Slip Op. 11-40
UNITED STATES COURT OF INTERNATIONAL TRADE
LEGACY CLASSIC FURNITURE, INC.,
Plaintiff, Before: Gregory W. Carman, Judge
v. Court No. 10-00352
UNITED STATES,
Defendant.
[Motion to intervene by proposed Defendant-Intervenors is denied.]
Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP (Mark E. Pardo; Max F.
Schutzman; Andrew T. Schutz) for Plaintiff.
Tony West, Assistant Attorney General; Jeanne E. Davidson, Director; Patricia M.
McCarthy; Assistant Director, Commercial Litigation Branch, Civil Division, United
States Department of Justice (Douglas G. Edelschick); for Defendant.
King & Spalding, LLP (Joseph W. Dorn, Stephen A. Jones, J. Michael Taylor, Daniel L.
Schneiderman, Steven R. Keener) for Proposed Defendant-Intervenors.
Dated: April 14, 2011
OPINION AND ORDER
CARMAN , JUDGE: Before the Court is the Motion to Intervene as Defendant-Intervenor
filed by the American Furniture Manufacturers Committee for Legal Trade and
Vaughan-Basset Furniture Company, Inc. (collectively, “AFMC”). (ECF No. 12,
“Motion.”) The Motion is opposed by both Plaintiff (ECF No. 22, “Pl.’s Opp.”) and
Defendant (ECF No. 21, “Def.’s Opp.”). For the reasons that follow, the Motion is
Court No. 10-00352 Page 2
denied.
I. Background:
This action arises out of Plaintiff’s challenge to the results of a scope proceeding
in which the Department of Commerce determined that the “Heritage Court Bench”
imported by Plaintiff fell within the scope of an antidumping duty order covering
wooden bedroom furniture from China. (Def.’s Opp. at 2.) AFMC filed its motion to
intervene as of right on January 10, 2011 under USCIT R. 24(a)(1) (“the court must
permit anyone to
intervene who: (1) is given an unconditional right to intervene by a federal statute”).
The scope inquiry was initiated by Commerce via a notice sent to all interested
parties, including AFMC. (See Motion, Ex. 1.) The notice indicated that, “[o]n the basis
of Legacy’s request, and our review of the case record, the Department has concluded
that it cannot determine—based solely on Legacy’s request and the descriptions of the
merchandise [received by Commerce]—whether Legacy’s Heritage Court Bench is
included in the scope of the order.” (Id.) As a result, Commerce solicited “written
arguments and factual information” from interested parties. (Id.)
In response, AFMC filed an entry of appearance and administrative protective
order (“APO”) application. (Motion, Ex. 2.) Commerce thereafter placed AFMC on the
APO service list. (Motion, Ex. 3.) No party (including Legacy and AFMC) thereafter
Court No. 10-00352 Page 3
submitted any factual information or written argument to Commerce, nor did any party
file rebuttal comments. (Motion at 4.)
II. Party to the Proceeding
The dispute between the parties is on the question of whether AFMC was a party
to the relevant scope proceeding. (See Motion at 2-10; Pl.’s Opp. at 4-7; Def.’s Opp. at 3-
9.) According to AFMC, it has an unconditional right to intervene provided by
28 U.S.C. § 2631(j)(1)(B), which states that “in a civil action under section 516A of the
Tariff Act of 1930 . . . an interested party who was a party to the proceeding in
connection with which the matter arose may intervene, and such person may intervene
as a matter of right.” (Motion at 1-2.)
No party contests that AFMC is an interested party within the meaning of
28 U.S.C. § 2631(j)(1)(B), and the Court thus presumes that AFMC is, indeed, an
interested party. The dispute here centers on whether AFMC was a “party to the
proceeding.”
The meaning of the phrase “party to the proceeding” is provided by Commerce’s
regulations: “‘Party to the proceeding’ means any interested party that actively
participates, through written submissions of factual information or written argument, in
a segment of a proceeding.” 19 C.F.R. § 351.102(b)(36). The Court of Appeals for the
Federal Circuit (“CAFC”), in a non-precedential opinion, has stated that, in order to
Court No. 10-00352 Page 4
intervene, the interested party’s participation must “reasonably convey the separate
status of a party” and “be meaningful enough to put Commerce on notice of a party’s
concerns.” Laclede Steel Co. v. United States, 1996 U.S. App. LEXIS 16167, *5 (Fed. Cir.
1996). The necessary level of participation requires more than “the filing of procedural
documents alone,” such as “a combined entry of appearance and request for access to
business proprietary information.” RHI Refractories Liaoning Co., Ltd. v. United States,
Slip Op. 11-12, 35 CIT ___, ___ F. Supp. 2d ___, 2011 WL 335601 at *2 (Jan. 31, 2011).
Where an interested party responded to a questionnaire from the Department seeking
information to use in selecting respondents, that party was a party to the proceedings.
Union Steel v. United States, 33 CIT ___, 617 F. Supp. 2d 1373, 1378 (2009). However, a
party that submits an APO application and notice of appearance and then engages in
private settlement discussions with other parties is not a party to the proceedings, as the
settlement conferences did not constitute “participation . . . before the agency itself.”
Dofasco Inc. v. United States, 31 CIT 1592, 1598, 519 F. Supp. 2d 1284, 1289 (2007)
(emphasis added).
Taken as a whole, the regulation and the cases cited above indicate that, unlike
AFMC, a party will be considered a “party to the proceeding” only when that party
provides factual information or promotes a legal position before Commerce. AFMC
merely filed a notice of appearance and an APO application, but never submitted
Court No. 10-00352 Page 5
factual materials or argument. The Court holds that AFMC was therefore not a party to
the proceeding for purposes of intervention under 28 U.S.C. § 2631(j)(1)(B).
It is worth briefly addressing two arguments raised by AFMC. First, AFMC
argues that its actions “placed itself in a position to submit rebuttal comments,” which it
never had a chance to submit because “Legacy failed to submit any comments or factual
information” and there was “nothing for the AFMC to rebut and no reason to file
comments.” (Motion at 4.)
This argument is unavailing because it suggests that the determination of
whether a party is a party to the proceeding may rely upon that party’s subjective
intent. But intent is irrelevant without some action that conveys that intent to
Commerce, as the CAFC held in Laclede Steel, 1996 U.S. App. LEXIS 16167 at *5 (stating
that the party must convey to Commerce its “separate status” in a manner sufficient to
“put Commerce on notice of a party’s concerns.”).
Second, AFMC argues that it must be a party to the proceeding simply by virtue
of having been placed on the APO service list. In support of this argument, AFMC
reasons that “Congress directed that the disclosure of proprietary information is limited
to ‘interested parties who are parties to the proceeding.’” (Motion at 5 (quoting 19
U.S.C. § 1677f(c)(1)) (emphasis added by AFMC).) In support of this argument, AFMC
also points to a Department of Commerce regulation, 19 C.F.R. § 351.305(b), which
Court No. 10-00352 Page 6
AFMC characterizes as “restrict[ing]” APO access to “representatives of a party to the
proceeding.” (Id.) More significantly, AFMC suggests that 19 C.F.R. § 351.102(b)(36)
(which defines a party to the proceeding as one that submits factual information or legal
argument) conflicts with 19 U.S.C. § 1677f(c)(1), and that “[i]t is black letter law that an
agency’s regulation cannot be inconsistent with Congressional direction.” (Id. at 8.)
The Court rejects the argument that 19 C.F.R. § 351.102(b)(36) conflicts with
19 U.S.C. § 1677f(c)(1) or 19 C.F.R. § 351.305(b). Those provisions do not define “party
to the proceeding,” and therefore are not in conflict with 19 C.F.R. § 351.102(b)(36),
which does provide that definition. Title 19, U.S.C. § 1677f(c)(1) says, in relevant part:
Upon receipt of an application (before or after receipt of the information
requested) which describes in general terms the information requested
and sets forth the reasons for the request, the administering authority or
the Commission shall make all business proprietary information
presented to, or obtained by it, during a proceeding (except privileged
information, classified information, and specific information of a type for
which there is a clear and compelling need to withhold from disclosure)
available to interested parties who are parties to the proceeding under a
protective order . . . regardless of when the information is submitted
during a proceeding.
This statutory language does not define“party to the proceeding.” The Court, following
Commerce’s regulatory definition of “party to the proceeding” as well as the prior
decisions of the CAFC and C.I.T. on this question, rejects the notion that mere addition
to the list sufficed to confer “party to the proceeding” status on AFMC.
Court No. 10-00352 Page 7
CONCLUSION
In light of the above discussion, and upon consideration of the motion of AFMC
to intervene, the responses of Plaintiff and Defendant, and the other papers and
proceeding herein, it is hereby
ORDERED that AFMC’s motion to intervene is denied.
/s Gregory W. Carman/
Gregory W. Carman, Judge
Dated: April 14, 2011
New York, NY