 12 CIT 84, 86, 678 F. Supp. 304, 306 (1988)(“Congress has
made an exception [from the requirement that all members satisfy
standing requirements] only for importers when they are the
majority of the members of a trade or business association.”)).
The court recognized that AHUG, in its briefing, identified
itself as a group of individual companies, not a trade or business
association, that “has no legal existence or status separate from
its members.” Id. at *19 (citation omitted). Thus, AHUG would be
required to demonstrate that “all of its members share the same
qualities that qualify them for standing in the action before the
court.” Id. (emphasis added). However, AHUG only presented
evidence that “a number of AHUG members entered into negotiations
with Russian uranium suppliers or their agents.” Id. (citation
omitted). Indeed, “AHUG itself concludes that its evidence
demonstrates that far fewer than half of its members ‘would qualify
as United States importers under 19 U.S.C. § 1677(9)(A).’” Id. at
8
A “multiplied form of a single exporter” is identified as
“the unified appearance of those[,] who could appear
separately[,] [for] administrative and judicial convenience.” Am.
Grape Growers, 7 CIT at 389.
Court No. 06-229 Page 9
*20 (citations omitted).9
Furthermore, the court went on to note that “even if AHUG were
a ‘trade or business association,’ standing would still be
lacking,” as “[a] small minority [of interested parties within a
group] does not a majority make, and will not give AHUG standing in
this case.” Id. at 20-21.10
C. AHUG’s Motion for Rehearing
In moving for reconsideration of the dismissal, AHUG first
argues that the court’s treatment of it in a “unitary nature is a
manifest error of fact.” (Mot. of Certain Members of the Ad Hoc
Utils. Group for Reh’g Pursuant to USCIT Rule 59 (“AHUG Mot.”) 2.)
According to AHUG, it is
not a trade association, business group, or any other
organized, unitary entity [but is rather] an ad hoc
collection of independent utilities that seek to
facilitate their efforts in this proceeding by acting
under a common name. [AHUG] was intended to facilitate
the litigation process and conserve judicial resources,
by avoiding the need for separate filings by each utility
. . . and providing a convenient short-hand reference for
the utilities as a whole. That cooperation did not
create a unitary entity capable of replacing the
independent participation of AHUG’s members.
9
The court took no position on whether individual utility
companies that entered into contingent contracts, had they sought
review in their own right, would constitute “interested parties”
under the statute. Id.
10
Unrelated to this motion, the court additionally held
that, in light of United States v. Eurodif S.A., ___U.S.___, 129
S. Ct. 878 (2009), “AHUG’[s] members . . . may n[ot] be
considered the owners of the enriched LEU at issue” and thus
“AHUG may no longer claim to have standing as a producer.” AHUG,
2009 U.S. Dist. LEXIS 60, at *16.
Court No. 06-229 Page 10
(Id. 2-3.) AHUG asserts that “AHUG’s members, including those with
standing in this proceeding, have appeared as plaintiffs on their
own behalf.” (Id. 3 (emphasis in original).) In support of this
statement, AHUG notes that its Summons, Complaint and all other
briefs and papers were “filed on behalf of AHUG and its individual
members.” (Id. & 4 n.2.) Moreover, AHUG maintains that “[o]n the
Form 13, Disclosure of Corporate Affiliations and Financial
Interest, AHUG reported its utility members as individual corporate
parties . . . [and] did not report itself as a trade association.
. . .” (Id. 3.) For these reasons, AHUG contends, those cases
cited by the court in its opinion apply only to “the standing of
formal groups, not the standing of individual members of ad hoc
groups who participate in their individual capacities.” (Id. 4-5
(citing Am. Grape Growers, 7 CIT at 389; RSI (India) Pvt., 12 CIT
at 86, 678 F. Supp. at 306).)11
STANDARD OF REVIEW
The court will grant a rehearing “only in limited
circumstances,” such as for “1) an error or irregularity, 2) a
serious evidentiary flaw, 3) the discovery of new evidence which
even a diligent party could not have discovered in time, or 4) an
accident, unpredictable surprise or unavoidable mistake which
11
Although, at the time of the court’s decision, AHUG was
composed of at least sixteen members, AHUG’s current motion is
filed “by [three utility companies which] qualify as interested
parties because they entered into one or more ‘contingent
contracts’ with Russian suppliers.” (Id. 1 n.1.)
Court No. 06-229 Page 11
impaired a party’s ability to adequately present its case.” Target
Stores v. United States, __ CIT __, __, 471 F. Supp. 2d 1344, 1347
(2007) (citing Kerr-McGee Chem. Corp. v. United States, 14 CIT 582,
583 (1990)). “The court will not grant such a motion merely to
give a losing party another chance to re-litigate the case or
present arguments it previously raised.” Totes-Isotoner Corp. v.
United States, __ CIT __, __, 580 F. Supp. 2d 1371, 1374 (2008)
(citation and quotation marks omitted), appeal docketed on other
grounds, No. 2009-1113 (Fed. Cir. Dec. 16, 2008). Accordingly, the
purpose of rehearing or reconsideration is “to direct the Court’s
attention to some material matter of law or fact which it has
overlooked in deciding a case, and which, had it been given
consideration, would probably have brought about a different
result.” Target Stores, __ CIT at __, 471 F. Supp. 2d at 1349
(quoting Agro Dutch Indus. Ltd. v. United States, 29 CIT 250, 254
(2005)); Former Employees of BMC Software, Inc. v. United States
Sec’y of Labor, Slip Op. 08-102, 2008 Ct. Intl. Trade LEXIS 102, at
*4-6 (CIT Sept. 26, 2008).
AHUG’s motion, by alleging “error” in the court’s July 15
opinion, invokes only the first ground for rehearing. Applying
this standard, the court will address each of AHUG’s arguments in
turn.12
12
As the court recognized in its prior order, a plaintiff,
as the party seeking to invoke the Court’s jurisdiction, bears
the burden to establish its standing to bring its action. See
Court No. 06-229 Page 12
DISCUSSION
I. Change in the Specification of AHUG Members Does Not Provide
Grounds for Rehearing
AHUG first seeks rehearing of the court’s ruling by moving--
rather than on behalf of all sixteen of its utility company
members--only on behalf of three of the utility companies that
allegedly entered into contingent contracts with the Russian
uranium industry. (See AHUG Mot. 1 n.1.) However, a change in the
makeup of AHUG does not provide adequate grounds for rehearing.
The court will only grant rehearing in the event of “error” of fact
or “discovery of new evidence” that AHUG could not have discovered
prior to the court’s opinion. See Target Stores, __ CIT at __, 471
F. Supp. 2d at 1347. AHUG does not claim that the court committed
error as to the number or names of AHUG members at the time of the
court’s decision, and, indeed, it could not, as the court relied
upon the very Form 13 Disclosure Statement that AHUG contends makes
AHUG members individual parties to this litigation. See AHUG, 2009
Ct. Intl. Trade LEXIS 60, at *20-22 & 20 n.18.
Further, AHUG may not obtain relief through rehearing where it
is merely attempting to advance arguments it could have readily
asserted before. See United States v. Matthews, __ CIT __, __, 580
DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 (2006); Raines
v. Byrd, 521 U.S. 811, 818 (1997). Therefore, AHUG has the
burden to demonstrate that its members satisfy the statutory
standing requirements. See 28 U.S.C. § 2631(c); 19 U.S.C. §
1677(9).
Court No. 06-229 Page 13
F. Supp. 2d 1347, 1349 (2008), aff’d, No. 2009-1106, 2009 U.S.
App. LEXIS 16065 (Fed. Cir. July 22, 2009) (per curiam); see also
Waugh v. Williams Cos. Long Term Disability Plan, 323 F. App’x 681,
685 (10th Cir. 2009) (motion for rehearing properly denied when
movant was not seeking to correct manifest errors of law or present
newly discovered evidence, but “instead [was] attempting to advance
arguments she could have readily asserted before”) (citation and
quotation marks omitted); Carroll v. Nakatani, 342 F.3d 934, 945
(9th Cir. 2003) (a motion for rehearing “may not be used to raise
arguments or present evidence for the first time when they could
reasonably have been raised earlier in the litigation”) (citation
omitted); 12 James Wm. Moore et al., Moore’s Federal Practice §
59.13[2][d][vii] (3d ed. 2009) (“Evidence that was available and
known during the trial, but that was not submitted to the court,
does not constitute sufficient grounds for a Rule 59 motion.”)
(citation omitted).
Court No. 06-229 Page 14
II. AHUG Members are not Individually “Plaintiffs” in this
Litigation
Second, AHUG alleges that the court erred in categorizing AHUG
as a group rather than considering all AHUG members as individual
plaintiffs.13
The court disagrees. According to the Rules, all parties to
a civil action before the court must be properly identified in the
caption of the initial pleading(s) in which they are named, i.e.,
the summons and complaint. USCIT R. 10(a);14 see also Fed. R. Civ.
13
The court notes that AHUG’s position on rehearing seems
inconsistent with a number of court filings in which it refers to
AHUG as “Plaintiff.” (See, e.g., AHUG Supplemental Br. 5 (AHUG is
“plaintiff in this case”; Compl. 1 (referring to AHUG as
“plaintiff” suing “on behalf of its members”; the members were
not named as “plaintiffs”).)
14
USCIT R. 10(a) states that “[e]very pleading must have a
caption with the court’s name, a title[,] a court number, and a
Rule 7(a) designation. The caption of the summons and the
complaint must name all the parties; the title of other
pleadings, after naming the first party on each side, may refer
generally to other parties.” USCIT Rule 10 corresponds to
Federal Rule of Civil Procedure 10.
Congressional intent behind Rule 10, which discounts claims
where the complaint fails to sufficiently identify a party, is
rooted in concern for providing notice to the parties in an
action and protecting the public interest. See Doe v. Rostker, 89
F.R.D. 158, 160 (N.D. Cal. 1981)(holding the purpose behind Fed.
R. Civ. P. 10 “is not solely one of administrative convenience
[but] serves to apprise the parties of their opponents, and it
protects the public’s legitimate interest in knowing all the
facts and events surrounding court proceedings”).
Although AHUG claims that three utility companies constitute
plaintiffs in this action, AHUG wishes the names of these
purported plaintiff companies to remain anonymous. Federal
district courts may, under appropriate circumstances, allow
Plaintiffs to proceed under anonymous names. See EW v. N.Y. Blood
Ctr., 213 F.R.D. 108, 111 (E.D.N.Y. 2003) (listing four factors
as which counsel in favor of allowing plaintiff to be designated
Court No. 06-229 Page 15
P. 10(a). The summons and complaint in this action named a single
plaintiff: AHUG. Although in subsequent pleadings all parties need
not be fully named, in the original complaint, the names of all
parties must be included. USCIT R. 10(a); Yousefi v. Lockheed
Martin Corp., 70 F. Supp. 2d 1061, 1064-65 (C.D. Cal. 1999)
(striking 134 putative class members, who moved, together with
existing class-action plaintiffs, as self-named “Lockheed Martin
Group,” to consolidate the actions; the court held that “[a]side
from Yousefi, Kane, and Kretchmeyer, the [Lockheed Martin Group’s]
members are not named plaintiffs in any of the suits” and
accordingly “the 134 other members of the Lockheed Plaintiffs
Group, which are not party to the three suits subject to
consolidation, cannot move to consolidate the actions”), aff’d, 126
F. App’x 785 (9th Cir. 2005). See also Mitchell v. Maynard, 80 F.3d
1433, 1441 (10th Cir. 1996) (affirming refusal to enter judgment
against party not named in complaint but referred to in brief);
Zocaras v. Castro, 465 F.3d 479, 483-85 (11th Cir. 2006) (affirming
dismissal a case where the plaintiff prosecuted an action under
alias without revealing his true name in the pleadings pursuant to
Fed. R. Civ. P. 10).
A plaintiff, as a party who initiates a civil action by filing
an initial complaint, must identify itself in the caption. 2 Moore
“John Doe”). However, the court notes that neither AHUG nor any
of the three utility companies have asked for “John Doe Corp.”
designation in this case.
Court No. 06-229 Page 16
et al., supra, § 10.02[2][a]-[c]. Plaintiff AHUG drafted its
complaint, and thus the court relies on the complaint’s caption to
discern the plaintiff in the suit. See Williams v. Bradshaw, 459
F.3d 846, 849 (8th Cir. 2006)(holding that the caption “is entitled
to considerable weight when determining who the plaintiffs to a
suit are since plaintiffs draft complaints”). The individual
utilities do not individually appear in the Summon’s or the
Complaint’s captions, and said utilities are not individually
parties or plaintiffs. See Yousefi, 70 F. Supp. 2d at 1064-65.
Nor does the fact that the corporate entities are listed in
the Form 13 disclosure statement change the effect of Rule 10. Cf.
Maynard, 80 F.3d at 1441; Klingler v. Yamaha Motor Corp., 738 F.
Supp. 898, 910 (E.D. Pa. 1990) (striking down claims where the
defendants were not named in the caption but only referred to in
the body of the complaint). A disclosure statement, though a
required supplemental filing, is not a complaint or summons. See
USCIT R. 3(i) (“The disclosure statement must be filed with the
entry of appearance (or with the summons if no separate notice of
appearance is required)”); see also Fed. R. Civ. P. 7.1(b)(1).15
15
Plaintiff argues that “AHUG” is a short hand method of
referring to the “plaintiffs,” because submitting filings for
each corporate entity would be wasteful. (See AHUG Mot. 3.)
Rules 10(a) does allow for the use of short-form for “other
pleadings.” USCIT R. 10(a) (“the title of other pleadings after
naming the first party on each side may refer generally to other
parties.”); see also Adkins v. Safeway, Inc., 985 F.2d 1101, 1102
(D.C. Cir. 1993). However, while the use of shorthand may be
appropriate for “other pleadings,” again, the rule requires all
Court No. 06-229 Page 17
As a consequence, the individual AHUG members do not
constitute plaintiffs in this action.
III. AHUG Does Not Satisfy Section 1677(9)
Third, AHUG attempts to argue that, given its particular
nature as an “ad hoc” group--brought together for efficiency of
litigation only--rather than a “formal” group, case law and
statutory standing requirements for groups do not apply to it.
AHUG provides no support for this proposed special treatment of “ad
hoc” groups, and the court can find no support for this
distinction. As it noted in its earlier opinion, the court has
recognized groups such as AHUG as a “multiplied form of a single”
importer that is “identified as ‘the unified appearance of those[,]
who could appear separately[,] [for] administrative and judicial
convenience.” AHUG, 2009 Ct. Intl. Trade LEXIS 60, at *18 (quoting
Am. Grape Growers, 7 CIT at 389-90). For such an appearance, as
opposed to trade or business associations--which are subject to a
statutory exception16--all members of the group constituting a
parties to be named in the caption of the complaint. AHUG’s
claim of conserving resources stands in direct contrast to the
intent behind USCIT Rule 10(a).
16
In accordance with 19 U.S.C. § 1677(9)(A), a “trade or
business association” may qualify as an “interested party” if “a
majority of the members [] are producers, exporters, or importers
of such merchandise.” This requirement has been construed to
exclude groups in which only a small minority of members qualify
as interested parties. See AHUG, 2009 Ct. Intl. Trade LEXIS 60,
at *20-21 (citing Zenith Radio Corp. v. United States, 5 CIT 155,
156-57 (1983); Special Commodity Group on Non-Rubber Footwear
From Braz., Am. Ass’n of Exps. & Imps. v. United States, 9 CIT
Court No. 06-229 Page 18
“multiplied form of a single” importer must “qualify as ‘importers’
to gain standing, where no member appears [as a plaintiff]
individually.” Id. As was noted by the court, this was clearly not
the case here, as only a small minority of AHUG members claimed to
have such “importer” status.
AHUG mistakenly argues that the court committed an error of
fact by basing its opinion on the assumption that AHUG was a “trade
or business association.” To the contrary. The court recognized
that AHUG repudiated this designation. See id. at *19 (“AHUG has
identified itself as a group of individual companies, stating that
it is not a trade or business association . . . .”). Out of an
abundance of caution, and in fairness to AHUG, however, the court
noted that, even should AHUG be considered a trade or business
association, it did not meet the majority requirement. Contrary to
AHUG’s assertions, the court did not base its decision on this
factual assumption and thus whether or not AHUG qualifies as a
trade or business association was not a “material matter of law or
fact which [the court] has overlooked in deciding a case, and
which, had it been given consideration, would probably have brought
about a different result.” Target Stores v. United States, __ CIT
at __, 471 F. Supp. 2d at 1349 (citation and quotation marks
omitted).
481, 483-84, 620 F. Supp. 719, 721-22 (1985); Matsushita Elec.
Indus. Co. v. United States, 2 CIT 254, 256-59, 529 F. Supp. 664,
667-69 (1981)).
Court No. 06-229 Page 19
IV. Amendment of Pleadings
The court will permit a party to amend errors and omissions in
the naming of parties “when justice so requires.” USCIT R.
15(a)(2). See Fakhri v. United States, __ CIT __, __, 507 F. Supp.
2d 1305, 1315-16 (2007).17 However, such amendments are only
allowed “[i]n the absence of any apparent or declared reason --
such as undue delay, bad faith or dilatory motive on the part of
the movant, repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to the opposing party by virtue
of allowance of the amendment, futility of amendment, etc.” Foman
v. Davis, 371 U.S. 178, 182 (1962).
Here AHUG’s delay was undue. AHUG, for the first time, asked
for leave to amend its complaint in its reply brief on rehearing,
well over a year after it first raised its argument for standing as
17
AHUG also argues that USCIT R. 17(a) requires the court
to provide it the opportunity to amend its pleadings. Rule 17 is
inapplicable to this case, as the court has not dismissed the
action on the grounds that AHUG failed to prosecute its case in
the name of the “real party in interest.” Rather, AHUG, a group
of utilities, correctly appeared as the “real party in interest”
in this suit even if statutory standing is lacking. Cf. Mitchell
Food Prods. Inc. v. United States, 43 F. App’x 369, 369-70 (Fed.
Cir. 2002) (distinguishing between the concepts of standing and
“real party in interest”); Phibro Energy, Inc. v. Brown, 19 CIT
663, 669 n.11, 886 F. Supp. 863, 869 n.11 (1995) (“To determine
whether a plaintiff is a real party in interest, the Court must
determine whether the plaintiff is the entity which under
substantive law has the right sought to be enforced.”) (citation
and quotation marks omitted).
Court No. 06-229 Page 20
an importer.18 While mere delay is not a reason to deny leave,
where the delay is “‘undue’”, such delay requires limiting the
opportunity to amend. Datascope Corp. v. SMEC, Inc., 962 F.2d 1043,
1045 (Fed. Cir. 1992) (citation omitted); Tenneco Resins, Inc. v.
Reeves Bros., Inc., 752 F.2d 630, 634-35 (Fed. Cir. 1985).
Here, the court finds that AHUG’s “undue delay” weighs against
permitting amendment. First, AHUG was fully on notice that this
issue was in play and yet failed, until now, to ask for leave to
amend its complaint. This case was filed in 2006, at which point
AHUG asserted standing as a “producer” pursuant to this court’s
holding in USEC Inc. v. United States.19 Furthermore, “importer”
18
AHUG first referenced its standing as an “importer” in
its March 31, 2008 brief to the court:
a number of AHUG members qualify as importer of record
under [the contingent contracts]. . . . Because its
members qualify as interested parties under 19 U.S.C. §
1677(9), AHUG respectfully requests that the Court find
that AHUG has standing before the Court under 28 U.S.C.
§ 2631(c).
(Resp. of Ad Hoc Utils. Group to the Court’s Req. for
Supplemental Info. on Contingent Contracts Relied Upon by
Commerce in its Remand Results 8-9.)
19
In USEC Inc. v. United States, 27 CIT 489, 259 F. Supp.
2d 1310 (2003), this Court held that Commerce’s decision to treat
“SWU contracts” for uranium enrichment as sales of enriched
uranium subject to antidumping investigation -- rather than as
“tolling” or subcontracting arrangements -- was unsupported by
substantial evidence, as there was no evidence that the enricher
ever took ownership of the goods. 27 CIT at 506, 259 F. Supp. 2d
at 1326. AHUG relied USEC to assert its ownership of the uranium
through the enrichment process and thus standing as a “producer”
of the uranium. However, as the court previously noted:
Court No. 06-229 Page 21
standing was at issue almost one month before the U.S. Supreme
Court granted certiorari in Eurodif and almost three months before
the court stayed this matter pending the Supreme Court’s decision.
See United States v. Eurodif S.A., 128 S. Ct. 2054 (April 21,
2008). Subsequently, importer standing remained at issue for
almost five months following Eurodif’s issuance and the dissolution
of the stay. During this latter time period, the court gave AHUG
ample opportunity to explore the “importer” standing issue through
repeated briefings to the court as well as specifically-worded
questions from the court. See Te-Moak Bands of W. Shoshone Indians
of Nev. v. United States, 948 F.2d 1258, 1262-63 (Fed. Cir. 1991)
(“At some point in the course of litigation, an unjustified delay
preceding a motion to amend goes beyond excusable neglect, even
when there is no evidence of bad faith or dilatory motive.”)
(quoting Daves v. Payless Cashways, Inc., 661 F.2d 1022, 1025 (5th
Cir. Unit A Nov. 1981)); id. at 1261 (“A litigant’s failure to
assert a claim as soon as he could have is properly a factor to be
considered in deciding whether to grant leave to amend.”) (quoting
After Commerce’s revocation of its tolling regulation
and the Supreme Court’s [Eurodif] decision, it is clear
that Commerce may reasonably treat SWU transactions as
sales of goods owned by the enricher. As AHUG’[s]
members, as opposed to the enricher, may no longer be
considered the owners of the enriched LEU at issue,
AHUG may no longer claim to have standing as a
producer.
AHUG, 2009 Ct. Intl. Trade LEXIS 60, at *16.
Court No. 06-229 Page 22
Carson v. Polley, 689 F.2d 562, 584 (5th Cir. 1982)).
Second, judgment has already issued in this case, and AHUG’s
motion to amend was not on file previous to the court’s dismissal
of the case and judgment thereon. See Summers v. Earth Island
Inst., __ U.S. __, __, 129 S. Ct. 1142, 1153 (2009); Datascope, 962
F.2d at 1044-47. Compare Pinnacle Pigging Sys. v. Eliminator
Pigging Sys. USA, Inc., 55 F. App’x 943, 945-46 (Fed. Cir. 2003)
(per curiam); Phonometrics, Inc. v. Resinter N. Am. Corp., No.
97-1101, 1997 U.S. App. LEXIS 26574, at *1, 7 (Fed. Cir. Sept. 17,
1997). AHUG has only now, in a footnote to its reply on rehearing,
mentioned pleading amendment.
Third, while the court will often grant leave to amend when
“mere technical irregularities in the filing of procedural papers”
exist, Zenith Elecs. Corp. v. United States, 988 F.2d 1573, 1580
(Fed. Cir. 1993) (citations omitted), the court views the omission
of the individual companies rather as a “strategic” decision in
litigation. See Trans-Spec Truck Serv. v. Caterpillar Inc., 524
F.3d 315, 327 (1st Cir. 2008); Strub v. Axon Corp., Nos. 97-1221 &
97-1222, 1998 U.S. App. LEXIS 20249, at *30 (Fed. Cir. Aug. 17,
1998). The omission of AHUG members as plaintiffs, and indeed,
specifically the failure to drop AHUG members who would not quality
as importers, was not mere formality in pleading; AHUG itself
recognizes that the AHUG members joined together to pool resources
to facilitate the litigation in a cost-effective way.
Court No. 06-229 Page 23
Lastly, AHUG provides no compelling reason for its delay. See
Engineered Prods. Co. v. Donaldson Co., 147 F. App’x 979, 987 (Fed.
Cir. 2005) (applying Thompson-El v. Jones, 876 F.2d 66, 67 (8th
Cir. 1989)); Te-Moak Bands, 948 F.2d at 1263 (collecting cases);
Tenneco Resins, 752 F.2d at 634; Zhejiang Mach. Imp. & Exp. Corp.
v. United States, 29 CIT 1266, 1271 (2005) (“a key element of the
analysis is the excusability of any delay in raising the new
issue”) (citation omitted).
Accordingly, the court determines that “justice” does not
require amendment here.20
20
The court also observes that, pursuant to USCIT R. 21,
“[p]arties may be dropped or added by order of the court on
motion of any party or on its own initiative at any stage of the
action and on such terms as are just.” The U.S. Supreme Court
has instructed that “it is well settled that Rule 21 invests
district courts with authority to allow a dispensable nondiverse
party to be dropped at any time, even after judgment has been
rendered.” Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826,
832 (1989). USCIT R. 21 tracks the language in Fed. R. Civ. P.
21. However, even should Newman-Green be extended to allow AHUG
to dispose of non-importer members after the court’s entry of
judgment, “[i]n applying Rule 21, the court is governed by the
liberal amendment standards of Rule 15(a).” Insituform Techs.,
Inc. v. Cat Contr., Inc., 385 F.3d 1360, 1372 (Fed. Cir. 2004)
(citation omitted). As explained above, AHUG does not merit Rule
15 amendment.
Court No. 06-229 Page 24
CONCLUSION
Accordingly, upon consideration of AHUG’s motion, the court
does not find any error of law or fact sufficient to support
rehearing of this matter.
The court accordingly DENIES AHUG’s Motion.
It is SO ORDERED.
/s/
Donald C. Pogue, Judge
Dated: September 15, 2009
New York, New York