Aluminum Extrusion Producer Wants CIT to Reconsider Its Right to Intervene in EAPA Case

The Court of International Trade erred in rejecting aluminum extrusion manufacturer Kingtom Aluminio's bid to intervene in a case challenging the determination of duty evasion in which Kingtom was the company alleged to be aiding in the evasion, Kingtom said in a June 25 brief requesting the court's reconsideration. Kingtom says that the court overlooked Kingtom's interest in the case and failed to consider that Kingtom shares a legal claim with the plaintiff (Global Aluminum Distributor LLC v. U.S., CIT #21-00198).

Judge Richard Eaton initially rejected Kingtom's bid to intervene on June 21 (see 2106210059). The bid was denied since “Kingtom has failed to establish that its business interest in continuing to sell its aluminum extrusions to the plaintiff importers in this case without duties is an 'interest relating to the property or transaction that is the subject of the action,' as required for intervention as a matter of right under [CIT's rules],” Eaton said. Kingtom also didn't share a claim with the main action, the judge ruled.

In the underlying EAPA case, the plaintiffs Global Aluminum Distributor and Hialeah Aluminum Supply were alleged to be avoiding antidumping duties on aluminum extrusions from China via a transshipping scheme of Kingtom's design in the Dominican Republic. Despite not being party to the actual EAPA investigation, Kingtom says it is these very allegations that provide the company with a legal interest in the proceedings of the CIT case. CBP's final determination says that Kingtom's goods are of Chinese origin, the producer said.

Beyond this, “a significant question of law and fact in this case is whether the extent of Kingtom’s cooperation justified the application of adverse inferences,” Kingtom said. Since the outcome of the case will affect Kingtom and the fact that the case itself is predicated on facts surrounding Kingtom's business, the producer has a “clear interest” in the property that is the subject of the case, the producer said.

Kingtom's interests are much broader than the ability to sell aluminum extrusions to the plaintiffs without duties, as the judge suggested, the manufacturer said. “The judgment in this action will have direct legal effect on Kingtom such that its ability to protect its interests will be substantially impaired, not only in the instant case, but also in other actions in which CBP is citing the Final Determination as affirmative evidence that Kingtom is commingling Chinese-origin and Dominican-origin aluminum extrusions,” the brief said.

In its bid to intervene, Kingtom also claims its due process rights were violated by the Enforce and Protect Act investigation. This is a claim shared by the plaintiffs, making it a shared cause of action with the plaintiffs in the main case. Kingtom called out a “straw man” fallacy peddled by the EAPA petitioner and defendant-intervenor in the CIT case in which it alleged that Kingtom can't share a common claim with the plaintiffs since it is not a party to the EAPA investigation. By this logic, Kingtom said, nobody could intervene in a case where it is not automatically entitled to intervene by right.