DOJ Urges CAFC to Deny US Steel Producers' Right to Intervene in Section 232 Exclusion Cases

The Department of Justice urged the U.S. Court of Appeals for the Federal Circuit to uphold a lower court ruling denying a group of domestic steel manufacturers the right to intervene in Section 232 exclusion denial cases, in a Nov. 17 brief, arguing that none of the producers has a legally protectable interest in the proceedings. DOJ said that the steel makers' economic interests are insufficient to warrant intervention in the cases since they are "indirect and contingent," seeing as the companies argue that their interest in the exclusions derives from "sales opportunities."

In May, the Court of International Trade denied a group of steel producers the right to intervene in six Section 232 exclusion denial challenges (see 2105260037). At the time, DOJ deferred the question over the companies' right to intervene to the trade court. In response, the court came back and said that the domestic manufacturers failed to clear any of the bars for intervention, per court rules.

Responding to the manufacturers' opening brief at the Federal Circuit, DOJ now argues that the trade court had it right and that the bar for intervention was not met, especially on the claim that a sales opportunity constitutes a protected interest. "The trial court correctly rejected the manufacturers’ claim that 'the application of Section 232 tariffs corresponds to sales opportunities for' the domestic manufacturers 'with respect to the products at issue,'" the brief said. "The court held that the 'ship has sailed' with respect to any sales the manufacturers hoped might occur during the 2018-2019 time period, when the exclusions were requested. Appellants do not meaningfully dispute that finding."

Further, DOJ said that these sales opportunities are "necessarily indirect," in that even if an exclusion is denied due to sufficient domestic capacity, there is no guarantee that the requesting party will buy from any one manufacturer. The domestic producers also argued that an exclusion granted on remand could harm them economically. "On this point, the manufacturers are incorrect on the facts," the brief said. "When Commerce grants an exclusion, the exclusion is generally good for one year from the date of signature, and retroactive to the date that the exclusion request was posted on Commerce’s website. ... Thus, even if a previously denied exclusion is granted on remand, there are no future imports that could be covered by the exclusions requested in this case."

DOJ also said that the manufactures also have no "participatory" interest in the case that would be directly impacted by the judgments. Since the exclusion process allows anyone to voice an objection, the producers have no unique right to these exclusion denial claims. "Even assuming that a legally protected participatory interest exists, it will not be impaired by the judgments in these cases," the brief said. For instance, the producers argue that their participation is necessary for the "development of the record for judicial review." DOJ countered by arguing that these cases are without an established record, and since the cases challenge final agency action, they are subject to "the standard of review set forth in 5 U.S.C. § 706(2)," in which Commerce is responsible for cultivating the record.