CAFC Rejects Rehearing in US Steel's Bid to Intervene in Section 232 Exclusion Denial Challenges

The U.S. Court of Appeals for the Federal Circuit rejected a set of domestic steel companies' bid for a rehearing of the court's denial of its bid to intervene in a series of cases challenging denied exclusion requests for Section 232 steel and aluminum tariffs.

In May 2021, CIT had denied bids from U.S. Steel, Electralloy/G.O. Carlson, Crucible Industries, Ellwood Specialty Steel and Ellwood City Forge Company to join the exclusion denial cases (see 2105260037). The trade court said that to qualify for intervention, the proposed intervenor must have a legally protectable interest in the transaction at issue, have a direct relationship with the litigation where the intervenor will either gain or lose by the direct judgment, or show its interests are not adequately expressed by the government. CIT said the steel companies failed on all three fronts.

The companies took their cases to the Federal Circuit, where the majority of a three-judge panel rejected the companies' right to intervene (see 2209080024). The appellate court acknowledged that regional courts are split on the issue while still ruling the appellants didn't have a legally protectable interest in the Commerce Department's denials of the Section 232 exclusion requests. The steel companies said such interest existed through their participation administratively, direct economic stake and position as intended beneficiaries of the tariff. The Federal Circuit wrote that status as an administrative participant is insufficient to establish a legally protectable interest. The statute permits any party to object to an exclusion request but doesn't require outsiders to voice these objections.

Judge Pauline Newman dissented from the opinion, finding the companies have clear economic interests in the exclusion requests. In its rehearing motion, the steel companies argued that Newman was right (see 2210250056). Both Newman and U.S. Steel looked to CIT's Rule 24 concerning intervention, which grants intervention of right to a party that "claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest."

(California Steel Industries v. U.S., Fed. Cir. #21-2172) (N. Am. Interpipe v. U.S. , Fed. Cir. #21-2180) (Evraz v. U.S., Fed Cir. #21-2181) (AM/NS Calvert v. U.S., Fed. Cir. #21-2182) (Valbruna Slater Stainless v. U.S., Fed. Cir. #21-2183) (Voestalpine High Performance Metals v. U.S., Fed. Cir. #21-2185)