Slip. Op. 10-22
UNITED STATES COURT OF INTERNATIONAL TRADE
____________________________________
:
ASSOCIATION OF AMERICAN :
SCHOOL PAPER SUPPLIERS, :
:
Plaintiff, :
: Before: WALLACH, Judge
v. : Court No.: 09-00163
:
UNITED STATES, :
:
Defendant, :
:
and :
:
SHANGHAI LIAN LI PAPER :
PRODUCTS CO., LTD., :
:
Defendant-Intervenor. :
____________________________________:
[Motion of the Committee to Support U.S. Trade Laws for Leave to Appear as Amicus Curiae is
DENIED.]
Dated: March 3, 2010
Wiley Rein, LLP (Alan Hayden Price) for Plaintiff Association of American School Paper
Suppliers.
Tony West, Assistant Attorney General; Jeanne E. Davidson, Director, Patricia M. McCarthy,
Assistant Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice
(Michael David Panzera and John J. Todor); and Joanna Theiss, Office of Chief Counsel for
Import Administration, U.S. Department of Commerce, of Counsel, for Defendant United States.
Garvey Schubert Barer (Ronald M. Wisla) for Defendant-Intervenor Shanghai Lian Li Paper
Products Co., Ltd.
Kelley Drye & Warren, LLP (Jeffrey Sanford Beckington) for Proposed Amicus Committee to
Support U.S. Trade Laws.
OPINION
Wallach, Judge:
I
INTRODUCTION
Proposed Amicus Committee to Support U.S. Trade Laws (“CSUSTL”) has filed a
motion to appear as amicus curiae in this matter, on behalf of Plaintiff Association of American
School Paper Suppliers (“AASPS”), and has submitted a proposed amicus brief. The court has
jurisdiction in the underlying action pursuant to 28 U.S.C. § 1581(c). For the reasons set forth
below, CSUSTL’s Motion for Leave to Appear as Amicus Curiae is DENIED.
II
BACKGROUND
On April 14, 2009, the U.S. Department of Commerce (the “Department”) issued the
final results of its first administrative review of the antidumping duty order covering certain lined
paper products from the People’s Republic of China. See Certain Lined Paper Products from the
People’s Republic of China: Notice of Final Results of the Antidumping Duty Administrative
Review, 74 Fed. Reg. 17,160 (April 14, 2009) (“Final Results”). On April 17, 2009, AASPS
filed a complaint seeking judicial review of the Final Results. Complaint at 1, 4. On July 21,
2009, AASPS filed a motion to supplement the administrative record (“AASPS’s Motion to
Supplement”). In its Motion to Supplement, AASPS argues that it should be allowed to
supplement the record with certain data which allegedly showed that Defendant-Intervenor
Shanghai Lian Li Paper Products Co., Ltd. (“Lian Li”) perpetrated fraud upon Commerce during
the investigation.1 See AASPS’s Motion to Supplement at 1-5. On October 2, 2009, CSUSTL
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The court heard oral argument on Plaintiff’s Motion to Supplement the Administrative Record on December 7,
2009, and issued Slip Opinion 10-7 with respect to this issue on January 25, 2010.
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filed its Motion of the Committee for Leave to Appear as Amicus Curiae (“CSUSTL’s Motion”).
Thereafter, without receiving leave from the court2, CSUSTL submitted the Committee to
Support U.S. Trade Laws’ Amicus Brief (“CSUSTL’s Proposed Amicus Brief”) on October 9,
2009. On November 10, 2009, the court held oral argument to discuss CSUSTL’s Motion and
Proposed Amicus Brief.
III
STANDARD FOR DECISION
USCIT Rule 76 provides that amicus curiae status may be granted by motion or request
of the court. USCIT R. 76. A motion for leave to appear as amicus curiae must identify the
applicant’s interest and the “reasons why an amicus curiae is desirable.” Id. Federal courts have
broad discretion in allowing, and defining the roles, of amicus curiae. See, e.g., United States v.
Michigan, 940 F.2d 143, 165 (6th Cir. 1991); Clark v. Sandusky, 205 F.2d 915, 917 (7th Cir.
1953). Furthermore, federal courts of appeals have held that the district court’s denial of a
motion to participate as amicus curiae is not appealable. See e.g. Sec. and Exch. Comm’n v.
Better Life Club of Am., Inc., 1998 WL 389102 (D.C. Cir. 1998), at *1. “[A]micus briefs are
solely for the benefit of the Court and their filing and scope are strictly subject to its control.”
Stewart-Warner Corp. v. United States, 4 CIT 141, 142 (1982). The granting of an amicus curiae
motion “does not bestow a general right of participation, but rather is limited to those issues
which the Court allows the amicus to address.” Id.
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USCIT Rule 76 states that the filing of a brief by an amicus curiae may be allowed on motion made as prescribed
in USCIT Rule 7 or at request of the court. CSUSTL did not file a motion with this court, however at oral argument
counsel for CSUSTL explained that it filed its proposed amicus brief with AASPS’s Motion for Summary
Judgment, in lieu of filing a motion with this court, in an attempt to follow the requirements of USCIT Rule 76.
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IV
DISCUSSION
A
Overview Of Factors In Granting Amicus Curiae
There is no precedent directly on point, either in this court or in the Federal Circuit, on
factors applicable in analyzing a motion to appear as an amicus party. In determining whether
the participation of an amicus curiae is appropriate, courts typically exercise their discretion by
considering several factors, including the following: (1) whether the proposed amicus is a
disinterested entity; (2) whether there is opposition to the entry of the amicus; (3) whether
counsel is capable of making arguments without the assistance of an amicus; (4) the strength of
the information and argument presented by the potential amicus curiae’s interests; and, perhaps
most importantly (5) the usefulness of information and argument presented by the potential
amicus curiae to the court. See Advanced Sys. Tech. Inc. v. United States, 69 Fed. Cl. 355, 357
(2006); Am. Satellite Co. v. United States, 22 Cl. Ct. 547, 549 (1991), (subsequent history
omitted). Upon examination of these factors CSUSTL’s motion is denied because: (1)
CSUSTL’s proposed Amicus Brief does not address any new or insightful arguments but,
instead, appears to be a re-argument of AASPS’s Motion to Supplement; and (2) Defendant
United States (“Defendant”) and Lian Li both objected to the admission of CSUSTL’s proposed
Amicus Brief.
B
CSUSTL’s Proposed Amicus Brief Did Not Provide Any New or Useful Information
CSUSTL’s proposed Amicus Brief does not introduce any new or useful information
which would aid the court in deciding the legal issues in this case. Instead, CSUSTL’s proposed
Amicus Brief mainly describes the alleged fraud it believes that Lian Li has perpetuated on
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Commerce during the proceeding that is the subject of this litigation. See CSUSTL’s proposed
Amicus Brief at 1-5.
CSUSTL’s proposed Amicus Brief states that Commerce “failed to address the
potentially fraudulent nature of [Lian Li’s] submissions or to sanction or penalize [Lian Li] for
these submissions. In doing so, Commerce tolerated and perpetuated fraud on the agency and on
a foreign government.” Id. at 3. Additionally, CSUSTL discusses in detail: (1) Lian Li’s
allegedly fraudulent submission of Sundaram Multi Pap Ltd.’s (“Sundaram”) official annual
report, id. at 3, which is the subject of AASPS’s Motion to Supplement; and (2) Lian Li’s
allegedly fraudulent use of Sentian’s tax returns, id. at 4-5, which is extensively discussed by
AASPS in its brief pursuant to USCIT R. 56.2, AASPS’s Motion for Judgment on Agency
Record at 10-12. CSUSTL’s argument regarding Sundaram is virtually identical to AASPS’s
argument in its Motion to Supplement. When asked at oral argument how exactly its proposed
Amicus Brief differs from AASPS’s Motion to Supplement, counsel for CSUSTL stated that “we
believe [we] have a valuable perspective on the intensity and the problems that crop up with the
Department’s conduct in a number of instances where they are presented with fraud or potential
fraud” and that this issue “is becoming more problematic.” November 10, 2009 Oral Argument
at 18:07-24, 19:14-16. CSUSTL has not provided new or useful information; its proposed
Amicus Brief is a re-phrasing of AASPS’s fraud arguments.
In deciding whether to grant a motion to appear as amicus curiae, courts consider
“whether participation by the amicus will be useful to it, as contrasted with simply strengthening
the assertions of one party.” Am. Satellite, 22 Cl. Ct. at 549; see also Siam Food Prods. Pub. Co.,
Ltd. v. United States, 22 CIT 826, 830, 24 F. Supp. 2d 276, (1998). CSUSTL’s allegedly
“unique perspective” regarding its belief that fraud was perpetrated by Lian Li using the
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Sundaram annual report is no different than AASPS’s argument and is, in fact, duplicative. See
CSUSTL’s Motion at 2; AASPS’s Motion to Supplement at 1-5. Amicus briefs which “duplicate
the arguments made in litigants’ briefs, in effect merely extend[ing] the length of the litigant’s
brief . . . and should not be allowed.” Ryan v. Commodity Futures Trading Comm’n, 125 F.3d
1062, 1063 (7th Cir. 1997). During the November 10, 2009 Oral Argument, CSUSTL devoted a
substantial part of its argument to fraud perpetuated upon Commerce, and specifically fraud
allegedly perpetrated by Lian Li. See November 10, 2009 Oral Argument at 10:14-11:05; 12:46-
13:31; 17:31-18:29; 18:57-19:28; 23:10-23:37; 26:15-26:43; 28:28-28:40; 30:41-31:18; 31:41-
32:33. As noted in Ryan, “[i]n an era of heavy judicial caseloads and public impatience with the
delays and expense of litigation, we judges should be assiduous to bar the gates to amicus curiae
briefs that fail to present convincing reasons why the parties’ briefs do not give us all the help we
need for deciding the appeal.” Ryan, 125 F.3d at 1064.
Thus, because it is a re-argument of AASPS’s case, the court denies CSUSTL’s Motion.
C
Not All Parties Consented To CSUSTL’s Motion
Defendant and Lian Li did not consent to CSUSTL’s Motion. See Defendant’s Response
to Motion of Committee to Support U.S. Trade Laws For Leave To Appear as Amicus Curiae
(“Defendant’s Response”) at 1-3. In its Response, Defendant argues that “[p]ermitting CSUSTL
to appear as amicus curiae would prejudice the Government by requiring [them] to respond to
the arguments of, in essence, a second plaintiff.” Id. at 3.
Opposition by the parties is a factor militating against allowing participation. Am.
Satellite, 22 Cl. Ct. at 549. “One factor weighing . . . is whether everyone consents [to the
amicus.]” November 10, 2009, Oral Argument at 14:27-14:37. Accordingly, the opposition of
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both Defendant and Lian Li to CSUSTL’s proposed Amicus involvement is a factor in the
court’s denial of CSUSTL’s Motion.
V
CONCLUSION
For the aforementioned reasons, it is hereby ORDERED that the Motion of the
Committee to Support U.S. Trade Laws for Leave to Appear as Amicus Curiae is DENIED.
__/s/ Evan J. Wallach_
Evan J. Wallach, Judge
Dated: March 3, 2010
New York, New York
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