CIT Denies Domestic Steel Producers' Right to Intervene in Section 232 Exclusion Denial Cases

A set of domestic steel producers will not be allowed to intervene in six challenges to the Commerce Department's denials of Section 232 tariff exclusions to steel importers, following a May 25 decision from the Court of International Trade. "Nevertheless," said Judge Miller Baker as he denied their motions to intervene, "the Court reiterates its willingness to entertain motions to appear as amici curiae."

According to CIT Rule 24(a)(2), to qualify for intervention in a CIT case, the proposed intervenor must either (1) "claim an interest in the property or transaction at issue that is 'legally protectable,'" (2) have a direct relationship with the litigation whereby the intervenor "will either gain or lose by the direct legal operation and effect of the judgment" or (3) demonstrate that its interests are not "adequately addressed by the government's participation." In his opinion, Baker found that the domestic steel producers failed on all three fronts.

For one, due to the nature of the Section 232 administrative process, the court found that the proposed intervenor has no legally protectable interest in the case. The domestic producers argued for their right to intervene on the grounds that domestic producers had specific rights to object to the tariff exclusions, similar to antidumping proceedings. However, anyone can voice an objection to Section 232 agency proceedings, Baker found, conferring no special right on the domestic steel producers. While Section 232 gives Commerce the right to hear from domestic companies, it "does not require Commerce to do so." And the governing statute for antidumping and countervailing duty cases allows for "interested parties" to participate in the proceedings, while Section 232 allows "any domestic person or entity" to voice their opinion.

The producers' claim that they had a direct economic benefit to gain from the case's judgment also fell short. In some of the motions to intervene, the producers said they had a direct link to the litigation since the exclusions deal with the companies' "specific sales and projects." But the proposed intervenors are only potential suppliers to the plaintiffs of these cases and not competitors, and the goods in question "have long been imported and used," so it makes no difference to the proposed intervenors if the court overturns the exclusion denials, the judge said. "Moreover, the result here 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," the decision said. "In that counterfactual scenario, there would still be no certainty that if Plaintiffs lost they would ship back their imports (if such a thing were even commercially feasible) and instead purchase from the proposed intervenors."