EAPA Litigants Oppose Aluminum Extrusion Trade Group's Late-Stage Intervention Bid at CIT

The Aluminum Extrusion Fair Trade Committee (AEFTC) should not be allowed to intervene in a case contesting CBP's finding that Global Aluminum Distributor and Hialeah Aluminum Supply evaded the antidumping and countervailing duty orders on aluminum extrusions from China, Dominican exporter Kingtom Aluminio argued. Filing an opposition brief at the Court of International Trade on July 13, with the support of Global Aluminum, Kingtom argued that AEFTC's motion is untimely, it failed to show a conditional right to intervene and the committee cannot intervene based on a shared claim or defense (Global Aluminum Distributor v. United States, CIT Consol. #21-00198).

The case at CIT was filed by Global Aluminum, Hialeah and Kingtom. The plaintiffs alleged that CBP failed to make a factual finding when ruling that Global Aluminum and Hialeah committed evasion (see 2202160041). CBP based its conclusion on a vague reference to Kingtom's ties to China given that the company is owned and operated by Chinese nationals and discrepancies between the importers' and Kingtom's records rather than relying on an evidentiary standard, the plaintiffs argued. The case led CBP to file for a voluntary remand "in light of the arguments raised by the parties during judicial review" (see 2204150039).

In the results, CBP completely changed its tune, switching its evasion finding (see 2206150047). CBP said that in its affirmative evasion finding, it conflated monthly theoretical production volumes and monthly sales volume figures provided by Kingtom as evidence that Kingtom did not have the capacity to make the number of goods it sent to the U.S. CBP treated them as interchangeable when they are different figures, the remand results said. After the evasion flip, AEFTC sought to intervene in the case, though it did not participate in the EAPA case.

Kingtom filed its opposition motion, arguing that the intervention bid was untimely. First considering the "time trigger" -- the time when the intervenor knew of its interest in the case -- the producer said that AEFTC knew of its interest from the very beginning of the case and thus its intervention motion is "clearly untimely." The committee "admits as much in its motion," since it filed its motion to intervene 14 months after the complaint was filed.

"AEFTC’s failure to request an intervention until this point is a purely tactical move and a bald-faced attempt to make up for its own inaction and to place the burden of additional litigation onto the parties that have participated since the appeal commenced more than one year ago," the brief said. Kingtom argued that AEFTC's intervention would clearly prejudice the existing parties in the case and that "there are no unusual circumstances here that would justify the untimeliness of this intervention."

In addition to the untimeliness, AEFTC also fails to establish the factors necessary for intervention -- namely that it would be adversely aggrieved by the timely resolution of the case, Kingtom said. "AEFTC has made no attempt to explain what injury in fact it would be threatened with if it is not granted intervention," the brief said. "The failure of AEFTC to even attempt to establish what injury in fact it would suffer means that it failed to demonstrate constitutional standing, which is a requirement for permissive intervention."